Lance Johnson appeared before the Lutsen Town Board at the October 20, 2009 meeting asking for assistance to stop the “taking” of his land by Cook County. Johnson questioned why his property, to the west of Isak Hansen Hardware, is being treated differently than other land outside the 2004 Lutsen Town Plan commercial zone.
Johnson’s fight with the county has gone on for several years, beginning with a rezoning request in July 2001. In 2001, he asked that his 15-acre property be rezoned from single family residential (R1) to general commercial (GC) to allow him to operate a small antique store and office building. The Cook County Planning Commission denied his request by a 5-0 vote because the rezoning was determined to be inconsistent with the 1997 Land Use Guide Plan and it did not provide benefit to the community. Cook County commissioners subsequently agreed with the planning commission, also denying his request at a meeting on September 11, 2001. However, Johnson did not receive a written notice informing him of the denial within 60 days, as required by Minnesota statute.
Johnson initiated action against the county in May 2006. In its defense, the county contended that the board meeting minutes from September 11, 2001 satisfied the written-reasons requirement. The district court ruled in Cook County’s favor and Johnson appealed. On August 4, 2009, Minnesota Court of Appeals Judge Louise Dovre Bjorkman agreed with Johnson and overturned the district ruling—changing the status of his Lutsen land to general commercial.
Johnson’s victory was short-lived, however. At the August 7, 2009 county board meeting, after hearing from staff that Johnson had won the case not on its merits, but on a technicality, commissioners decided to begin the process to change the status of his property to what it was before the court ruling—single family residential. At a September 23, 2009 meeting, the planning commission voted 6-1 in favor of rezoning the property back to residential.
In August, the county board also agreed to allow the county’s liability insurance carrier, Minnesota Counties Insurance Trust (MCIT) to take the case to the Minnesota Supreme Court.
At the Lutsen meeting, Johnson said he was “okay” with the county decision to allow MCIT to proceed with the case. “They have the right to do that. But then they downzone me—that smacks of discrimination,” he said
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Johnson explained, “The county’s reasoning for rezoning my property is because they say the zoning is not in compliance with the Lutsen Comprehensive Plan of 2004. If that is the case, why haven’t other commercial properties been rezoned? Why wasn’t Isak Hansen’s? Why wasn’t Matt Pederson’s? Judy Motschenbacher’s? They are all outside of the commercial area of the plan—why was my property the only one that was downzoned?
“I know of five properties in the Lutsen Comprehensive Plan that haven’t been downzoned. The only one being downzoned is the one belonging to me—the only person who exercised his constitutional right to protect his personal property. I call that retaliation.”
Sam Parker, another Lutsen resident who serves on the Planning Commission, spoke up. Parker said when the matter came before the planning commission, he saw no reason to allow the general commercial designation. “You were never really downzoned—you were never zoned commercial.”
Reached by phone the day following the Lutsen meeting, County Attorney Tim Scannell echoed Parker’s statement. Scannell said,
Mr. Johnson’s property was not downzoned. It was returned to its previous status.”
Also contacted by phone, MCIT Attorney Paul Reuvers said he had just received notice that the Supreme Court was granting the Cook County request to review the case. MCIT and Johnson’s attorneys have 30 days to submit legal briefs to the court.
Reuvers said joint Amicus (Friend of the Court) briefs have been filed by the League of Minnesota Cities, the Association of Minnesota Counties, and the Minnesota Association of Townships. “These associations— three major municipal entities— have aligned themselves with Cook County,” said Reuvers.
At the Lutsen meeting, Johnson also expressed concern over the amount of money the county is spending on the lawsuit. He distributed a news article about the city of Afton, MN, which had to pay
114,702.88 in court costs after its liability insurance provider, the League of Minnesota Cities Insurance Trust (LMCIT), lost a somewhat similar lawsuit. According to the Woodbury
Bulletin,
an Afton developer initiated action after the city enacted an ordinance with regulations that resulted in what it considered to be a regulatory taking of property. The lawsuit was settled in the developer’s favor in June, aftertwo years of litigation. The cost of the case, including legal fees and damages, totaled $451,757.21. LMCIT covered $337,757.21 of the final expenses.
Johnson said the same thing could happen to Cook County. “When this is all over and it is determined that my property has been taken, and I believe it has, the county will have to pay. Even if there is insurance, premium costs will have to go up.”
Reuvers said that is not the case. He said LMCIT and MCIT have very different structures. According to Reuvers, the county’s agreement with MCIT includes a liability deductible of $2,500.
County Auditor Treasurer Braidy Powers said membership in MCIT does fluctuate from year to year. He said national or even international calamities can impact the county’s insurance rates, as well as local issues. In recent years the property and casualty rates, which would cover the expenses in zoning matters, have varied as follows: $135,000 in 2005; $143,000 in 2006; $142,000 in 2007; $140,000 in 2008; and $136,760 in 2009.
The Lutsen Town Board listened to Johnson, but took no action.
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