The Free Press, Mankato, MN

July 30, 2013

McGowan farm in dispute with county about flood rules

McGowan, county at odds over new flood regulations

By Robb Murray
rmurray@mankatofreepress.com

---- — There was a time when Jack McGowan was very worried. Worried enough to get a lawyer, worried enough to wonder what would become of Historyfest, what he would tell the hundreds — no, thousands — of people, including kids, who come to his farm each year to pretend they're jousting, fly through the trees on a zip line or gather in the sheep shed for to toast a happy couple or gather with relatives for a family reunion.

Today, however, he's not very worried. But he is still a little worried.

The government and its rules caught up with Jack during last few months, and while McGowan initially believed the county wanted to shut him down, he's now resigned to working with the county and its land use officials who say the structures that make up the bulk of McGowan's farm are, in fact, in a flood way, and must be moved or at least retrofitted.

If not, the county says, they risk a worst-case scenario of FEMA revoking the ability of residents in the county to purchase flood insurance.

The county wouldn't comment on McGowan's case specifically because McGowan has retained the services of Mankato attorney Chris Sandquist, who is working for McGowan pro-bono because he believes McGowan and his farm are a community treasure.

Sandquist said the county has been congenial and willing to come up with a solution that will keep McGowan's popular attraction running, and one that will ensure events such as Historyfest, which brings 3,000 kids to the farm each fall for a day of learning, will continue uninterrupted.

McGowan, though, says he's growing weary of the situation. Sandquist said there are fixes that engineers say would probably work to satisfy the county, but McGowan's not sure he can even do that.

“I don't have the money, I don't have the health,” said McGowan, who is nursing a heart condition. He also pours about $10,000 of his own money to subsidize the activities at the farm each year. Some groups make donations to help him cover costs, but others do not. In addition to annual activities costs, he's footed the bill for nearly every structure — the cabin, the saloon, all the picnic shelters, everything.

He says he won't pay for any improvements and he's not healthy enough to do the labor. Sandquist said the county has offered to resume the sending of people on probation to the farm to complete terms of their criminal sentences. McGowan for decades had been using probationers on the farm, and many of them helped build the current McGowan's experience.

But when the county discovered his land wasn't in compliance with flood plain rules, they pulled the probation people.

The county, while not commenting on McGowan's case specifically, said they find themselves in a tough spot sometimes when it comes to enforcing ordinances.

They need to enforce them fairly and in the same manner for everyone. Failure to do so would have consequences.

“It could cause the county as a whole to not qualify for flood insurance, then no one could get insurance,” said Blue Earth County Administrator Bob Meyer. “If we have a flood and seek disaster relief, or seek relief for any natural disaster, we might seek FEMA assistance and might not get it.”

Sandquist said he understands the county's need to comply. He's not sure about FEMA's application of their own rules.

"This is the end result of a federal policy that paints everything with that broad of a brush," he said, "and maybe it hits a lot of things that it shouldn't

There has been some debate and disagreement nationally about the accuracy of FEMA's flood maps. In some cases, according to a report by the nonprofit watchdog Pro-Publica, FEMA is reportedly updating its flood maps with data that is relatively old. Some people whose properties have beyond the flood plain are being notified that they are now in it. The Pro-Publica report includes the case where a river was mismarked, a mistake that erroneously put a family's home in a flood plain.

Blue Earth County Zoning Administrator George Leary said the data used in FEMA's Blue Earth County maps is current and accurate, although he concedes the map they're currently using is in draft form and could, in theory, change before FEMA makes it a "final" map. McGowan disputes the idea that his farm sits in a flood plain. McGowan says he has done weeks worth of research and can show that, even in the worst years, no flood waters have ever raged in the way government officials fear.

In the most recent flood event a few years ago — an event that was a “flash flood” — it took the water four days to reach the area where all the structures in question sit. And even then the water was relatively shallow or, as McGowan puts it, “knee high to a 10-year old.”

But at this point McGowan is resigned to the notion that it simply needs to get fixed, even if he has no plans to pay for it. He'll need to install a system that would kick in automatically in the event that a raging flood came through. For example, engineers can install a system that, when water pressure reached a certain point, panels on either side of the structure would open and allow water to flow freely.

"What choice do I have?" he asked.

As it all gets sorted, Sandquist said the county is amenable to letting Historyfest and everything else at the farm go on as scheduled.

"And it's not a matter of Jack having to make these changes before it can take place again," Sandquist said. "It's a matter of figuring out a solution and retrofitting the buildings."

Meyer said they've tried to be fair.

"We've tried to find a middle ground that works out for all parties involved," he said, speaking in general about land use disputes. "It's not fair to say to one person you can't do this and not treat the next person the same way."

Still, McGowan can't help but think much of this could have been avoided.

"I think money is being wasted," he said. "If the county wants to move some buildings, change some things, I can live with that. But if I have to do it, it ain't gonna happen."