Friday, May 3, 2013

Hillside home still ‘non-conforming’

County P&Z Commission to review permit

Express Staff Writer

    An East Fork homeowner got some resolution to a zoning conflict on Tuesday, when Blaine County commissioners heard an appeal of an administrative decision determining that his hillside house doesn’t conform to zoning regulations.
    Mike Pogue, an attorney for homeowner Michael Rollins, told commissioners on Tuesday that the decision to declare the house a “non-conforming structure” is causing his client harm and poses a potential financial burden.
    The home was originally proposed for construction in 1997. After some confusion at the then-Blaine County Planning and Zoning Department level, the Rollins family was told that the site proposed for construction was not in the county’s Mountain Overlay District—therefore, the department told the family that no special permits were required for construction.
    But after neighbor Brian Poster protested that decision, commissioners determined that the house was in the Mountain Overlay District and was subject to the district’s building restrictions.
    The case went to the 5th District Court, then the Idaho State Supreme Court, which found that the case was not entitled to judicial review. The reason for that, the court said, was that Rollins had not exhausted all administrative options for becoming a conforming structure within the district by applying for a site-alteration permit, which should have been required before construction.
    When Rollins went to apply for a site-alteration permit, Blaine County Land Use and Building Services did not hear the application. Instead, the department sent a memo to Rollins stating that the home is a “legal, though non-conforming use.”
    The source of the burden, Pogue said, is the set of restrictions surrounding non-conforming structures within the Mountain Overlay District. According to Blaine County code, many modifications to the building would need to be approved through a public hearing and a site-alteration permitting process.
    Pogue said that if the Rollins family wanted to sell the property, the family would need to state that the house was in violation of building codes, which would severely limit the marketability of the property.
    However, Blaine County Land Use and Building Services Director Tom Bergin stated that the home is in violation of zoning code, not building code, and Blaine County Chief Deputy Prosecuting Attorney Tim Graves said that there was nothing preventing the Rollins family from applying for a site-alteration permit for the home.
    Commissioner Larry Schoen said he is doubtful about the P&Z’s ability to put aside the fact that the home already exists when evaluating whether the structure should be approved or not.
    “How is the Planning and Zoning Commission to get their heads around the idea that the structure doesn’t exist when it obviously does?” he said. “How would it hear, fairly, an application for the home itself even though the home already exists?”
    Pogue said he agrees that the process seems backwards, but that his client needs to have a hearing on the permit before resorting to other options. If the permit is approved, the home would become a legal, conforming structure.
    The commissioners eventually agreed to allow the site-alteration permit process for the home to proceed, though Schoen said he is for the time being unwilling to reverse the decision declaring the home to be a non-conforming structure.
    “I will be honest in saying that I would have thought that an administrative determination that this was a non-conforming use within the Mountain Overlay District would have very much satisfied the Rollins family in this matter,” he said. “It would simply allow them to move forward, to avoid further legal action and to pursue the enjoyment of their nearly 10,000-square-foot home in a beautiful section of the county.”

Kate Wutz:

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