Chateau appeals to Supreme Court

COEUR d'ALENE - The Las Vegas development firm pursuing a substantial gated community by Lake Coeur d'Alene appealed the Kootenai County commissioners' denial of the project to the state Supreme Court on Tuesday.

Speaking in front of several justices at the Old Courthouse on Government Way, the attorney for Kirk-Hughes Development, LLC argued that the commissioners' repeated denial of Chateau de Loire was the result of arbitrary decision making and forgoing due process.

"The fundamental reason the board turned this down is 'This project is not in the right location,'" said Robert Freilich, a Los Angeles attorney representing Kirk-Hughes. "It's amazing for the board to make such a statement."

Freilich contended that there had been many unreasonable decisions throughout the consideration of Chateau de Loire, which was first denied after its initial proposal in 2005. Kirk-Hughes appealed and then agreed to a post-mediation agreement with the commissioners, which spelled out the actions the firm should take to improve the application.

Kirk-Hughes submitted another application in 2007, then was denied again.

The development firm filed a notice of appeal in district court, which ruled in favor of the board in August 2008.

The proposed development, set on more than 500 acres overlooking Moscow Bay, was to include less than 500 residential units, retail space, golf course, fish ponds, amphitheater, athletic center, fire station and trails.

Freilich said the commissioners' initial denial put public opinion above zoning, in their conclusion that the project didn't fit with the area's rural nature.

"A substantial part is zoned for 950 units on this property," Freilich said. "It's zoned for high density development. That zoning made it compatible."

He added that the denial also contradicted several agencies that had given their approval of the government.

More egregious, Freilich argued, was that Commissioner Rick Currie conducted his own private traffic study.

The attorney said Currie determined that Highway 97 couldn't handle the added traffic, despite an Idaho Transportation Department study saying the opposite.

"He went out there and personally did a study, then went back and argued that and the board adopted his position," Freilich said, adding that disregarding the state agency's study was a violation of due process.

He added that the development should have been approved after Kirk-Hughes submitted a second application, meeting all the requirements the commissioners laid out in the post-mediation settlement.

These requirements included planning an overpass over Highway 97 and improving wildlife habitats.

Instead, Freilich said, the commissioners introduced whole new issues they had never brought up before and denied the project again.

"She put in hundreds of thousands of dollars in planning the overpass and adding more mitigated wetlands," he said. "And what did the board do? They argue there are five more Comprehensive Plan goals (to be met), and based on that, they turn down the project."

Freilich requested the court overturn the commissioners' decision and award Kirk-Hughes attorney fees.

Pat Braden, civil deputy prosecuting attorney for Kootenai County, said the post-mediation settlement was for clarification purposes only, and did not guarantee approval.

The firm's second application had not been identical to the first, he added, and it raised all new concerns.

"The board found substantive standards in the subdivision application that were not met," Braden said.

He also said Currie had mentioned during deliberations that the commissioner was not relying on his personal traffic study to decide on the application.

Braden added that the commissioners' initial denial wasn't based on incompatibility alone.

"The proposal failed to meet other requirements," he said. "The decision was based on a reasonable basis."

Attorney Scott Reed also spoke on development trends in the area. Reed was representing Neighbors for Responsible Growth, an intervenor in the appeal.

The court will take two to three months to make a decision.

Geraldine Kirk-Hughes, owner of the Chateau de Loire property, said she was pleased with her council's arguments.

"I think that jurisdictions should follow their laws and have objective stances and not be swayed by public sentiments," Kirk-Hughes said. "Only then can you have equality and equity in decisions, when you look at your own rules in an objective manner."