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Kootenai County denies appeal seeking to bind property to 5-acre covenant; affirms minor subdivision approval
Summary
The Kootenai County Community Development Board voted to deny an appeal that sought to reverse approval of a three‑lot minor subdivision, concluding staff and the hearing examiner found no evidence the subject parcel was bound by 1983 protective covenants that set a five‑acre minimum.
Kootenai County commissioners on Aug. 28 denied an appeal seeking to overturn a minor subdivision approval for a parcel near Cougar Gulch, affirming the director's decision to permit three lots.
Staff and the hearing examiner concluded there is no documentary evidence that the subject parcel is bound by 1983 protective covenants that would impose a five‑acre minimum lot size, so the parcel may be subdivided to the minimum lot size allowed in its Agriculture Suburban zoning.
Planner Blake Sutter told the board the three‑lot minor subdivision (APP24‑0001) had been approved on Nov. 1, 2024, and that community development received a notice of appeal on Nov. 27. The appellant argued the property was subject to CC&Rs that require lots of no less than five acres; the appellant's legal representative, Scott Poorman, submitted analysis for the hearing examiner. Sutter said staff found the subject parcel lies outside the geographic area described in the 1983 covenants and that no document had been produced showing the Smiths (current owners) had agreed to those 1983 covenants.
"In short, staff recommends that the appeal of the subdivision or of the the appeal of this decision be denied and that the decision to approve the minor subdivision be affirmed," Sutter said.
County Attorney Pat Braden provided an analysis to the hearing examiner concluding the 1985 road declaration and the 1983 protective covenants do not expressly reference one another; Braden told the board that signature on a road maintenance agreement did not, in staff's view, prove the owners had assented to the separate 1983 covenants.
Commissioners discussed the choice before them: overturn the hearing examiner, which would bind the owner to the 5‑acre restriction, or deny the appeal because staff could not find documentary proof. One commissioner noted the zoning allows lots down to two acres in the Agriculture Suburban zone and that, lacking evidence tying the parcel to the 1983 covenants, the county could not legally impose the restriction.
A motion to deny the appeal (thereby affirming the director's approval of the three‑lot minor subdivision) carried unanimously. The board recorded aye votes from Commissioners Eberline, Duncan and Chair Metari.
The board and staff noted the decision does not prevent the appellant from pursuing further legal remedies in district court.
