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For the week of July 30 - August 5, 2003


State high court hands Blaine County a defeat

Decision could affect land-use
planning statewide

"In our view, the decision is seriously flawed, and it has pretty big and drastic implications statewide."

TIM GRAVES, Blaine County deputy prosecuting attorney

Express Staff Writer

The Idaho Supreme Court handed Blaine County a defeat last week in a decision that could have far-reaching effects for local zoning and land-use planning in Idaho.

In a 4-1 ruling on Wednesday, July 23, the Supreme Court overturned an earlier ruling by 5th District Judge James May that gave the county regulatory authority over state trust lands. Specifically, the high court ruled that Blaine County could not ban or regulate a gravel mining operation on state-owned land in Ohio Gulch, about midway between Hailey and Ketchum.

It is unclear, however, whether the decision applies to county zoning authority over other uses on state-owned property. The state employs the land for a wide range of uses, including grazing, communications facilities, logging and commercial uses.

Blaine County Commissioners apparently found the decision hard to swallow and emerged from an executive session on Monday, July 28, and ordered the Blaine County Prosecutors Office to ask the court for a rehearing.

A rehearing is when a plaintiff or defendant asks the court to reconsider its prior decision and is different from an appeal, explained Blaine County Deputy Prosecuting Attorney Tim Graves.

"In our view, the decision is seriously flawed, and it has pretty big and drastic implications statewide," Graves said. "The commissioners feel a need to state their case. We don’t feel it was adequately argued before the court, and the decision and the basis on which the court is resting its decision is seriously flawed."

Chief Justice Linda Copple Trout and Justices Wayne Kidwell and Daniel Eismann voted for the overturning decision, which was written by Justice Jesse Walters. Justice Gerald Schroeder cast a dissenting opinion.

The majority of justices ruled that although the state law does not specifically exempt the Department of Lands from complying with local zoning regulations, state lands are exempt by implication.

"We conclude that the provisions of (the law) operate to exempt the Land Board from compliance with the Local Land Use Planning Act, thus resolving the conflict between the Blaine County zoning ordinance and the Land Board’s constitutionally mandated authority and control over endowment lands," the four justices ruled.

In his dissenting opinion, Justice Schroeder interpreted the same laws cited by his colleagues.

"The statutory scheme for the management of the endowment lands does not expressly exempt those lands from the local zoning ordinances adopted pursuant to the Local Land Use Planning Act," he wrote.

Called school endowment lands, Idaho’s 2.5 million acres of property must be used under a state constitutional mandate to generate money, in part, for the benefit of Idaho’s schools.

The issue escalated into the courts after Hailey-based McStay Construction was served in 1999 by Blaine County with a Cease and Desist Order for a sand and gravel extraction operation on state land in the Ohio Gulch area. Blaine County asked the company’s owner, Gary McStay, to apply for a conditional use permit to operate in the area’s agricultural zone.

However, the Blaine County Planning and Zoning Commission in 2000 denied McStay’s application, and the P&Z’s decision was later affirmed by the Blaine County Commission.

The state then filed a complaint for declaratory judgment in the district court, and on June 12, 2002, the 5th District Court in Hailey granted a summary judgment in favor of the county. The state then appealed Judge May’s ruling to the high court.

McStay said this week that the Supreme Court’s ruling is "a plus," but declined to comment further, pending a 23-day waiting period that must transpire before he can resume operations in Ohio Gulch. Blaine County’s request for a rehearing, should the court grant it, could extend that period.

Idaho Department of Lands Director Winston Wiggins said the department will continue to consult with counties regarding the use of the state’s lands, but added that "it’s going to be in the context of our constitutional trust mandate."

"We’re pleased, obviously," Wiggins said. "This is consistent with our position all along. It’s good to have the issue resolved."

Graves said the Blaine County Prosecutor’s Office would file the appeal for a rehearing within the next two weeks. He said the court would probably issue a decision on the request by late-summer or early autumn.



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