The Idaho Supreme Court ruled against the city of Ketchum on July 28, nullifying the city's 2008 approval of the Gallery 260 building yet to be constructed on the empty lot at the corner of Sun Valley Road and First Avenue.
KGF Development, owner of Copper Ridge condominiums across the alley from the Gallery 260 lot, brought forth the lawsuit after Ketchum allowed Gallery 260 to exceed the 40-foot maximum height permitted in the area and construct a 48-foot-tall building. KGF claimed the main selling points of its penthouses—expected to sell for about $3 million each—was the view of Bald Mountain, which would be obstructed by Gallery 260 if it exceeded the 40-foot cutoff.
Gallery 260 was allowed these extra 8 feet through a Ketchum ordinance permitting development rights to be transferred from designated sites of historic value to other sites. By purchasing these development rights, Gallery 260 was allowed an increased "floor-area ratio" and therefore a fourth floor.
Transferring development rights, in itself, isn't illegal. Idaho code allows TDRs, as they're called.
"Any city or county governing body may ... establish procedures authorizing landowners to voluntarily transfer said development rights," reads Idaho code.
However, the court ruled that Ketchum's ordinance doesn't adhere to Idaho code's allowed uses of TDRs.
"The statute is not intended to allow for the protection of historic properties," reads the court's opinion.
<
Idaho code allows development rights to be transferred from properties in order to "preserve open space, protect wildlife habitat and critical areas, and enhance and maintain the rural character of lands with contiguity to agricultural lands."
The court said the statute's "intent" is to preserve "rural lands," not historic buildings in a city's core.
"Because the city's focus is on buildings within the city itself, an urban focus, it is not acting in the rural context envisioned," the court said.
For this reason, Gallery 260 is not only disapproved, but Ketchum's ordinance is no longer valid.
Michael Pogue, Ketchum attorney for Gallery 260's developers, said the owners haven't decided if they're going to appeal the court's decision.
Developers thought they had won the battle when the Blaine County 5th District Court originally denied KGF Development's lawsuit in February 2009, but the Supreme Court's decision reversal changed that.
"260 First is still committed to going forth with the project," Pogue said.
But developers now need another avenue to get their 66,000-square-foot, 48-foot-tall building consisting of an art gallery and retail space on the first floor and 22 condos, not to mention another seven units of deed-restricted housing. Pogue said this avenue remains to be seen, but developers will work with the city to find a way.
As for protecting historic Ketchum buildings, city attorney Stephanie Bonney said tools other than TDRs could be used. But the city hasn't looked at these yet. The court's decision was only five days old when Bonney was interviewed.
The Express called and left a message for KGF Development's attorney, Fritz Haemmerle of Hailey, and Ketchum's attorney, Paul Fitzer of Boise, but didn't receive a returned call from either.
Trevon Milliard: tmilliard@mtexpress.com
A recent decision by the Idaho Supreme Court has nullified the approval by the city of Ketchum of a project to construct a 48-foot-tall Gallery 260 building at this bare site at Sun Valley Road and First Avenue. The court ruled in favor of KGF Development, owner of the condominium building in the background, concluding that Ketchum improperly used its TDR ordinance to exceed the city’s normal 40-foot height restriction. Photo by Willy Cook
