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OAH 2-2000-17460-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF NATURAL RESOURCES
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In the Matter of the Appeal of Limited Permit No. 2006-0134 of Thomas Kurak |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above
matter came on for a contested case hearing before Administrative Law Judge
Raymond R. Krause (“ALJ”) at the Office of Administrative Hearings,
David P. Iverson, Assistant Attorney
General,
Whether or not Thomas Kurak (“Kurak” or “Applicant”) has established by a preponderance of the evidence that his permit request to place an additional 335 feet of riprap along the shoreline of his property on Enchanted Island (20 feet along the shoreline of Phelps Bay on Lake Minnetonka, and 315 feet along the shoreline of an adjacent lagoon) is reasonable, practical, and will adequately protect public safety and promote the public welfare.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
The Applicant, Thomas Kurak, is self-employed
and resides at
2.
In the summer of 2004, Kurak purchased Lot 1,
Block 2,
3.
The Kurak Property, located near the northernmost
portion of Enchanted Island, can be described as a peninsula-like property that
extends southerly, with its west side bordering on Phelps Bay of Lake
Minnetonka, and its southerly and easterly portions bordering on a lagoon that
is shared with several other residential properties on Enchanted Island.[3]
The Kurak Property’s north boundary abuts Lot 2, Block 2,
4. The Kurak Property contains a house with an attached garage, deck, concrete patio, and gazebo.[5] There is also an existing dock in the lagoon.[6]
5. Not long after purchasing the property (in the fall of 2004 or winter of 2004-2005) Kurak contacted Mr. Thomas Niccum, owner and operator of Minnetonka Portable Dredging. Kurak was interested in “updating the riprap and putting in a permanent dock” and that he “wanted to update it with fieldstone type riprap.”[7]
6.
Kurak’s plans indicate an intention to add a 75
foot dock extending westerly into Phelps Bay of Lake
7. In 2005 Kurak applied for and received approval for a Fast Track Permit[9] from the Minnehaha Creek Watershed District (“MCWD”) for the installation of 199 feet of riprap to be installed along the shoreline of the Kurak Property.[10]
8. The 199 feet of riprap, extending five feet waterward from the Ordinary High Water Level (OHWL),[11] was installed by Minnetonka Portable Dredging along the west shoreline of the Kurak Property on Phelps Bay from a point approximately 20 feet south of the northern property line, southerly along the west shoreline, around the southerly point of the Kurak Property into the lagoon.[12]
9. Kurak, by his agent Mr. Thomas Niccum, applied to the Department for a public waters work permit for the construction of 535 feet of riprap, encompassing the entire shoreline of the Kurak Property.[13] The application was dated July 18, 2005, and received by the Department on August 9, 2005.
10. On August 16, 2005, Department Area Hydrologist Julie Ekman (“Ms. Ekman”) met with Kurak at his property to determine if the necessary criteria for issuance of the permit existed, particularly evidence of “continued erosion.” Kurak stated to Ms. Ekman that he wanted to be able to walk along his entire shoreline in the fashion he was able to do on the new 199 feet of riprap. Ms. Ekman informed him that riprap could not be placed along the shoreline for landscaping or esthetic purposes alone and that continued erosion must be evident for such a permit to be issued. Ms. Ekman also took photographs of the site.[14]
11. On September 23, 2005, Ms. Ekman, Mr. James Kujawa (“Mr. Kujawa”) and Ms. Ellen Sones (“Ms. Sones”), Environmentalists with the Hennepin County Department of Environmental Services, along with Kurak and Mr. Niccum, visited the Kurak Property to determine whether continued erosion existed, thus warranting placement of riprap.[15]
12. Mr. Kujawa and Ms. Sones reached the same conclusion as did Ms. Ekman: that there was no evidence of “existing or potential shoreline erosion” warranting placement of riprap at the site. As a result, Ms. Ekman explained to Kurak that it did not appear riprap was needed to address erosion concerns and suggested that he should consider amending his permit application to request riprap protection only at two proposed dock access points.[16]
13. By a cover letter signed by Ms. Ekman dated October 12, 2005, the Department issued Limited Permit No. 2006‑0134, authorizing Kurak to place up to 16 feet of riprap at each of the two dock access points, for a total of 32 feet, as identified in the field by Kurak.[17]
14. Mr. Kurak timely appealed the Limited Permit pursuant to Minn. Stat. § 103G.311 (2004).[18]
15.
16. Continuous wave action beating on a shoreline can cause “continuing erosion” which is evidenced by active gullying and undercutting of banks showing unconsolidated materials hanging over the water, terrestrial soil lying on top of lakebed material, and leaning trees with exposed tree root systems.[20]
17. According to the MCWD permit application, most of the westerly shoreline of the Kurak property was experiencing erosion prior to installation of the 199’ of riprap. “The remainder of the shoreline has some deteriorating red limestone. . .”[21]
18.
A natural shoreline is a complex ecosystem that
sustains fish and wildlife and protects and entire lake. Native vegetation along the shore acts as a
buffer zone, intercepting nutrients and reducing runoff, erosion, and
sedimentation. Aquatic plants provide
food and shelter for ducks, songbirds, and other animals while reducing
problems caused by
19. Floating and submergent vegetation, such as water lilies, provide underwater cover for fish, amphibians, birds, insects, and other organisms. Water lilies break wave action, which helps prevent erosion, and stabilize bottom sediments, which otherwise can be resuspended by currents and wave action.[23]
20. The lagoon along the Kurak Property shoreline presents extensive submergent vegetation (water lily) presence.[24]
21. The lagoon adjacent to the Kurak Property has negligible fetch, and has little possibility of severe wave action associated with wind.[25]
22. There is no active or continued erosion, no failing slope, no caving, no gullying, no sloughing off, no signs of any wave action, no undercutting or exposed soils requiring dramatic remedial measures such as the installation of fieldstone riprap, along the approximately 315 feet of the lagoon shoreline of the Kurak property from the point in the lagoon where the new riprap ends to the easterly property line near the culvert.[26]
23. The Kurak Property’s 315’ of shoreline along the lagoon has “vegetation coming through the rock” and “vegetation in the water”[27] (water lilies) and presents itself as significant habitat for plants and wildlife.
24. The lagoon adjacent to the Kurak Property is significant habitat for fish and amphibians.[28]
25. Large pleasure boats dock in the lagoon at various owners properties and create wake action in the lagoon.[29]
26. The northerly 20 feet of the west shoreline of the Kurak Property presents volunteering natural plants, shrubs and trees coming up through the soil to the shoreline.[30] There is extensive submergent vegetation off the shoreline in this area.[31] The photographic exhibits of this area show no active or continued erosion, no failing slope, no caving, no gullying, no sloughing off, no signs of significant wave action, no undercutting or exposed soils requiring dramatic remedial measures such as the installation of fieldstone riprap.[32]
27. By letter dated September 29, 2006, received October 2, 2006, Applicant submitted a Motion for Summary Disposition. Applicant renewed this motion on October 9 and 10, 2006, during the hearing of this matter.
28. The Administrative Law Judge denied Applicant’s Motion for Summary Disposition on October 9, 2006, and October 10, 2006.
29. These Findings are based on all of the evidence in the record. Citations to portions of the record are not intended to be exclusive references.
30. The Memorandum that follows explains the reasons for these Findings of Fact, and to the extent that the Memorandum may contain additional findings of fact, including findings on credibility, the Administrative Law Judge incorporates them into these Findings.
31. The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Commissioner of the Department of Natural Resources (the Commissioner) and the Administrative Law Judge have jurisdiction in this matter pursuant Minn. Stat. §§ 14.50, 14.57, 14.69, and 103G.311 and 103G.315.
2. The Department gave proper and timely notice of the hearing in this matter.
3. The Department has complied with all procedural requirements of law and rule.
4. Summary disposition may be granted under Minn. R. 1400.5500 K where there is no genuine issue as to any material facts. The standards applicable to summary judgment under Minn. R. Civ. P. 56 are applied to summary disposition.
5. Applicant’s Motion for Summary Disposition is appropriate on the issue of the application of Minn. Stat. § 15.99 because there are no issues of fact as to whether or not the limited permit was issued more than 60 days after receipt by the Department.
6. An application to the Department for a permit to riprap shoreline is not a “request relating to zoning” within the meaning of Minn. Stat. § 15.99. The requirements of Minn. Stat. § 15.99 do not, therefore, compel automatic approval of a permit request for riprap which was not approved or denied within 60 days.
7. Applicant has the burden of proof in this matter. Minn. Stat. § 103G.315, subd. 6(a), provides that:
In permit applications, the applicant has the burden of proving that the proposed project is reasonable, practical, and will adequately protect public safety and promote the public welfare.
Furthermore,
8. Applicant’s proposed riprap installation is prohibited by Minnesota Rule 6115.0216, Subp. 2. (2005), because he has failed to prove by a preponderance of evidence that there is continued erosion along the 315’ of the lagoon portion of his shoreline that is the subject of the permit application.
9. Applicant’s proposed riprap installation is prohibited by Minnesota Rule 6115.0216, Subp. 2. (2005), because he has failed to prove by a preponderance of evidence that there is continued erosion along the most northerly 20’ of the Phelps Bay side of his shoreline that is also the subject of his permit application.
10. Applicant’s proposed riprap installation is prohibited by Minnesota Rules 6115.0190, Subp. 5.E and 6115.0215, Subp. 5.A (2005), because he has failed to prove by a preponderance of evidence that his project represents the minimal impact solution to a specific need with respect to all other reasonable alternatives.[33]
11. Applicant’s proposed riprap installation is prohibited by Minnesota Rules 6115.0190, Subp. 5.A and 6115.0215, Subp. 5.C (2005), because he has failed to prove by a preponderance of evidence that his project does “not exceed more than a minimum encroachment, change, or damage to the environment, particularly the ecology of the waters.”
12. Applicant’s proposed riprap installation is prohibited by Minnesota Rule 6115.0215, Subpart 3.A (2005), because he has failed to prove by a preponderance of evidence that his project would not be ”detrimental to significant fish and wildlife habitat.” The proposed riprap installation would negatively impact and degrade near-shore and shoreline habitats for fish populations and water-dependent wildlife.
13. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
14. These Conclusions are reached for the reasons set forth in the Memorandum below, which is hereby incorporated by reference into these Conclusions.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge recommends to the Commissioner that:
1. The Commissioner DENY the Motion for Summary Disposition by Mr. Thomas Kurak; and
2. That the Commissioner DENY the application of Mr. Thomas Kurak for a permit allowing installation of an additional 335 feet of riprap along the shoreline of the Kurak Property; and
2. That the Commissioner AFFIRM issuance of the existing Limited Permit #2006-0134 for installation of Natural Rock Riprap.
Dated: November 22, 2006
s/Raymond R. Krause
|
Raymond
R. Krause Administrative
Law Judge |
Tape recorded:
Three tapes
This Report is only a recommendation to the Commissioner of the Department of Natural Resources and is not a final decision. The Commissioner will make his final decision after reviewing this report and the hearing record. In making that decision the Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendation that appear in this report.
Under Minnesota
Law,[34]
the Commissioner may not make his final decision until after the parties have
had access to this Report for at least ten days. During that time the
Commissioner must give any parties adversely affected by this Report an opportunity to file objections to
the Report and to present argument supporting their positions. Parties should
contact the office of Gene Merriam, Commissioner of Natural Resources,
The record of this contested case proceeding closes upon the filing of comments on the report with the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes. If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision.[35]
I.
Applicable Law
Applicant made a Motion for Summary Disposition based on Minn. Stat. § 15.99 which requires an agency to “approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.” Applicant argues that this denial of a written request for a permit to apply riprap to his shoreline is tantamount to a zoning action because it gives the Department the right to regulate the use of his land within specifically defined areas.
Zoning is a specific kind of governmental action. The courts have regarded it as such and have hesitated to broadly define or interpret the phrase “written request relating to zoning.”[36] The action by the Department in granting or denying riprap permits is much more akin to “other land-use permits and approvals” as expressed by the Court of Appeals in Advantage Capital Management than it is to zoning. The statute uses specific language and the courts have interpreted that narrowly. The motion is, therefore, denied as the statute is inapplicable to this type of permit application.
On October 12,
2005, the Department of Natural Resources issued Limited Public Waters Work
Permit Number 2006-0134 that authorized Mr. Thomas Kurak to install up to 16
feet of riprap at each of two dock access points[37]
for a total of 32 feet on the lagoon portion of the shoreline of the Kurak
Property.
On November
10, 2006, Mr. Kurak filed a timely appeal of Limited Public Waters Work Permit
Number 2006-0134.[38]
On August 30, 2006, the Commissioner issued a Notice and Order for Hearing
initiating this contested case proceeding.[39]
Minn. Stat. § 103G.315, subd. 6(a), provides that:
In permit applications, the applicant has the burden of proving that the proposed project is reasonable, practical, and will adequately protect public safety and promote the public welfare.
The public policy of the State of
II.
The Kurak request for 335 feet of additional Natural Rock Riprap Does
Not Conform to Rules Governing Riprap as an Erosion Prevention Measure
A.
The
Evidence Does Not Show “continuous erosion” along the entire remaining 335 feet
of the Kurak Property shoreline
The principal issue of disputed
fact in this case is whether or not there was “continuous erosion” along the
315’ of the Kurak Property shoreline in the lagoon and the remaining
un-riprapped 20 feet of the northerly portion of the Kurak Property shoreline
on
Ms. Ekman testified that one is more likely to find erosion activity in need of shoreline protection along shorelines open to long lake “fetches” that allow the winds to blow unabated and create large waves that in turn scour the shoreline. Neither Mr. Kurak nor Mr. Niccum disputed the Department’s definition of erosion or continued erosion.
Mr. Kurak
presented extensive testimony on the winds and large waves affecting his west
shoreline on
Both Mr. Kurak and Mr. Niccum testified in conclusory fashion that erosion was present and that it has “increased.” Neither Mr. Kurak nor Mr. Niccum presented specific or detailed testimony in terms of continued or active erosion. Mr. Kurak testified that the photographs of the lagoon shoreline (Exhibits 16, 17, 18 and 19) showed erosion. Review of these exhibits by the Administrative Law Judge, however, results in the conclusion that there is no evidence of active or continued erosion.
As is stated in Mr. Kurak’s application, what is revealed in those exhibits is deteriorating existing red limestone riprap that is part of a stable shoreline.[41] Indeed, even where one would expect to see some evidence of runoff or gullying (at the mouth of the culvert for example) there is actually vegetation growing up through the red limestone riprap.[42] Furthermore, Mr. Niccum testified that red limestone riprap, such as that found all along the lagoon shoreline, is “very effective material” to prevent erosion, but that it has “not a long life-span because it breaks up over time.” While the existing red limestone riprap may be slowly decomposing, it is, nonetheless, continuing to do an effective job at the present time in preventing erosion. Exhibits 18 and 19 show a stable shoreline with natural vegetation coming up through the landward portions of the riprap. This minimal alternative to fieldstone riprap is in keeping with the Department’s policy of encouraging more natural solutions to erosion problems.
Mr. Kurak also testified that several large pleasure craft are moored in the lagoon and that some of them enter the lagoon near his property at a high rate of speed. He asserts that the wakes thrown up by these boats are causing shoreline erosion on his property within the lagoon. The photos of the “unprotected” lagoon shoreline belie this assertion. The photos do not show erosion but rather show a prolific growth of water lilies. According to the testimony of the Department’s naturalist experts, water lily growth is inconsistent with heavy and continuous wake action from boats. Water lilies simply will not thrive where there is a high volume of boat traffic and heavy wakes as asserted by Mr. Kurak.
There is, however, some
concern regarding the testimony about an oak tree with exposed roots located
approximately at the north end of the 199’ of riprap on the
B.
The
Kurak request is not the minimum necessary to provide protection against future
or potential erosion
“[t]he protection of shoreline from continued erosion by placement of natural rock riprap along the shore shall be approved if … the encroachment into the water is the minimum amount necessary to provide protection …”
Mr. Kurak’s request falls far short of meeting this rule requirement. Except for perhaps an additional three feet of riprap to protect the oak tree, any erosion problem that existed on the Kurak Property was solved by installation of the 199’ under the MCWD permit. 335 feet of additional riprap would go far beyond the minimal encroachment necessary to provide protection from continued erosion.
While Mr. Kurak and Mr. Niccum testified that they considered alternatives to fieldstone riprap, the record is clear that any such consideration was cursory and that their conclusion was not based on any knowledge or serious study of the aquascaping alternatives available.
Mr. Niccum testified that he does not know of anyone who has planted vegetation as a deterrent to erosion and had never worked with the planting of natural vegetation to prevent or rectify erosion but that he had “seen studies of it.” Mr. Niccum testified that his knowledge of alternatives to riprap was the installation of sacks with cornstalks or cocoa beans in them put on the shoreline, logs, stumps and “things like that.” Neither he nor Mr. Kurak mentioned consideration of any of the items presented in Exhibit 22 on aquascaping a shoreline.[43]
Similarly,
C.
The
Kurak Request is Detrimental to Significant Fish and Wildlife Habitat
Mr. Vanderbosch testified that, based upon his education and experience as a fisheries biologist for the Department, it was his opinion that riprap negatively impacts fish habitat. Mr. Vanderbosch also testified that riprap typically covers lake bottom along the shoreline making it unavailable for fish spawning and as fish and minnow habitat. Mr. Vanderbosch and Ms. Ekman both testified that the riprap has the effect of eliminating the shoreline transition zone between the water and the upland, which is used as habitat by wildlife species. The testimony reflects that the riprap creates a barrier to movement, especially for small reptiles and amphibians, preventing travel along the shoreline as well as to the water from the habitat and cover provided by the vegetation along the banks.
Each of those factors affect whether or not the riprap “will be detrimental to significant fish and wildlife habitat,” within the meaning of Minn. R. pt. 6115.0215, Subp. 3A.
Additionally,
Reading all of these rule provisions together, the Administrative Law Judge concludes that Minn. R. pt. 6115.0215, Subp. 3A, prohibits any loss of fish or wildlife habitat beyond that which is absolutely necessary to provide protection against the erosion problem that actually exists on a particular area of shoreline. The potential habitat loss here fails that test. Riprap installed on 535 feet of shoreline, the entire shoreline of the Kurak Property, would unnecessarily eliminate all shoreline habitat on the Kurak Property and therefore is “significant” within the meaning of the rule.
There is simply no evidence in the record even suggesting that there is some feasible, practical, or ecologically acceptable means to mitigate the detrimental effects of fieldstone rock riprap on the fish and wildlife habitat on the Kurak Property.
For all of the reasons stated above in this Memorandum, the factual findings and conclusions, Mr. Kurak’s appeal should be denied.
R.R.K.
[1] Testimony of T. Kurak, Tape 2.
[2]
[3] Exhibit 10.
[4] Exs. 3 and 9.
[5] Ex. 9.
[6] Exs. 8 and 10.
[7] Test. of Mr. Thomas Niccum, Tape 3.
[8] Ex. 3, pg. 7.
[10] This request, approval and installation is permitted under the Department’s rules:
Minnesota Rule 6115.0215 (2005) governs the restoration of public waters and includes the following provision:
Subp.
4. No
permit required. No permit is
required for the following activities, unless prohibited elsewhere in parts
6115.0150 to 6115.0280: . . .
E. to install natural rock riprap and associated filter materials where there is a demonstrated need to prevent erosion or to restore eroded shoreline, when there is a demonstrated need for such work … if: . . .
(5) the total length of shoreline to be affected does not exceed 200 feet
[11] Ex. 3 at pg. 4.
[12] Exs. 8, 14, 15, and 21.
[13] Ex. 3, which notes that “199’ of this shoreline has been done per MCWD Fast Track Permit”
[14] Test. of J. Ekman, Tape 1, Exs. 11 through 19.
[15] Test. of J. Ekman,Tape 1.
[16]
[17] Ex. 6.
[18] Ex. 7.
[19] Test. of T. Kurak and T. Niccum, Tape 3.
[20]
[21] Ex. 3 at pg. 4.
[22] Ex. 2 at pg. 1.
[23]
[24] Exs. 16, 17, 20 and 21.
[25] Exs. 3, pg. 5, 10 and 12.
[26] Exs. 5, 16, 17, 18, 19, and 20, Test. of J. Ekman, Neil Vanderbosch, and James Kujawa, Tapes 1 and 2.
[27] Test. of J. Kujawa, Tape 3, Exs. 5, 16, 17, 18, 19, and 20.
[28] Test. of J. Ekman, Tape 1, Test. of T. Niccum, Tape 3.
[29] Test. of T. Kurak Tape 3, Ex. 17.
[30] Test. of J. Kujawa, Tape 2, Ex. 14.
[31] Exs. 13 and 15.
[32]
[33] Appropriate alternatives for the lagoon shoreline could include aquascaping, as described in Exs. 2 and 22.
[34]
[35] See Minn. Stat., § 14.62, subd. 2a.
[36] See, Advantage
Capital Management v. City of Northfield, 664 N.W.2d 421 (Minn. App. 2003)
[37] See, Ex. 3, pg. 7.
[38] Ex. 7.
[39] Minn. Stat. § 103G.311, subd. 2(c), also requires publication of a public notice, which was published in Finance and Commerce on September 9 and 16, 2006.
[40] See, In the Matter of the Excavation of
[41] Ex. 3, at pg. 4.
[42] Ex.19.
[43] Nor do any of Mr. Niccum’s known alternatives to rock riprap appear in Exhibit 22.