Hohn, Maria E.

English

University of Denver

Water Law Review Volume 9 Issue 2 Article 61 1-1-2006 Lake Mary Villas, L.L.C. v. County of Douglas, No. A05-717, 2006 Minn. App. unpub. LEXIS 96 (Minn. Ct. App. Jan. 24, 2006) Maria E. Hohn Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Maria E. Hohn, Court Report, Lake Mary Villas, L.L.C. v. County of Douglas, No. A05-717, 2006 Minn. App. unpub. LEXIS 96 (Minn. Ct. App. Jan. 24, 2006), 9 U. Denv. Water L. Rev. 665 (2006). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSincluding 2, 4-Dichlorophenoxyacetic acid ("2, 4-D") and Aqua Kleen,were hazardous to human health and the environment. The Societyalso contended that the Department of Environmental Quality of theState of Louisiana ("DEQ") required the DWF to obtain a permit be-fore carrying out its spraying activities. Since the DWF did not obtainsuch a permit, the Society asked for a preliminary injunction to pre-vent DWF's second scheduled drawdown onJuly 15, 2005.In a hearing on the preliminary injunction, a DWF expert testifiedthat 2, 4-D does not negatively impact water quality. Moreover, a rep-resentative from the DEQ testified that the application of herbicides toaquatic vegetation did not require a permit. The DEQ adopted thisview in February 2005 from an Environmental Protection Agency in-terpretive statement.On July 12, 2005, the 26thJudicial District Court, Parish of Bossier,held that the DEQ did not need a spraying permit and denied the pre-liminary injunction request. The Society immediately appealed butfailed to request expedited review of the matter. While the ordinarydelays of the appeal process occurred, the DWF completed the seconddrawdown and spraying. The DWF then indicated that it completedthe Plan for Lake Bistineau and canceled the final spraying scheduledfor 2006.The court upheld the decision of the trial court denying the pre-liminary injunction; however, the court did not rule on the merits ofthe Society's argument. The court stressed that its holding did notpreclude the Society from prosecuting their pending claim for declara-tory judgment regarding the application of the LWCL and the LEQAand permanent injunctive relief preventing the application of herbi-cides into state waters. The court noted that based on evidence pre-sented, the Society failed to prove the presence of a damaging toxins.The court also advised the Society to include the DEQ as a party ifseeking to prove a violation of permit compliance, and directed thetrial court to note with disfavor a nonjoinder of DEQ.The court dismissed the Society's preliminary injunction seeking toprevent the herbicide spraying as moot because the DEQ already com-pleted it.Roman GinzburgMINNESOTALake Mary Villas, L.L.C. v. County of Douglas, No. A05-717, 2006Minn. App. Unpub. LEXIS 96 (Minn. Ct. App. Jan. 24, 2006) (holdingthat the Board of Commissioners had the proper authority and appro-priately imposed a condition prohibiting a dock at a proposed lake-shore development).Issue 2WATER LAW REVIEWRelator Lake Mary Villas, L.L.C. ("Relator") sought review of theDouglas County Board of Commissioners' ("Board") decision condi-tionally approving an application for a conditional use permit and apreliminary plat approval. Relator originally proposed a residentialplanned unit development at Lake Mary, which included fifty units anda centralized dock. The Board approved the application but prohib-ited the centralized dock. On appeal, Relator argued that the Board'sno-dockage condition (1) was arbitrary and capricious; (2) exceededthe scope of the county's authority to regulate land use; and (3) vio-lated Relator's constitutional rights.First, Relator contended that the no-dockage condition was arbi-trary and capricious because the Board failed to explain its decisionand lacked sufficient scientific evidence to support the condition.However, the Court of Appeals of Minnesota determined that theBoard explicitly relied on two letters on the record from the Depart-ment of Natural Resources and the Douglas County Soil and WaterConservation District. The court decided that these letters were suffi-ciently scientific and authored by experts representing agencies re-sponsible for water and fisheries. Furthermore, the letters specificallyaddressed the impact of a centralized dock on the flora and fauna ofthe area.Secondly, Relator argued that the Board did not have the authorityto prohibit docks or to discriminate against one riparian user by treat-ing them in a manner significantly different from neighboring riparianusers. The court found, however, that the Douglas County Zoning Or-dinance did create a standard of "suitability" for the development ofdocks, which allowed the Board to evaluate docks and, when necessary,prohibit certain proposed docks upon the consideration of relevantfactors. Furthermore, the court dismissed Relator's discriminationclaim for failure to provide sufficient evidence.Lastly, Relator claimed that the prohibition of the centralized dockviolates both the United States Constitution and the Minnesota Consti-tution. Rejecting this argument, the court found that while riparianrights include the right to build and maintain such a dock, such ripar-ian rights remain subordinate to reasonable control by the state andthe rights of the public. Therefore, for a land use regulation to be aconstitutional violation of a riparian right, the regulation must deprivethe property of all reasonable uses. The court determined that sinceRelator had alternatives in the development project, the regulation didnot violate constitutional rights. Thus, the court affirmed the Board'sconditional approval of Relator's applications.Maria E. HohnVolume 9

Lake Mary Villas, L.L.C. v. County of Douglas, No. A05-717, 2006 Minn. App. unpub. LEXIS 96 (Minn. Ct. App. Jan. 24, 2006)

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Lake Mary Villas, L.L.C. v. County of Douglas, No. A05-717, 2006 Minn. App. unpub. LEXIS 96 (Minn. Ct. App. Jan. 24, 2006)

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