It’s been a while since I posted an update. That doesn’t mean we haven’t been busy on land-use issues. Here’s the view from a 30,000 ft.
First let me tell you what we have been working on then action items
ZC0028-21 The Skinner Case (Selle Valley 714 acres rezoned from 20 acre minimums to 10 acre minimums) is in the courts but we do not have a hearing yet. Skinner’s lawyer teamed with Bill Wilson (Bonner County Assistant Attorney) and filed a motion to dismiss – claiming we did not file timely. We did. Their claim as that we should have filed the claim for appeal (which comes after reconsideration) before the reconsideration. This is because of a very loose interpretation of language in the LLUPA (Local Land Use Planning Act) statutes. The hearing for that motion was a few weeks ago and there has been no ruling yet.
CUP0030-21 Idaho Land LLC - The RV Park Case (Clagstone Road – Stephen Doty filed for a CUP to put 20 RV’s on a 4.7 acre lot in a R-5 zone as “low cost housing”) drags on. We filed an appeal with the BOCC which was denied of course, and now we await a reconsideration hearing date. This case is a big deal. It goes against the code in several ways, yet the Planning Dept. recommended approval and the Zoning Commission rubber stamped it like they do everything else. There are too many issues to list here, but for starters his “park” would quadruple the allowed density. If the approval ends up being allowed by the courts we will end up with RV parks in rural areas all over the county. They belong where there are urban services available – not in farmlands.
MLD0059-22 MLD (Minor Land Division). Jake Gabell, the new Planning Director (hired under exceptionally questionable circumstances) applied for a MLD, originally asking to divide his suburban zoned parcel into 4 lots – claiming he had an “urban water system” which consisted of a shared well. The BOCC (Jake’s bosses) of course approved his application without question. Neighbors appealed the decision to no avail, so proceeded to file a MTR (Motion to Reconsider). Jake eventually saw that this was headed to court and he would likely lose there, so he amended his application to divide into two lots, which put him in alignment with the code. This was a win for the neighbors, and for the People in the County as a whole.
AM0012-22 Comprehensive Plan update Hearing is October 12th at 1:30. The Planning Commission just voted to submit proposed language to update the Goals, Objectives and Policies to the Board of Commissioners. There is a lot to unpack here. Supposedly this language is to bring the Goals, Objectives and Policies in line with the current Comprehensive Plan but the Commissioners often referred to the Sub Area Plans- which are geared toward the next revision of the Comp Plan - during the process. I tried pinning them down on which was what but as is usually the case when I put County officials in a corner they dodged the question. Anyway it will be heard by the BOCC and we’ll have to see what comes of it from there.
ACTION ITEMS: The following amendments will be heard on October 12th at 1:30 in front of the Bonner County Commissioners.
AM0007-22 and AM0013-22 and letters regarding both would be helpful and here its he breakdown of both.
Both hearings were sent directly to the County Commissioners instead of being sent to the Planning Commission which would have helped with input from the public. It was suggested both hearings be sent to the planning commissioners for workshops but they denied our request.
AM0007-22 Zoning Map going digital HEARING Oct 12th at 1:30. Please write to planning@bonnercountyid.gov Here is my letter and opinions on this and please use this to help if needed to write your own.
Early in 2021 I learned that Bonner County Planning does not maintain an official Zoning District Map as required by Bonner County Revised Code 12-310 and 12-311.
“12-310: OFFICIAL ZONING DISTRICT MAP:
The official zoning district map and the official supplemental maps shall be available for public review during regular business hours in the office of the Bonner County planning department and shall bear the signature of the chairperson of the board of county commissioners, attested by the county clerk or deputy, and the adoption date of the enacting ordinance. (Ord. 501, 11-18-2008)”
The Planning director at that time, Milton Ollerton, told me he had no idea where it was or what happened to it, even though it was his responsibility to make that map available to the public at all times during normal business hours. I later learned that the Official Zoning District Map had been kept current and was in the Planning office until Milton took over that position in 2015.
“12-311: ADOPTION OF OFFICIAL ZONING MAP, CERTIFICATION, AMENDMENTS TO BE SHOWN:
B. Amendments: If, in accordance with the provisions of this title, changes are made in district or zone boundaries, or other matter portrayed on the official zoning district map, changes shall be entered on the official zoning district map promptly after the amendment has been approved by the board, with the entry on the official zoning district map specifying the file number of the particular change. No amendment to this title which involves matter portrayed on the official zoning district map shall be effective until such change and entry has been made on said map.”
The result of a public records request I submitted in May of 2021 documents the lack of existence of Official Zoning District Map.
In order to access the GIS map, presumably the map being utilized for the proposed digital Zoning District Map, the user must first acknowledge a disclaimer that reads:
“…if you use this data you need to know that it does not represent survey level accuracy and can contain errors. The County makes no claims as to quality, accuracy, completeness or timeliness. Maps and the associated data are for illustrative purposes only and are not designed as a substitute for legal surveys or legal records. Bonner County does not accept any responsibility for any losses or damages arising from anyone who may use this information…”
What is the plan to ensure that the provisions in this disclaimer no longer apply? Or is the county planning to go so far as to say: “this is the official Zoning District Map and nothing contained on it can be used for any legal purpose.” I would say the county needs to address this issue but the reality is there is no way to address it and still be responsible to the taxpayers.
So now the Planning Department, rather than complying with Title 12, wants to change the law to absolve them of not following the current law for the last 7 years. The better solution is to bring the department into compliance rather than change the law.
First – the paper map on display and signed off with each change by the BOCC chairman and attested to by the Clerk, provides a trail of accountability. This is the type of trail of accountability that we insist on having with paper ballots. We all know that if our votes were accounted for electronically there is no way to verify the actual tallies. This is also the case with a digital Zoning Map. Once altered, there is no way for the public to track what changes were made, when they were made, for what reason and by whom. So the County now expects us to just trust that all has been done legally and correctly, with absolutely no way to verify any of it, after we’ve proved that the County has not been following the law for at least the last seven years. This is beyond unacceptable.
Also – with a digital map, anyone with access can alter it – correctly or incorrectly, by accident or with mal-intent. This also is unacceptable, as again – the public – who has every right to know who changed it, when and why, will have no way to know.
At the very least, the Planning Director, County Clerk and Board of Commissioners need to be held to account for their knowing failure to maintain the zoning map (note that the current director is not responsible for the past failures but that is no excuse not to rectify them).
New proposed language for 12-310 further erodes public trust.
“Changes to the official zone map shall be listed in an electronic format on the official zoning map. One or more physical reproductions of the official zoning map shall be located in office of the Bonner County Planning Department. Any reproductions of the official zoning map shall be true and correct reproductions of the official zoning map to the greatest extent possible (with the exception of signatures), but any such reproductions shall not be considered official.” (emphasis added)
The map needs to be brought up to date and authenticated, which will be a monumental undertaking, but a vital one. Had the law been followed all along, it would not be monumental, and the lack of adherence in the past does not excuse ignoring the law.
AM0013-22 Request by County to take out “Necessary” for zone/comp plan changes and limits appeals HEARING Oct. 12th at 1:30:
Please write to planning@bonnercountyid.gov Here is my letter and opinions on this and please use this to help if needed to write your own.
While certain parts of the proposed changes are reasonable and/or of a housekeeping nature, a few are counter to the best interests of Bonner County property owners.
Revising 12-211 General
A. Replacing the term “necessary” with “the reason.”
To simply ask for a reason for a request, rather than why the request is necessary, lowers the bar to the point where in effect, nothing will stand in the way of a request to amend the zoning code or Comprehensive Plan. We have seen 12-211 A. ignored - by the Planning Department that doesn’t even include it on the application forms – and the BOCC that to my knowledge has never once required it of an applicant even though it is required by law.
The current language was carefully chosen in 2008 to uphold guidance of the Comprehensive Plan and the notion of zoning in general, which is to maintain contiguous zoning districts, rather than allow individual property owners to choose the zone of their preference. Allowing individual owners to select a particular zone designation for their personal benefit completely defeats the purpose of zoning. Clearly that is the goal of this proposed revision.
12-214: PROCEDURES FOR AMENDMENTS TO THIS TITLE:
Currently, amendments to the code have not required being heard by the Planning Commission (or previously Planning and Zoning Commission) and the suggested revision here is to strike the word “not,” which will revise this clause to now require a hearing before the Planning Commission before going to the Board of Commissioners. This is a good thing. The Planning Commission gives the People a way to get their support or concerns on the record in advance of a BOCC hearing.
12-216: EVALUATION OF AMENDMENT PROPOSALS:
Revising 12-216 also defeats the purpose of zoning. It adds a clause stating that the zone descriptions in3.2 are to be used to determine the validity of a zone change request. The Planning department has already – wrongly - been using 3.2 as their criteria for recommending approval or denial of individual zone changes, and the BOCC have gone along with it – knowing full well you they approving the practice of spot-zoning. It was NEVER intended that every single parcel in a given zoning district would have every single feature listed in the zoning district description. Those descriptions are the GENERAL characteristics of the zoning districts. That’s why they are called zoning districts.
The Comprehensive Plan calls out Land Use designations and what parcel sizes are allowed in each Land Use designation. For example, Ag Forest can either be 10 acres or 20 acres. 3.2 calls out the GENERAL characteristics that were applied to determine which areas of A-F would be 10-acre minimums, and which would be 20. Those designations were made with great care.
Quoting from the Land Use Component of the Comprehensive Plan:
“The proposed land use matrix below lists general uses and characteristics of each of the map designations. Since the map covers 1.1 million acres, the map is generally [sic] in nature, and it is recognized that some areas may have more moderate slopes or include transportation features that cannot be mapped on this scale.”
Nowhere in the Comprehensive Plan does it state or even remotely imply that each and every parcel must fit a particular description. It is not stated because it was never intended.
A more appropriate revision would be to strike the descriptions of features and characteristics and limit the code to what uses and densities are allowed and what restrictions exist in a particular zone.
12-262: APPEALS FROM FINAL DECISION OF COMMISSION/HEARING
EXAMINER:
The proposed revision adds the below language stating that any appeal must show that the commission or the hearing examiner was at minimum, one of the following:
1. In violation of constitutional or statutory provisions;
2. In excess of the statutory authority of the commission or hearing examiner;
3. Made upon unlawful procedure;
4. Arbitrary, capricious or an abuse of discretion; or
5. Not supported by substantial evidence on the record as a whole.
The proposed additional language in 12-262 is alarming. It seems to attempt to deny the right of a citizen to appeal a decision based on a misinterpretation or misapplication of the provisions of Title 12. Given that those are two of the most likely reasons for appeal, this revision appears to be a denial of due process at the county level and clearly favors applicants who are requesting density increases.
This revision also puts in the hands of employees at the Planning Department to make decisions based on legal principles such as whether a decision may have been unlawful or unconstitutional. If an affected party wishes to file an appeal and pay the fee, they should be allowed to file the appeal based on whatever they feel is appropriate and go through the process – which in and of itself tends to weed out frivolous claims.
Regarding 12-612 C 5 and G. 2. Revising to add “12-624 E.” I am unable to locate 12-612 E. The published code section 12-624 only shows A through D.
I’m probably forgetting something but I’ll follow up if I think of more.
As most of you know I ran for District 3 Commissioner in the May Primary (Luke Omodt – hand picked by Dan McDonald – won that race with a whopping 34% of the vote). During the campaign I continued to work on KBCR issues, so between the two missions I lost a lot of ground on the personal side of life. While I have not backed away from battling the rubber-stamping of density increases by the current commissioners who are running a scorched-earth campaign, I did slow way down in terms of being the face of KBCR. I’ve attended countless hearings and worked hard behind the scenes (as have several others) but have done very little that was visible. While not entirely caught up (are we ever?) I hope to put up more posts to get folks better informed – and more active. We have a lot of folks interested and about a half-dozen who are actually involved. As the saying goes, many hands make light work. So I’m asking you – get informed – get involved – donate at https://keepbonnercountyrural.org . Anything we receive goes directly to legal fees and filing fees. The more we have the stronger we are to fight.
Finally a big shout-out to my partners in crime who never let up keeping the grifters on their toes – Jonna Plante (who never lets me slack off very long), Reg Crawford, and my awesome wife Susan Bowman. There are others who help out, but without these three doing what they do KBCR would be nothing.
I know this was a long post – so if you made it this far thanks for hanging in there.
Dave Bowman
Chairman, KBCR
KBCR@mail.com