Wednesday, June 25, 2008

Will lawsuit hurt public participation?

County leader 'not pleased' with Cove Springs ruling


By JASON KAUFFMAN
Express Staff Writer

In a hearing before Blaine County 5th District Court Judge Robert In a hearing before Blaine County 5th District Court Judge Robert Elgee in Hailey on Friday, Blaine County attorneys will ask the judge to allow them to appeal several decisions he made related to a lawsuit challenging the county’s denial of the controversial Cove Springs development application. The Blaine County Commission rejected the application for the massive 307-lot subdivision project on Oct. 18, 2007. Photo by David N. Seelig

A lawsuit filed by owners of the 4,630-acre Cove Ranch against Blaine County could have a profoundly chilling effect on the local public participation process, county officials have alleged.

In an interview last Friday, County Commissioner Tom Bowman said subpoenas included in the Jan. 8 lawsuit, seeking information from various participants who commented during the public hearing process for the Cove Springs subdivision application, could convince people not to become involved in similar public hearing processes in the future.

The three-member County Commission unanimously rejected the massive 307-lot subdivision project—located about five miles south of Bellevue—on Oct. 18, 2007. In denying the project, the commissioners cited the development's large size, scope and location in rural Blaine County, as well as its potential impacts on wildlife and the local agriculture industry.

But as part of their lawsuit filed in 5th District Court in Hailey, the Cove Springs developers alleged improper procedure and arbitrary and capricious application of relevant law, lack of due process and the existence of bias and conflicts of interest. Against the objections of county attorneys, Blaine County 5th District Court Judge Robert Elgee allowed Cove Springs attorneys to serve subpoenas on a number of public and private entities who submitted oral or written comments during the several-year hearing process before the County Commission and county Planning and Zoning Commission.

These included representatives from the Idaho Department of Fish and Game, Wood River Land Trust, Idaho Conservation League, Idaho Smart Growth and staff of the county planning department. The developers' notice of intent to serve the subpoenas, dated Jan. 15, requested from those subpoenaed all documents containing any reference to the Cove Springs application and a laundry list of other related matters.

The Cove Springs developers went so far as to request items from these third parties related to the development application that were included in emails, Word document processing files—including prior drafts, deleted files and file fragments—and all voice mail and information about voice mail. They further requested from those subpoenaed all documents containing their opinions, analyses and recommendations concerning any proposed subdivision or development application presented to the county from Jan. 1, 1999, forward.

According to Bowman, the developer's lawsuit could be construed as a SLAPP suit, an acronym that stands for Strategic Lawsuit Against Public Participation. Bowman said these types of litigation seek to intimidate and silence critics or opponents by burdening them with the cost of a legal defense so that they abandon their criticism or opposition.

Contacted by the Idaho Mountain Express on Monday, Steve Beevers, president of the Cove Springs project, declined to comment on the ongoing lawsuit.

But more than just alleging that the Cove Springs developers are seeking to silence their critics, Bowman also claims that Elgee improperly allowed the developers to seek new information as part of their lawsuit from those who they subpoenaed. On June 5, the judge granted the developer's request to conduct discovery.

County officials allege that only the official public transcript of all proceedings related to their consideration of the Cove Springs application should be considered in the case. The county is still working to put together that complete transcript, which will include all oral and written public testimony, information from other officials of state and local agencies who testified during the hearings, as well as expert testimony sought by the county.

Not mincing his words, Bowman said Elgee should have first considered the biggest issue related to the Cove Springs lawsuit—whether county commissioners were justified in their denial of the massive application. The project is the single largest development ever proposed in the county.

Elgee's ruling invalidating several Blaine County ordinances should not been made prior to his consideration of the larger matter of whether county officials overreached when they denied the project based on those same county ordinances, Bowman claims. The ruling was related to ordinances that deal with Blaine County's comprehensive plan, impact fees and wildlife overlay district.

"I think it's judicial activism," Bowman said. "He's doing everything backwards and we're not pleased with it."

In their challenge of the ordinances, the Cove Springs developers claimed three of the ordinances unlawfully elevate the county's comprehensive plan to the status of an ordinance, while five ordinances constitute illegal taxes. A final ordinance unlawfully delegated zoning authority to the Idaho Department of Fish and Game regarding the county's wildlife overlay district, they claimed.

In another setback for the county, Elgee ruled against Blaine County on April 30 in their request to have the developers' case dismissed.

In a hearing before Elgee set for later this week on Friday, June 27, county attorneys will ask the judge to allow them to appeal his decisions to the Idaho Supreme Court. The decisions they hope to appeal relate to the ordinances Elgee struck down as well as his denial of their request to dismiss the case. The county is also asking the judge to allow them to appeal his order allowing discovery from the subpoenaed witnesses before the Idaho Supreme Court.

This final ruling by the judge allowing discovery to proceed violates Idaho Code as well as a well-established principle that judicial review is confined to the agency record, Blaine County Deputy Prosecutor Tim Graves states in his June 13 motion requesting the Supreme Court hear the three issues for appeal.

"Allowing unlawful discovery to proceed in an administrative appeal is unprecedented," Graves claims.

Going on, Graves states that this unprecedented step by Elgee is demonstrated by the court's ex parte canvassing of Idaho's district courts in the days preceding the June 4 hearing on the order to allow discovery.

"Besides begging the question of where the true procedural irregularities lay, this court-sanctioned fishing expedition will do nothing but rack up legal fees and waste the time of government officials who are trying to conduct the public's business," he claims.

In his June 13 motion Graves also claims that Elgee went too far in striking down the county ordinances.

"Rather than tailoring its order, the court struck down the ordinances in their entirety," he claims. "This sweeping eradication includes several standards of evaluation that have nothing to do with the court's concerns and nullifies the (Blaine County Commissioners') lawful consideration of those standards during its review of the applications."

Furthermore, by striking down the ordinances Elgee impacts his consideration of issues set forth in the Cove Springs case because the larger question of whether the county improperly denied the application is guided by those ordinances, Graves alleges.

"An appeal (to the Idaho Supreme Court) is necessary to prevent the injustices caused by an erroneous nullification of Blaine County's lawfully enacted ordinances," he states.

County officials also allege the judge was incorrect in his ruling determining that five of the county ordinances he struck down constitute illegal taxes. The County Commission was given no choice but to deny the Cove Springs application when they determined it didn't meeting county zoning standards by placing too high of a burden on county taxpayers and infrastructure, Bowman said.

Had the developers' offered to pay to fully mitigate those impacts—which they apparently did not do—the county may have been able to approve the project, he said.

Bowman believes that what the Cove Springs developers may be trying to do with their lawsuit is force the county to cut a deal behind closed doors and let their development proceed. Prior to filing their lawsuit, the developers repeatedly requested private mediation with county officials to discuss the project denial.

And while they could have legally met to mediate with the Cove Springs developers, the county chose not to, Bowman said.

"We think the public's business should be done in public," he said.




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