County of Pine v. State, Dept. of Nat. Res.
| Decision Date | 09 July 1979 |
| Docket Number | 49406.,No. 49338,49338 |
| Citation | 280 NW 2d 625 |
| Parties | COUNTY OF PINE, Respondent, and John J. Scanlan, et al., intervenors, Respondents, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, et al., Appellants (49338), and Ronald M. Christianson, intervenor, Appellant (49406). |
| Court | Minnesota Supreme Court |
Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., D. Douglas Blanke, Spec. Asst. Atty. Gen., C. Paul Faraci, Deputy Atty. Gen., and A. W. Clapp, III, Spec. Asst. Atty. Gen., St. Paul, for State, Dept. of Natural Resources, et al.
Nemerov & Robbins and Ford M. Robbins, Minneapolis, for Christianson.
Thomas J. Ryan, County Atty., Pine City, for Pine County.
John J. Scanlan, pro se, and Sharon L. Scanlan, for intervenors-respondents.
Samuel H. Morgan, St. Paul, for Olson, et al.
Jeffrey R. Brooke, Minneapolis, for The Sierra Club.
Heard, considered, and decided by the court en banc.
At issue is the constitutionality of the Kettle River Wild and Scenic Rivers Ordinance (Kettle River ordinance), adopted pursuant to the Minnesota Wild and Scenic Rivers Act, Minn.St. 104.31 to 104.40. Minnesota Department of Natural Resources (DNR) and its commissioner, defendants, and Ronald Christianson, intervenor, appeal from a judgment permanently enjoining enforcement of the Kettle River ordinance to the extent that its provisions exceed those of the Pine County shorelands ordinance. We hold that intervenors-respondents John and Sharon Scanlan must exhaust available remedies by applying for a variance before a challenge to the constitutionality of the ordinance as it applies to their property is ripe for review. Furthermore, we hold that the Kettle River ordinance represents a valid exercise of the police power and is fully authorized by the enabling statute, Minn.St. 104.31 to 104.40. Accordingly, we reverse and remand to the district court with instructions to dissolve the permanent injunction against enforcement of the ordinance.
In the late 1960's, the Minnesota Legislature, responding to concern of residents over the deteriorating water quality of Minnesota lakes and streams, passed a shoreland zoning act. The act required counties and municipalities to regulate shoreland development in accordance with minimum standards to be prescribed by the DNR. Minn.St.1969, §§ 105.485 and 394.25, subd. 2. Although the act applied to rivers as well as lakes, the protection provided to rivers was not as extensive. For example, the regulated corridor around lakes extended 1,000 feet back from the water's edge, while it extended only 300 feet back from the edges of streams. Minn.St.1969, § 105.485, subd. 2.
In 1973, realizing that Minnesota's choicest rivers and their surrounding environments were inadequately protected, the legislature followed the lead of 19 other states and enacted the Minnesota Wild and Scenic Rivers Act, Minn.St. 104.31 to 104.40. Unlike the old shoreland zoning law, this act does not apply to thousands of bodies of water. Instead, the DNR is required to select and study individual rivers for inclusion in the system.1 Once the DNR has proposed a particular river for designation, it must prepare a management plan for that river. The management plan provides generally for the classification and boundaries of the river area, use of public lands and water in the area, and local land use controls. The proposed plan is then made available to affected local governmental bodies, shoreland owners, conservation and outdoor recreation groups, and the general public; and a public hearing is held. Upon further consideration by various agencies and public officials, the commissioner decides whether to designate the river, or any portion thereof, for inclusion in the wild and scenic rivers system.
On July 30, 1975, the commissioner of natural resources designated the Kettle River in Pine County as the first of the state's wild and scenic rivers and adopted a management plan, designating the portion of the Kettle River in Pine County above Sandstone as "scenic river," and the portion below Sandstone as "wild river." Minn. Reg. NR 2300. These actions followed an extensive series of public meetings and hearings. More than 60 Pine County residents petitioned to have the river included in the wild and scenic rivers system in order to protect the rights of private landowners and to preserve the natural character of the area. The DNR received no comparable petition opposing designation of the Kettle River in Pine County. In addition, 11 local and regional groups and municipalities registered their support of designation of the Kettle River in Pine County, while only the city of Sturgeon Lake and the Willow River Commercial Club expressed opposition.
Minn.St. 104.36, subd. 1, provides in part:
"Within six months after establishment of a wild, scenic, or recreational river area, each local government containing any portion thereof shall adopt or amend its local ordinances and land use district maps to the extent necessary to comply with the standards and criteria of the commissioner and the management plan."
Despite this mandate, the board of commissioners of Pine County refused to adopt a wild and scenic river ordinance for the Kettle River. Section 104.36, subd. 1, further provides:
"* * * If a local government fails to adopt adequate ordinances, maps, or amendments thereto within six months, the commissioner shall adopt such ordinances, maps, or amendments in the manner and with the effect specified in section 105.485, subdivisions 4 and 5."
When, 18 months after designation of the Kettle as a wild and scenic river, no ordinance had been adopted by Pine County, the commissioner of the DNR adopted an ordinance on behalf of the county, as required by the statute. That ordinance is the subject of the instant litigation.
The Kettle River ordinance established land use controls for the preservation and protection of the Kettle River and adjacent land, within the Kettle River wild and scenic land use districts. Those districts, as defined by the management plan, extend an average distance of 1,213 feet from the high-water mark of the river. The ordinance identifies permitted uses, nonpermitted uses, and conditional uses for lands within each of the two districts. It allows prior nonconforming uses to continue. In addition, the ordinance establishes minimum lot sizes and minimum lot width requirements at the shoreline and at the building line, requires new buildings to be set back certain distances from the normal high-water mark and from the bluff line, and regulates the cutting of timber and vegetation.2 The ordinance also prescribes setback requirements for septic tanks, regulates grading and filling, and authorizes cluster developments. It permits Pine County to grant a variance from any provision where strict enforcement of that provision of the ordinance would cause unnecessary hardship. Variances are subject to approval by the commissioner of the DNR.
On May 24, 1977, this action for an injunction was commenced by Pine County. On that same date, the county obtained a district court order temporarily restraining the DNR from filing an affidavit of publication of the ordinance, the final step in enactment. See, Minn.St. 375.51. The county argued that the DNR had not followed proper procedures in adopting the ordinance.
By order of June 28, 1977, the district court permitted the Scanlans, owners of land within the wild river district, to intervene as plaintiffs. Intervenors own 40 acres of land near the Kettle River in Pine County, most of which is within the wild river land use district. It appears that the Scanlans' land does not abut the river. The Scanlan property nearest the river consists of a 300- to 400-foot wide strip on the flood plain running parallel to the river. Behind this area is a steep bluff. Atop this bluff, some 16 feet from the edge, the Scanlans have built a concrete block basement which they plan to use as the foundation for their home. An A-frame wooden cabin and a large mobile home are situated near the bluff. Also on the site are two railroad boxcars and several vehicles in various states of repair.
On June 16, 30, and September 23, 1977, the district court heard the testimony of five witnesses on the motion of the county for a temporary injunction, On the basis of that testimony, the district court on December 30, 1977, dissolved its prior order restraining publication of the Kettle River ordinance on the grounds that the county would suffer no irreparable harm. Simultaneously, it permanently enjoined enforcement of the provisions of the ordinance against private landowners "to the extent such provisions exceed the provisions of the present Shorelands Ordinance of Pine County." The district court concluded the Scanlans would suffer irreparable harm, in that the enforcement of the Kettle River ordinance would constitute an impermissible taking of their property in violation of U.S. Const. Amend. V and Minn.Const. art. 1, § 13. On the motion of defendants, the district court reopened the case on February 21, 1978, and made the previously issued injunction temporary, rather than permanent. The court simultaneously granted the motion of Dr. Ronald M. Christianson, the largest private landowner on the Kettle River in Pine County, to intervene in support of the ordinance, and the matter was set for trial.
The cause was tried March 23 and 24, 1978. On August 28, 1978, the district court again made permanent its injunction against enforcement of the ordinance to the extent that its provisions exceeded those of the Pine County shoreland ordinance. It further held that Dr. Christianson was not entitled to relief. An amended judgment was entered, and notices of appeal were filed by the defendants and by Dr. Christianson. The district court stayed enforcement of its order as to persons other than the Scanlans pending resolution of the...
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