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Council Denies Application

By Staff | Aug 12, 2010

Denial of a dock permit brought the applicants and their attorney before Emmetsburg City Council on Monday, Aug. 9.

“We received a dual application for a dock permit from Linus Solberg and Rick Elbert,” City Administrator John Bird told the council. “They requested the dock be located 123 feet south of the T-dock. I denied that. We have not allowed docks to be placed south of the T-dock. If we felt it was wise to allow docks to be there, there would be docks there today because it is a highly coveted area.”

Dave Jennett, attorney from Storm Lake, addressed the council on behalf of Solberg and Elbert.

“I’ve read your city ordinance and listened to the city administrator’s explanation of the denial and I didn’t hear a reason for the denial, other than you’ve never done that before,” said Jennett. “I would point out that pursuant to the DNR (Department of Natural Resources) regulations, that a dock would be permitted in that area with the no-wake provisions provided. There’s plenty of room in there and we have a potential property owner and an adjacent property owner. Based upon prior litigation that I’ve been involved in, the city has jurisdiction based upon and subject to the rights of the adjoining landowners for riparian access and I believe that this action is denying them access to the lake.”

Jennett continued, “I also had a question. Is this the hearing on the denial of the permit or is there an intermediate step that should have been taken?”

Councilman Brian Campbell, who stepped in for the mayor, noted that the issue “probably should have gone to either the parks board or public properties committee.” Mayor John Schad stepped aside as mayor, noting that “it is not appropriate for me to preside in that part of the proceedings.” The mayor’s mother-in-law owns the duplex that Linus Solberg has an option to purchase.

“From the standpoint of procedures from what I’ve read of our code, there is no actual procedure of appeal,” explained City Attorney Brian Thul. “You’ve got the application, which occurred, and it’s basically up to the city, through the city administrator, to determine whether or not to allow the permit. The city has the authority to do that because we have authority over the process here of Five Island Medium Lake.

“From the standpoint of the reason, perhaps it wasn’t clarified here tonight but the reason was for the safety and welfare of the citizens,” said Thul. “We’ve got a T-dock that’s owned by the city. We’ve got a public swimming beach managed by the city. We’ve got kids swimming between the T-dock and the swimming area. There’s all kinds of safety and welfare reasons why no docks have ever been allowed in that area.”

Jennett maintained that there was nothing in writing why the permit was denied, also noting that the adopted council policy is not part of the city’s code. Councilman Pat Degen provided a copy of the paper with the denial in writing.

“When Mr. (Norlyn) Stowell brought the application over and I denied it, I suggested at that point it would probably be appropriate to go to the park board or the public properties committee,” said Bird. “He felt that would be unnecessary because I would simply recommend to them it be denied.”

Bird added, “I think if you lived in Emmetsburg you’d realize how much activity there is between the T-dock and the beach. I didn’t state here this evening it (the denial) was for public safety reasons, but that is the reason why.”

Council representative Pelzer suggested working together to find a solution.

“I’ve noticed just this summer there have been more docks north of the T-dock,” said Pelzer. “Is that a compromise that we could discuss if we simply move it to the north of the T-dock?”

Bird pointed out that there are no more docks north of the T-dock this year than in the past.

“Since this ordinance was adopted, we’ve had people apply for dock permits,” said Bird. “They were told that people living on the other side of the street would not have ‘dibs’ on a dock over there, but they would have to be placed on a waiting list and wait until something opened up.”

Jennett noted, “What I didn’t see, and I’m trying to gather here, is this has been a policy that was adopted by the city and it’s not a part of your dock ordinance so there wasn’t any opportunity for the adjoining property owners to come in and, as Mr. Stowell suggested, make suggestions as to how their rights to access to the lake can be accommodated. I think that’s been overlooked and I’m concerned about the process here in denying my clients the right to put a dock out front of their properties. I don’t think that’s something that you can just take away from them.”

Councilman Pat Degen pointed out, “They have the same right as everybody else in town has. They have to go on a waiting list and use a public access area to put their dock there. They don’t have a right to public area across from their house, as far as I know, but I’m not an attorney.”

After additional discussion, City Attorney Thul reiterated, “Perhaps there’s another location on the lake they’d like to apply for a dock permit at, because our policy is for the safety and welfare of our citizens between the T-dock and the swimming beach. It’s just not a safe position. We have to police the safety of the people and that’s just not a good place to have a dock.”

“I think there would be room to accommodate the request north of the T-dock,” Sandy Pelzer said. “To me that would be a compromise that would meet both of our needs.”

“I’d like to follow up with Councilman Pelzer’s suggestion,” said Jennett. “I’m not here to argue with you although I take a little bit of issue with the idea that we only came in here to ask did you really deny us. I think we have a right to have a hearing. I think we have a right to have a notice of a hearing and we have a right to present our viewpoints on the issue. That can be accomplished informally if that’s what the council desires. Everybody wants to live here and get along and use this beautiful lake.”

Council representative Pelzer later added, “I think this topic that we’re bringing up is maybe another area we need to clarify and tighten up. Do we need to firm up the procedure? What is the procedure when it’s denied? What is the next step and committee do we go to? It might be good to revisit that and get that all clarified so we’re all on the same page.”

“I agree with that,” said Bird. “It probably should be in the ordinance; be amended to include what do people do if they feel aggrieved.”

“That would require an amendment to the current ordinance,” stated the city attorney. “We certainly could do that, but with this current issue we have to deal with the code that we have.”

When Attorney Jennett asked if the council was going to go ahead with the policy, and deny the dock permit application, City Attorney Thul said, “I believe we go ahead with the policy and that’s it.”

Mayor John Schad asked that this be put on the agenda for the next meeting.

“We need to solidify what our policies are,” said Schad. “Over the years too many things have been done without support from an ordinance. We need to get some consistency.”

The next meeting of Emmetsburg City Council is 7 p.m. Monday, Aug. 23.