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High Court hears big boathouse beef

by RALPH BARTHOLDT
Staff Writer | May 19, 2020 1:15 AM

A boathouse on Lake Coeur d’Alene’s Everwell Bay that neighbors call a monstrosity and a mistake was illegally permitted by the Idaho Department of Lands, a Spokane attorney last week told the Idaho Supreme Court.

Attorney Bob Dunn wants justices to overrule a First District Court decision that allowed the boathouse to remain in the bay, and send the case back to Coeur d’Alene to be heard by a jury.

Chief Justice Roger S. Burdick said the court will take under advisement the arguments, but didn’t say when a decision would be rendered.

The case began in 2015 when Everwell Bay property owner Brian Kenworthy received a permit to refurbish or replace a boathouse in the bay on the northwest side of Lake Coeur d’Alene.

A notice in the newspaper informed neighbors of the project, and Kenworthy received the green light via a permit from the Idaho Department of Lands, which oversees encroachments on the lake.

Neighbors who were accustomed to the small boathouse attached to the Kenworthy property saw a much larger two-story, four-bay boathouse being built.

They sued the state and the Kenworthys, but a Coeur d’Alene judge dismissed their case, prompting an appeal to the Idaho Supreme Court.

Dunn told justices last week that the lands department didn’t follow its own rules, or the rules set up by the state’s Lake Protection Act.

Dunn also argued that the lands department didn’t follow the public trust doctrine, which limits the state’s power to supersede the neighbor’s private property rights when it permitted a 2,000-plus square foot boathouse at Everwell Bay just north of Camp Lutherhaven on the west side of the lake.

Dunn argued that the 2011 legal notice in the newspaper was brief, vague and misleading. It prevented neighbors from questioning a plan to refurbish the old boathouse.

Instead of refurbishing the existing boathouse, Kenworthy destroyed the old boathouse and in 2015 built another much larger and taller boathouse that was placed farther out in the lake on a pier that was longer than the original pier.

Neighbors Roy and Nancy Newton objected to the much bigger structure because, according to the Newtons, no public input was gathered prior to its construction, nor were neighbors apprised of the outcome. The Newtons claim the 2,000-plus square foot boathouse encroaches on boat traffic in the bay, and it is a nuisance.

“The application was defective and as a result this permit was issued unlawfully,” Dunn, who represents the Newtons, told justices.

Laura Aschenbrener, who represents Kenworthy, a resident of the Seattle area, told the court that her client followed the proper protocol and that despite publishing a brief notice, and sending what appeared to be incomplete plans to the lands department for review, Kenworthy was not required to send detailed documentation.

“He didn’t need to submit exact plans when applying for the permit,” Aschenbrener said. “Mr. Kenworthy went by the book and was completely transparent.”

Deputy Attorney General Angela Kaufmann, who represents the lands department, said the evidence didn’t support a nuisance action. Despite findings by a reviewer from the Idaho Department of Lands who initially said the new boathouse was in violation, the state found no reason to take action.

“He made findings, but he didn’t provide a path or a reason to revoke the permit,” Kaufmann said.

Justice John Stegner pointed out discrepancies in the permitting process that allowed a boathouse to “expand from roughly 1,000 square feet to roughly 2,000 square feet.”

Under existing regulations a boathouse that size was illegal, Stegner said.

“Unless it was for emergency purposes, it should not have been accepted,” Stegner said. “Repairing or replacing one that was 20x40 square feet … is quite different than when you replace it with something that is 38x66.”

The case is important because it sets a precedent, Dunn said. If the lands department doesn’t follow its own rules on Lake Coeur d’Alene, the effect will ripple across the state.

“The (Coeur d’Alene) court failed to hold the (Idaho Department of Lands) accountable for failing to do its job as trustee in protecting a public asset to the direct detriment of the lake-using public,” Dunn said.

photo

The original boathouse at Everwell Bay that Idaho Department of lands said could be "refurbished or replaced," was a single story, 1,000-square-foot structure which was closer to shore, neighbors contend. Courtesy photo