For the week of June 30, 1999  thru July 6, 1999  

County investigates possible berm violation

Homeowners association clashes with county

Express Staff Writer

The Blaine County Prosecutor’s Office is investigating a possible violation of a berm-construction moratorium and emergency ordinance at the Flying Heart Ranch subdivision north of Hailey.

On May 26, the Blaine County Commissioners imposed a 30-day moratorium on the construction of berms along state Highway 75 from north of Glendale Road to the Sawtooth National Recreation Area boundary.

The moratorium prohibited construction of new earthen berms and the placement of additional material on existing berms that would increase their height.

The moratorium was imposed to give county officials time to pass an emergency ordinance regulating berm construction.

Creating berms is seen as a way for homeowners to block highway noise and vehicle lights.

The commissioners approved the emergency, 120-day ordinance at a public hearing on June 21. The time period will allow the county to draw up and pass a permanent ordinance.

A possible violation of the moratorium and emergency ordinance at Flying Heart Ranch involved the placement of additional fill materials on an existing berm.

At the June 21 hearing, Richard Simms, president of the Flying Heart Homeowners Association, asked the commission if the moratorium limited the construction of berms under contract prior to May 26.

Commissioner MaryAnn Mix quoted from the moratorium document, which stated that it prohibited the placement of additional material on existing berms. Commissioner Leonard Harlig said it appeared there had been a violation of the moratorium at Flying Heart Ranch.

During the week prior to the June 21 hearing, work on the berm at Flying Heart Ranch could be seen in progress. During the week following the hearing, construction on the berm continued.

In an interview, Simms said the moratorium and ordinance did not specify whether their provisions would apply to berms under contract prior to their enactment.

"The problem we see with the moratorium is that it would not be constitutional to interfere with berms under previous contract or the addition of fill materials placed on existing berms where parties on both sides of the contract have legal responsibilities," Simms said.

Simms said the berm in question had been contracted a year-and-a-half ago and that a substantial amount of money had been paid to the contractor for construction of the berm. Simms said the contractor had agreed to remove fill from one location and place it on the Flying Heart property and that the homeowners association was contractually obligated.

"The county has no right to interfere with contract rights," Simms said.

"To sum up our position," he added, "if you interpret the moratorium so it comports with the Constitution—you would have to distinguish between adding fill to existing berms on one hand and the ongoing construction of a berm that was begun under contract prior to the moratorium.

"The problem with the moratorium is the county has tried to make it apply retroactively to projects begun before the date of the May 26 moratorium."

In drawing parallels, Simms said the situation could be compared to the county’s applying a moratorium to brick buildings when five such buildings are already under construction.

"This would leave people building brick buildings with buildings half built," Simms said.

County berm committee member Marc McGregor, author of the proposed berm regulations, said in an interview that the ordinance does not prohibit the construction of berms previously approved by the county as part of subdivision agreements.

However, McGregor said that an agreement between a property owner and a private contractor did not exempt the construction of a berm from the moratorium.

In regard to having a contract to build something before an ordinance was put into effect, McGregor said he couldn’t think of any public policy that supports such an exemption to an ordinance.

"If you had a building permit to construct a one-story house, then applied for a permit to build a second story—a moratorium on two-story homes would not allow you to get a permit even if you previously contracted with a contractor to build a two-story home," he said.

McGregor said zoning policy is an attempt to uphold the rights of the community.

"The purpose of zoning is to strike a balance between the competing rights of the community and the rights of the individual," McGregor said.

Harlig said that under Idaho code, violations of the county’s zoning ordinances allow it to impose a fine of $300 for every day a property owner is in violation and to have the area returned to its previous condition.

Blaine County prosecuting attorney Doug Werth said his office is investigating the alleged violations.

Simms said the Flying Heart Ranch Homeowners Association intends to write a letter to the county explaining its position with supporting case law. Simms said the association hopes to come to an agreement with the county, but that if the county continues to interfere with the construction of the Flying Heart berm, the association may take legal action.


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