Case No. PH-2021-PUB-20-003 July 6th, 2021 IDAHO DEPARTMENT OF LANDS Attn: Jennifer [email protected] Re: Notice of Application L96S2687 Camp Bay Community Dock The Lake Pend Oreille Waterkeeper (LPOW) appreciates the opportunity to submit comments regarding the above referenced Encroachment Permit Application. LPOW is a 501(c)3 non-profit organization that works to protect the water quality of Lake Pend Oreille (LPO), the Pend Oreille River and their associated waterways so that they remain swimmable, fishable and drinkable for future generations. While the overall water quality of LPO is healthy, we all need to stay vigilant in advocating for clean water in order to prevent the degradation of our precious resources. As mentioned in previous comments on encroachment applications, LPOW does not make it a general practice to get involved and/or comment on specific land use projects or individual docks. However, this project has a long history, a recent Petition for Judicial Review has been filed, and according to Panhandle Health no sewage disposal system, whether it be community or individual septic, has been approved. Due to a number of uncertain potential outcomes LPOW respectfully requests a public hearing for this application so that all community members and agencies involved are informed with most current information regarding the entire project. With regard to the Petition for Judicial Review (attached), it was filed by a neighbor against the Bonner County Board of Commissioners contending that the vacation of a road leading to the water was not in the public interest. It is concerning to LPOW that if the petitioner prevails, it may force the rearrangement of the entire subdivision, especially waterfront lots, in turn modifying the location of docks. In addition, Bonner County allowed 21 leased lots to be converted to substandard lots and recorded, all without a preliminary plat process or public hearing, which may also be challenged if the petitioner prevails. In summary, LPOW is concerned that if the petitioner prevails and/or sewage treatment is overly problematic, the approval of this permit application could lead to an improper quantity of docks constructed in haphazard locations. If in fact IDL approves the application it should only be on the condition that the Petition for Judicial Review be settled and Panhandle Health has approved a reasonable solution for sewage treatment. LPOW greatly appreciates the opportunity to request a public hearing and submit written comments. Sincerely, Steve Holt Steve Holt Executive Director - LPOW Email: [email protected] Phone: 208-597-7188 Preston Carter, ISB No. 8462 Samuel F. Parry, ISB No. 10985 GIVENS PURSLEY LLP 601 West Bannock Street Post Office Box 2720 Boise, Idaho 83701-2720 Telephone (208) 388-1200 Facsimile (208) 388-1300 [email protected] [email protected] 15643884_3.docx [15743-1] Attorneys for Petitioners IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNER ALFRED ARN and JENNIFER ARN, Case No. husband and wife, PETITION FOR JUDICIAL REVIEW Petitioners, Fee Category: L.3 v. Fee: $221.00 BONNER COUNTY, IDAHO, a political subdivision of the State of Idaho, acting through the BONNER COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent. Pursuant to Idaho Code Sections 40-208, 40-203(1)(k) and Rule 84 of the Idaho Rules of Civil Procedure, Petitioners Alfred Arn and Jennifer Arn (“Petitioners”), through their attorneys Givens Pursley LLP, hereby petition this Court for judicial review as follows: In accordance with Rule 84(c) of the Idaho Rules of Civil Procedure, Petitioners state as follows: 1. The name of the agency for which judicial review is sought: Bonner County Board of Commissioners (the “Board”), Bonner County, Idaho. PETITION FOR JUDICIAL REVIEW - 1 2. The title of the District Court to which the petition is taken: The District Court for the First Judicial District of the State of Idaho, in and for the County of Bonner. 3. The date and the heading or other designation of the agency and the action for which judicial review is sought: a. Date: April 7, 2021 b. File No.: VS0002-21 (the “Application”) – Vacation of a portion of Camp Bay Road – Green Enterprises, Inc and M3 ID Camp Bay LLC (collectively the “Applicant”). c. Action for which judicial review is sought: Approval of the Application for vacation of a portion of Camp Bay Road by the Board. 4. The Board conducted a public hearing on April 7, 2021 to consider the vacation application VS0002-21 submitted by the Applicant. The Board’s approval of the Application was reflected in a Minute Order dated April 7, 2021. The action was memorialized by Resolution 2021-37 on April 7, 2021 and recorded April 14, 2021 in the records of Bonner County, Idaho. The person in possession of the hearing record and/or report is believed to be the Bonner County Clerk, Michael W. Rosedale, 1500 HWY 2, Third Floor, Sandpoint, Idaho 83864 or another employee of Bonner County. 5. Petitioners assert the following issues for judicial review: a. The Board failed to evaluate, with consideration of the facts in the record, whether the road vacation was in the public interest. b. The Board failed to reflect or memorialize its decision to vacate the road in a written decision that sets forth the Board’s reasoning, the facts and law it considered, and the other reasons behind the Board’s decision. c. The Board’s decision was procedural and substantively flawed because the Director of the County’s Road and Bridge Department, from which comment PETITION FOR JUDICIAL REVIEW - 2 was elicited, is a member of the Board of Directors of the Applicant (or an affiliate of Applicant) and this conflict of interest was not disclosed on the record. d. The Board failed to consider all information related to the road vacation. e. The bases of the Board’s conclusion that the road vacation was in the public interest was unsupported by, and contradicted by, facts in the record. f. The factual bases of the Board’s conclusion that the road vacation was in the public interest are clearly erroneous based on the facts of the record. g. The Board’s conclusion that the public interest analysis is limited to “a balance of current costs versus continued maintenance costs on a road that serves a small number of residents” was arbitrary and capricious, an abuse of discretion, contrary to the facts in the record, and contrary to governing law. h. The Board failed to “accept all information” and failed to “consider all related information” related to the road vacation by, among other things, limiting oral testimony at the public hearing to three minutes. i. The Board failed to determine whether the right-of-way parcel to be vacated had a fair market value of $2,500 or more. j. The Board failed to consider whether a charge should be imposed upon the entity acquiring the right-of-way upon vacation, as is required if the value of the right-of-way parcel exceeds $2,500. k. The Board’s approval of the Application was not in the public interest, but was rather in the private interest of the Applicant, and in the interest of County employees such as the Director of the Road and Bridge Department. l. The Board’s findings of fact were clearly erroneous. PETITION FOR JUDICIAL REVIEW - 3 m. The Board’s findings of fact were unsupported by substantial or competent evidence. n. The Board’s conclusions of law are contrary to governing law. o. The Board’s decision did not represent an appropriate exercise of discretion. p. The Board’s decision was arbitrary and capricious. 6. Petitioners request a transcript of the April 7, 2021 public hearing before the Board. 7. Pursuant to Idaho Code Section 40-208(6), Petitioners requests that a judge who resides outside Bonner County be appointed to hear the case. 8. Pursuant to Idaho Code Section 40-208(5) - (6), Petitioners request the opportunity to present new evidence and testimony supplemental to the record provided by the County. 9. Pursuant to Idaho Code Section 40-208(6), Petitioners request the court to receive written briefs and accept oral argument. CERTIFICATION Pursuant to Idaho Rule of Civil Procedure 84(c)(7), undersigned counsel for Petitioners certify that: 10. Service of this petition has been made upon the Board, the Bonner County Clerk of the Court, Green Enterprises, Inc., and M3 ID Camp Bay, LLC pursuant to Idaho Rules of Civil Procedure 84(d) and 5(e). 11. Counsel contacted the Bonner County Clerk on April 29, 2021 requesting an estimated fee for preparation of the transcript. Counsel followed up with the Bonner County Clerk’s office and the Commissioner’s office on May 3, 2021 for a cost estimate. The County has not yet provided an estimate. Counsel certifies that Petitioner will pay the estimated fee for preparation of the transcript when the County provides such estimate. PETITION FOR JUDICIAL REVIEW - 4 12. Counsel contacted the Bonner County Clerk on April 29, 2021 requesting an estimated fee for preparation of the record. Counsel followed up with the Bonner County Clerk’s office and the Commissioner’s office on May 3, 2021 for a cost estimate. The County has not yet provided an estimate. Counsel certifies that Petitioner will pay the estimated fee for preparation of the record when the County provides such estimate. REQUEST FOR RELIEF Based on the foregoing, Petitioner requests an order from the Court: 1. Declaring that the Decision of the Board is contrary to law, erroneous, arbitrary and capricious, or otherwise not in accordance with law; 2.