Land dispute: Farmer, Helga Township disagree whether permit needed; lawsuit filed to settle excavation issue
HELGA TOWNSHIP - A landowner here is fighting the town board over its insistence he must first obtain a permit to excavate areas planned for his ranching operation.
Doug Crosby, 41, says he simply is trying to clear rock in preparation for his grazing fields. Helga Township officials say Crosby must obtain a permit to excavate the land.
"This would have really been a simple thing," said Jim Baruth, land use administrator for Helga Township. "Had he just paid the $475 right up front, it wouldn't have been a problem."
But Crosby didn't do that.
Now, by township ordinance, he is required to pay five times that amount - more than $2,300 - to apply for an after-the-fact permit.
Crosby said he should not need a permit at all because the land's primary use is agriculture, not excavation.
"I'm not selling gravel. I'm not mining gravel," Crosby said. "I'm only clearing my fields."
But Helga Township obtained a temporary restraining order July 6 in Hubbard County District Court, a move prohibiting Crosby and Reierson Construction of Bemidji from excavating. The civil case is next scheduled for an Aug. 17 hearing.
"Every case is different, but we generally don't pursue enforcement action unless we think we have merit and that would be the case here," said Bob Alsop, the township's attorney with Kennedy & Graven out of Minneapolis.
'A totally rundown ranch'
Helga Township, which includes the eastern portion of Plantagenet Lake, is located directly south of Bemidji in Hubbard County.
Crosby has lived in the greater Bemidji area for more than 25 years, but purchased around 160 acres of land in Helga Township about two years ago, planning to build a new home and ranch, Last Chance Ranch.
Crosby said he isn't new to farming. He grew up on a farm in west-central Minnesota and had three farms in Lammers Township near Solway.
For his latest venture, Crosby has been accepted into the federal Environmental Quality Incentives Program, which provides financial and technical assistance to agricultural producers. He plans to have eight rotating grazing pastures with an underground water system.
To do that, he is working to reclaim the land that is encumbered by rock and previous overgrazing.
Crosby said Reierson Construction was going in, taking out the top soil, sorting it free of rock, taking out about two feet of subsoil and removing rocks - to make sure the rocks don't come up during the frost - and then replacing both the subsoil and topsoil in preparation for tilling and seeding.
"This was a totally run-down ranch," Crosby said, showing multiple areas where land was overgrazed. "It needs to be tilled up and reseeded."
Reierson Construction was taking ownership of the rock and hauling it from the property, Crosby said. The arrangement with Reierson Construction was basically a "wash" in that the rock covers the cost of the soil work.
"The rock basically is payment for them doing the work," he said.
He figures about 2,000 cubic yards of soil needed excavation. Already, Reierson Construction had hauled out 1,600 to 1,800 cubic yards, Crosby said.
Rock-removal was only being done in areas that need to be reseeded due to overgrazing, Crosby noted.
The temporary restraining order issued July 6 is not the first time that Helga Township sought to stop work at the site.
According to court documents, the township posted a cease and desist order on the property and also delivered a cease and desist order to the Reierson Construction office.
"Crosby and Reierson continue to excavate and remove mineral materials and top soil from the property without the required interim use permit from the township," states the Helga Township complaint, filed July 2 in Hubbard County.
Reierson Construction did not return a phone call seeking comment for this article.
With work on hold, Crosby is concerned he won't meet the Oct. 1 deadline to fulfill his EQIP contract.
"There is not a single instance in the history of the country where a farmer or rancher has been prohibited from removing rock from his fields," Crosby said.
Crosby cited Article XIII, Subsection 7, of the Minnesota Constitution, which states, "Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license."
Baruth, land use administrator, said the township would have no issue with Crosby tilling his fields or relocating rock within his own land.
"The township has no problem whatsoever with the work on site," he said.
A permit would not even be required, if materials were staying on the site, Baruth said. It only became an issue because Crosby is having the rocks hauled away.
for the permit'
The Helga Township land use ordinance's language is at the center of the controversy:
Excavation of Mineral Materials: The use of land for the excavation and removal of mineral materials, top soil or gravel is not permitted within the Town unless done pursuant to an interim use permit. As a condition of granting the interim use permit, the Town may impose appropriate standards for reclamation of the land subject to the excavation so as to ensure its restoration to its original condition insofar as possible after removal of the minerals. To ensure this restoration, the Town may require a performance bond, require the construction of roads and other conditions as it deems appropriate.
Crosby said he should not be required to obtain the permit because "excavation and removal of mineral materials" is not the primary use of his land; it is agriculture.
"Our application of the facts to the applicable law would not result in that conclusion," said Alsop, who will litigate the case in court.
Alsop said Kennedy & Graven, which according to its website represents more than 100 Minnesota townships, "frequently" deals with cases similar to this.
"The easiest solution, as far as the township can see, is for him to simply apply for the permit," Alsop said. "If he got the permit, he can do what he's trying to do."
A brewing battle?
The township began looking into Crosby's plans about 10 months ago, after Crosby contacted Baruth about work being done on the property.
Crosby said the man hired to do septic work for the new home suggested he contact the township to inquire about the need for a building permit.
Crosby says he was only excavating in preparation to begin foundation work on the new home, but Baruth, when he toured the site in October, believed the foundation already was under construction, according to minutes from the Oct. 25 town board meeting. Baruth also saw that Crosby then did not have a permit for a mobile home on the property.
"Baruth could not confirm one way or another, a possible third violation that Crosby has been mining gravel at this parcel without a required (permit)," the minutes state. Crosby told Baruth that he was not mining other than moving material around within the property.
Because Baruth found violations after work had commenced, the township required that Crosby pay five times the permit fee, a total of $1,500.
But, at that time, the new land use ordinance, which requires the five-times penalty, had not been adopted. Crosby fought it and the town board voted to require a two-times penalty, as stated in the former land use ordinance. The township refunded Crosby $900.
The new land use ordinance was formally adopted Dec. 20.
The town board in December also discussed a report that gravel was being moved from Crosby's site.
"Since the township's adoption of the land use ordinance, Crosby has subsequently resumed excavation and removal of mineral materials and top soil from the property without obtaining the requisite interim use permit from the township," the court complaint states.
Crosby did, eventually, apply for a permit.
According to the Feb. 28 town board minutes, Crosby showed up at Baruth's home with a permit application and regular permit fee. Baruth informed him that because there already was prior removal of the aggregate, it would be another after-the-fact permit subject to a penalty of five times the usual cost.
In March, the town board discussed Crosby's property again, acknowledging that he submitted a permit application for a gravel operation and rodeo, according to March 7 minutes. The board agreed that a permit is appropriate for both uses, but it would not accept them on a combined application. The township planned to draft a letter telling Crosby that the permit was being denied because he had not paid after-the-fact permit fees and that he needs two permit applications.
At the May 2 planning commission meeting, Crosby said he was excavating rock in order to set posts and fences for grazing and confirmed that he does plan to sell removed rock, according to official minutes.
"Crosby states (he) is not asking permission to remove the rock, he will do it regardless," the official minutes from the meeting state.
Crosby was seeking approval to hold two annual two-day rodeos - one professional and one for high-schoolers - and weekly riding nights. A public hearing was scheduled for May 23, during which the commission heard from supporters and opponents.
At a special meeting held June 6, the Helga Town Board voted to deny Crosby's rodeo permit request.
The board meets next at 7 p.m. Tuesday at the Helga Town Hall, where the issue is expected to be addressed again.