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Mikrut rail spur variance upheld (04/17/2013)
By Chris Rogers

A recent Board of Adjustment decision was appealed to the City Council on Monday, drawing strong opinions and a crowd. In a split vote, the council upheld the board's March 20 decision to allow a rail spur for a permitted frac sand facility to be 65 feet closer to a residential district than city code allows.

Many kept their cool, but raised voices echoed throughout the council chamber as property owners, citizens, and council members argued over the wisdom of the board's decision, its impact on the neighborhood, and whether the council should overrule the decision.

Eight citizens, including four residents who live near the facility, urged the council to overturn the Board of Adjustment's decision.

"I have lived at this location since I was a child," said neighborhood resident and mother of four, Amy Wobig. "But I'm concerned for my children's health." Wobig said her son has a chronic condition that requires extra supervision. "He is not going to be able to go outside and enjoy the park and a healthy life if this comes about." She continued, "I don't want to have to move because this has come to my doorstep."

The appellants, Marilyn and Joel Bjorlo voiced concerns about the dust, noise, diesel fumes, and truck traffic increased business at that site would bring to their neighborhood. Others questioned the legitimacy of the board's decision. One neighbor voiced his blessing for the project.

Did economics alone motivate request?

A key point of debate during the board's deliberation and Monday's appeal hearing was whether Mikrut Properties' variance request had purely economic motivations.

State law states that variances can only be given to alleviate "practical difficulties," and economic considerations would not qualify as such. Rules governing the Board of Adjustment indicate that variances should not be granted for solely economic reasons.

The variance is not in line with state law, Joe Morse said. "This is clearly an expansion of that facility. It is clearly for the purpose of economic benefit for [the owner]. That is not a reason that you can grant a variance," he said.

Council member Pamela Eyden said she was surprised that the Planning Commission approved the Mikrut request. During her years on the commission, she said, "we were specifically told that economic considerations are not supposed to be the criteria for granting a variance." She added, "I think it's quite clear. The variance request is based on economic consideration."

"I think that the board of adjustment has proven that this [variance] was not based solely economic consideration, so I would disagree with you there," responded council member Michelle Allexander. "I think it is very clear that it is not solely [based on such considerations], though there is always economic consideration when a business is looking at an acquisition or a change."

At the March 20 board meeting, board member Laura Priem ultimately supported the variance with amendments, but initially said that the variance would alter the character of the neighborhood and was obviously based solely on economic considerations.

"I believe there is some economic consideration, but I don't think it's solely [based on that]," board chair Chris Sanchez stated during the meeting.

"What else is there?" Priem asked.

Sanchez answered that houses have encroached on the railroads "What's the point of having a railroad if you can't load anything?" he asked.

City Attorney Chris Hood prepared a list of findings for the council based on the board's discussion. According to those findings, the variance was also based on the practical difficulty that Mikrut's property is too narrow to build a rail spur elsewhere.

"There was a lot of discussion about economic development," Mikrut Properties owner Rich Mikrut said during the appeal hearing. "If private industry takes on a project with no potential revenues coming from it, we don't make investments. Investments in property, in developments, and in making jobs do require a return on that investment. Hopefully there will be some economic benefit from this operation, but that is not the only reason for this variance."

Split vote backs the board

Hood prefaced the council's discussion by reminding council members that they would need to articulate legally sound reasons for a decision to overrule the board, to protect the city from any potential lawsuits.

"Whatever decision you make, that decision needs to be supported by fact and evidence; it needs to be reasonable," he said. "That is the criteria that the court would look at to decide whether council acted arbitrarily or capriciously."

Council member Gerry Krage pointed out that the burden of proof created a barrier to overruling the Board of Adjustment decision. The board was able to assert that the variance was consistent with the comprehensive plan without any explanation, while the council would have to provide a specific rationale for such an assertion, he said.

"I have asked repeatedly for suggestions [of a proper rationale for overruling] by city staff, and here we are tonight; we have no suggestions from city staff." Krage said. "Instead, we have to make it up tonight and make sure that we're not doing it incorrectly."

Council members Paul Double, George Borzyskowski, and Alexander expressed their support for affirming the variance, while Eyden, Krage and Allyn Thurley supported overruling it.

"The type of development that has been made in that area is substantial. I think that it is positive, and I think that it should move forward," Double said.

Mayor Mark Peterson cast the deciding vote on the issue. "I've really been struggling with this one," he related, saying he was sympathetic to both the neighbors and Mikrut. Ultimately, Peterson said, "I don't feel that there is a good enough reason to overturn the BoA."

After the meeting, when asked what he thought of arguments that the variance was based solely on economic considerations, Peterson told the Winona Post that he agreed with Alexander's statement that the board had proven that not to be the case.

Comments flare

As he stepped away from the podium, Mirkut called on Thurley to sit out of the decision because of his friendship with the Bjorlos. As the council took up discussion, Thurley declined to abstain. He said that he lived near the Bjorlos for 17 years and in that time "I got to know my neighbors," but that he did not have any conversation with the Bjorlos about this issue and had no financial connection to the Bjorlos. "I think I'm owed an apology, but I'm a public official so I'm used to it," he continued.

During her time at the microphone, Margaret Walsh said that the Board of Adjustment "blatantly denied people the ability to express their concerns about the impact this spur would have on their homes, their property values and their lives."

Her comment was in reaction to the board's announcement to the audience before its March 20 meeting that, "We will not be hearing any frac issues or talk about frac, just transportation issues." 


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