October 15, 1997 in Nation/World

Judge Puts Off Decision On Sanders Beach Stop-Work Order In Effect While Court Weighs Ordinances And Regulations

By The Spokesman-Review

A district judge will decide within 30 days whether the city illegally issued a building permit for a home on Sanders Beach.

Meanwhile, a city order stopping construction on a foundation for Joe Chapman’s two-bedroom house remains in force.

“I recognize a lot of people are interested in this,” Judge Gary Haman said following a hearing Tuesday. “I think probably the mayor, council and Planning and Zoning Department clearly would like an answer.”

However, the judge said he needs time to digest the particulars of the case.

The Sanders Beach dispute has percolated for years, occasionally erupting when there are conflicts between East Lakeshore Drive homeowners who pay property taxes on the beach and the public, which traditionally has used the area. The dispute finally landed in court after the city issued a footings and foundation permit to Chapman on Sept. 2.

Chapman started building that foundation Sept. 19 but was shut down by the city on Sept. 24 after the Sanders Beach Preservation Association filed suit against the city Sept. 23.

A subsequent stop-work order was issued against the project because of problems with the plans and construction, City Attorney Jeff Jones said.

In court Tuesday, attorney Ray Givens told Haman that the city had violated its own ordinances, state law and the state constitution by giving Chapman permission to start carving out a hunk of the beach for a home. Givens represents the Sanders Beach Preservation Association.

In 1928, the Coeur d’Alene City Council passed an ordinance prohibiting any construction south of East Lakeshore Drive. That condition was stipulated when the city accepted the plat for the subdivision, Givens said.

Seventy-five years ago, leaders of the city recognized the importance “of having an area for kids and families to go swim,” Givens said. The city “impressed the obligation not to build south of Lakeshore Drive, (and people) bought the land subject to that obligation.”

Arguments that later ordinances repealed the 1928 law don’t apply, Givens said. When the City Council codified its ordinances in 1976 and 1993, it specifically said it was not repealing anything of a “private, local or temporary nature.”

Since the 1928 ordinance applies only to private property - the lots on East Lakeshore Drive - and applies to a small local beach, it clearly meets the criteria, Givens said.

Finally, the Sanders Beach Preservation Association argued that the Sanders Beach shoreline falls under state regulation because of its proximity to the water and the fact it cannot be used for agriculture.

The city hired attorney Charles Hosack to defend its position. Hosack too went to state law to spar over the issue.

It’s illegal to build on Sanders Beach only if the 1928 ordinance applies, Hosack said. But it doesn’t because it was repealed by the Shoreline Ordinance, passed in the 1980s.

State law says whenever two city ordinances are in conflict, the most recent, codified ordinance repeals earlier laws, Hosack said.

Moreover, the State Department of Lands takes the position that it doesn’t regulate above a lake elevation of 2,128 feet. And the city cannot force it to step in.

But Givens said the Shoreline Ordinance doesn’t assist the city’s case. That ordinance was written to go with earlier laws and says if there are conflicts, “the more restrictive ordinance will apply.”

And instead of demanding the state step in, all the city had to do was tell Chapman to get state permission before he applied for a building permit, Givens said.

, DataTimes ILLUSTRATION: Color Photo

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