Posted by: Patricia Salkin | July 8, 2009

Board Properly Denied Area Variances for Already Constructed Decks

Respondents James and Penny Wohrle and Respondent Jerry Judd (collectively Respondents) constructed decks on their respective properties on Coeur d’Alene Lake without having first obtained either a variance or building permit from Appellant Kootenai County. On September 16, 2005, Respondents applied to the Kootenai County Board of Commissioners (Board) for variances from the twenty-five foot front setback requirement outlined in section 8.09 of the Kootenai County Zoning Ordinance. The requested variances would have allowed for a front setback of zero at the property line for the existing decks. Judd also requested a variance of seven feet from the ten foot side setback requirement for one of his decks. 

The variance requests were heard by a Kootenai County hearing examiner on March 16, 2006. On March 21, the hearing examiner issued a recommendation that the requests be denied. Respondents then requested a public hearing before the Board and on June 1, 2006, the Board held a public hearing on the variance applications, where Respondents testified and responded to questions from the Board. At the conclusion of the public hearing, the Board voted to deny Respondents’ variance requests. The district court concluded that the decision of the Board was arbitrary and capricious and an abuse of discretion and  awarded attorney fees and costs to Respondents. 

The Idaho Supreme Court reversed, finding that substantial evidence supported the Board’s denial of the variance request because the parties could not show that the variance would not be in conflict with the public interest; and that the Board’s denial of the variance requests did not prejudice the parties’ rights. The Court specifically noted  that the Board had “acted well within its authority and discretion” in focusing on its concern “that granting variances for structures built in violation of existing zoning ordinances was not in the public interest.”  The Court also found that the Board’s denial of the variance requests did not deprive the property owners of substantial rights since they “were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit;” and even with the denial of the variances, they were still able to use their property (for a dock on the lake) as permitted under the laws and ordinances that were in effect when they purchased their properties.

Wohrle v. Kootenai County, 2009 WL 987410 (Idaho 4/14/2009)

The opinion can be accessed at:

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