Wednesday, April 24, 2013

East Fork property back in spotlight

Property owners appeal “non-conforming” designation


By KATHERINE WUTZ
Express Staff Writer

After almost a decade of applications, construction and lawsuits, owners of a home in East Fork that has been the center of litigation since 2005 will come before the Blaine County commissioners to request the removal of restrictions that would keep the home from being expanded or changed.
    A hearing has been scheduled for Tuesday, April 30, at 1:30 p.m. to discuss whether the home of Michael Rollins is a non-conforming structure within the county’s Mountain Overlay District.
    A letter from Land Use and Building Services Director Tom Bergin dated December 26, 2012, states that the home is a “legal, though non-conforming” use, which means that Rollins cannot enlarge, restore or rebuild the house. In addition, because of the home’s location in the Mountain Overlay District, any modification of the house or property that requires mechanized equipment needs to be reviewed by the county.
    The fight over whether or not Rollins should have been allowed to build without a strenuous site-alteration permitting process began in July 2004, when Blaine County staff determined that Rollins’ proposed house was not subject to Mountain Overlay District regulations.
    The Mountain Overlay District as defined by Blaine County is an area that is subject to strict zoning regulations due to the land having a certain amount of slope. Blaine County code states that the reason for such restrictions is due largely in part to safety—emergency vehicles cannot always easily access homes built on hillsides, for example, and homes near steep slopes might be more prone to avalanche risks.
    But part of the reason for the district is aesthetic. Blaine County code states that “‘visibility’ is an important concept under this [statute],” and further states that the purpose of the district is to “preserve the natural character and aesthetic value of hillsides and mountains in the county by regulating development thereon.”


The appeal is scheduled for Tuesday at the Old County Courthouse in Hailey.


    Rollins was able to gain three building permits without the more extensive design review required by the code, due to county staff decisions that the home was outside the district.
    A letter to Rollins from county planners dated July 6, 2004 stated, “We have determined that the proposed siting of the building does not fall within the definition of the [Mountain Overlay] District…. Based on this assessment, you are not required to obtain a hillside site alteration permit prior to application or issuance of a building permit.”
    Neighbor Brian Poster appealed the county’s decision that the home was not subject to these regulations. County commissioners heard Poster’s appeal and denied Rollins’ building permit on June 23, 2005.
    Fifth District Judge Robert Elgee ruled on Oct. 18, 2006, that Poster did not file a timely appeal and was not even an “aggrieved party” with the right to appeal the decision.
    “Rollins property, therefore, is outside of the Mountain Overlay District,” Elgee wrote in his decision.
    Blaine County appealed the district court’s decision to the Idaho Supreme Court, which issued an opinion in 2009 that stated that Rollins had not been entitled to judicial review of the case because he had not exhausted all other options available to him administratively—that is, he had not simply applied for a site-alteration permit as the Mountain Overlay District requires.
    Rollins applied for a permit, however, and was denied a decision by the Land Use and Building Services Department, which instead issued a letter stating that Rollins’ home was a non-conforming structure.
    Rollins’ appeal states that his attorneys plan to argue that Rollins had a right to have a public hearing on his site-alteration permit and that the decision to dismiss the permit was “made on unlawful procedure.”
    The appeal is scheduled for Tuesday at the Old County Courthouse in Hailey.


Kate Wutz: kwutz@mtexpress.com




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