Wednesday, December 13, 2006

New East Fork lawsuit cites ?public hatred?

Property dispute between neighbors begins new judicial chapter

Express Staff Writer

The blight that resulted from excavation to this hillside home site triggered a two-year court proceeding and?allegedly?very strained relations among neighbors. A lawsuit filed this week by the owner of the excavated property seeks damages and an injunction against the neighbor who filed the original suit. Photo by Willy Cook

Following a two-year court proceeding that decided an East Fork property dispute in October, the plaintiff became the defendant when one of the parties filed a new civil lawsuit alleging defamation and emotional distress.

The Wednesday, Dec. 6, filing by Michael and Clotilde Rollins seeks compensatory damages and an injunction against the defendant, East Fork resident Brian Poster, to "cease uttering false and slanderous statements..."

The lawsuit was filed in Blaine County 5th District Court by Ketchum Attorney Cynthia J. Woolley on behalf of the Rollinses.

The complaint alleges Poster exposed the Rollinses to "public hatred, contempt, ridicule, aversion, disgrace and induced an evil opinion of them in the minds of right thinking persons ... and injured their reputation."

The complaint goes on to cite emotional and physical suffering suffered by the Rollinses and to list additional strongly stated allegations regarding Poster's alleged actions and their alleged effects on his would-be neighbors.

Poster, who had not yet been served the papers Tuesday afternoon, declined to comment on the pending litigation.

The two-year land-use dispute between the East Fork neighbors was decided Oct. 18, when 5th District Judge Robert Elgee ruled that the Blaine County Board of Commissioners overstepped its bounds when it denied Michael Rollins a building permit to raise a home on a hillside next to Poster's existing home.

The debate originally centered on the issue of whether or not the Rollins property was in the county's Mountain Overlay zoning district. Poster appealed a county Planning Department determination that the property was not subject to the regulations.

The blow-for-blow story aside, Rollins 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.

The County Commission sided with Poster, but the matter was eventually taken to 5th District Court.

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."

Ironically, the County Commission in October remapped its Mountain Overlay zones throughout the county. Under the new maps, the Rollins property would, in fact, be within the tighter planning and zoning restrictions of the hillside protection law.

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