County P&Z says no to subdivisions, rezone

March 15, 2012

In the course of a four-hour meeting tonight, the Boundary County Planning and Zoning Commission voted unanimously to forward to county commissioners recommendations of disapproval on two clustered subdivision applications along the banks of the Kootenai River as well as a proposal by the county to rezone several areas along the Moyie River from agriculture/forestry to suburban. They also moved to extend the period to accept letters of interest to fill a position on the commission until April 12. Applicant Frank Wagstaff, who owns 1,425.62 acres in the Kootenai Valley along Turner Hill Road, is seeking to create two subdivisions; Kootenai River Estates South, totaling 81.89 acres, and Kootenai River North, totaling 124.84 acres, into 71 riverfront lots while restricting the remaining acreage from development "in perpetuity." James Fox, Spokane Valley, representing the owner, said that, under the current zoning in the prime agriculture zone district, the property could be divided into 142 ten-acre lots, which would take that land out of production forever, but lauded the new county provision allowing "clustered" development, wherein minimum parcel size is traded for "net development density" by which smaller tracts are allowed in exchange for preserving desired attributes, in this case, agriculture. "The land we're proposing to develop is being grazed, but it's not being farmed," he said. "We foresee some residential development, but think that many of the lots we can offer will be used for recreation." Fox proposed a similar development, the Estates at Copeland Landing, late last year, which also received a P&Z recommendation unfavorable to the applicant, and he attempted to address some of the concerns raised then in presenting these two proposals; Covenants, Conditions and Restrictions (CCRs) on every lot sold requiring the buyer to acknowledge that they're buying land in farm country, and giving up their right to sue for nuisances inherent in "accepted farm practices," requirements that the buyers of the parcels build to avoid the hazards of flood, elevating their homes at or above an established elevation. P&Z members heard from two people in favor of the proposal, though they both admitted they didn't really like the idea; both saying the property owner had the right to the best use of the land whether the rest of us like it or not, and they heard from many opposed, some out of concern over inadequate roads, public safety and the conflict between high-yield farming and residential use. "I'm one of the few in the 'new' generation of farmers," one said, "and I can't farm the way my parents did. I have to apply for a permit to burn, and I'm told when I can. I'm 20 miles from Canada, but when the smoke reaches Creston, they call Coeur d'Alene and I'm told I have to stop." "How do you know when there's a complaint?" A P&Z member asked. "There's a guy from Coeur d'Alene on my property while I'm burning," he said, "And when he gets the call that there's a complaint, he shuts me down. I was permitted four days last year,  I got two. I agree with property rights, but I look at it from a different angle ... I want to preserve my way of life ... what about mine?" Mike Ripatti, an engineer with long family ties to the valley, said that telling buyers they couldn't sue over nuisances from accepted farm practices was well and good ... instead of filing lawsuits, people wouldn't have too much trouble changing the definition of what's accepted. On rebuttal, Fox again pointed out the benefits of clustered development, saying it was nothing new, and that he'd seen and studied places where it's worked for decades ... for centuries. While it wasn't brought up tonight, at the last hearing many raised as an example against his application the fate of the Rathdrum Prairie, once prime farmland but now row after row of homes and roads. The comparison, he said is unwarranted. "They allowed that to happen through rezoning to allow higher development density," he said. "They didn't allow for cluster development. "I've visited Long Island, New York," he said. "They recognized the concept more than 80 years ago, and it is working. If you go to Europe, they've been practicing it for years. It works ... farms and people can live side by side for centuries. I know people hate change, and this is a major change. But it uses six percent of marginal land, and preserves 94% of the land for what the community wants." Despite his argument, which seemed to have been somewhat compelling to some members, a couple of ordinance provisions, one of which the applicant wasn't aware, gave the commission little choice but to say "no." The entire area in which residential development is proposed lies in the 100-year flood plain established by FEMA in 1982, for which no base flood elevation data was established, and, surprising the applicant, it's all in an area identified as wetland. The Boundary County Zoning and Subdivision unequivocally states that clustered development can't be considered in either case. Fox presented documentation to address the flood plain elevation, hiring an engineering firm to do the myriad studies needed to develop base flood elevation, and he hired an expert to look at the land as regards wetlands, and, thanks to elevation, the doctor found none. The maps provided by the Army Corps of Engineers, however, and much to his surprise, indicate that the entire area is a wetland. "Based on that, the ordinance is pretty clear," said P&Z member Steve Shelman. "If it's in an unnumbered 100-year flood zone, we can't approve it. There's a way he can fix that by establishing the base flood elevation and by getting FEMA to approve it. If it's in an identified wetland, which it clearly is, we can't approve it. No one seems to know how he can fix that." Next on the agenda was the proposal for rezoning many of the lands along the Moyie River ... a passel of lots as small as an acre that had been subdivided and in existence since well before the county had zoning ordinances, which had been given that designation on the Comprehensive Plan Map adopted in 2008, but didn't make it onto the county zoning map, which establishes law. In spite of anything the county might accomplish by a "blanket" rezone, the Planning and Zoning Commission decided, adopting the propsal would not be wise. They heard from several who lived on the lots affected; in the last two years, two homes had burned down because the roads they relied on didn't allow access to emergency vehicles. Member Matt Cossalman, a firefighter with the Hall Mountain Fire Department, begged to differ ... He helped put out both fires. Despite poor, unmaintained roads, he said, Hall Mountain Fire was there ... but in both cases, too late. Les Levig, who owns property up there, raised the point that, though there were many parcels created in the days before county land use ordinances, a rezone allowing even higher density without providing infrastructure sufficient to support it was unwise. "Sub" urban," he said, "means that services available are near what would be available in urban areas ... that's not the case here." Steve Tanner spoke in favor of the proposal, saying that he opposed the concept of zoning, but was in favor of any zoning that gave property owners more options, but then Cossalman pointed out that higher density zoning placed more restrictions on what property owners could do on their land, as compared to ag/forestry zoning. "Do you realize that it's going to be harder for someone to start or conduct a business?" he asked. "I didn't see that in the material," Tanner said. "I guess that means I'm for it and again' it!" Both proposals have pros and  cons, and both will be subject to at least one more public hearing before a decision is made by Boundary County Commissioners. The initial test on the development of the 30 potential home sites at the Copeland Bridge will be heard by County Commissioners at 1:30 p.m. Tuesday, March 27. The recommendatons made tonight by the Planning and Zoning Commission will be decided by our elected officials, time and date to be determined, subject to public notice as required by state law. On both sides of the coin, those interested will have another say.