Development of Priest Lake wetland moves forward after John Stockton tried to stop it; concerns remain

Priest Lake landowner Tim Mahoney walks in Coolin last Tuesday through a wetland area near his home that appears slated to be subdivided and developed. (Kathy Plonka/The Spokesman-Review)

COOLIN, IDAHO – “There’s a lot of emotions tied up in this,” Bob Bond said. “Sadness, frustration, anger – you name it.”

Bond speaks of the fate of some 65 acres of wetlands at the southern end of Priest Lake.

He was standing in the middle of that land as he spoke, surrounded by dense brush, high grasses and, in the near distance, mountains shrouded with clouds. Beneath his feet ran a subterranean stream, whose flow could be seen entering the lake. A creek passed nearby.

For the 55 years Bond has been coming here, he has been watching – and counting – the birds that flock to this habitat. So far, he said he’s seen 191 of the 235 species known to inhabit the small area between the lake and the Canadian border, as well as moose, beavers, mountain lions and many other species.

Soon he could see something new arrive: dump trucks hauling thousands of cubic yards of dirt to fill in the wetland, followed by construction crews building homes or condos on 27 new lots lining the waterfront and then, of course, the cars and people coming and going from the residences erected along the shoreline.

Loss of the wetland could have major consequences and not only for Bond and his neighbors along Warren Beach Road, according to a Sept. 26 letter from the Selkirk Conservation Alliance to the Bonner County Planning Commission and the Bonner County Board of Commissioners.

“Development would equate to the permanent loss of numerous wetland species both flora and fauna and many ecosystem functions (which greatly benefit humans) at the south end of Priest Lake including (but not limited to) flood control, water filtration and aquifer recharge,” wrote Amy Anderson, the alliance’s executive director.

With those ramifications on the line, Anderson wrote that her organization “would like to formally request an explanation” from officials “as to the legal framework” that led to the land’s subdivision from an approximately 65-acre parcel at the time of sale to what appear to be 27 smaller lots in August.

“SCA is concerned,” according to Anderson, “that these documents (allowing the subdivision) may have been signed in error and that the subdivision of land in the Coolin Wetlands is not a legal division of land.”

‘Right to purchase’

Legal questions have been swirling around the hotly contested piece of land since 2015.

That’s when Dan and Chris Warren put two parcels of the wetland they’d inherited from their parents, Bill and Elaine Warren, up for sale.

Bill and Elaine had previously sold off a number of shares of their property in the area, including one lakeshore lot to basketball legend John Stockton in 1989, according to court documents described in previous reporting.

The same year, Stockton agreed to move his property line to allow the Warrens to sell additional lakefront property to the Brinkmeyer family.

In exchange, court records say, the Warrens agreed to give Stockton “the first right to purchase any additional Priest Lake property they offered for sale.”

And when Dan and Chris put 45 acres on the market for $2 million in 2015, they apparently followed through on their parents’ promise, emailing both Stockton and Todd Brinkmeyer, the founder of Plummer Forest Products, to see if they were interested in buying it.

Neither responded or showed interest, court records say.

Instead, Coeur d’Alene-based builder and real estate developer Clifford Mort began negotiations with the Warrens, ultimately agreeing to buy 65 acres for $2.4 million.

Mort, who could not be reached for this report, is responsible for numerous lake- and riverside communities in the region, including Coyote Rock in Spokane Valley and the Mill River developments in Post Falls. He also is an owner of Tricore Investments, the entity seeking to buy the land.

When Brinkmeyer and Stockton caught wind of the deal with Tricore and of Mort’s plans to develop it, they “resolved to try to find a way to preserve the wetlands,” according to court documents.

As negotiations continued between Mort and the Warrens, Stockton and Brinkmeyer approached the sellers and offered more money than Mort had on the table.

The Warrens agreed and set the sale’s closing date at Sept. 6, 2016 – three days before the deal with Mort was to close.

Stockton and Brinkmeyer’s sale closed, but the Warrens did not inform Mort. Instead, Mort’s company continued with negotiations, even paying $10,000 in earnest money to extend the closing date of the sale.

Mort’s company then sued the Warren estate, the Warren brothers, Stockton and Brinkmeyer in October 2016.

Two years later, in 2018, a jury found the Warrens, Brinkmeyer and Stockton in the wrong, saying they had engaged in a “conspiracy” to “accomplish an unlawful objective.”

Bonner County District Judge Barbara Buchanan ordered the at-fault parties to pay Tricore’s costs and attorney’s fees. She also ordered Stockton and Brinkmeyer to sell the land to Tricore for $2.4 million within 60 days of the ruling.

After a series of appeals and cross-appeals, the case finally reached the Idaho Supreme Court earlier this year.

Then, in April, the high court overturned the ruling that Stockton, Brinkmeyer and the Warren estate engaged in a “civil conspiracy” but upheld the determination that the Warrens had “breached the contract” and violated the Idaho Consumer Protection Act and that Stockton and Brinkmeyer “tortiously interfered with the contract between the Estate and Tricore.”

The end result, after five years in court, was that the initial sale to Tricore went through.

But while the lawsuit was over, the process of attempting to develop the land was just beginning.

‘Subdivision of land’

Soon after taking ownership, Tricore sought to split it into three parcels by submitting what are known as minor land division applications, the Bonner County Daily Bee reported in June.

But Milton Ollerton, director of the Bonner County Planning Department, told the Bee that such a division wouldn’t be possible because the property was split-zoned with both recreation and rural designations.

“The minor land division ordinance does not allow for the continuation of split-zoned properties,” Ollerton said, “so the applicant will have to decide how to best move forward.”

Despite this apparent prohibition, the land was subsequently divided into three parcels, each just more than 20 acres in size.

Asked by email how this occurred, Ollerton explained that the applicant used a different tool to divide the land.

“The property owner did not do a minor land division, where the split-zone ordinance applies, he did a boundary line adjustment,” Ollerton wrote.

Boundary line adjustments “allow property owners to: adjust the location of property lines between two adjacent unplatted parcels such that land taken from one parcel is added to an adjacent parcel” or to “combine one or more unplatted parcels to create fewer parcels,” according to county planning documents.

But while the county was apparently using boundary line adjustments to split the land, a process for how to do so in Bonner County didn’t exist at the time, according to Ollerton.

“The boundary line adjustment process was not addressed in the code,” he wrote in an emailed response to questions.

After the process’ absence and its implications were noted, however, Ollerton said the planning department acted to correct the issue.

“Once staff realized this (lack of a boundary line adjustment process) was creating a situation where property owners could create 20 acre parcels and boundary line adjust them to lot size minimum, the process began to amend the code,” Ollerton wrote. “It took several months to get this code change through the process and boundary line adjustments are now regulated in the code.”

But the change wasn’t published and official until Aug. 12, exactly one week too late to prevent Tricore from using it again to subdivide those three lots further.

On Aug. 3, Tricore submitted 54 quitclaim deeds, 27 of which were for boundary line adjustments and 27 of which were “to create a 20 acre plus exempt parcel.”

Two days later, Ollerton approved all of them.

This confused Anderson, of the Selkirk Conservation Alliance, who initiated an email exchange with Ollerton that she later shared with The Spokesman-Review.

As they went back and forth about how the land had been divided, the planning director noted that the “code allows” the planning director to issue a “waiver for 20-acre parcels upon review of the legal descriptions” and said that “there was no other requirement at the time for Boundary line adjustments.”

He also cited a specific code to support this point: “Waiver Of Land Division Requirements: The Director may waive minor land division, short plat and regular subdivision requirements on parcels to be created that have legal access and the resulting parcel size is not less than twenty (20) acres … .”

With the boundary line adjustment code slated to be added just a week later, Anderson questioned why Ollerton would use the waiver to allow the subdivision to go through.

In response, Ollerton wrote, “Case law has established that if an application or review comes in prior to the code change the old ordinance applies.”

But Anderson reiterated her doubts about the legality of the process in her letter last week to the county, writing that the “Selkirk Conservation Alliance is very concerned over the recent waiver of the county subdivision requirements and subsequent subdivision of land.”

Anderson also has questioned how an approximately 65-acre parcel of land could be the subject to 27 exemptions for 20-acre parcels.

“If we multiply the 27 ‘20 acre plus exempt parcel’ documents that were signed by the Planning Director by 20 acres we are looking at a total of around 540 acres,” Anderson wrote in her letter last week to the county.

On Aug. 9, Tricore added another wrinkle in the already complex subdivision process, when Mort filed minor land division applications to divide the 20-acre parcels into 5-acre lots for a project he was calling South Shore Estates.

Ollerton said by email that these minor land divisions “have been administratively approved and are now awaiting final plat … submittal.”

All of which has left Anderson admittedly “confused.”

“I’m trying to figure out what exactly has been done,” she said in an interview with The Spokesman-Review.

And that has left her unsure how her group will respond.

“I don’t think we’ve made a decision fully on how we’ll move forward,” Anderson aid of the Selkirk Conservation Alliance. “We’re in the empower and educate the people phase.”

‘Pristine nature’

Anderson is not alone in her difficulty sorting out what has happened and will happen to the land – or what to do about it.

Randy Absalonson, chair of the Priest Lake Cabin Owners Association, said his group is in a similar position and wants to ensure the proper oversight is in place moving forward.

“We don’t know currently what can be done,” Absalonson said. “This has hit us in the face so quickly that we don’t have an action plan (to respond) yet, if any. But we just want to be sure that everything is being done appropriately and that all agencies that need to be involved are involved.”

While his board is voluntary, he said members are working to “make sure (the developers) follow the law.”

And he said a lot is at stake.

The land is “one of only a handful of wetlands on the lake,” Absalonson said, and they “act as the kidneys of the lake,” cleaning the water and helping protect Priest Lake’s “pristine nature.”

But Bonner County Commissioner Dan McDonald said concerns about houses rising on the Coolin wetlands may be premature and overblown.

“It’s one thing to divide the land,” he said. “And it’s something different to start developing it. … The land division is just the elementary first step. It doesn’t mean that there’s going to be development.”

He noted that Tricore would have to solve potentially thorny issues like how to get sewer and water to the site.

Those are among the issues brought forth in Anderson’s letter, which raised questions about the “capacity and ability of the Coolin Sewer District to support current and future users.”

One issue that Mort and Tricore appear to have a handle on, though, is how to deal with regulations that govern development on wetlands.

During the court battle over the sale of the land, court records indicated Tricore had enlisted an expert to come up with a plan to “purchase credits from a local wetlands bank to allow it to develop the wetlands on the 65 acres.”

At the time, court records said Bonner County’s Valencia Wetlands Bank had “plenty of credits to sell” at a cost of $2 million to compensate for the loss of wetlands on the property.

Josh Moore, a regulatory project manager with the Army Corps of Engineers, which oversees the wetlands program, said Thursday that he wasn’t sure whether the process of seeking a permit had begun for the Coolin property.

But if a permit is acquired and the credits are paid for, Tricore would be able develop the Priest Lake property while the money paid for credits would be used to restore or create wetlands at the confluence of the Priest River and the Pend Oreille River, where the wetlands bank is located.

The prospect of such an exchange doesn’t sit well with Anderson, Bond or other cabin owners along Warren Beach Road who gathered to discuss the project last week.

“Land development and housing construction on this 65 acre site would entail the filling in (with vast amounts of sediment), ditching, draining and destruction of this important and finite wetland ecosystem,” Anderson wrote in her letter to county officials.

“When wetlands are filled,” she continued, “the water that normally occupied the site annually and during flood/rain events is rapidly diverted to neighboring properties and downstream to Priest River and regional streams causing increased erosion, especially shoreline erosion and property damage from flooding. The Coolin wetland is located over the Priest River Aquifer and plays a critical role in water filtration and recharge for the aquifer.”

Bond and his neighbors share those concerns.

“Even if he buys credits,” Bond said of Mort, “he’s not replacing the wetland here.”

“And if that habitat’s gone,” he added, “it’s gone.”

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