Fighting a 'monster'

COEUR d'ALENE — Neighbors call it the "monster" that has terrorized their views and navigation paths for the past three years on Lake Coeur d'Alene's Everwell Bay.

They created a website called "Mistake on the Lake" to rally more support for opposing the two-story, four-bay boat garage owned by Brian Kenworthy.

And now, after having their claims dismissed in district court, they're taking their fight to the Idaho Supreme Court. They've also filed a motion to be heard Sept. 18 for the lower court to reconsider the case.

"The water in the lake is being held in trust by the Idaho Department of Lands for the citizens of Idaho," said neighbor Roy Newton, who is a plaintiff in the case, along with wife Nancy, and supported by neighbors. "They've just violated your trust by allowing this out in public waters. By regulation, they can't do that."

District Judge Cynthia Meyer, however, ruled the boat garage is lawfully permitted.

Newton believes the ruling could set a precedent.

"This judgment will now allow any other person on the lake or in Idaho to expand a boat garage into the citizens of Idaho’s property," he said. "You can see how big this can get if we don't go to the Supreme Court. The really rich guy could build a great big boat house, look at the IDL and say, 'Sue me, because I know you can't.'

"While all property owners in Everwell Bay are impacted by the monster boat garage and are committed to spending thousands of dollars to trying to make IDL revoke the permit and go back to the allowed original size of the old boat garage as per (state) regulations, we also want to shed light on how one property owner with lots of money and political clout in Idaho has conned IDL and the court into permitting a boat garage that damages all public trust in the waters of the state of Idaho."

Kenworthy, who also resides in the Seattle area, did not respond to a message seeking comment last week. He earlier told The Press that he went through the proper legal procedures on the project.

Laura Aschenbrener, Kenworthy's attorney, referred to Meyer's decision and declined to comment further.

"Given the status of the case, I am not at liberty to discuss in great detail," she wrote in an email to The Press.

The Idaho Attorney General's Office, which is representing IDL in the case, and IDL staff also declined to comment, citing pending litigation.

District Court denial

In her judgment, Meyer wrote that the Newtons' nuisance claims failed because they didn't show any harm to the public nor did they prove the garage was built out of spite.

"Plaintiffs submitted no evidence that the boat garage has interfered with or obstructed the public's ability to navigate …," the decision states. "(The defendants) argue IDL 'has determined that the boat garage impacts only a small portion of Lake Coeur d'Alene and is no more an impediment to navigation than other docks on the lake.'

"Plaintiffs' complaints about the impact on their view and the alleged reduction in their properties alone are insufficient to establish a cause of action for public nuisance."

According to court documents, IDL believed the footprint between the old boat garage on the property and the new one were the same, per the agency's policy.

"(Neighbors) can fight the second floor, but the way the rules are written, I don't see anything wrong with it," Mike Ahmer of the IDL wrote.

Ahmer also suggested in 2015 changing the language in the rules about second floors to "prevent more and more of these being built."

In July 2015, IDL issued a verbal work stop order on the garage, but also informed the Newtons that the footprint was in accordance of the permit, records show.

"We do not and cannot allow second floors in boat garages — end of story," IDL wrote.

Construction on the garage was allowed to resume a month later.

IDL suggested that Kenworthy rotate the angle of the 36-by-64-square-foot garage 25 degrees in an attempt reduce the visual impact to neighbors. In October 2015, Kenworthy submitted a revised drawing to IDL that was approved by the agency and rotated the garage 25 degrees and moved it out 35 more feet.

In September 2016, Jim Brady of the IDL concluded that "besides the furniture in the loft boat storage area, the encroachment is in compliance with the permit."

What about the height?

The original single-story, three-bay boat garage was 1,035 square feet and the existing two-story, four-bay garage is 2,508.

"The new boat garage is bigger and taller than the old boat garage, although the footprint of the encroachment remains the same," Meyer's ruling states. "At the time the permit was issued, IDL did not consider the height of the structure in the calculation of the footprint of a structure.

"The change, however, is not significant. There was a boat garage in plaintiffs' view from the vantage point before, and there is a boat garage in their view now, albeit a larger one. There remains a beautiful view of Lake Coeur d'Alene with tree-covered mountains in the distance."

The Newtons argue the line of navigation is 92 feet from the ordinary high-water mark of the shore and wonder how the garage could be built out 161 feet.

"Boats and paddle boarders have to go around it," Nancy said.

Neighbors also argue that the published notice on the garage was misleading, a claim Meyer refuted.

"Even if the notice did not explicitly state the height of the boat garage, plaintiffs were not precluded from contacting (IDL) and requesting a copy of the proposed plans," she wrote, adding that IDL didn't receive any objections to the permit during the month-long notice period.

Roy said he had a positive relationship with the Kenworthy family for more than 30 years, but that has been strained with the boat garage.

Roy said neighbors didn't object to the permit as the notice was written. However, they contacted IDL when they saw the second story being built.

Roy said he was told by IDL that construction was allowed to resume because the permit was accidentally approved and the agency wouldn't likely win or could afford a legal fight.

Neighbors say they are dumbfounded over the district court's decision, and multiple attorneys advised them to ask the court to reconsider their case in hopes it will be reversed. They also filed an appeal to the Idaho Supreme Court on Friday.

The Newtons said several residents have contributed money to the legal battle. Roy said he believes the state's policy pertaining to encroachments being regulated to protect property, navigation, recreation and aesthetic beauty is being ignored.

Neighbor Allan Measom said he never imagined the case would drag on to this point. He said he and other neighbors would be satisfied if the structure was reduced to one story and moved closer to shore.

"When I bought my property, there was a small boat house out there that I found out from the state, could be repaired or replaced," he said. "I went to Texas and, when I returned, there was this monster built out there."