We were just awarded a project grant for the summer and we need one or two law students to do some specific research and writing for the project. It is, of course, related to our never-ending efforts to protect North Idaho’s environment.

Although we’re not paying very much, we’re at least paying something. Besides, working in downtown Coeur d’Alene over the summer is its own reward. (You can ask our previous, unpaid, interns about that.)

If you’re interested, of if you need more information, contact: terry [at] kealliance.org  and send a resume. (Be patient today 5/15, our email appears to be down.) 

The current, simple-minded, 25-foot setback, as applied now in the County, doesn’t protect the environment, doesn’t work for existing property owners, and doesn’t work for county staff that administer the law. Everyone agrees on that much. The question is simply how to restructure shoreline protections to be more flexible for property owners while still protecting water quality.

Buffers and/or “best management practices” are required in jurisdictions around the country to protect lakes and streams from polluted runoff. In our region, with water quality so incredibly important to our economy and quality of life, doing nothing is not an option.

Stay tuned.

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.

As a general matter, we are glad that the Forest Service has finally developed a new draft forest plan, but we are disappointed. We believe that it is not sufficiently protective of watersheds, wildlife or wilderness uses. It suffers from weak standards and allows an unacceptable breadth of unbounded discretion to forest managers. And it fails to accommodate the changing nature of forest resources in an era of climate change and new economic  realities.  We do not believe the Forest Service has found a proper balance of the multiple uses it purports to manage, and instead of sustainable and resilient forests, we will see a continuation of the ongoing slow decline.  The draft fails to preserve forests for future generations, fails to restore damage from past generations, and fails to find the right balance for a generation that will need to live with this plan. 

Part of the reason to write new zoning code is to improve on old ways of doing business. We know now, for example, that water quality can depend on land use decisions, and water quality needs to be a major concern in our area. When our new code is complete, for example, we hope that shorelines and waterfronts will be better protected with new buffers. But for people who have already developed their properties under the old code, this can be problematic.

Generally, when a new code is written, it can create so-called “non-conforming” properties that were allowed previously but wouldn’t be allowed anymore. For example, an existing parking lot parcel, which might be allowed under the old code but not allowed under the new one, would continue in existence, but it would simply be labeled as “non-conforming.” An addition or expansion of a non-conforming parking lot would be substantially more difficult, usually requiring a hard-to-get variance from the new code. Non-conforming doesn’t mean “illegal” and it is not a “taking” of anyone’s existing property rights, but it can impact future development and expansions of existing non-conforming development. Buying, selling, and financing non-conforming properties is also difficult.

The draft of the County’s new code avoids the problem entirely. Using “Neighborhood Conservation” zoning districts, (See Article 3-4)  existing developed properties are essentially grandfathered into the new, updated system. Rather than being deemed non-conforming, all properties would be conforming, and subject to new, clear, objective and flexible standards. This method will protect the reasonable development potential of the existing property, while also protecting neighbors and the environment.

Although we expect that there will be a continuing flow of nonsense and misinformation from chronic “property rights” malcontents, the reality is that the proposed Neighborhood Conservation zoning districts in the ULUC  address any legitimate concerns quite efficiently.

This isn’t the first time the County has had the idea, however. Back in 1998, the Spokesman-Review covered a previous attempt to unload the property. However, according to the article, “Chilco Creek was donated to the state in 1914 by developer C.S. Argo. He stipulated that the land must be open to the public ‘forever.’ It eventually became county property.”

The County disposed of the property back then, only to trade to reacquire it after recreationalists and nearby residents complained. As Spokesman-Review writer Dave Oliveria wrote at the time, “Here we have a park that requires low to no maintenance, is popular locally and offers an unusual recreation experience. The commissioners need to undo this booboo. Or be booed.”

We’re told the County Commissioners have asked legal staff to review the idea. Hopefully, though, they will learn from history and leave well enough alone.

P.S.  In researching the history of the area, we came across this article about someone named Larry Spencer running a dumpy and illegal trailer sales business near the park. Is it the SAME Larry Spencer? Did he actually get his after-the-fact permit for his substandard trailer sales operation? Is THIS what he’s talking about when it comes to “property rights”? If anyone has any more details on this, we’re interested.

What are Property Rights?

Property rights are a cornerstone of western civilization, but too often their nature is misunderstood. Sometimes, the phrase property rights  is used loosely. Generally, that stirs up an emotional response — typically by suggesting that some undefined set of property rights is being put in harm’s way. Unfortunately, this sort of rhetoric too often generates “more heat than light.” It taps into a heartfelt intuitive  image of property rights — which is, in short, “I should be able to do anything I want  with my property.”

Yet, the intuitive  image of property rights is not square with what centuries of Western and U.S. law describe as property rights. The legal definition (which is what applies to zoning and subdivision law), is much more complicated. Indeed, there are volumes of court cases and legal treatises on property rights.

The “common-law” (case law) on property rights describes them as a “bundle of rights” that come along with the ownership of property. The “bundle” comparison is used because property rights can be separated from each other and given, rented, or sold to others (e.g., a person may lease property to another – giving them a temporary right to possess the property – while still retaining ownership; a person may transfer mineral rights or water rights while retaining ownership of the surface; a person may grant an easement to another for a specific purpose, like access or drainage).

Key property rights in the “bundle” include the right to possess (which includes the right to exclude others), use, and dispose of property (for example, by sale, gift, or will). According to the U.S. Supreme Court, the “power to exclude [others from one’s property] is ‘one of the most treasured strands in an owner’s bundle of property rights.’” Loretto v. Teleprompter Manhattan Catv Corp, 458 U.S. 419 (1982).

Property rights may also be created by state law. For example, in Idaho, there is a “right to farm” law, and a right of a property owner who requests and obtains a rezoning to not have the rules change within a certain period of time.

Property rights are not absolute. Courts have consistently held that through our republican form of representative government, the use  of property may be regulated “within reasonable limits” (beyond mere nuisances) for “the public good.” As the U.S. Supreme Court puts it, “that is a burden borne to secure ‘the advantage of living and doing business in a civilized community.’” Andrus v. Allard, 444 U.S. 51 (1979). Significantly, the Andrus v. Allard  decision was not simply the expression of an “activist court” that was “legislating from the bench.” In fact, the opinion was joined by justices across the political spectrum.

The Court in Andrus v. Allard (citing the famous “takings” case of Pennsylvania Coal v. Mahon) ultimately concluded: “Suffice it to say that government regulation—by definition—involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. ‘Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.’ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) . . . . The Takings Clause, therefore, preserves governmental power to regulate, subject only to the dictates of ‘justice and fairness.’”

Kendig Keast Collaborative’s project manager describes the ULUC as “a set of rules for what it means to be a ‘good neighbor’ with respect to the use and development of land in Kootenai County.” All are welcome to join in the effort to create proposed new rules that are purposeful, just, and fair.

That’s why we’re here.

The court’s order can be found here: Friends of the River v Corps – order denying motion to dismiss

We’ve only skimmed the document, and our lawyers are certainly reviewing it very carefully. However, the Court appears to be quite adamant that conservation groups have standing to bring a lawsuit, and that the Corps will need to provide the conservation organizations with a more complete set of documents on which it purports to base its levee policy. Without the full administrative record, the Court was skeptical of the Corps claims that the levee policy was not subject to judicial review.  This was an issue simmering in our case.

With actual flood waters actually quite high, but with no sign whatsoever of the parade of terribles caused by trees on the Coeur d’Alene levee, all of this is very good news for a Friday afternoon.

At the Gala, KEA President Janet Torline presented awards to some great KEA members for service to our mission and our community.

The Art Manley Award — Named after a KEA founder, this year’s award went to Kris Buchler for her hard work as an activist and educator with Coeur d’Alene Audubon Society. Kris has created bird identification classes and educational programs, leads bird counts, and has been monitoring bird populations in the area for more than 12 years.

Scott and Mary Lou Reed Community Conservation Award – Named for great local citizens, this year’s award went to Sandy Emerson, a long-time business owner and conservationist. Sandy’s work in the business community brings together many interests in the name on conservation, and his work has led to the preservation of thousands of acres for public use, habitat, and permanent protection through conservation easements throughout the region. Scott and Mary Lou Reed, who were out of town, sent their congratulations to Sandy, noting “He never quits thinking about how to use our natural resources wisely.”

Community Volunteer Award — This year’s award went to Kim Normand, the tireless leader of the Shared Harvest Community Garden on 10th and Foster in Coeur d’Alene. The Garden, entering its 4th growing season is a wonderful community asset, growing local fresh food for plot holders, and for KEA’s Community Roots program.

Community Business Award – This year’s business award goes to DOMA Coffee Roasting Company, a leader in sustainable business and roaster of extremely delicious coffee. DOMA is a great supporter of local conservation causes, and a great supporter of KEA’s work.

Last week, Mr. Spencer placed an ad on the CDA Press website (and elsewhere, probably) attacking Kootenai Environmental Alliance and Spencer’s opponent Dan Green for work on the new land use regulations under development in Kootenai County. With a background image of the U.S. Constitution, and under a heading “Kootenai County Property Rights Under Attack” Spencer asks, “Kootenai Environmental Alliance doesn’t pay your property taxes. Why does Dan Green believe they should have equal footing in developing land use code that will affect your property?”

Setting aside the fact that with a membership of more than 600 members, we actually represent quite a few taxpayers, this is an odd statement coming from a lobbyist – a person paid to represent private interests to government. According to disclosure reports, Larry Spencer represents primarily developers and at least one oil company. At least we represent the public interest.

Larry Spencer, who has attended maybe one or two of the dozens of open meetings and workshops on the new land use codes, appears to be stirring up opposition where none really exists. There is essentially unanimous agreement that the current county codes are hopelessly out of date and are in desperate need of revision. There is also essentially unanimous agreement that environmental protection – particularly when it comes to water quality in our lakes and streams – is an important consideration when the codes are being written. And there is essentially unanimous agreement that the rights of property owners (and their neighbors) need to be respected under the U.S. and Idaho Constitutions. Indeed, the balancing of these interests is what land use regulation is about.

Spencer’s ad notes (with awkward phrasing) that “Dan Green has asked a property owners group to meet with the Kootenai Environmental Alliance and compromise their position in order to facilitate the development of the unified land use code provisions regarding their property.” And it’s true that KEA has been invited to engage with Coeur d’Alene Lakeshore Property Owners Association and others to work through the details of water quality protections. The property owners have some constructive policy suggestions for the codes, and we do too.

So it is not clear what Mr. Spencer is actually objecting to. Compromise? Collaboration? Clean water? Free speech? The very existence of Kootenai Environmental Alliance?  Is he really opposed to the effort to streamline and overhaul dysfunctional county regulations? We think he’s chosen the wrong topic on which to exploit a split in the community for his election purposes. The split just isn’t there.

UPDATE 4/23: There is indeed another ad now running. This one comes with the alarming and absurdist plea, “Don’t let Commissioners Green and Tondee implement land use codes that will transfer control of your property to the planning department.”