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Benson rules in zoning case

Fri, Jan 31st, 2003
Posted in Features

The location of this house on County Road #23 north of Canton is at the center of a zoning and legal dispute between Fillmore County and Eli Slabaugh. Photo by John Torgrimson

Judge Robert Benson has denied a request by Fillmore County for a summary judgement in a zoning dispute between the county and Eli Slabaugh of rural Canton Township.

Former Fillmore County Attorney Matt Opat filed the civil action in an effort to uphold an injunction that would prevent Slabaugh from using a home he built that the county claims is in violation of the Fillmore County Zoning Ordinance. Slabaughs property is situated on County Road #23 north of Canton.

At the center of the dispute is the site location for Slabaughs house, which is located 300 feet from the survey line of a rock quarry operated by Kruckow Rock Products and Ready Mix of Caledonia. Kruckows survey line and the property line of Slabaughs 10 acres meets at the center of the county road.

The Fillmore County Zoning Ordinance stipulates that dwellings need to be set back a minimum of 1000 feet from a quarry.

In October the court issued a temporary injunction preventing Slabaugh from continuing construction on his house. In early January, the court heard oral arguments from former Fillmore County Attorney Matt Opat and Attorney Dan Moulton, who represented Slabaugh.

At that time, Moulton told the court that Slabaugh bought his land for the building site after consulting Zoning Administra-tor Norm Craig and being assured that it was a suitable site. When Slabaugh went to get a building permit, he was told he needed a variance, which was later turned down by the Fillmore County Planning & Zoning Commission. Despite the ruling, Slabaugh proceeded with construction of his house.

Opat argued in court that regardless of what Slabaugh was told by Craig, when he went to get a building permit, he was told he couldnt build unless he had a variance.

In his written memorandum, Benson stated that the Court found that there is a genuine issue of fact in the case.

Defendant alleges the zoning administrator told him in advance that he would be permitted to build his house in its current location. The zoning administrator now denies granting Defendant permission to build in that zone. Defendant also argues that other persons were permitted to build within proscribed limits being argued by the County. Whether or not this has occurred is a material question of fact and goes to the issue of whether or not Defendant was denied equal protection, Benson wrote.

Moulton told the Journal that he was pleased with Judge Bensons ruling and hoped to be able to talk with Fillmore County Attorney Brett Corson about the case.

Obviously we would hope to be able to resolve this matter in such a way that Mr. Slabaugh would be able to leave the home there, Moulton said.

Corson said that he wasnt surprised by Judge Bensons ruling.

What the Judge found is that the facts of the case are in dispute, Corson said.

Corson said that because this is a civil matter, the case will now enter the alternate dispute phase where the two parties will sit down with an arbitrator and see if a resolution can be found. If that fails, the matter will go to trial.

In addition to denying the summary judgement, Judge Benson ruled that Elis wife, Mattie Slabaugh, is a party to this matter and should be included in the civil action.

County Attorney Corson has amended the complaint to include Mrs. Slabaugh.

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