Planning Commission to Consider Amendment of Site Disturbance Ordinance

This week, the Kootenai County Planning Commission will consider two draft amendments to the county’s site disturbance ordinance.  One draft, submitted by County staff, would add variance and appeal procedures to the ordinance. Another, submitted by a local planning and development firm, would create several potentially broad new exceptions to the ordinance.

 The site disturbance ordinance, of course, provides detailed regulation on how a property can be developed, and in particular, the ordinance creates critical undisturbed and vegetated buffer zones which protect our local waterbodies from runoff and erosion.   

 Some months ago, the Kootenai County Commissioners agreed with a hearing examiner and KEA that the current site disturbance ordinance provided no legal authority for a variance, and thus a request for a variance to allow disturbance of a portion of Hayden Lake’s shoreline was denied. In an effort to plug the regulatory gap, the County’s planning and legal staff has drafted an amendment to the ordinance (link to pdf here) that would allow for variances and appeals, which most land use laws allow.

 Meanwhile, e2 Planning and Design, a Post Falls firm which represents developers (and which represented the development denied the variance on Hayden Lake), has drafted an amendment to the site disturbance ordinance which would allow “installation of new improvements” in the buffer zones if they are recommended by a “design professional” and they “meet the definition of a best management practice.” The County planning and legal staff has attempted to amend the developers’ draft to provide clearer guidance and tighter language (a pdf of the county’s amended  draft is here), but at a workshop meeting of the Planning Commission this morning, the development firm appeared to balk at the County’s re-write.

 KEA is currently developing comments on the two proposed amendments and will appear at the Planning Commission’s public hearing on Thursday evening.  KEA has minor concerns about the County’s proposed variance and appeals amendment and major concerns about the development firm’s amendment.  Stay tuned.

UPDATE 6/25:  More on this later this weekend, but last night, the Planning Commission unanimously passed the County’s proposed variance legislation, and it unanimously tabled the proposal from e2 Planning and Development until concerns from KEA, DEQ, the Coeur d’Alene Tribe and the County were resolved.  Legal interns Sean Waite and Jeff Briggs testified most impressively and wrote the bulk of KEA’s comments available at our website.

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Really? Seriously? Now the Commissioners to offer bailouts to developers?

We were alerted Tuesday to a stunning new draft “Emergency Ordinance” scheduled to be introduced by the Kootenai County Commissioners which would allow developers to escape their obligations under existing land use approvals and financial guarantees for up to two years by simply sending a written request.

Emergency legislation? Really?

 The draft bill (pdf)  says that the Board of County Commissioners may consider such a request at any regular meeting. But the legislation does not provide any standard for a decision by the Board, nor does the legislation require any findings of fact or law prior to granting an approval. Indeed, other than a “written request” that contains “reasons why good cause exists (minimally including an economic hardship),” these requests may evidently be granted by the Board on a whim.

 On the substance, the legislation is probably illegal, but it is certainly bad policy. If a prior land use decision has been through the hearing examiner process, the Board approval process, and has been issued a formal binding decision, the Board cannot revisit the prior final decision without similarly formal processes and hearings.  Some of these deadlines and financial guarantees were negotiated in detail and agreed-to by more than just the landowner or developer. It would be patently unfair to unilaterally relieve one party of its obligations. Besides, there is an extraordinary moral hazard here – these landowners and developers chose to take on real estate development risks knowingly and willingly. These are not naïve actors in our local economy.  They are obligated under formal binding public orders, after significant public process. Relieving them of these obligations will encourage similar risk-taking in similar economic environments leading to more bailouts. 

 Moreover, the timing and “emergency” nature of this legislation is highly suspect.  This economic emergency has been ongoing for nearly two years. Why would the nature of the economy get so severe as to require fast-tracked “emergency” legislation to be unveiled exactly one week before a hotly contested primary election? We wonder.

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Commissioners deny variance not governed by county code

The Board of County Commissioners finally put the kibosh on a request for a variance under the site disturbance ordinance.  As we’ve written before, there’s no such thing under current county law.  By a vote of 2-1 this morning, the BOCC denied the variance to Timber Ridge, LLC for a tram landing and pathway on the shores of Hayden Lake.

 Commissioner Rick Currie agreed with KEA testimony and the hearing examiner’s determination that there is no site disturbance variance under the law.  Currie said the ordinance “needs work” but that there was no way to grant the request under the current code.  Commissioner Rich Piazza voted against the request too, commenting however that the applicant simply failed to prove that the variance was necessary for the project.

 Commissioner Tondee, on the other hand, agreed with a county attorney’s tortured legal interpretation that the site disturbance variance request was really a “bulk and placement” or “setback” variance request under the zoning code. Of course, that’s not what the application said, and that’s not what the applicant’s representative communicated to the BOCC at the public hearing.  Luckily for Tondee (and the County attorney), he was outvoted this time.

 In theory, the applicant may appeal the decision to a court. Regardless of the outcome, this case should signal to the Commissioners that they really need to get on with the business of fixing the outmoded county codes.

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Update: Variance denied, because there’s no such thing

As we wrote last month, we were somewhat taken aback by a developer’s request for a variance under the County’s site disturbance ordinance because, well, the ordinance doesn’t have provision for variances.  It turns out that the County hearing examiner agreed and recommended that the request for variance be denied as a matter of law.

In a well-reasoned opinion, hearing examiner Rebecca Zanetti recommended that a proposal for a walkway through the 25-foot buffer zone around Hayden Lake be denied to Timber Ridge, LLC, who is developing a controversial subdivision above the Lake. Zanetti walks through the possible legal theories under which a variance might be granted and explains clearly why it just can’t be done. Zanetti concludes, “Applying a variance procedure to the current Site Disturbance Ordinance would be akin to amending it, which cannot be done in a variance proceeding, by either a hearing examiner of the Board of County Commissioners.”

We’re told that unless there is a request for further public hearing, the Board of County Commissioners is likely to review Zanetti’s recommendation at their regularly scheduled deliberation meeting January 14.

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