The land owner(James Green) and the development company(M3 Idaho) petitioned the county to abandon 2550 feet (2.93 acres) of camp bay road which is a public road terminating at the high water mark of Lake Pend Oreille. This abandonment would give away a public road and deny the public access to the lake. This request by the developer was needed in order for their large gated development to unfold as planned and advertised.
April 7th, 2021 the Board of Commissioners vote unanimously to vacate the public road, giving it to the developer for a gated lakefront development. During this hearing, The Planning department’s Staff Report concludes that vacating the road IS in the public’s interest. What? Be sure to look at the map in the staff report, provided by the developer’s engineer, that shows the public road ending at the high water mark of Lake Pend Oreille.
Watch the April 7th BOCC public hearing here. Staff Report here
Under Idaho statute Title 40, Chapter 2 Section 40-203, Abandonment and Vacation of County and Highways or Public Rights-Of-Way, the county Commissioners have the right to abandon the road, so long as it is in the public’s best interest. In voting to abandon the road the Commissioners cited these issues as being in the public’s interest:
“A turn-around for school buses and snow plows at the gate” “Easements to the other properties” “The county will no longer be responsible for the maintenance for this section of the road”
Fred and Jennifer Arn, who live on Camp Bay Rd, strongly disagreed with this decision, arguing it was not in the public’s best interest. The Arn’s filed a Motion to Reconsider with the County.
The Arn’s Motion to Reconsider, Judicial Review, and Court Decision
Once a Reconsideration request is filed, the County has 60 days to decide whether they will reconsider it or not. If they don’t respond in 60 days, it is considered a denial to rehear. And that is exactly what the County did.
So, the Arn’s filed for Judicial Review on May 4th. This is basically asking a judge to look at whether the process the Commissioners used to determine the road was in the public’s interest was valid.
They prevailed in their request for judicial review! The court returned the road back to the public. The court stated that the road “is public access to the lake” making it difficult if not impossible to justify giving the road to the developer as “in the public best interest”. So, the court remanded it back to the County, giving them another chance to get it right! Keep it public or give it to the developer again!
On Feb.16th at 1:30 pm in the big meeting room on the first floor of the county offices another hearing before the Commissioners took place. In that hearing, the Commissioners heard very clear evidence that the public right of way ends at artificial high water mark and most likely ordinary high water, which would make the land below the water, the public’s. The Commissioner’s agreed to give the road back to the public, with the caveat that they didn’t know where the road ended or if it provide public access to the lake. They stated they wanted a judge to decide that. So everyone waited for another judicial review to be filed.
Developer, M3 Idaho LLC, Files for Judicial Review
The decision to give the road back to the public didn’t sit well with the developer M3 and they soon filed for judicial review, claiming the public right of way ends before high water mark of Lake Pend Oreille, and doesn’t provide public access. We the public, need to prove otherwise!
Update: The Arns will be intervening in this upcoming court battle so that the public is actually represented in front of a judge. There will be a new hearing July 6th where the court will decide if it has the “authority” to decide where the road terminates.
There is currently very little we can do other than to get things in place and be ready to respond accordingly when the court makes a decision. The judge can allow the request for judicial review to proceed or she can remand it back to the county to figure it out. These are just two of several options.
M3 will be filing their brief in a few weeks and at that point we will know what their argument is. We will build our case off that information and submit our rebuttal brief along with the county.