Commissioner faces permit violation

COEUR d'ALENE — Kootenai County officials said they will notify Commissioner David Stewart that he has 28 days to remedy not having a proper building permit and occupancy certificate for his Coeur d'Alene-area home that was permitted as a pole barn.

Commission Chairman Dan Green said he reminded Stewart on Tuesday that he should apply for a building permit by Thursday night to come into compliance for living in a building that was permitted only as a pole barn without plumbing or the violation process would start. An application wasn't submitted by that time.

Green said he and Kootenai County Prosecutor Barry McHugh also visited with Stewart on April 18 to discuss remedying the situation, and Stewart was warned he would be cited if the proper permit isn’t filed.

"This is consistent with how we'd address violations for anybody else," Green said. "We would apply this same timeline for any citizen. People are given the opportunity to remedy prior to a violation being filed and, if it's not, the next step is to file. But we don't want to file a notice of violation if people are going to fix the problem."

If such a violation becomes reality, Stewart, seeking re-election this year, wouldn't be able to sell or refinance his property until the issue is cleared.

"It works like a mechanic's lien," Community Development Director David Callahan said.

Stewart, who has spent much of his career as a home builder, said he has lived in the building since 2006 — after it was built and permitted as a pole barn. He repeatedly told The Press that he didn't try to cheat the system.

"The county was well aware of everything we were doing," he said. "If I were trying to skate the system I would not have met with all the other agencies that communicate with the county on developments and gotten all the required permits. This clearly shows intent of following the rules ..."

But Stewart wasn't able to provide the county proof that he had the proper building permit and occupancy certificate prior to Thursday night, either.

"I still haven’t been able to find my file, but from memory I believe the building department at the time viewed this as an accessory living unit which was and still is allowed in the agricultural suburban zone," Stewart wrote in an email to The Press.

"My property is in this zone. Reflecting back on my conversations with the planning and zoning director at the time, the building department was well aware of my intentions to reside in this accessory living unit until the future residence was built."

Stewart said such building scenarios were common practice 10 or more years ago.

"This is why the building department issued an address," he wrote. "I recall the plumbing and electrical being in place when the county inspections were being performed. I recall meeting with DEQ (Department of Environmental Quality) about the water system we were installing and meeting with Panhandle Health and sizing the septic and drainfield to accommodate the accessory living unit and future residence. The economy of the past decade did not warrant construction of the future residence, but my wife and I have discussed building in the near future."

Rand Wichman, who was the county's building and planning director at the time, said he doesn't recall such conversations, but it may have not been he who would have had them.

"Pole barns are different structures than residential buildings, and we certainly would not have condoned (living in pole barn without the proper permit)," Wichman said. "But we were also focused on processing permits to a greater degree at that time than code enforcement."

Records show the county signed off on a building permit for a pole barn on June 20, 2005. The permit states the building was not designed as habitable space and was not approved for plumbing.

Three days later, Stewart applied for an on-site sewage system through the Panhandle Health District for a four-bedroom, four-bathroom, 3,700-square-foot home. The application showed a request for septic tanks at both the pole barn and the future house site. The PHD permit for a sewage system issued on July 8, 2005, was for the future home, which was never built.

Green said after he heard rumors and online references about Stewart's situation, he asked Callahan whether Stewart had proper permits and he was told that Stewart didn't.

"He only has a permit for a pole building," Green said. "If staff is wrong and the county's records are not correct, all he has to do is produce the permit. It's the same we'd do for any citizen."

Green said he believes all elected officials should be held to a higher standard.

"We've got to promote trust and transparency," he said. "His pole building permit clearly specified no plumbing. You can make a pole building habitable, but you just need to get the engineering and proper permits to get it done."

Stewart said he's planning to work out any pending issues with county staff.

"My intent is to work with the director of community development to address any issues he may currently have," Stewart said. "If there's any issues we have with the county, we'll work through those."

Callahan said the proper building permit for the building, if the entire barn was converted to a living area, would cost about $3,100.

"Building permit fees are based on a sliding scale," he said. "The larger the home, the greater the fee."

Callahan said changes from barns or shops to homes also require a mechanical permit for heating, venting and air conditioning as well as electrical and plumbing permits from the state.

Occupancy permits are required for homes, but there is no additional cost for those as they are covered as part of any new permit.

Once the county has a building permit application, it will be reviewed for compliance with the county, Panhandle Health and fire and highway districts.

"Once all approvals are in, inspections will be performed," Callahan said. "Assuming we receive approvals, it usually takes four to six weeks (when a building permit will be issued)."

Callahan said the un-permitted improvements must meet current codes as if they were not yet built.

It's the second time in consecutive election seasons that questions about Stewart's home at 4148 W. Cielo View Court off U.S. 95 south of Coeur d'Alene prompted county officials to take action.

Stewart was assessed — and paid taxes on — the structure on the property between 2006 and 2013 as a pole barn, not a home. It wasn't until the 2014 taxes due in 2015 — the year Stewart took office — that the building was assessed as a home rather than a pole building.

The reassessment changed Stewart's tax bill from $1,564.98 for the 2013 tax year to $2,741.04 for 2014.

Kootenai County Assessor Mike McDowell said the county does not know on record when the building changed from a general purpose building to a primary residence. He said the situation was brought to the county's attention in 2014 so that's when the assessment and full inspection were made. He said Stewart was compliant at that time.

McDowell said county records don't show specifically how or from whom his office became aware of the situation in 2014.

McDowell said properties are re-assessed every five years.

"Or, if someone requests an inspection, we'll do a physical inspection," he said.

When asked why the property wasn't assessed as a home between 2006 and 2014, he said staff was at the site on Oct. 20, 2008, but didn't have access due to the gate being closed.

"When that happens, we make an estimate based on our observation of aerial photos or our position at the gate," he said. "It's not an unusual circumstance."

McDowell said determining if someone has maliciously defrauded the system can be difficult to prove.

"This situation is fairly common and people are pretty busy to just get by and live," he said.

However, other county officials said Stewart, with his construction background, should have known better. As a commissioner, he also has a responsibility to be cleared of any violations, they said.

Whether Stewart owes back taxes for living on the property from 2006 to 2013 under the pole building permit is unclear considering Stewart also did not have a homeowners' exemption during that time.

However, that's another question the county needs to get sorted out, Green said. Fees that may not have been collected if all the proper permits and certificates weren't obtained would be another financial factor.

"If there is money owed either way then they should be corrected, too," Green said.

Stewart said he's mystified over the argument of why he should owe the county back taxes and fees.

"I did not have a homeowners' exemption," he said. "If you consider that scenario, the county may owe me money. It's splitting hairs."

Green said the issue isn't as much of a money problem as a building violation involving an elected official with a building background.

Kootenai County Treasurer Steve Matheson said either the county commissioners or assessor would have to provide his office the assessed value from the previous years not paid as a dwelling before he could collect any back taxes owed for the building. He said attempting to collect taxes before that would be outside his responsibilities.

Stewart said he believes the permit and certificate issue is an election tactic "grasping at straws" by his opponents to derail his chances at being re-elected.

"They're trying to disqualify me, make it a political issue," he said.

Stewart said foes also challenged his residency in the last election, but County Clerk Jim Brannon found those arguments to be invalid.

Callahan said the county is treating the situation like it would for any other person or issue.

"He's not getting any special treatment," Callahan said. "Regardless of anyone's background, the regulations are black and white and no one has authority to waive them or ignore them. The regulations still apply. Anyone at my level or higher should be held to a higher standard because we know how the system works."

Green said the situation has created an awkward feeling at the county considering everyone's positions, working in the same building and supervisor-employee relationships.

"But, at some point, we need to make progress to get on track to remedy the problem," he said.