Wednesday, July 2, 2008

Judge: County canít appeal decisions

County attorneys suffer setback in Cove Springs case

Express Staff Writer

In a hearing last Friday, Blaine County 5th District Court Judge Robert Elgee repeatedly ruled against Blaine County attorneys on a number of matters related to an ongoing lawsuit filed by Cove Springs developers. Only in one instance did Elgee agree with several motions filed by county attorneys. Photo by Jason Kauffman

Blaine County attorneys won't have the opportunity to appeal several recent decisions by Blaine County 5th District Court Judge Robert Elgee regarding the Cove Springs lawsuit.

At least, not yet.

The county's request to appeal to the Idaho Supreme Court stems from a Jan. 8 lawsuit filed in 5th District Court in Hailey by the developers of Cove Springs, a 307-lot subdivision project proposed for rural farmland five miles south of Bellevue. The suit alleges improper procedure and arbitrary and capricious application of relevant law, lack of due process and the existence of bias and conflicts of interest.

The three-member Blaine County Commission unanimously rejected the project last year on Oct. 18. 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.

Against the objections of county attorneys, 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.

In a hearing before Elgee last Friday, Blaine County Deputy Prosecutor Tim Graves unsuccessfully argued that Elgee should allow them to appeal his decisions to the Idaho Supreme Court. The decisions the county had hoped to appeal relate to several ordinances Elgee has struck down as part of the lawsuit as well as his refusal to dismiss the case.

The county also asked the judge to allow them to appeal his order allowing discovery from the subpoenaed witnesses.

Among the reasons Elgee gave for denying the county's appeal request would be his temporary loss of jurisdiction over the case that would result from such a ruling. Allowing that to happen could mean a one- to two-year delay of the Cove Springs lawsuit, which would not be fair for either side, the judge said.

"The whole lawsuit stops," he said.

During the hearing, Graves also argued that the court should have first proceeded with the crux of the lawsuit—a claim by the Cove Springs developers that the Blaine County Commission was wrong to deny the subdivision application—before taking up other issues attached to the lawsuit.

"This matter should have been treated as a petition for judicial review first and foremost," Graves argued to Elgee. "That is what this case is about."

But once again, Elgee didn't buy the deputy prosecutor's argument, saying the case must proceed on the course that's been set.

As part of their lawsuit, the Cove Springs attorneys asked Elgee to allow them 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 P&Z Commission. Elgee agreed to the developers' request for discovery against the objections of county attorneys.

During Friday's hearing, Graves argued that Elgee shouldn't have allowed the discovery to proceed. Those subpoenaed included representatives from the Idaho Department of Fish and Game, Wood River Land Trust, Idaho Conservation League, Idaho Smart Growth and staff with 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.

But despite Graves' arguments that Elgee shouldn't allow the discovery process to proceed again, the judge again ruled in the favor of the Cove Springs developers. The judge did indicate, however, that he will consider each subpoena request put forth by the developers on a case-by-case basis.

Elgee asked Graves if he planned to object to the discovery requests.

"I've been objecting like a madman, Your Honor," he said.

The only apparent positive outcome for the county during the hearing was Elgee's decision to modify an earlier ruling invalidating an ordinance he said constitutes an illegal tax. Here, the county argued successfully that the judge was incorrect in striking down a portion of the ordinance that had nothing to do with fees leveled against developers.

In response, the judge ruled that he would reduce those portions of the ordinance to be struck down that don't impose fees on developers to help mitigate the off-site impacts of a development.

"The county's position would seem to be well-taken," Elgee said.

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