Code Attorney

Of all of the structures I see without permits in court enforcement actions, decks have to be close to the top of the list. A recent case in Idaho, Wohrle, et al v. Kootenai County, 147 Idaho 267, 207 P.3d 998(2009) ended in a good result for the county. The plaintiffs built decks within the setback area of their properties without permits and without variances. After the fact they applied to the county for variances so they could keep their decks. The county said they hadn’t shown a hardship and denied the variances. The plaintiffs didn’t like that result and sued the county. They ultimately lost their case in the Supreme Court of Idaho because the court found they had not shown a hardship and their substantial rights were not violated. The Court very sensibly ruled that:

Respondents were not making lawful use of their properties when they built within the setback areas without first receiving a variance or building permit. In addition, even with the denial of the variance requests, Respondents are still able to use their property as permitted under state laws and regulations and county ordinances-all of which were in effect when Respondents purchased their properties. Respondents are not entitled to the granting of variances; instead, variances are issued upon the discretion of the Board. They are still able to put their property to reasonable use by using and enjoying a dock on Coeur d’Alene Lake, so no substantial rights have been prejudice.

Too often people on zoning boards feel sorry for the people asking for a variance because they spent a lot of money and it’s going to cost even more to come into compliance with the law. This court recognized that there is no reason to complain or whine if you acted illegally to begin with. Variances are not supposed to be issued because someone will be inconvenienced. In my opinion, the Board did the right thing in this case and so did the Court.