Judge sides with plaintiff in Washington County land case
Lawsuit filed regarding proposal
to build house
By JESSICA KELLER
ARGUS OBSERVER
Sunday, September 14, 2008 12:24 AM PDT
WEISER—As of Thursday, the Washington County Commissioners still had not issued a building permit to a Weiser man to construct a house despite a court order.
3rd District Court Judge Stephen Drescher ruled against the County Commissioners Sept. 5 in a lawsuit filed by area attorney Brad Masingill on behalf of his client David Smith, who sought a building permit to construct a house in rural Washington County a year and a half ago. Masingill said the zoning dispute erupted a year and half ago when Smith approached the County Commissioners about a building permit. The elected board apparently told Smith that since his property was situated in the Midvale Fire District, he must approach that agency for its approval.
The Midvale board did not approve of the construction, however, because Smith’s private driveway did not meet a 20-foot width requirement, despite the fact Washington County only requires 16 feet and the other two fire districts in Washington County — Weiser and Cambridge — only require 16 feet as well, Masingill said.
Masingill said Midvale’s reasoning was the 20-foot requirement was based on the International Fire Code. Masingill said he offered the fire district a document to sign that would waive any responsibilities by the fire district in case of a fire that would apply even if the house should be sold, but the fire district board declined to agree.
When the matter went back to the County Commissioners, they denied the request based on the fire district board’s assessment, Masingill said. In late February, Masingill said he filed a lawsuit against the County Commissioners, and on Sept. 5, the district court sided with Smith.
“The decision by the district judge was absolutely wonderful,” Masingill said. “We finally got some justice for the county.”
According to the judgment, the County Court failed to follow proper procedure regarding public hearings and documentation. In addition, the argument for a 20-foot driveway clearance based on IFC code could not apply based on the discrepancies among the fire districts in Washington County.
Drescher, in his ruling, said the denial of the permit and variance to Smith were not supported by substantial evidence based on those two reasons. He also called the denial “arbitrary and capricious and an abuse of discretion.”
However, as of Wednesday, Smith still has not been able to retrieve his building permit, and despite the judge’s order, the commissioners told the building official not to issue one when Smith went in, Masingill said.
Following that, Masingill said he went to Washington County Sheriff Marv Williams, showed him the judge’s order and told him he wanted the commissioners arrested. Masingill said, the sheriff, after speaking to the Washington County Prosecuting Attorney, said he could only arrest the commissioners on an order from the judge.
Masingill said Thursday, he was working on that, but also added the County Commissioners have 42 days to appeal the district court ruling, which would halt the order for a building permit and variance.
“I don’t know what they’re going to do,” he said. “There are some offers on the table (from the commissioners) that we’re exploring.”
Washington County Commissioner Rick Michael said he couldn’t comment on the situation but added the commissioners were going to speak with their counsel on Friday.
“It’s all pretty new to us,” he said.
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