Ruling flattens Mosquito Bay court action

SANDPOINT — A 2nd District judge is swatting down a court action the Mosquito Bay Fen Preservation Association filed to thwart the controversial expansion of a housing development at Priest Lake.

Judge Jeff Brudie dismissed the group’s petition for judicial on technical grounds on Feb. 15, according to court documents.

The association, which formed in the wake of Bonner County commissioners’ approval of the 14-lot subdivision at the north end of the lake, petitioned the court last year to overturn the county’s approval of the Sandpiper Shores expansion.

The group argued that the project violated county land use laws and failed to protect the fen, a biologically diverse peatland uncommon in the Northern Rocky Mountains. Project opponents also asserted that their due process rights were violated during the public review process.

But the merits of the suit won’t be put to the test because the association missed the filing deadline by five days.

Bonner County Deputy Prosecutor Larry Goins moved to dismiss the petition because it was not filed within 28 days of the county commission’s decision on the project. The county also argued the fen association lacked standing because it did not exist until after the county approved the project.

The commission approved the project following a public hearing on Sept. 7, 2011, and issued a decision letter the following day. The decision letter was subsequently amended.

The association’s counsel, Sandpoint attorney Paul Vogel, argued those circumstances made it impossible for his clients to know when the county’s decision became final and the clock started counting down to the filing deadline.

The association asserted the final decision came when the amended decision letter was issued, but Brudie ruled the group could not point to any legal authority to support the position.

Brudie further held that the decision became final the moment commissioners voted to the approve the project following the public hearing. The court noted that the association’s members and counsel were at the hearing and that the commission did not hold the record open to receive additional information.

“As a result, all individuals present when the applications were approved had actual notice of the Commissioners’ decision,” Brudie said in his written opinion and order.

On the issue of standing, Brudie ruled that the association’s pleading contained nothing to show the project would harm the group’s real estate interests. Brudie held that the group implied its individual members’ real estate interests could potentially be harmed, but the petition did not outline those interests and the individuals are not listed as the petitioners.