We’ve been tracking the Bonner County Property Rights Council for some time. Lately, we were following the PRC application on behalf of Lawrence and Nels Heidekker, owners of a problematic junkyard near Priest River. The junkyard, currently subject to a code enforcement action by Bonner County, appeared to be attempting to avoid the enforcement action by going through the PRC instead. According PRC documents and Court records obtained by KEA, the Heidekker’s attempted end run around court-ordered zoning enforcement almost worked — with the unlikely complicity of the Bonner County deputy prosecutor.

The junkyard

Acting on complaints by neighbors, in spring of last year, Bonner County cited the Heidekker property for operating an illegal junkyard. Under Bonner County law, junkyards aren’t allowed in rural zones, only industrial ones. According to the county definition, more than four junk vehicles stored outside is considered a junkyard.  At the Heidekker property, there were at least two dozen such vehicles, and “abundant wheels and tires, along with miscellaneous scrap, car and truck parts, a storage shed and what appears to be an inoperable school bus,” according to court documents.

This wasn’t the first time Lawrence Heidekker has had legal troubles, nor is it the first time his properties have been a problem. In fact, as far back as 1998, the Heidekkers were cited for illegal junkyards. In 2002, Lawrence Heidekker was charged criminally for operating an unpermitted junkyard, but charges were dropped based on Heidekker’s agreement to remove the derelict vehicles. But by 2005, he was creating another mess, and in yet another  enforcement action in 2007, Heidekker agreed to clean up the junkyard in exchange for dropping the legal action. The litigation was dropped, but the mess wasn’t cleaned up.

This time, despite more warnings and opportunity, the Heidekkers again refused to clean up the site and Bonner County went to court to enforce the zoning code. According to the court filings, the case was turned over to Sandpoint attorney Wendy Earle for prosecution.  Earle attempted to get a summary judgment order against the Heidekkers last May, but the Court ruled that the case should go to a full-fledged trial instead.

Diverting the case to the Property Rights Council

In August, however, Earle was replaced by County Deputy Prosecutor Scott Bauer — the very same Scott Bauer advising the Bonner County Property Rights Council, and the very same Scott Bauer subject to KEA’s Public Records Act lawsuit regarding his emails with right-wing organizers.

And soon thereafter,  a new “property rights proposal” was filed with the PRC by the Holt Law Offices (pdf) to have the PRC decide whether junkyards should be regulated at all. The PRC application on behalf of Lawrence Heidekker asked the PRC to “Look into free-market alternatives to prohibiting recycling/wrecking/junk-yards through the zoning code; consider dismissal of pending suit without prejudice as to applicant’s properties.”

Then in a routine scheduling conference call with the Judge in the enforcement court case in January, Scott Bauer and Heidekker’s attorney jointly asked that the Judge put a hold on the case so that they could pursue an option in the PRC.

According to court notes, Holt explained:

“Were ordered to mediation; new committee in County – Administrative resolution to these sorts of issues; informed of this and my client and I applied; application is pending; believe that we would like to have a status conference set out 30-60 days.

Bauer then explained to the judge:

“Process is basically – Property Rights Council – receives application to review property restrictions; If Council recommended that zoning be changed re junkyards; could result in rezone process; Then I would ask to dismiss case without prejudice …  This is my recommendation; better solution than bringing case to trial.”

Meanwhile, despite what the lawyers were saying to the judge, the PRC had not yet “accepted” the application.

The problem

But here’s the more serious problem: the PRC has no authority whatsoever to deal with site-specific land use and enforcement decisions. State law is very specific on how decisions are made and who is allowed to make them.  Ironically, the entire land use and court enforcement processes have been purposefully designed with Constitutional due process in mind, to specifically protect property rights of landowners. This is why zoning decisions are “quasi-judicial” and made according to very specific provisions in state law for notice and hearing procedures and made with very formal rules of decision-making. The insertion of the PRC into this process adds a purely political layer, and without any such quasi-judicial procedures or specific state or county authority, it is probably illegal under state law.

Moreover, running an active enforcement case through the PRC is even worse. In this instance, the junkyard enforcement remains as a full-blown court case before an actual judge. It’s not quasi-judicial, it’s totally judicial.  Holt and Bauer’s misrepresentation to the Court about the role of the PRC and the scope of its authority is, at best, misguided. At worst, it is potentially unethical, particularly for Bauer, whose client, Bonner County, brought the enforcement action in the first place.

At some point, however, somebody had second thoughts. The Heidekker application to the PRC was withdrawn, and in a follow-up status conference in March before the Judge in the enforcement case, the PRC option was not even mentioned. The Judge ordered the parties to mediation, and if a settlement is not reached, the case will go to trial — almost a year after the ill-advised detour to the PRC. The case is still pending.

Originally, we saw the application to the PRC and we were worried the PRC was preparing to declare that junkyards are not to be regulated, but rather welcomed on the rural Bonner County landscape. Instead, it was worse. All of this appears to indicate that the PRC was being set up as an illegal end run around established code enforcement processes, to absolve the Heidekkers, unrepentant serial violators of County law, in the name of property rights.  Either outcome would have been bad news for Bonner County. The latter, however, would have been inexcusable.

 

 

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