A two-year-long dispute between neighbors in East Fork has, for the moment, been settled.
A 5th District judge ruled Wednesday, Oct. 18, that the Blaine County Board of Commissioners overstepped its bounds when it denied Ketchum acupuncturist Michael Rollins a building permit to raise a home on a hillside there.
The debate originally centered on the issue of whether or not Rollins' property was in the county's Mountain Overlay zoning district. One of Rollins' would-be neighbors, Brian Poster, appealed a county Planning Department determination that the property was not subject to the regulations.
The decision by 5th District Judge Robert Elgee ultimately hinged on whether or not Poster filed his appeal in a timely manner and whether or not he had standing to do so. Nevertheless, the Blaine County Commission granted Poster a hearing and denied Rollins' building permit on June 23, 2005.
The question is steeped in the minutiae of state and county planning and zoning regulations, but the core of the matter is that Blaine County planners determined on July 6, 2004, that Rollins' East Fork property was not inside the boundaries of the county's Mountain Overlay District, where zoning regulations are considerably more stringent.
"We have determined that the proposed siting of the building does not fall within the definition of the MO District," reads a letter to Rollins from county planners dated July 6, 2004. "Therefore, a site alteration permit is not require prior to application for a building permit for your proposal ...
"Based upon this assessment, you are not required to obtain a hillside site alteration permit prior to application for or issuance of a building permit by Blaine County."
Rollins subsequently applied for permits to excavate a driveway, building site and retaining wall and began to dig away the steep hillside leading to his home site, about 100 feet above East Fork Road.
The considerable blight that resulted quickly got his neighbors' attention. Indeed, the excavation was visible from state Highway 75, several miles away. Upset neighbors and passers-by wrote letters to the editor. Newspaper articles examined the argument from both perspectives. The fight was hot, and Rollins' immediate neighbor, Poster, filed an appeal with the Blaine County Commission.
As with many legal decisions, Elgee's decision hung on something of a technicality. In effect, Poster did not file an appeal on the original hillside determination within the 20-day appeal period set forth in Blaine County Code. What's more, Elgee ruled that Poster was never an "aggrieved party" with a right to appeal after the Planning Department made its Mountain Overlay determination.
"Poster was never a person aggrieved by a written decision of the zoning administrator, either at the time the administrator determined Rollins property was outside of the Mountain Overlay District, or at the time he appealed from the issuance of Rollins' building permits," Elgee wrote. "Even if he was a proper party to an appeal, Poster's first appeal of the Mountain Overlay determination was not timely, and it became final.
"Rollins property, therefore, is outside of the Mountain Overlay District."
Poster's attorney, Fritz Haemmerle, of the Haemmerle & Haemmerle law firm in Hailey, took issue with the judge's ruling and said his client would probably choose to appeal to the Idaho Supreme Court.
Blaine County only notifies neighboring homeowners if a property is determined to be within the boundaries of the Mountain Overlay District. Because Rollins' property was administratively declared to be outside the boundaries, Poster was never informed.
"Brian Poster didn't know about it until Rollins denuded the hillside," Haemmerle said. "So I find it impossible to understand how our due process rights were upheld when the court ruled that we were untimely on a decision we had no knowledge of.
"The underpinning of local planning decisions, and the courts have recognized this, is that people are entitled to due process. That's as simple as it gets."
Interestingly, a new twist in the story was added this Thursday afternoon, when the Blaine County Commission unanimously adopted new maps more clearly delineating its Mountain Overlay District boundaries.
The maps should help avoid confusion encountered in places like Rollins' property, where planners have previously relied only on written descriptions.
The irony is that the new maps include Rollins' property inside the boundaries of the Mountain Overlay zone. The new determination of Mountain Overlay District boundaries is not retroactive.
The dirt on the left is where Michael Rollins excavated a driveway to access the flat ground above. The home on the right is where Brian Poster lives.
