Minnesota DNR sues city of Fairmont, restaurant owner to stop lakefront patio

A southern Minnesota city's attempt to let a restaurant build a lakefront patio over the objections of its own staff and state regulators may soon be quashed.

The Minnesota Department of Natural Resources took the rare step of suing the city of Fairmont and the owner of Ambiance on Albion Taphouse and Grille to keep it from installing the patio on a shoreline bluff.

The DNR argues that building the structure would require "significant clearing of trees and earth-moving in a highly sensitive area," which could lead to the collapse of the bluff. It's asking a district court judge to throw out a variance the City Council granted the property owner.

"It's not a common situation," said DNR spokesman Erik Evans. "We are currently working together with the parties involved to come to mutual agreement."

The restaurant sits across a two-lane road from the eastern edge of Hall Lake, the largest in a chain of lakes that the city of 10,000 was built around. A narrow and steep stretch of tree-lined land lies between the lake and the road. A flight of steps leads down a bluff to a small dock on the property.

For decades the city has enforced shoreline development rules, which ban the construction of any new structures within 50 feet of the lake's high water line, and 30 feet from the top of any bluff, with few exceptions. The proposed patio would be built at the water line, hanging over the lake, and fall well within 30 feet of the top of the bluff.

Owner Troy Menke applied to the city's zoning board of appeals for a variance from the shoreline rules. Exemptions can be granted if they meet specific criteria, including that a unique circumstance exists that makes it difficult for the property owner to meet the standards and that the development would not impair the health, safety or welfare of other residents.

In December 2021, the zoning board unanimously rejected Menke's request after city staff and the DNR objected to it, saying the project failed to meet any of the criteria. There were no special or unique differences between the restaurant's shoreline and other property owners around the lake, the board found. Tree removal and the increased potential for erosion or failure of the bluff would impair the welfare of other residents, it ruled.

Menke appealed the decision to the City Council. In April 2022, the council voted 3-2 to grant the variance.

In its complaint, the DNR argued that the City Council's decision was arbitrary and unreasonable, saying the council didn't use any factual findings to support its decision or address any of the concerns raised by the agency, the zoning board or its own staff. The council merely recited the specific requirements of the ordinance and said those requirements were met, the agency argued.

Council Member Britney Kawecki, who voted to allow the variance, declined to comment, referring questions to the city's lawyer, who did not return phone calls.

Menke declined to speak about the project and lawsuit, saying he was waiting to hear how the city responds.

In his application, Menke wrote that his lakefront patio would help the city meet the top priority identified by community members in the city's comprehensive 2040 Plan: "Stuff to do — places and activities."

Before voting in favor of the project, Council Member Randy Lubenow asked if the DNR could sue Fairmont if the council granted the variance, according to a report of the meeting in the Fairmont Sentinel. A DNR hydrologist answered that it would, if the agency felt it was a priority.