Posts Tagged ‘Kootenai County Commissioners’

We were pleasantly surprised when we heard that, last Thursday, the Kootenai County Commissioners had rejected a proposal to eliminate water quality protections in an ongoing subdivision development above Hayden Lake. The Commissioners voted 3-0 to overturn a hearing examiner decision that would have removed development restrictions on the Falls at Hayden Lake subdivision.

In a hotly contested hearing process in 2008, the 46-lot Falls at Hayden Lake subdivision was approved with a set of conditions intended to protect Hayden Lake and protect the surrounding neighborhoods.  One of the restrictions was to limit all site disturbance activities to the period between May 1 and October 15 to avoid runoff problems at the location.  Now, in 2011, the developer applied for a “modification” to have the seasonal limit removed.

KEA legal intern Trevor Frank drafted comments, noting that according to the county code, conditions can’t simply be removed unless the applicant provides an explanation “why a condition modification is necessary.” In this instance, the developer did no such thing –the modification was clearly not necessary.  Instead the application was essentially intended to overturn a condition the developer didn’t like. This is the second time the developer has come back to the county for reconsideration of parts of the subdivision approval.

During the 2008 hearings, the evidence showed that the soils on the development site were susceptible to runoff and erosion, so the seasonal restriction was imposed in order to mitigate the high risks of runoff into Hayden Lake.  In fact, the proposed seasonal limits were actually suggested by the developer in his own stormwater plan.

The Commissioners’ decision Thursday to reject the modification was absolutely correct and sends and important message. First, the Commissioners are not inclined to re-visit prior decisions in a piecemeal way without a genuine showing of necessity.  And secondly, the Commissioners seem inclined to uphold reasonable restrictions on development to protect our lakes.

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The Kootenai County Commissioners got an up-close look at the current condition of the County zoning code last Thursday night. Faced with a long-running and messy decision over a “party barn” in a rural zone at the Washington state line, the Commissioners found themselves stuck in a procedural morass that was only made possible by the currently antiquated approach to zoning, and which would have been so much simpler under a more modern code.

Although the strictly environmental impacts of a “party barn” facility are probably minimal, the impacts on a rural community could be significant. For example, traffic, noise, hours of operation, and the availability of public safety and other services are concerns that any neighborhood might have. Yet, the county code isn’t designed around impacts, it is designed around “uses.” And this is where the party barn — and the County — got into trouble.  What exactly IS a party barn? How do you classify it under the county’s 1970s vintage zoning code.

The county’s old-school Euclidian zoning scheme is based on a general rule that commercial uses go in commercial zones, industrial uses in industrial zones, and residential uses in residential zones. Exceptions to the general rule are allowed only if they fit a set of specifically enumerated “conditional uses” within a particular zone.

The party barn applied for a conditional use called a “commercial resort” which would be allowed in the rural residential zone where it was located.  Over the objections of neighbors, the county planning staff and the previous Board of County Commissioners approved the classification and approved the conditional use permit. The problem, though, is that in Kootenai County, a “commercial resort” is defined as:

“a privately owned, outdoor recreation area, operated for profit. A commercial resort may include permanent facilities for overnight and seasonal living, camping areas, recreational vehicle parks, and for limited commercial activities associated with convenience goods and services that serve to enhance the primary recreational use or facility.”

When the neighbors appealed the prior Board’s decision to a court, the judge issued an overly-lengthy opinion that pointed out the simple and obvious problem:

The problem with [the county’s] determination is patently obvious. [The county] finds the proposed use of applicant’s barn located on applicant’s land for a wedding facility inside that barn to be a “commercial resort.” But a “commercial resort is defined only as an outdoor recreation area,” and none of the examples of an “outdoor recreation facility” are indoor activities.

The judge takes 20 pages to explain, but on page 14 he says in his own bold and underline type, “Indoors is different from outdoors” and  “A wedding is different than a convenience food store.

So, on Thursday night, the County Commissioners wrestled with the implications of the Judge’s decision. If it’s not a commercial resort, what is it? And once it is decided what it is, is it allowed in the rural zone in the quiet valley near the state line? Ultimately, the Commissioners couldn’t find an appropriate “conditional uses” and had to revert to the general rule, it’s a plain vanilla commercial use, and therefore it belongs in a commercial zone not a rural one.

Although this is almost certainly the right substantive result in this case, nobody can be really happy with how it was achieved.  The general Euclidian rule is so obviously problematic: Rural areas can handle commercial activity if it is appropriate for the rural lifestyle.  But using Euclidian zoning to define every single use that will or will not be allowed is doomed to failure in this modern age of new and mixed uses.

More modern form-based or performance-based zoning is more flexible and more appropriate.  For example, if parking and traffic and noise are the real practical issues, then the zoning code should regulate parking and traffic and noise.  The standards need to be thoughtful and they need to be rigorous in protecting rural (and environmental) values. But, if the property looks rural, feels rural, and doesn’t impact rural neighbors, then it simply shouldn’t matter what the use is.

A party barn shouldn’t be allowed in a rural area because loud amplified music and a hundred cars at a time isn’t compatible with rural neighbors. Not just because it is a commercial venture that is primarily indoors.

UPDATE 5/18: Here’s a Spokesman Review article on the dispute.

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The Kootenai County Commissioners, this morning, in continuation of deliberations begun three weeks ago, declined to create a massive new loophole in the County’s already-weak shoreline protection regulations. Although Commissioner Todd Tondee expressed a willingness to make more aggressive changes, the Commissioners voted unanimously to make “Band-Aid” styled changes to the law rather than major transplant surgery.

KEA had been concerned that the draft changes to the County’s “Site Disturbance Ordinance” which governs development activities near waterways, proposed a sweeping exemption for activities “of such size, scale, regional economic benefit and/or nature that allowing the work to proceed is found to be in the best interests of the public.” The abject subjectivity of the exemption would have created a decision-making nightmare for the County as any large project could have been able to apply under the vaguely worded exemption. Not to mention that these potentially-huge projects would be allowed to proceed within the most important buffer strips around our waterways without much in the way of regulation and permitting. Currently, development activities within very narrow stream and shoreline buffers are highly restricted.

Commissioners Dan Green and Jai Nelson stated that they were unwilling to go that far at this point. Both Green and Nelson declared that they were not willing to create a broad new exemption now, while the development code rewrite is in the works. Green signaled he was even unwilling to give a narrower exemption to only the County’s own projects, saying that if private citizens are not granted a loophole, then the County shouldn’t get one either.

The Commissioners all agreed, however, to make narrower “Band-Aid” changes. It will now be easier for landowners to use mechanical equipment and to work in the narrow shoreline buffer strips when necessary to repair or address erosion, soil instability, or stream bank stabilization. This new flexibility should actually make it easier to fix, or maybe even prevent, problems with properties that would otherwise threaten water quality.

All in all, very good news from the County this morning.

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After hearing testimony on proposed amendments to the County’s site disturbance ordinance, the Kootenai County Commissioners put off a decision until they can reconvene on April 28th to deliberate further. The proposal, which purports to fix some flaws in the law, also creates a huge loophole in the regulations that govern shoreline development and construction activities. Of the dozen or so witnesses heard by the Commissioners, only one spoke in favor of the amendments.

All of the commissioners agreed that the ordinance needs some fixing, but they seemed to differ in the extent of the fixes they were willing to entertain at this point. On the one hand, Commissioner Jai Nelson agreed that the ordinance needed some fixing, but had serious reservations about the inherent subjectivity that would be built in to the new language. She noted that other shoreline protection codes elsewhere in the country are more protective, more flexible and can be more objectively applied. She indicated that on this ordinance, she’d prefer to defer to the “creative potential” of the new code-writing consultants just hired by the County to overhaul zoning and development codes. On the other hand, Commissioner Todd Tondee said he was convinced there was an interim need for a broad exception for larger development projects, and he was untroubled by the subjective decision-making the amendments would require until the new codes come on line. Commissioner Green signaled that he was “philosophically against Band-Aid approache[s]” to ordinances at this point, but he was also convinced that some immediate fixes were necessary, and he was worried that worried that the broad loophole exemption might be too subjective and maybe “more radical than I’m prepared to pursue at this time.”

In the end, the Commissioners decided they just needed more time to more carefully consider the proposal, more carefully consider the testimony, and essentially, decide how much of a Band-Aid to apply. Commissioner Nelson said that she didn’t want to be simply “shooting an arrow and then drawing a bull’s-eye around where it lands.”



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On April 7th, the Kootenai County Commissioners will hold a hearing on the first significant land use legislation since the election last fall. County staff, at the urging of some development interests, are proposing an amendment to the county ordinance that governs shoreline protection. Promoted as a needed fix to a dysfunctional ordinance, the proposed legislation (pdf) would create three exceptions to the County’s site disturbance ordinance which restricts development activities along streambanks and shorelines. In February, the Planning Commission, by a narrow 3-2 margin, recommended the legislation be forwarded to the County Commissioners for consideration.

The County’s site disturbance ordinance, as frustratingly unworkable as it can be, is designed to sharply limit the amount of construction in a narrow buffer strip along county waterways. It is intended to protect water quality by preventing sediment and nutrients and stormwater runoff from shoreline development and construction disturbances.

The problem, according to developers and builders, is that the restrictions also limit the ability to make repairs and improvements that could actually improve water quality protection. For example, proponents say fixing a failing retaining wall should be permitted when a failure would obviously cause huge amounts of sediment to be released. Unfortunately, the draft legislation goes far beyond a narrow fix to this sort of specific problem.

The draft legislation proposes three new “exceptions” to the site disturbance ordinance, describing the conditions under which the strict limits on development activity would not apply.  The draft legislation’s most problematic exceptions is:

Exception 3: The Board of County Commissioners may consider and allow site disturbances, construction and improvements within the Stream Protection Buffer and/or Shoreline Protection Buffer where it is determined that the project is of such size, scale, regional economic benefit and/or nature that allowing the work to proceed is found to be in the best interests of the public, including but not limited to…

In other words, all restrictions on development in the shoreline protection zone could be eliminated for any project simply “found to be in the best interests of the public.” By its very terms, this exception makes shoreline water quality regulations a matter of completely subjective and standardless decision-making by the Commissioners. Especially for large projects with potentially large impacts.

Many of our local waterways are already impaired and already have very little protection against erosion and runoff. The sediments and nutrients choking the oxygen out of our lakes indicate a need for more restrictions, not more exceptions.  The huge gaping loophole of “Exception 3” is the exception that eviscerates the rule.

The County recently adopted a variance procedure to allow development activity in cases of hardship, and the variance procedure could be applied to any of the exception circumstances anticipated by the proposed legislation. Therefore, this particular legislative fix may be more convenient but it isn’t strictly necessary.

Still, we don’t necessarily begrudge the County’s desire to make temporary fixes to a dysfunctional ordinance that can, occasionally, be counter-productive.  However, this legislation proposes an overly-broad  and dramatic change in established development rules. Such significant changes might be better left for the zoning and development  code overhaul about to get underway. We will urge the commissioners to eliminate the sweeping “exception 3” language, and we’d encourage friends and members to do so as well.


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Understanding that the job is difficult, but also extremely important, the Kootenai County Commissioners are wasting no time getting on with the business of re-writing zoning and development regulations. On Friday and Saturday, we were pleased to be invited to participate in an interview process for the consultant team to be hired to rewrite the land use laws in the County. The Commissioners signaled that they will make a final decision on the code-writing team very soon.

In an exhausting all-day session Friday, four finalist teams interviewed round-robin-style with four panels of local interviewers. The interview panels included the County Commissioners, Planning Commissioners, planning staff from the county and the county’s municipalities, developers and private planners, and neighborhood and environmental interests. On Saturday morning, the local interviewers reconvened with the Commissioners to debrief.

The job, as all the code-writing candidates acknowledged, won’t be easy. The candidates were all candid that tough decisions left undone in the comprehensive plan (e.g. development densities) will need to be revisited and resolved sooner rather than later by the County Commissioners. All of the candidates acknowledged that the current prevalence of 5-acre-lot rural zoning is problematic in achieving the comp plan goals of rural and natural resource protection. And all of the candidates commented that the current patchwork of 1970s-era land use coding absolutely positively needs the overhaul.

The good news, as strange as it sounds, is that the Commissioners will have a very difficult final decision. Each of the consultant teams had strengths and weaknesses and differing styles and approaches. But each of the teams also brought clear and convincing competence and capability. The across-the-board consensus among interviewers during the post-interview debriefing was that the candidates for the job were more-than-qualified.

The County Commissioners and the County planning staff deserve a great deal of credit for moving the process along, and for (soon) bringing very talented professionals to our County to bring our zoning and development codes up to date.


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