BOCC replaces MLD process

By Soncirey Mitchell
Reader Staff

After continuing their Oct. 16 meeting on proposed revisions to Bonner County Code regarding minor land divisions — among other related topics — the Bonner County board of commissioners reconvened Nov. 10 to approve the changes in a series of 2-1 votes. The new language replaces MLDs with “short” and “long” subdivisions, which have heightened safety requirements, removed redundant language and clarified land division applications.

Short subdivisions of 10 parcels or fewer and long subdivisions of 11 parcels or more will fall under the jurisdiction and protections of the Local Land Use Planning Act — as well as the existing requirements for subdivisions — and undergo infrastructure and service capacity reviews of their potential impact on area schools, road networks, and water and sewer districts. Each subdivision will require sanitary restriction lifts and wastewater feasibility reviews from the Panhandle Health District, which will confirm that the proposed developments meet the requirements for water and sewage hookups.

The vote brings an end to a monthslong process involving the Planning Department, Planning Commission and the BOCC. Former-Planning Director Jake Gabell approached the board in March with concerns that the imprecise MLD language had led to “conflicting interpretations and inconsistent enforcement” of code, creating loopholes that allowed developers to create de facto subdivisions without meeting the infrastructure requirements necessary to sustain them.

“Although the MLD process was originally created to provide an efficient and cost-effective review pathway for smaller-scale land divisions, practical experience demonstrated that the reduced applicable standards sometimes resulted in developments that lack sufficient infrastructure,” said Interim Planning Director Alex Feyen at a Planning Commission meeting in September. “These conditions created potential issues for emergency responders; increased the risk of fire hazards in rural areas; and, in certain cases, led to drainage or stormwater management concerns.”

In response, commissioners instituted an emergency moratorium on MLDs in April, giving the Planning Department time to workshop new language while preventing developers from submitting last-minute applications before the changes took effect. The Planning Commission unanimously approved the changes in September, passing the final decision to the BOCC, which met in October but could not agree, as Commissioner Asia Williams was absent.

The commissioners addressed only points of disagreement at the Nov. 10 meeting, beginning with the proposal to lower the maximum requested variance handled administratively (without a public hearing) from 30% to 20%. Variances allow property owners to establish unique lot sizes or setbacks that do not conform to zoning code. Feyen estimated that the Planning Department receives 25 to 40 variance requests annually that are resolved administratively.

Commissioner Ron Korn argued that keeping the maximum at 30% was more efficient, as it meant fewer hearings. In contrast, Williams and BOCC Chair Brian Domke argued that constituents favored opportunities for public comment and discussion by elected officials.

Commissioners adopted the change to 20% in a 2-1 vote, with Korn dissenting.

Korn opposed the proposal to eliminate MLDs, arguing that the moratorium was intended to give the Planning Department time to revise, not eliminate, the relevant code language. Korn had previously voted against the moratorium, saying that MLDs were a property rights issue, and arguing that striking MLDs takes an applicant’s property rights and gives them “to the other property owners.”

Korn further maintained that eliminating the MLD process — which costs $500 plus $25 per lot for an application — and replacing it with short and long subdivision (which cost $1,000 plus an additional $75 per lot) was unfair to low-income families.

“We’re making it harder on people to split their property,” Korn said, later adding, “If you have medical bills or you’re being taxed out of your property, if you want to try and create one extra parcel so that you can try and cover your bills and live more comfortably, what we’re doing as a government now is we’re adding more red tape and more expense in order to do that.”

Williams and Domke argued that the potential drawbacks to neighboring property owners caused by de facto subdivisions created under the MLD process outweigh applicants’ potential financial concerns.

“Instead of using an appeal to emotion for a situation that is really outside the bell curve, we’re being charged with creating a system that has a greater positive impact on both sides of development within the county,” said Williams, later adding, “I would argue that it’s not that [MLDs are] going away. It’s actually being absorbed in the correct terminology. To not see the words ‘minor land division’ doesn’t mean that the substance of it is gone.”

When asked to propose an alternative course of action, Korn suggested that MLDs remain an option and that neighbors resolve disputes arising from them through “civil litigation.” Domke commented that that led to a “David and Goliath” situation, where developers who could afford better legal counsel would usually win against average property owners.

“The people don’t want to be ruled,” said Korn. “The people want their freedom, and it’s not government’s job to sit there and mitigate a citizen’s risk and exposure.”

In an effort to maintain a more affordable land division option, the revised code still includes family exemptions, which allow property owners to divide a parcel for $210, plus an additional $16 per lot, and gift or sell it to a spouse or close relative. 

The proposed changes would have increased the maximum number of lots created under a family exemption from four to 10; however, Williams and Domke expressed concern that a division that large — without subdivision infrastructure requirements — would lead to the same loophole previously exploited with MLDs.

The commissioners voted 2-1 to maintain the family exemption limit of four, meaning the original lot plus three additional parcels, and to adopt the rest of the code changes, with Korn dissenting.