Developers win Athol zone change suit

COEUR d'ALENE — A 1st District judge has set aside Kootenai County commissioners' 2015 decision to deny a controversial 34-acre zone change request for a residential proposal near Athol.

The lawsuit filed by developers Silver Hill Land and Cattle Co. and Mort Construction came after two long public hearings that had to be moved to North Idaho College to accommodate the number of those interested in the proposal.

In his ruling, Judge Rich Christensen said a county zone change ordinance became outdated when a state code was amended in 2013.

"As such, the BOCC's decision fails to meet (the code's) provision that decisions for a zoning change be made pursuant to recognized principles of law," Christensen wrote.

Commissioner Dan Green said the decision likely means the county will need to update its ordinance and hold another hearing if the developers want to pursue it.

However, Green said,

commissioners will meet with legal staff next week to determine what the next steps should be. Whether the county will appeal the judge's decision remains unclear.

Green said he has mixed feelings about the ruling on the judicial review.

"It's disappointing because we went through the process and spent a lot of time and resources on this and it appears we may have to do it again," he said. "However, we also respect that we have to follow current state law that the applicant has rights to."

Attorney Scott Poorman, who represents Silver Hill and Mort Construction, said he is pleased with the decision and was cautiously optimistic about the outcome.

"Any time you challenge a local land-use decision, legally, it's an uphill battle to convince the court to overturn that," Poorman said. "In this case, an out-of-date ordinance caught up with them."

Poorman said the next step in the matter will be the county updating its ordinance.

"I believe it's reasonable that my clients will have their zone change application reheard under the new standards," he said. "When that happens, who knows. The timing is not under our control."

Christensen also ruled the commissioners' decision was not made based on unlawful procedure; was based on evidence in the record; and not arbitrary, capricious and an abuse of discretion.

"It is not this court's place to question the BOCC's factual findings so long as those findings are based on substantial evidence in the record," he wrote. "The BOCC clearly, thoroughly and thoughtfully deliberated on the evidence in the record before deciding to deny petitioners' request to change the zoning of the subject property."

Commissioner David Stewart said it's the county's understanding that the judge's decision would apply only to Mort's zone-change request and not others that have been denied in the past year and a half.

Stewart said he realizes the Athol-area proposal has been aggravating to both sides.

"It's been frustrating for the developer and I'm sure it now is for people who oppose the plan," he said.

Stewart refrained from playing the blame game for the county not updating the ordinance.

"Sometimes you don't find out about things until people challenge it," he said.

Community Development Director David Callahan said the state law was amended before he was hired at the county and typically ordinances are updated by legal staffs at governmental agencies.

"We can only hope that this is a rare occasion that slipped through the cracks," Callahan said.

Pat Braden, who represented the county in the case as its civil deputy prosecuting attorney, couldn't be reached for comment.

Green and fellow Commissioner Marc Eberlein voted to deny the zone-change request, while David Stewart abstained.

In March 2014 Mort Construction applied for the zone change from rural to restricted residential for 86 residential lots on behalf of Silver Hill. The property is on the east side of U.S. 95 about 2 miles north of Chilco Road.

The request drew fierce opposition from residents who had concerns the project would ruin the rural feel to the area and set a precedent for other similar zone change requests in the vicinity.

A hearing examiner recommended the commissioners approve the zone change request. The board then held two public hearings before the proposal was denied.

Mort filed for a request for reconsideration that was denied by the commission, setting up the lawsuit.

Another component of the residential plan calls for a conditional-use permit for building a wastewater treatment plant to serve the subdivision, but that request was postponed last fall by the developers. The facility would be south of Brunner Road between Diagonal Road and Old Highway 95.