Faced with a subdivision proposal on a steep hillside above Hayden Lake, the Kootenai County Commissioners struggled today with the County’s subdivision ordinances and denied the request. The subdivision would have placed some 34 homes on steep slopes and erodible soils just above Hayden Lake – not far from where East Hayden Lake Road washed out in the recent spring rains.

The Commissioners wrestled with the fact that they thought some development could occur at the site, but not to the extent that was proposed, and the proposal was not in accordance with badly-drafted development rules. Commissioners Dan Green and Jai Nelson voted to deny the subdivision request on the grounds that it did not avoid steep slopes, “did not contribute to the orderly development” of the community, “did not create lots of reasonable utility and livability,” and it would have imposed “an unreasonable burden” on future lot owners. Nelson was further concerned about potential stormwater and soil stability impacts on Hayden Lake. Commissioner Todd Tondee disagreed, and thought that the subdivision complied with the requirements and could be engineered to accommodate the slopes and soils and difficult drainage.

In particular, one procedural step in a problematic section of the development code became one focus for the Commissioners frustration:

Section 10-4-5: CONSERVATION DESIGN PROCEDURE: 

Conservation subdivisions shall be designed according to the following procedure: …

…Step Three:  Determine zoning districts and expected numbers of base and bonus lots.  Select building sites positioned to avoid slopes in excess of 15% and to take advantage of views and green space.  Note:  Though building sites should be designed to avoid slopes, this is a recommendation, not a requirement.   … (italics in original)

The Commissioners lamented that “shall be designed … to avoid slopes in excess of 15%” seems pretty clear and that the proposed subdivision design could clearly not comply — all of the lots on slopes steeper than 15%, and much of the development was proposed on slopes as steep as 35%.

But, the Commissioners struggled with the County Code’s “Note” making it a “recommendation, not a requirement.”  If it’s not a requirement, what is the proper standard to apply?  Ultimately, the Commissioners took the law’s “recommendation” and determined that the subdivision was simply requesting too much on land too steep.

This is obviously the correct decision. Otherwise, the bizarre “recommendation, not a requirement” language would have effectively negated the ordinance entirely, and thus defeated its clear purpose to restrict development on steep slopes. But again, it points out the desperate need for a new development code in Kootenai County — a process just now getting underway.

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