July 29, 2023
To: Kathy Ackerman
From: Joshua Palken
Cc: Mr. Matt Jessup
Re: Objection to McColloch variance application. It does not comply with the law – see below.
(4 pages total)
So we now have two (more) variance applications before the Board on the 8/1/23 agenda. (McColloch and Anderson) Perhaps some of you read my letter on this topic printed just last month. The full text is set forth below.
These variances do not comply with the law and so far as I can see, make no attempt to do so. Although the County subdivision process is not overly burdensome, I understand it is not really written to apply to situations like these. I also understand the subdivision process includes a number of requirements that generate expenses which may not be justified or affordable in these land divisions.
However, going straight to a variance cannot be the answer – not only is it unlawful on its face, it provides no consistent method to assure rational land development. In these cases Mr. Jessup has been compelled to create some conditions to the subdivision case by case which is a terrible system and will result in errors and disputes and claims.
A variance is intended to protect land owners from a complete loss of value of land when zoning or subdivision laws have such effect – a laudable goal but to be used sparingly and per the State and County legal codes, which is only when strictly necessary. It is sad that the neighbors who OPPOSED the variances are not apprised of the rules – and they wrongly assume the County is following the law – when they are not. These citizens have the right to rely on the County and Mr. Jessup to represent the public interest – which means following the law which all agreed upon – and not the whims of elected officials.
As you may recall, Idaho County, during the tenure of Mr. Brandt, adopted the subdivision ordinance on 2020 “at the barrel of a gun” so to speak – being the requirement of state law which Brandt had deliberately ignored for policy reasons. While I support “property rights” in all forms, this represents another failure of land use law in this County under Mr. Brandt’s leadership, one which I have repeatedly called out. His approach creates uncertainty in this critical area of law because he imposes his own personal views on it – which in my opinion, are flawed. Not flawed in and of themselves, but flawed because they are his own personal views which do not represent the interests of the public.
We are now seeing the ill fruits of this approach in the various divisive, costly and time consuming disputes over county lands, including roads and public access. This includes the unlawful “field trip” re-nominated as a “public hearing,” the denial of OSFH 18 public road validation (now in court), the vacation of a right of way in Elk City for no good reason (also in court) and a vacation on Milner Trail which was just validated (which will also be in court if Mr. Brandt persists).
Aside from the impacts of Mr. Brandt’s personal views and leadership style, this all points to an urgent need to accommodate land divisions that are not really “subdivisions” as commonly understood. The County needs to consider a shorter and more expedited process embedded within the subdivision ordinance for subdivision which accommodates such transactions. I am loathe to object to these applications – which may or may not present any negative impacts and seem reasonable on their face. However, these are assumptions and it also appears this is the second such variance from Mccollogh (see below article) Does this mean he will have created 4 lots from one without compliance with the subdivision ordinance?
These subdivisions can certainly comply with the subdivision code and I see no attempt or citation of fact needed for the granting of a variance. Again my objection is not the concept of subdivision – but using the variance process simply to avoid the ordinance is clearly wrong and unlawful. I strongly urge the Commission to review this process and find a permanent lawful solution.
Sincerely
Joshua Palken
“Skip Brandt Misses the Mark Again” Free Press, June 2023
“Let me first say I give Brandt high marks as a county manager. The offices and services run great and I am grateful for that service. However he continues to make major errors in support of self proclaimed advocacy of “private property rights.” Brandt says anyone can do whatever they want with their property. That is simply false, unlawful and wrong on the facts. I agree that excessive land use regulations and government takings are wrong. But land use rules have been in place for over a century because what one does on his land affects others and therefore his rights end at the boundary of the next owner.
There are too many examples for one letter but the latest error is another variance where Brandt declares that people cannot “regulate” their neighbors” “This is Idaho, this is Idaho County,” he said. “If you want to control your neighbor’s property, buy it; if you want to maintain your view, buy it.” Wrong. Idaho law is that a variance “…shall not be considered a right or special privilege, but may be granted only upon a showing of undue hardship because of characteristics of the site and that the variance is not in conflict with the public interest.” Idaho Code 65-6516. County Ordinance 70 Section VIII is the same and sets forth six conditions for a grant of a variance, including a requirement of “special circumstances or conditions” and that “…the granting…will not be detrimental to the value of other property in the area…”
Brandt either does not understand the law, or chooses to disregard it, to the detriment of adjoining owners and the county in general as more people move here and create more housing without consideration of the rules. I call upon Brandt to schedule a meeting to discuss his actions in public where I will be glad to debate with him. His actions are indefensible under the law. This is not an isolated incident as the Free Press reported: “Idaho County residents continue to divide their lots, asking for variances to the county’s subdivision ordinance…” This needs to stop.”
Joshua Palken, Elk City, Idaho
NONE of these variance applications comply with the law
McColloch got a variance (see article). Now back for another
https://idahocounty.org/planb/wp-content/uploads/2020/05/SUBDIVISION-ORDINANCE-NO.70.pdf
https://idahocounty.org/planb/wp-content/uploads/2017/08/Variance-App-Letter.pdf
Idaho County Free Press – GRANGEVILLE — Idaho County residents continue to divide their lots, asking for variances to the county’s subdivision ordinance for minor splits. During their May 30 meeting, the Idaho County Board of Commissioners held two public hearings for variance requests. They also met with a group of airport users asking to be more involved in airport development and operations. Commissioners Skip Brandt, Denis Duman and Ted Lindsley attended the meeting, along with Kathy Ackerman, county clerk, and Matt Jessup, deputy prosecutor.
Commissioners approved Randy Wilson’s request for a variance to split his property along Little Elk Lane just north of Elk City. Nobody testified against the variance. Jessup questioned Wilson and his surveyor, Hunter Edwards, about wells, perc test for septic and providing road access for the additional parcel. Wilson agreed to have parcels B and C perc tested.
The board of commissioners also approved a variance for Mark McColloch to split a 20-acre parcel into two 10-acre lots with the intention of building a house on each. The approval is subject to providing an easement to access the new parcel and requiring a perc test for each parcel. Two neighbors testified, expressing concerns about the variance. Leslie Simler explained she has seen an increase in traffic to 12-15 cars on the single-lane road. With the cumulative effect of previous lot splits in addition to this one, Simler said she would gain eight more neighbors. Simler said she does not have a problem with McColloch, her neighbor and friend, but said the road is a county planning issue, an infrastructure need.
“I don’t want us to continue to fly by the seat of our pants,” Simler said.
Fredrick Andrea said he owns five acres on Simler Lane. Andrea expressed concerns about his view and his desire to use McColloch’s property as a backstop for hunting. He asked McColloch to remove the easement for Simler Road and relocate it off Andrea’s property.
“That easement’s not going nowhere,” McColloch said. He explained the split for the upper parcels adjacent to Andrea is already approved and not part of the current project. “If he shoots an elk on my property, there will be trouble,” said McColloch, suggesting that Andrea hunt on his own land.
Before approving the variance, Brandt expressed concern that people want to regulate their neighbors.
“This is Idaho, this is Idaho County,” he said. “If you want to control your neighbor’s property, buy it; if you want to maintain your view, buy it.”
END
