Mysterious code change concerns rural advocates

SANDPOINT — Language was mysteriously added to the Bonner County Revised Code and no one seems to know who did it.

“The wording that was added was never approved by the commissioners, even before the court threw out the actual language that had been approved,” Susan Drumheller of Project 7B, a rural advocacy group, said.

“After we finally convinced Bill Wilson of the error, he had Sterling Codifiers remove the language,” she added.

The code change has since been vacated by the Idaho Supreme Court. However, the vacation of the paragraph in question had to do with a violation of the Open Meeting Law, not with the verbiage which somehow appeared later.

The code in question was BCRC 12-336, paragraph 22. It was modified in May 2018 but in July 2020 the change was voided by the Idaho First District Court after the county admitted this modification of the code was not in accordance with the public notice given by the county.

The notice said they would discuss whether or not to “[a]mend the uses allowed to expand uses allowed in a gravel pit located in the industrial zone."

After the meeting was noticed, Drumheller had a conversation with Bonner County Commission Chair Dan McDonald via Facebook Messenger. In the conversation McDonald attempted to assuage Drumheller’s concerns, saying the hearing would only address “industrial zones [that] were overlooked in the 2008 Comp Plan.”

“We know an asphalt plant [in] Sagle is unwanted and have no desire to go against the will of those that live in that area.”

“I am conservative and I’m running again this year on protecting our culture and rural nature. If you ever listened to my radio show you would know my credentials are solid,” Mcdonald added.

However, the county later admitted in court that the “amendment ultimately adopted by the Board of County Commissioners conditionally permitted asphalt/concrete batch plants (contained within a gravel pit) not only in industrial zones but [in] several others as well” and even asked the court to void the amendment.

The language was added by Ordinance 577 and read “[a] batch plant is only conditionally permitted in association with an active gravel pit."

On July 16, 2020, the county filed a “stipulated motion for entry of judgment” and admitted therein that this “portion of the amendment was improper and adopted upon unlawful procedure.”

The change was voided and slated to be removed from the code.

But things went sideways somewhere between the County Administrative Building and the servers at Sterling Codifiers, who maintain the code library of American Legal Publishers.

For some reason, for almost two years after the July 2020 ruling, the voided paragraph, instead of being removed, was significantly modified.

In the mystery modification, the requirement for a conditional use permit was removed and “increased intensity” would have been permitted for grandfathered non-conforming land uses.

Statement 22, following the court ruling, was changed to state that “[a] batch plant shall only locate in an active gravel pit. A batch plant placed in a gravel pit shall be considered a separate, discrete use, and not the increased intensity of a grandfathered use to operate the gravel pit itself.”

Drumheller said the change contradicted Title 12 subchapter 3.4 of the county code, specifically 12-340 D and 12-343. 12-340 states that “the intent of this title [is] that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district or zone.”

And 12-343 which states that “[n]o such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of this section.”

Jonna Plante, a critic of the proposed Linscott asphalt plant in Sagle, noticed the error when the code was referenced at a planning meeting in June 2021. The error was fixed over a year later. The reason for the delay, as well as the originator of the now corrected illegal code change, remains a mystery. Bonner County commissioners and the Planning Department were unavailable for comment.

The original amendment to the Bonner County Revised Code which sought changes to several aspects of the code, AM161-18, is not findable on the county website, despite the web address “https://www.bonnercountyid.gov/file-am161-18” appearing in the original noticing of the amendment in January 2018.