Wednesday, February 25, 2009

Response to Questions of the Week

Thanks to the 30+ folks who took the time to complete the survey that was posted in response to the D.N.R.'s Questions of the week. I compiled the responses and submitted them to the D.N.R. for inclusion in the official record of the Private Structures in Public Waters Advisory Group.

I also submitted a response on behalf of P.O.P.U.A.R. It appears below.

Finally, the D.N.R. questioned my so-called "cheap shot" at the person designated as the Advisory Group's representative of the real estate industry in my February 15th blog report on the February 12th meeting of the Advisory Group. I did not identify the person by name then; I won't do so now. My criticism of the person's narrow point of view while accepting the responsibility of representing all realtors in Minnesota who sell lakeshore property was not meant as a cheap shot. However, in retrospect, to be 100% accurate, I should have referred to the person as the only realtor with whom I have spoken in the past year about the issue who does not see a correlation between D.N.R. regulations and lakeshore property values. I apologize for the broader language contained in the February 15th blog and for any angst the perceived exaggeration caused. I also renew my call for the appointment of someone in the real estate industry with a broader point of view to the Advisory Board.

Here's the memo responding to the Questions of the Week:

M e m o r a n d u m

To: D.N.R. Private Structures Advisory Group/Erika Rivers
From: Sam Stern, P.O.P.U.L.A.R.
Date: February 25, 2009
Re: Response to First “Question of the Week”

Before I get into detail on the responses I have to the Question of the Week, I’d like to share an analogy with the Advisory Group that might illustrate why answering the questions posed such difficulty. As you read this, keep in mind that we are all acting in a fiduciary, as well as representative, capacity as Advisory Group members. Accordingly, we should not be engaging in absolutes (e.g., “no limitations under any circumstances” on one end; “no modification of wilderness status” on the other). Therefore, the ability to intelligently answer any questions depends to a large degree on the context in which the question is being asked. Here’s the analogy:

Imagine that instead of discussing private structures on public waters, we have been asked to design an airplane for a courier service that operates out of Lindbergh International Airport, Holman Field, Flying Cloud Airport and the farmer’s airstrip near me in Maple Plain.

Imagine we were asked the following Questions of the Week (they are not intended to correlate to our actual questions):
a. How long should the runway be in order to safely take off from the airport?
b. Should the airplane be allowed to use the entire runway before lift off?
c. How long should the wingspan be on the airplane?
d. How much cargo should each flight be allowed to carry?

Remember, our mission is to design an airplane. Before we can intelligently answer any of the questions, each of which in their own context asks for relevant information, we need the answers to other questions.

a. You cannot answer the first question unless you know how large the airplane is going to be. If the courier service is going to continue to operate out of all four venues, then the Advisory Group would need to either recommend different sized airplanes for the different airports or that the one airplane being designed be small enough to be able to take off and land in the most restrictive environment.

b. You cannot answer the second question unless you are familiar with the configuration of respective airports. I believe that Lindbergh is engineered to allow the use of nearly the entire runway when necessary. Using the entire runway in the farmer’s field in Maple Plain would put the airplane perilously close to County Road 83 and to power lines.

c. You cannot answer the third question until you have some idea of the size of the airplane being designed, including its cargo capacity and its desired range and whether it will be powered by jet engines or by propellers. Space limitations at the airport would also have to be considered before the question could be answered intelligently.

d. You cannot answer the fourth question until you have some idea of the capacities of the airports. Runway length and construction will determine how much cargo can be carried. Also, you need to come up with a design before you can put a limit on cargo. A C-130 should be allowed to carry more than a Piper Cub. However, getting back to (a), if the Advisory Group is only supposed to come up with one design that all four airports can accommodate, it will necessary to design on the small side.

If a member of the Airplane Design Advisory Group came to the table with a pre-conceived notion that air transport is a bad idea, that jet engines are too noisy and harm the environment and that any new airplane should have no more than minimal impact, then I suppose it would be possible to answer the four questions without regard to the variables that make a more impartial consideration possible. However, doing so would violate the fiduciary responsibilities to the courier service assumed by agreeing to sit on a committee formed to deliberate and advise.

I fear that the Private Structures Advisory Group is being put in the same position as my analogy. We are being asked to answer questions about shoreline impact without a clear understanding of the goals we are striving to achieve. We have yet to see a Statement of Need and Reasonableness. Therefore, no one has been shown the “need” for any new regulations (other than a legislative mandate that arose solely out of concern for the size of dock platforms). No one has demonstrated the “reasonableness” of various degrees of regulation. As in my analogy, it would not be reasonable to submit a design for a twin of the Boeing 747 if the courier service depended on the farmer’s field in Maple Plain to operate. And consider how your answers to the questions in the analogy might be further affected by the knowledge that the courier company only serviced the Twin Cities metropolitan area, making the use of anything but the smallest of planes a silly alternative to trucking.

With that as background, and with the fervent request that the Private Structures Advisory Group be furnished with necessary contextual information in which to deliberate in the future, here are P.O.P.U.L.A.R.’s responses to the Questions of the Week.

1. How much shoreline width do people need to impact in order to have their dock, lift, swim areas, aquatic impact management areas, etc? It is impossible to provide a “one size fits all” answer to this question. Many P.O.P.U.L.A.R. members who answered this question in surveys conducted online and provided to the D.N.R. identified a specific number based on their own experience. However, thinking more globally, the length of shoreline “needed” depends on specific shoreline topography, specific historic lawful use of the shoreline and the resulting utilization of various forms of private structures and watercraft, family size and other demographics, including health considerations.

2. Should it be a percentage of shoreline owned; with a minimum and/or maximum? Other suggestions? Since Shoreland Management rules being updated and aquatic plant management rules will necessarily impact the placement of private structures along riparian property owners’ shoreline, there is no need for new Private Structures in Public Waters rules to further restrict the length of aquatic impact. The State has to recognize that in instances where lakeshore property owners have more narrow shorelines, restrictions beyond those imposed by Shoreline Management and APM will render the property nearly unusable. In instances where lakeshore property owners have opted to purchase longer expanses of shoreline to meet their particular needs, they should be allowed, subject to Shoreline Management and APM rules, to enjoy the benefit of their bargain.

3. Should the impacted space be continuous? If not necessarily continuous, should they be of equal width within the total percentage allowed? There is no need for the impacted space to be continuous. As before, there is not one approach that reasonably fits all uses. Some lakeshore property owners purchased lots with longer shorelines precisely because they wanted to separate different uses of their property, often out of concern for safety. It is difficult to answer this question without have a sense of what the allowable aquatic impact length will be. For example, if the allowed length is limited to 30 feet (Heaven forbid), it is unlikely that, on a 60 foot wide lot there would be room for meaningful separation of the zones given required setbacks from lot lines.

4. How would the width be measured (would it measure across the altered shoreline and/or altered aquatic vegetation area? from dock edge to lift edge? Would maneuvering room be included?) As indicated by a number of P.O.P.U.L.A.R. members who responded to this question in the survey, it is not clear what is being asked. Having said that, as a general rule, any measurement criteria should be narrowly construed so that areas not actually impacted are not included in the width of the zone. With respect to “maneuvering room” being included, the mere suggestion is an affront to any concept of fairness. As we have been reminded ad nauseum, the public waters are available to everyone. Why would we even consider imposing effectively more restrictive conditions on riparian property owners by limiting their ability to maneuver in public waters for fear of having a larger portion of the public waters be included in their overall aquatic impact zone?


Alex Roland said...

Mr. Stern,
As a lakeshore owner with a modest dock and just one boat-lift, I have occassionaly been looking at your blog. I can see both sides of the issue... private property rights vs. public rights to use public waters. I will NOT donate to or support your cause for two reasons:
1) You are obviously doing this strictly for the money and not as a matter of personal interest. Whoever is financing your efforts is doing so entirely out of enlightened self-interest and most certainly NOT the general "public" interest.
2) You are attacking this issue as if you are arguing a case before the Supreme Court. Your long-winded and convoluted dissertations are a real "turn-off". We are NOT lawyers, just common folks that want to hear plain talk about the basic issues... from BOTH sides.

As an attorney I'm sure you're being paid well for your voluminous efforts. Which makes me wonder just "who" is pouring money into your "campaign". Given the state of our economy, I can only believe that you are actually representing a small core of Fat Cat lakeshore owners, realators and/or dock manufacturers. Hopefully, they will eventually realize that you are NOT helping their cause.

As for the DNR, I have to believe that they are only following the Law as provided to them by our Legislature. They are no different from the County Sherrif or State Trooper that has to enforce a speed-limit they did NOT establish.

As a lakeshore owner AND a good citizen, I have an obligation to use my property in a sensible manner that does NOT deny the general public to use and enjoy the LAKE that they own just as much as I do. I'm sure that the silent majority of lakeshore owners feel as I do.
Alex Roland

Sam Stern said...

Dear Mr. Roland:
Thank you for your comment. I'd like to make a couple of points in response.
1. My role is that of an advocate for the folks who have hired a lobbyist to assure that their point of view is considered by the D.N.R. That requires making sure that a record is developed that an Administrative Law Judge will consider. I can be folksy. Read my other personal blog at However, sometimes issues are complicated and require more than plain talk.
2. Here's plain talk: The State has no business telling its citizens that they can no longer use personal property lawfully acquired and used in the public waters because the rules are changing unless the State wants to reimburse its citizens for depriving them of the use of their property.
3. With one dock and one boatlift, the new rules may make no difference to you. However, some of the D.N.R.'s proposals are so restrictive that if all you had was 60' of shoreline and a beach you put in for your kids, you would not have room for the dock, boatlift and beach. Your assumption that only "Fat Cat" lakeshore owners are concerned about having a small beach, one dock and one boatlift is insulting.
4. The law the DNR is following is very general. The current dispute is over the rules the DNR wants to adopt to put flesh on the bones of the law.
5. I get paid for the work I do after someone reviews and approves an itemized statement. Funds are limited. It would be nice if more of the 400,000 lakeshore property owners would volunteer their time to make sure their voices are heard. But that's not happening and in the meantime, P.O.P.U.L.A.R. needs an official spokesman to fight the misguided perception that lakeshore owners are not good stewards of the public waters or that they are trying to deny the public the use of public waters.
6. Lakeshore owners are part of the public, too. As you note, the economy is in a sorry state and this is no time for the State to be spending money buying up excess docks and boatlifts and canopies and watercraft that were legal last year and for decades previously but that are being regulated out of existence.

Mark Van Essen said...

To Mr. Roland,

The DNR/Sherrif/Trooper comparison is wrong. Speed limits are clearly posted and regularly enforced. Dock regulations are not.

Why do you suppose the DNR has not enforced the dock regulations?

To use your speed limit analogy, is it because the DNR loses the dock in a high-speed persuit? Or did the dock quickly reduced it's size when it saw the DNR coming? No. Docks don't run, and docks don't hide.

I can only think of 2 reasons why the DNR has not enforced the dock regulations:

1. They don't see it as a problem, or

2. They feel that they have more important things to do.