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For the week of Dec. 29, 1999 through Jan. 4, 2000

Flying Heart wins attorneys’ fees against county

Homeowners’ association can keep berm

Express Staff Writer

Fifth District Court Judge James May last week awarded $3,800 in attorneys’ fees and costs to the Flying Heart Ranch Owners Association in a suit it had won against Blaine County.

The county had filed suit against the homeowners’ association alleging that its construction of a berm along state Highway 75 violated a newly passed county ordinance limiting berm sizes. The suit asked the court to restrict the size of the Flying Heart berm to what had already been built.

The homeowners’ association was granted a motion for summary judgment in that suit on Nov. 1, on the grounds that the county could not restrict the size of a berm already under construction when the ordinance was passed.

Fritz Haemmerle, attorney for the homeowners’ association, said in an interview that when completed, the Flying Heart berm will be 50 to 60 feet wide and no less than eight feet high. Under the county’s new ordinance, the berm would be limited to four feet high.

During the county’s investigation of the alleged violation, Richard Simms, president of the Flying Heart Homeowners Association, said the Flying Heart berm had been contracted a year-and-one-half before the moratorium. He said a substantial amount of money had been paid to the contractor for construction of the berm and that the homeowners’ association was contractually obligated.

"The problem we see with the moratorium is that it would not be constitutional to interfere with berms under previous contract," Simms said at the time.

Under Idaho court rules, an award for attorneys’ fees can only be made when the court finds that the case was brought "frivolously, unreasonably or without foundation."

"This ill-advised case filed by Blaine County ultimately cost the county money which, ultimately will be paid by the taxpayers of Blaine County," stated a press release from the Roark Law Firm, with which Haemmerle is associated.

However, Blaine County Prosecuting Attorney Doug Werth defended the county’s legal action, saying the constitutional prohibition against stopping a project already under construction had been applied only to buildings, which are worthless when only partially built. A berm, he said, can still function even though it may be smaller than planned.

Werth said he will review May’s ruling with the county commissioners and decide whether to appeal it.


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