Wednesday, March 17, 2004

County ordered
to pay $10,000

Planning decision overturned

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"This fear, or ‘smell,’ is the apparent reason for the denial of the application, rather than whether the application complied with the applicable zoning ordinances and statutes."

— JAMES MAY, 5th District judge

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By GREG STAHL
Express Staff Writer

In a nine-page decision issued last week, a district judge scolded the Blaine County Commission for basing a planning decision on the threat of a zoning infraction.

The case involved the final approval request for a building permit issued to John and Mary Davidson at their mid-valley Heatherlands duplex.

"The board acted in violation of statutory provisions, acted in excess of the statutory authority; the decision was not supported by substantial evidence on the record as a whole, and (the board) acted arbitrarily and capriciously," wrote 5th District Judge James May.

"Zoning decisions cannot be based on fear of what might happen in the future," May summarized.

May also ordered that Blaine County pay approximately $10,000 in court costs and attorney’s fees.

"I think the decision is important for a couple of reasons," said attorney Gary Slette, who argued the case on behalf of Blaine County property owners John and Mary Ann Davidson. "First, when an applicant brings in an application that meets the requirements of the county’s own zoning law, they have an entitlement to have it approved.

"Secondly, an award of costs and attorneys fees against the county should be of some interest if the judge finds that the county acted arbitrarily and capriciously. I think the county has to be held accountable for its actions."

The case in question involved seemingly ordinary planning and zoning business. The Davidsons obtained a building permit for a duplex with a storage area above the garage, with outside access to each separate storage area.

The Davidsons then attempted to exceed the provisions of their permit by converting the storage area to a separate living unit. Upon discovering this, Blaine County issued a stop work order on the project.

The townhomes were eventually completed without the extra unit, but county commissioners said they feared the Davidsons still intended to build the unit and denied their final approval request.

"This fear, or ‘smell,’ is the apparent reason for the denial of the application, rather than whether the application complied with the applicable zoning ordinances and statutes," May wrote.

According to the Blaine County Commission’s August 11, 2003, minutes, Commission Chairman Dennis Wright pushed for the denial. Commissioner Sarah Michael was absent, and Commissioner Mary Ann Mix asked to discuss the matter in executive session, though eventually voted for the denial.

"You know, Gary (Slette), I really just can’t get past that smell test. I really can’t," Wright said in the August meeting. "You know, I’ve got to call it the way I see it. I see what I believe what Mr. Davidson intended to build before he got caught."

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