Wednesday, November 3, 2004

Council upholds riverside appeal

Ketchum could face hurdles in protecting riparian zones

Express Staff Writer

The city of Ketchum could be facing a new hurdle in its efforts to protect areas that border waterways.

Ketchum City Council members on Monday, Nov. 1, reluctantly upheld an appeal of a June decision by the Planning and Zoning Commission that required a property owner to remove part of his lawn adjacent to the Big Wood River.

The decision, it appears, could affect the city?s future ability to enforce regulations restricting the maintenance of lawns in a 25-foot setback along waterways.

At issue is an application by the owners of a residence on Wood River Drive to build an ?accessory dwelling unit? on their property, approximately 76 feet away from the Big Wood River.

Pursuant to city policy, the application triggered a review by the P&Z of the entire property. When landowners seek permission for new development on or modifications to properties adjacent to waterways, the city typically seeks to enforce the provisions of its law establishing a 25-foot setback from the waterway.

City riparian-zone regulations mandate that structures or improved lawn areas shall be kept outside of the 25-foot setback. Existing lawns and structures are generally allowed to stay in place but are considered for removal if a landowner applies for city approval of changes to their property.

In a 3-1 vote Monday, council members upheld an appeal that challenged the P&Z?s decision to require the Wood River Drive landowners to remove part of their lawn in the 25-foot setback.

In considering the case, council members indicated they were most swayed by a 2003 ruling on a similar case by now-retired 5th District Judge James May, in which May declared a Ketchum landowner had a constitutional right to maintain a lawn in the riparian zone.

Councilman Baird Gourlay voted to decline the appeal because he was concerned the case could set a precedent in which the city might have trouble enforcing the riparian setback.

Councilwoman Terry Tracy voted to uphold the appeal but said she is afraid the case could cause the city to ?lose ground? in its efforts to protect the riparian zone and keep pesticides and fertilizers out of rivers and creeks.

City officials agreed they should promptly rewrite the city?s riparian-zone laws to make them more enforceable. However, City Attorney Ben Worst expressed doubt that the city can ever ?take away a pre-existing, non-conforming use? from a property owner.

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