The atmosphere was rather court-like as the Greenwood Board of Adjustment heard an administrative appeal of the decision by Planning Director Julia Maki to allow Retreat Lodge to submit a conditional use permit application (CUP).

The single question before the Board of Adjustment, at Monday’s meeting, was whether or not Maki had been correct to accept a CUP application from the owners of Retreat Lodge.

The appeal was brought by attorney Mitch Brunfelt, of Virginia, who was representing 29 neighbors who own property near Retreat Lodge, which is on the Cook end of Lake Vermilion. Brunfelt was asking the board to overturn Maki’s decision to allow a new CUP application, and to force Retreat Lodge to comply with provisions of their original CUP.

Maki started off the hearing by outlining the history of the township’s dealings with Retreat Lodge. Maki had been contacted by the owners in April. The owners, on their building permit application stated they “did not know” if a CUP existed on the site, according to Maki. Retreat Lodge sits on two parcels, one riparian and one backlot.

When Maki contacted St. Louis County to inquire about an existing CUP, she inquired about the backlot, because that was the lot in question. The CUP should have been noted on both parcels, but apparently was not on file for the back lot, she said, an administrative error.

After Maki issued the building permit, she started receiving calls from neighbors, who informed her there was a CUP. In May, Maki met with the owners of Retreat Lodge, John and Shaun Karakash, and informed them there was a CUP, dating from 1994, and it was still valid and enforceable.

The resort was originally granted a CUP by St. Louis County in 1994. In 1996, Greenwood Township annexed the unorganized township that Retreat Lodge was located in, and thus assumed zoning authority. The Karakashes maintained they did not realize the CUP “moved” to Greenwood Township when the township designation changed.

“Greenwood Township has issued permits over the years that seem to conflict with the CUP,” said Maki. And in 2004 the Planning Commission denied, without prejudice, a long-range planning plan from Retreat Lodge, noting violations of the existing CUP.

“I have no authority to deny an application unless it is incomplete,” said Maki. “The denial of the application would be arbitrary.”

Maki noted there is a difference between accepting an application and denying an application.

“Acceptance of an application does not mean it will be granted,” she noted. “It is a tool to be used to bring a property back into compliance.”

She noted the 2010 CUP request was substantially different from the 2004 CUP request that was denied.

Township attorney Scott Neff reminded the board that this hearing was simply to decide whether or not the planning director had done her job.

Attorneys from both sides of the issue spoke to the board.

Brunfelt noted this was a technical, procedural issue.

“Under your zoning ordinance,” he said, “this is the course to take.”

Brunfelt noted that the opposition to this CUP request was overwhelming. He described a timeline of a long list of violations of the original CUP.

“Why would you let your planning director let them apply for a modified CUP?” he asked. “She hasn’t sent this to the Planning Commission for enforcement. She hasn’t enforced it herself. She can’t do that. She has no legal authority to do that. That is why we are here tonight– to contest that interpretation.”

The 1994 CUP set conditions on the lakeshore lots and the backlot. At the 2004 CUP hearing, it was noted that the owners had knowingly violated the terms of the 1994 CUP by converting a garage into a sixth lakeshore cabin.

Brunfelt also noted that any future CUP must be more, not less, restrictive than the existing CUP.

Jenny Carey, an attorney from Duluth, was representing the Karakashes.

“It is important for the Board of Adjustment to focus on the fact that the Planning Commission has the opportunity to consider a modified CUP,” she said. “We are not here tonight about the alleged violations or the merit of their CUP application.”

Carey noted that the Karakashes do not agree that these violations were blatant or made knowingly. She noted that the Karakashes had received a building permit from Greenwood Township to convert the garage to a cabin.

“Their feeling is that the building permit modified their CUP,” she said. “They followed guidelines and relied on the fact that since permits were issued, they were in compliance.”

“They have acted in good faith,” Carey said. “They submitted a full application.”

Once the public hearing was closed, Neff spoke to the board.

“You have heard two very compelling arguments,” he told them. “I need to point out two things. First, there is a lot of history here. That is not your duty. Second, Greenwood Township has issued five permits to this property between 1996 and 2001, along with a variance in 2002.”

“It is very difficult to sit here and say everything has to be controlled by one or two decisions in the past,” he said. “You can’t cherry-pick.”

Neff said it is a “question of fact and legal decision for the Planning Commission to see if Retreat Lodge is allowed an amendment to their CUP.”

He noted that Greenwood has modified the number of cabins in the lakeshore tier, “right or wrong.”

In his opinion, he said, the planning director had acted correctly.

“She tried to come up with the best solution to resolve the inconsistencies,” he said. “The Planning Commission will do the heavy lifting here.”

The Board of Adjustment voted, unanimously, to deny the appeal. The CUP application will now be heard by the Greenwood Board of Adjustment.

“We are putting the ball in their court,” said Board of Adjustment member Gene Baland.

Maki was not sure if there would be a Planning Commission meeting in November. The Retreat Lodge owners could also possibly appeal the decision of the Board of Adjustment, Neff said.