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Posts Tagged ‘subdivision’

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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Faced with a subdivision proposal on a steep hillside above Hayden Lake, the Kootenai County Commissioners struggled today with the County’s subdivision ordinances and denied the request. The subdivision would have placed some 34 homes on steep slopes and erodible soils just above Hayden Lake – not far from where East Hayden Lake Road washed out in the recent spring rains.

The Commissioners wrestled with the fact that they thought some development could occur at the site, but not to the extent that was proposed, and the proposal was not in accordance with badly-drafted development rules. Commissioners Dan Green and Jai Nelson voted to deny the subdivision request on the grounds that it did not avoid steep slopes, “did not contribute to the orderly development” of the community, “did not create lots of reasonable utility and livability,” and it would have imposed “an unreasonable burden” on future lot owners. Nelson was further concerned about potential stormwater and soil stability impacts on Hayden Lake. Commissioner Todd Tondee disagreed, and thought that the subdivision complied with the requirements and could be engineered to accommodate the slopes and soils and difficult drainage.

In particular, one procedural step in a problematic section of the development code became one focus for the Commissioners frustration:

Section 10-4-5: CONSERVATION DESIGN PROCEDURE: 

Conservation subdivisions shall be designed according to the following procedure: …

…Step Three:  Determine zoning districts and expected numbers of base and bonus lots.  Select building sites positioned to avoid slopes in excess of 15% and to take advantage of views and green space.  Note:  Though building sites should be designed to avoid slopes, this is a recommendation, not a requirement.   … (italics in original)

The Commissioners lamented that “shall be designed … to avoid slopes in excess of 15%” seems pretty clear and that the proposed subdivision design could clearly not comply — all of the lots on slopes steeper than 15%, and much of the development was proposed on slopes as steep as 35%.

But, the Commissioners struggled with the County Code’s “Note” making it a “recommendation, not a requirement.”  If it’s not a requirement, what is the proper standard to apply?  Ultimately, the Commissioners took the law’s “recommendation” and determined that the subdivision was simply requesting too much on land too steep.

This is obviously the correct decision. Otherwise, the bizarre “recommendation, not a requirement” language would have effectively negated the ordinance entirely, and thus defeated its clear purpose to restrict development on steep slopes. But again, it points out the desperate need for a new development code in Kootenai County — a process just now getting underway.

 

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Kootenai Environmental Alliance has a very busy land use program, but as a general rule, we don’t weigh in on subdivision applications in Kootenai County. Mostly because we’re a small busy non-profit – there are only so many battles we can fight.

The main reason for drawing the line at subdivisions is that under current county code (the subdivision ordinance — a very large pdf), subdivisions are almost always approved. If the proposal simply meets a checklist of requirements, and it is no more dense than the underlying zoning would allow, the subdivision is probably going to be approved. We’ve certainly thought that the subdivision regulations should be tightened, but until that occurs (perhaps now that the comprehensive plan is done, it could happen soon), we’ve generally avoided the usually-losing battles over individual subdivisions.

So it was with some astonishment that local attorney Scott Reed proudly brought to our attention the case of the Hemlock Hills subdivision, rejected last week by a Kootenai County hearing examiner.  In what he called a “delightful surprise,” Scott Reed pointed out that the opposition to the 34-lot subdivision above Hayden Lake was simply a collection of concerned residents, whose testimony clearly and simply highlighted the fatal faults in the subdivision application. All too often, testimony by non-professionals is criticized and discounted by the applicant’s paid professionals, as if an engineer’s seal, or advanced degree should be a prerequisite to stating otherwise obvious facts in a County land use hearing. But the non-professional residents simply went through the subdivision checklist and testified as to where the application fell short.

In this instance, the hearing examiner followed the testimony of the opponents and took note that the project places the development on very steep slopes. All the lots were located on slopes in excess of 15%, with more than a third of the lots on slopes in excess of 35%. The hearing examiner pointed out problems with erodible soils, roadway construction, setbacks, stormwater, the water table, and a failure to provide sufficient information about traffic mitigation. Indeed, the hearing examiner stated flatly, “The subdivision has not been demonstrated to create lots of reasonable utility and livability, capable of being built upon without imposing an unreasonable burden on future owners.”

From the hearing examiner’s opinion, it seems utterly obvious that this subdivision shouldn’t be built. But sometimes, with all the engineers and lawyers and “design professionals” purchased by the developer and involved in a typical land use hearing, it takes neighbors and citizens to stand up and state the obvious. Our congratulations to them.

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