Guest opinion by BILL JEAGER
Bill Jaeger, a Bellevue resident, is a former city attorney from Piedmont, Calif.
It appears from his neighborly letter concerning the Hemingway House and his well-prepared presentation of last week, that Geoff Pampush, director of The Nature Conservancy of Idaho, has a thorough understanding of the situation that faces him, and, like it or not, that situation is primarily a legal one.
Unfortunate as it may be for his "preferred" solution, a solution that would transfer the House to a foundation for its use, all the legal and economic questions raised by that solution have negative answers.
The basic legal question is: Can an owner of a house located in an area zoned for single-family residences, convert its use to a non-single-family-residential use, not in conformance with its zoning, over the objection of other homeowners in the neighborhood?
There are two sub-questions that follow the basic question:
First: Would it make any difference whether the intended nonconforming use of the property were as a library, a museum, a bed & breakfast, a clinic, a half-way house, a convent for the Little Sisters of the Poor, a Head-Start pre-school, a car repair garage, or a business office for The Nature Conservancy?
Second: Does the city of Ketchum have the necessary legal discretion to change the zoning of a parcel improved with a single-family residence, and located in an area zoned exclusively for single family residences, to some other zoning that permits a different use, where the neighboring homeowners object to this rezoning? The answer to these questions is no.
As to the basic legal question, once a community adopts zoning regulations as a means of requiring the location of particular uses in one area rather than in other areas, it has made a commitment to the people who own property within any of those zoned areas, not only that they may rely on that zoning as they build on and use their zoned properties, but also that they must limit the uses made of their property to those approved for the zone in which the property is located. Then, as the owners accept and act upon that zoning, the government that imposed it is prevented from changing it, under both the equitable doctrine of estoppel and the prohibition against selective enforcement of the laws. Instead, that government is required take active steps to apply that zoning, enforce it, and defend it. "Spot zoning" of a single parcel to a use different from the use already imposed on the surrounding properties, violates the concept of area-wide zoning, and is not legally permissible, no matter how popular the use might be with others in the community. Communities can and do get along without zoning, and those that do, look like it, (think Houston), and property values are affected accordingly. Those that adopt zoning also look like it, and property values are improved because of it. Zoning restrictions, once imposed, cannot be turned on or off at the whim of individuals not affected by that zoning.
Preservation, meaning historical preservation, is something quite different. Buildings of historic significance can be preserved, and even restored to their historic appearance, but this has to do with preserving their exterior appearance, and, without a comprehensive rezoning effort that is coincident with the historic preservation, uses different from those allowed under previously existing zoning laws would not be allowed.
Since Ketchum cannot rezone the Hemingway House parcel, and The Nature Conservancy feels the need to unload this "white elephant," the House must be sold. Since The Nature Conservancy received the property subject to a specification that it be preserved as a wildlife preserve, any sale of the property would have to honor that restriction. The specification imposed by the donor, Mrs. Hemingway, that it be used as a nature reference library, if that use were to open the House to public use, cannot be honored, as that would violate the zoning law.
Therefore The Nature Conservancy must put the former Hemingway property up for sale, and the officers of that tax-exempt organization are under a fiduciary duty to realize as much as they can from that sale, considering its present condition and the restrictions that have been placed upon it. Those Conservancy officials are also bound to use the proceeds from that sale to further the avowed purposes of that organization, as set forth in the fund-raising materials it publishes and distributes.
Mr. Pampush suggested at the meeting that if the property were to be deeded to the Hemingway House Foundation, he would seek a Judgment of Declaratory Relief to get a court to legally bless your action, However, you would not get that blessing. Being aware of that, it would be wise of you to know now what your legal limits are, and you can know them with certainty if you ask for that declaratory relief now, before you have made your final decision on the disposition of the house. In proceeding in this fashion, others would have the opportunity to present their legal arguments to the court before The Nature Conservancy has committed itself to a popular, but illegal, decision. You wouldn't be passing the buck; you'd be putting it exactly where it belongs. I would support you financially in such a legal undertaking.
I would make one final observation: The Hemingway House Foundation may have lots of well wishers and energy, but it lacks financial wherewithal. It is not enough for its people to say they cannot raise money without a commitment from you; they could have lined up enough conditional pledges to at least look financially responsible, but they did not. Knowing the financial drain the House has been on the Nature Conservancy, were the public's access to that House be made so restrictive that it could legally pass the zoning test, the placing of such extreme limits on the public's use of the facility would deprive the Foundation of the financial resource it would otherwise get from user fees. That suggests that the Foundation would have to raise the $500,000 needed for restoration, plus a sizable endowment for future upkeep, from folks without visitation rights; a really difficult chore.
