Blaine County court tosses development ordinances

A Blaine County court decision may affect future development in this rural county and may impact county and city ordinances statewide.

In a decision handed down June 3, District 5 Judge Robert Elgee told county officials the county’s ordinances governing the fees developers pay to mitigate impacts on public services are unlawful and must be revised. In addition, he said cities and counties may not turn down development applications on the sole basis of being inconsistent with the comprehensive plan.
Blaine County’s chief deputy prosecuting attorney Tim Graves declined to comment because part of the lawsuit is still pending, adding, “I also am prohibited by my ethical rules from being outwardly critical of a judge.”
County administrator Mike McNees said the county commissioners have had at least one executive session discussing the decision, but no action has been taken yet.
In January 2008 Cove Springs filed suit against Blaine County, seeking a review of the county’s “improper procedure and its arbitrary and capricious application of the relevant law,” according to a Cove Springs press release from the time. The lawsuit also seeks damages that could add up to “many millions of dollars,” according to the release.
The development was originally proposed in December 2004, consisting of 340 homes on 600 acres of the 4,600-acre Cove Springs Ranch, located in Blaine County about four miles south of Bellevue and one mile east of Gannett Road. The remaining 4,000 acres would be left as productive agriculture land and open space.
Public hearings before the Planning and Zoning Commission began in October 2006, with a dozen occurring before the commission recommended the county commissioners deny the application in April 2007. The public spoke up about the development throughout the hearing process, with those opposed to the development outweighing supporters by a roughly 2-1 margin in at least one meeting, according to news reports from the time.
That August, developers responded to the county’s concerns and submitted revised plans, eliminating 52 lots and preserving more land for wildlife habitat protection. The county commissioners nevertheless unanimously rejected the subdivision in October 2007.
 The court’s June 3 ruling does not yet address the Cove Springs denial specifically, but rather some of the ordinances the county used as reasons for denial.
A court document filed by the county lists five main reasons for the commission’s denial. With this decision, Cove Springs attorneys say at least two of those reasons have been struck down.
The decision declared county ordinances stating developments must conform to the county’s comprehensive plan were invalid.
Cove Springs attorney Chris Meyer said such broad requirements leave developers to wrestle with “vague and conflicting aspirational goals” that should be sorted out by the county and spelled out specifically in zoning ordinances.
Meyer said one example is the county’s goals regarding agriculture, which leave developers wondering if they should cluster development on a small footprint or spread out the density to best preserve agriculture.
“It’s a conundrum,” Meyer said. “The county is supposed to struggle with that at the time they develop the ordinances, and after they’ve struggled with it, then they have to live with it. They can’t change their minds after somebody like Cove Springs comes in and invests a million dollars trying to [follow the ordinances].”
The county argued in a brief to the court that the Local Land Use Planning Act requires consideration of the overall objectives within the comprehensive plan. Previous Idaho Supreme Court decisions, the brief states, do not imply the plan should be completely left out of discussions regarding development applications.
“The Idaho Supreme Court has never put forth this absurd claim and this Court should not allow itself to be led down this unsubstantiated rabbit trail,” the brief states.
The court sided with Cove Springs.
Another issue arose with the sections in the county code dictating that developers must mitigate the adverse effects on off-site public services and facilities, like schools, police and fire protection and roads. Cove Springs said requiring off-site mitigation often amounts to developers providing the county with payments that become a condition of their approval. These required fees, said Cove Springs lawyers, though described as voluntary, constitute a de facto tax on the developers, which the county does not have the authority to exact.  
The county argued in its brief that “considering impacts of development and requiring mitigation is constitutionally acceptable and appropriate so long as there is a legitimate state interest involved and the mitigation bears a relation to that interest.”
The court sided with Cove Springs in saying the county does not go far enough in justifying such fees, making the fees illegal.
“They have to undertake various studies to demonstrate the fee is proportionate and not imposing an unfair fee on developers,” Meyer said. “They need to make sure if they want a developer to widen a road, for example, that what they’re asking for in terms of dollars is proportionate to the amount of expense the developer is going to bring. Blaine County didn’t want to jump through those hoops.”
The court also invalidated ordinances in the city code that allow the county to defer to the Idaho Department of Fish and Game in deciding if a development’s impact on wildlife is acceptable. All considered, the judge struck down nine ordinances.
“We are exceptionally pleased with the court’s ruling that all nine of the ordinances are contrary to law,” said Steve Beevers, president of Cove Springs Development, Inc. “We will now move on to the discovery process in preparation for the next step of judicial review of the county’s decision to deny our applications.”
Local counsel Martin Flannes said even considering the reasons for denial that were not specifically struck down in this decision, the denial was political, where it should have been based around the county’s ordinances.
“The opposition simply doesn’t want 300 houses,” Flannes said.
“And how do you work around that? … Some [residents] actually said this land should never be developed. I understand that, and maybe in some cases I agree with that, but that’s called a park. And I would support that – if the public wants to buy a park, then they should buy a park and not declare someone else’s land a park.”