Carlin Lake Property Owners Win Legal Victory

Nov 10, 2017

Credit Max Pixel

A permanent injunction to prevent commercial pumping and transport of water from the Carlin Club property in Presque Isle to a bottling facility in Marenisco, Micigan was approved in Vilas County Court November 9. It  prevents Carlin Club Properties LLC from erecting any new structure, driveway, or other facility for pumping and transport of water, but does not prevent Carlin Club LLC interests from seeking a zoning permit, conditional use permit, change in zoning classification, or other relief from Vilas County officials.

Carlin Lake property owners brought a civil action against the Carlin Club when information was circulated alleging a permit for a new, larger pump for an existing well was the forerunner of a proposal to bottle and sell water claiming this activity would conflict with the provisions of acceptable activities in the residential, R-1, zoning district. While the club, operated as a supper club, could continue due to the use existing at the time R-1 zoning was enacted, the pumping and transport of well water for sale was a commercial activity and would not be allowed.

A ruling by substitute Judge Leon Stenz of Forest County last October 5 agreed the proposed plans constituted a commercial activity and, if put in place, would violate the Vilas County shoreland ordinance and general zoning ordinance.

Carlin Club defense attorney Timothy Casper argued the court “should not have issued an injunction since there was no actual violation” but preferred a court order. Judge Stenz asked Casper if without an injunction “was the court giving Carlin Club permission to violate the zoning ordinance?” Casper felt a court injuction would “taint the process” and prevent them from continuing through the political process involving Vilas County zoning but Carlin Lake property owners attorney Daniel Bach pointed out they could seek variances and/or conditional use permits.

Casper called Trig Solberg, a principal investor in the project, to testify. Solberg, a former chairman of the DNR Natural Resources Board, indicated he felt they were ok legally since they were allowed to pump under DNR rules up to 100,000 gallons a day but were within the area of the Great Lakes Compact which limited the size of a water container for export. “I contacted DNR and asked for the rules and was told we could pump up to 100,000 gallons a day and since we were in the area of the Great Lakes compact (where all states and Canadian provinces on the Great Lakes have to approve transfer of water to areas outside their drainage area) and 5.7 gallons is the largest volume container we could take out of the compact area,” Solberg said. “Our water bottles would be much less.” He continued by stating “we wanted to do what was legal and asked then- Vilas County corporation counsel Martha Milanowski  if we could pump water” and from her letter “we determined we had permission and what we were doing was totally legal.” Solberg described the bottling plant they were constructing in Marenisco and formed Superior Springs LLC. “We hired a marketing firm and we would have two labels; one for Superior Water from the well in Michigan and Carlin Club water. The state said we could pump water and at the end of the day we would use Carlin Club water. I didn't think zoning had anything to do except building and pumping was a state issue. I though it was perfectly legal to do what we planned to do.”

Casper asked Solberg if they had plans for pumping 100,000 gallons a day with his response being “no” describing 6,000 gallons per shift with a maximum 18,000 gallons a day with three shifts. Plaintiff Robert Ruch, president of the Carlin Lake properties association, was asked on the witness stand why they filed the lawsuit. “We are stewards of the resource; both above and below ground,” he responded. Casper made a last plea to the court for a court order and not an injunction, emphasizing there was no zoning violation and “those people” want to short circuit the political process and the court should “let the political process play out.” Bach argued Carlin Club “intended to proceed with their plans” regardless and an injunction is needed; and they can still “go forward with the county political process.”

Judge Stenz felt his original decision that the proposed actions of Carlin Club LLC would violate the county zoning ordinance and “although an actual violation does not directly exist they have taken steps to pump water from this property by putting in a larger pump with the ability to fill tanker trucks.”

The Judge went on to say that “completion of the plans is where the violation is” that all their actions are in anticipation of pumping water from the Carlin Club property and they “are well on their way to pump” and would based on the testimony. He continued pointing out there was no unnecessary hardship to the defendants since they have another water source for their bottling facility and the “public interests are served when the community and public make sure zoning ordinances are followed.”

Judge Stenz said the injunction he is ordering will not have a political impact since it does not prohibit Carlin Club LLC from petitioning for a zoning change, seek variances, or conditional use permits. Specific rulings of the court include the opinion:

--The proposed use to pump and transport water for bottling purposes and commercial sale would be a violation of the Vilas County zoning ordinances;

--Grants Carlin Lake properties owners request for a permanent injunction and prohibits using or allowing the use of the property on Carlin Lake for pumping and transport of water for bottling and/or commercial sale;

--Prohibits from erecting any new structure, driveway or other facility for pumping and transport of water;

--Does not preclude the defendant from seeking a conditional use permit or other lawful relief from Vilas County officials; and

--award plaintiffs statutory costs and attorney fees.