Fighting Creek Appeal

Case Background:

In January 2007, several organizations and individuals appealed the Board of County Commissioners ruling to change two parcels of land near the Fighting Creek store on South 95 to commercial. Patrick Kegley applied for a zone change from Agricultural to Commercial on five acres and Fred and Sharon Gabourie filed for a zone change from Rural to Commercial on an adjacent fifteen acres.

On December 14, 2006, The Kootenai County Board of Commissioners, in contravention of the recommendation of the Hearing Officer presiding over prior hearings, voted to allow both zone changes. The sole and only justification of the Board of Commissioners in granting zone changes on both applications was based on representations by the applicants that a growth in population south of Coeur d’ Alene provided basis for commercial zoning.

Preserve Our Rural Communities, Mica Kidd Island Property Owners Association, the Kootenai Environmental Alliance, Kootenai County Rural Community Council, Jai Nelson, Martha Cook, Kathleen Silvas and Alex and Louise Vanderwilde hired attorney Scott Reed and filed an appeal.

The appeal was based on the argument that urban style development needs to be within incorporated cities. Several additional key factors were detailed: 1) The Board of Commissioners made an unlawful procedure in that all ordinances shall be in conformance with the Comprehensive Plan, 2) the decision was not supported by substantial evidence on the record and 3) the decision was arbitrary, capricious and an abuse of discretion.

Scott Reed, as Attorney for the petitioners, worked diligently on a methodical and notable brief. This was filed on March 23, 2007 with District Court and assigned to Judge Luster. In his brief, Mr. Reed cites numerous Idaho Supreme Court decisions involving prior appeals in other Idaho counties and then concludes:

Kootenai County differs from each of the counties as revealed in the reported opinions. Kootenai County Zoning Code 27.05 mandates that any amendment to the ordinance such as these zone change amendments must be “…in accordance with the Comprehensive Plan adopted by the Board of Commissioners.”

In early May, the Kootenai County Board of Commissioners filed a Motion for Permissive Withdrawal. The county was granted this motion and they no longer have standing in this case.

In June, the applicants indicated their intent to proceed with securing building permits.

They also filed a motion to dismiss based on lack of standing. As a result of these filings, Mr. Reed filed a Motion to stay order and countered the standing argument with an affidavit from Ed Schneider on behalf of Preserve our Rural Communities and as an adjoining landowner. These filings were heard by Judge Luster on June 26, 2007.

Judge Luster granted the motion to stay and denied the motion to dismiss. In other words the applicants failed in their attempt to divert the key issue away from the commercial zone change.

On September 24, 2007 Judge Luster signed an Order Affirming Decision of the Board of County Commissioners.

Subsequently, Scott Reed filed a Motion for Reconsideration based on evidence that the existing use of other “commercial” properties in the area and their ownership was based on misleading information being presented in regards to these two adjacent properties. One of these properties is a gravel pit approved as a Conditional Use Permit, not a commercial or industrial zone change. The other property is the Fighting Creek Store, which is exempt for zoning as it is tribal property. Tribal property is not subject to county zoning nor are county building permits required.

However, on January 31, 2008 Judge Luster reaffirmed his earlier ruling.

On March 5, 2008, Scott Reed, on behalf of the Petitioners filed to appeal this case to the Idaho Supreme Court listing 17 issues.  The three key issues being:

1.   Whether the District Court erred in determining that the actions of the Kootenai County Board of Commissioners were not arbitrary, capricious and an abuse of discretion.

2.   Whether the District Court erred in determining that the zone changes were supported by substantial evidence in the record as a whole.

3.   Whether the District Court erred in finding that the zone changes did not violate the 1994 Kootenai County Comprehensive Plan.