Flying Heart wins attorneys’ fees against county
Homeowners’ association can keep berm
By KEVIN WISER
Express Staff Writer
Fifth District Court Judge James May last week awarded $3,800 in
attorneys’ fees and costs to the Flying Heart Ranch Owners Association in a suit it
had won against Blaine County.
The county had filed suit against the homeowners’ association
alleging that its construction of a berm along state Highway 75 violated a newly passed
county ordinance limiting berm sizes. The suit asked the court to restrict the size of the
Flying Heart berm to what had already been built.
The homeowners’ association was granted a motion for summary judgment
in that suit on Nov. 1, on the grounds that the county could not restrict the size of a
berm already under construction when the ordinance was passed.
Fritz Haemmerle, attorney for the homeowners’ association, said in an
interview that when completed, the Flying Heart berm will be 50 to 60 feet wide and no
less than eight feet high. Under the county’s new ordinance, the berm would be
limited to four feet high.
During the county’s investigation of the alleged violation, Richard
Simms, president of the Flying Heart Homeowners Association, said the Flying Heart berm
had been contracted a year-and-one-half before the moratorium. He said a substantial
amount of money had been paid to the contractor for construction of the berm and that the
homeowners’ association was contractually obligated.
"The problem we see with the moratorium is that it would not be
constitutional to interfere with berms under previous contract," Simms said at the
time.
Under Idaho court rules, an award for attorneys’ fees can only be
made when the court finds that the case was brought "frivolously, unreasonably or
without foundation."
"This ill-advised case filed by Blaine County ultimately cost the
county money which, ultimately will be paid by the taxpayers of Blaine County,"
stated a press release from the Roark Law Firm, with which Haemmerle is associated.
However, Blaine County Prosecuting Attorney Doug Werth defended the
county’s legal action, saying the constitutional prohibition against stopping a
project already under construction had been applied only to buildings, which are worthless
when only partially built. A berm, he said, can still function even though it may be
smaller than planned.
Werth said he will review May’s ruling with the county commissioners
and decide whether to appeal it.
