Photo Credit: Harvey Dale
CUP Published May 5, 2021
Michael and Amanda Boren own private property within the SNRA. On February 16, 2021, the Borens submitted an application to Custer County Planning and Zoning Commission for a hearing for obtaining a “Conditional Use Permit” after their airstrip and hangar had been built.
The Conditional Use Application was reviewed by Custer County Planning and Zoning in April. They deferred their decision until May 6th.
Across the state, private landowner’s who comply with all applicable Federal, State, and local laws, regulations, and ordinances are allowed to operate airstrips on their property. It is also true that since the creation of the SNRA 49 years ago, airstrips were discouraged in the central Sawtooth Valley to protect the Area’s outstanding values. For example, the United States used public funds decades ago to acquire and eliminate the use of the Swiss Villa airstrip and its associated development.
Under the Custer County Zoning Ordinance, if the landowner petitions for and has been issued a Conditional Use Permit prior to starting construction, the landowner can build an airstrip on their property.
On the Boren’s property, a grass runway surface was under construction in 2016 and a 4,500 sq.ft. $1,100,000 multi-aircraft hangar facility was constructed prior to their application for the Conditional Use Permit on February 16, 2021. The application therefore admits that the use of the airstrip has been ongoing prior to the date of their application on February 16, 2021 to obtain the required permit. Thus, to the best of Custer County Planning and Zoning Commission knowledge, the Borens’ use of the land has been in violation of the county ordinances for the last two years.
The Borens’ Conditional Use Permit application is not an application for a “proposed use” since a grass runway and a 4,500 sq. ft. $1,100,000 multi-aircraft hangar facility have already been constructed on the property. In addition, according to a letter signed by Brian Anderson, Acting Area Ranger for the Sawtooth NRA, on March 22, 2021 and presented to the Custer County Planning and Zoning Commission, “…construction plans were not submitted to U.S. Forest Service for review and have not been certified as compliant with the private land regulations.” Mr. Anderson goes on to say, “What is clear is that after the creation of the Sawtooth NRA, this type of use was discouraged in the central Sawtooth Valley to protect the Area’s outstanding values.” And, “It is also clear that operating an airstrip without the appropriate permitting in place is inconsistent with the terms and conditions of the scenic easement on this property that was purchased with public funds in order to protect the outstanding values of the area.”
A Scenic Easement is a contract between the federal government and a private landowner, exchanging certain bargained-for land use rights for an agreed-to dollar amount.
The property for which Michael and Amanda Boren have petitioned for a Conditional Use Permit for their airstrip is encumbered with a scenic easement (Custer County Instrument #138313) containing the applicable Private Land Regulations.
As stated in the March 23, 2021 letter to the Custer County Planning and Zoning Commission signed by Brian Anderson, Acting Area Ranger for the Sawtooth NRA, the Scenic Easement purchased on October 24, 1974, with $612,600 in public funds, “…was intended to protect the natural, scenic, historical, pastoral, and fish and wildlife values and provide for the enhancement of the recreational values of the Sawtooth National Recreation Area and to prevent any development that would tend to mar or detract from its natural, scenic, historical, pastoral, and fish and wildlife recreational values associated therewith.”
Comment on the CUP Appeal August 17, 2021
August 17, 2021
Dear Custer County Commissioners:
We are writing in regard to the Planning and Zoning Commission’s approval of Michael and Amanda Boren’s Application for a Conditional Use Permit (CUP) designating pasture on the Hell Roaring Ranch as an airstrip.
As the Commission is aware, Applicant’s property is subject to a Forest Service Scenic Easement Pursuant to 36 CFR § 292.16(c)(1). The use of the property in question must be in conformance with applicable Federal, State, and Local laws, regulations, and ordinances. Additionally, the County Ordinances are considered to be minimum standards, and any law or regulation that is most restrictive shall govern. See Ordinance No. 2007 – 09, Article I § D. Therefore, these go hand in hand, and both require compliance with PL 92-400 which regulates the use and development of land within the boundaries of the Sawtooth National Recreation Area.
It is our understanding the Forest Service is investigating whether the Applicant’s use was in compliance with PL 92-400. It is also our understanding that the Planning and Zoning Commission requested input from the Forest Service or at least believed it to be relevant—as they should have. Certainly, this information should have been taken into consideration by the Commission. If the Forest Service investigation findings are adverse to Mr. Boren’s interests, the granted CUP would be in violation of both the easement and Custer County’s ordinances.
Additionally, the Sawtooth Society, and concerned citizens alike, will find the information from the investigation to be relevant and wish to provide comments on it.
Although not entirely analogous, this case draws some parallels to Fischer v. City of Ketchum, 141 Idaho 349, 109 P.3d 1091 (2005). In the decision, the Court stated “[w]ithout the certification of the licensed engineer at the public hearings leading to the issuance of the conditional use permit, the interested public has no meaningful chance to comment on the CUP’s impact on community or other facts affecting surrounding property.” Id. at 1097.
Without the findings of the Forest Service’s investigation, the Sawtooth Society and all other concerned citizens in Custer County are placed in the same position as Fischer. The Sawtooth Society or any other interested party is denied the ability to use or cite that information at a public hearing. For these reasons, we believe that the Commission’s approval is at least premature, if not improper.
Finally, as stated in our letter to the Planning and Zoning Commission opposing the Boren’s application for a Conditional Use Permit (submitted herewith as “Exhibit A”) the Commission is essentially rewarding wrongful behavior.
According to Mr. Boren’s testimony, the Forest Service contacted the County regarding his use of his airstrip, so the county contacted him and advised him to apply for a conditional use permit for what he was doing. Although Mr. Boren repeatedly asserted that he didn’t need a CUP for his private use, it appears that at least the County believed he did. We believe that this point bears repeating and merits further discussion because it appears that the Commission is giving Mr. Boren preferential treatment.
The general standards under Public Law 92-400 are set forth in 36 CFR § 292.16, which provides that all properties are subject to the following relevant provisions: 1) Use and development of the property will be in conformance with applicable Federal, State, and local laws, regulations, and ordinances.
2) Development, improvement and use of the property will not materially detract from the scenic, natural, historic, pastoral, and fish and wildlife values of the area.
See 36 CFR § 292.16(c)(1)-(2). The Borens’ use of their property is (1) not in conformance with the applicable ordinances, as discussed above, and (2) a use that will materially detract from the scenic, natural, and historic values of the area because there is nothing scenic, natural, or historical about an airstrip. Additionally, there are already two airstrips within 10 miles of the subject property. Permitting an additional airstrip would inevitably result in increased air traffic, undermining the specific purpose behind the Sawtooth National Recreation Area.
Furthermore, the regulations provide that “[a]ny owner of property may request in writing the Area Ranger to examine the present use of the property and issue a certification that such present use conforms to the applicable standards established in § 292.16 for the land use category in which the property is placed. 36 CFR § 292.15(d)(1). Likewise,
[a]ny owner of property who proposes to change the use or develop his property for other than agricultural use may submit to the Area Ranger a use or
development plan setting forth the manner in which and the time by which the property is to be developed and the use to which the property is to be put.
36 CFR § 292.15(d)(2). Absent said certification, the Commission should abstain from granting the Borens’ Permit. In the event that the Area Ranger denies the certification, the Commission must likewise deny the same.
Turning to the substance of the application itself, it is laden with assumptions, and any and all support for said assumptions is wanting. For instance, the application states that the proposal will not impact the surrounding properties because there is no change in use. Additionally, the application provides that there will be no effects on adjoining property because, again, there is no change from current usage. These statements assume that the neighboring landowners were not impacted or affected in the first place. However, we believe a number of neighboring individuals disagree with the Borens’ assumption and will similarly object to the proposal. The Commission should not accept these conclusory statements without further support.
For the foregoing reasons, we request the Board deny the Borens’ application for a Conditional use Permit. In the event that the Board does grant the Borens’ Conditional Use Permit, we respectfully request the use is highly restricted in order to preserve scenic, natural, and historical values of the area. Preservation of the Sawtooth National Recreation Area and Custer County in its natural state should be the ultimate goal.
We appreciate your time and consideration regarding this matter.