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Couple calls on court to void road vacation

by CAROLINE LOBSINGER
Staff Writer | January 21, 2023 1:00 AM

SAGLE — A local couple filed for judicial review Tuesday of Bonner County commissioners' latest vacation of Camp Bay Road.

In the request, Fred and Jennifer Arn asked the court to review the board's Dec. 19 decision to vacate the last half-mile of the road, saying the county applied the wrong standard to M3 ID Camp Bay LLC’s petition to vacate and was contrary to the public's interest.

The request also contends the board failed to accept or consider all information connected to the proceedings and failed to determine whether the parcel to be vacated had a fair market value of at least $2,500.

The board's "findings of fact were clearly erroneous" and were "unsupported by substantial competent evidence," the couple said in the request for judicial review.

"The board's decision represented an inappropriate exercise of discretion," the Arns said. "The board's decision was arbitrary and capricious."

Since the decision stemmed from an existing remand, the couple said they weren't sure if filing a second request for judicial review was necessary.

"It is filed out of an abundance of caution to preserve the petitioners' rights," they said in the court document.

In the request, the Arns called on the court to declare the board decision void, award them attorney fees and court costs, and "such other relief as the court may deem just and equitable."

While the commissioners' Dec. 19 meeting was held as part of a remand from First District Judge Cynthia K.C. Meyer, who ruled in November 2021 that commissioners did not have the right to vacate the road, the issue was sent back to county commissioners this fall after M3 revised its application for the road's vacation, adding a half-mile footpath rerouting non-resident foot traffic southeast of the current beach.

The hearing was ordered by the courts to determine how a proposed footpath to allow access to Lake Pend Oreille's Camp Bay could impact the public's interest in a proposed vacation of part of the roadway. It was the latest in a series of meetings, hearings and court dates held in the past several years in an effort to determine where Camp Bay Road ends — at Lake Pend Oreille’s high-water mark or at the property now owned by M3, where it wants to build a gated lakefront community.

The request was the latest by M3 for a vacation of roughly 2,550 feet of the Camp Bay Road right of way. If upheld, the vacated right of way would be replaced with private roadway access and utility easements.

At the more-than-four-hour hearing, commissioners unanimously approved the vacation "based upon the evidence submitted up to the time the staff report was prepared and testimony received at this hearing."

The court-ordered hearing, although tied to the vacation, specifically focused on the developer’s proposal to create a walking path and whether or not it would be in the public interest.

Conditions for acceptance included M3 providing a designated parking area for passenger vehicles which would not impede the county turn-around. The conditions also stated that the county would not provide maintenance for the trail, and that easement for the path must be a minimum of 20 feet wide.

Bill Brownlee, representing M3, said at the December meeting that the developer would work with the U.S. Forest Service and county staff to address potential concerns on the pathway.

“This plan provides guaranteed access to the lake,” he said last month. “We want to make this into a great spot. We don’t want to develop something detrimental. We want to create value for our residents and the public.”

However, critics contend that the path — located a half-mile away, west of the bay — covers steep terrain and will hamper public access to the lake. Access, they contend, has been historically granted to the public.

The December road vacation is the second time Bonner County commissioners voted to vacate the last section of the road. The first vote, held in April 2021, was also unanimous, with the board contending the vacation met the "public interest" standard since the county would no longer need to plow a half-mile of dirt road and because M3 promised to put in a turn-around location.

However, the vote proved to be controversial, leading the Arns to file suit. The courts ruled in favor of the challenge, with Meyer ruling in November 2021 that the county's decision was "arbitrary and capricious."

The ruling led the county to deny the Arizona developer's application — and to kick the matter back to the court, contending they had no way to determine if the road did or did not provide legal access to Lake Pend Oreille.

At an August court hearing, M3 introduced the revised proposal, which contained a footpath at a new location. That inclusion prompted Meyer to allow the M3 to put their proposal before the county.

However, in the ruling, Meyer said the proposed footpath was "not additional evidence/information that is material to determine the issue presented" before the court.

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