Commissioners approve relaxed building setbacks

After a public hearing a week earlier on a proposed county ordinance change that will relax a 40-foot setback to 15 feet for buildings from county road rights-of-way in A1 and A2 zoned rural properties, Washington County’s commissioners approved the ordinance on Monday, Aug. 26.

 The commissioners discussed the concerns surrounding wording added to the ordinance using the term “prescriptive right-of-way” that had been put forth during the hearing the previous week. 

 During this week’s discussion, the commissioners clarified the difference between a prescriptive right-of way and easement agreements made between a landowner and another individual or utility 

 Commissioner Nate Marvin said Idaho Code limits prescriptive easements to 50 feet.

 “We couldn’t go over that,” he said.  “Which some of our roads are,” Chairman Lyndon Haines said. “But most of them are not.”

 “That was where I was a little confused, does prescriptive easement apply to an existing road, is that going to be 50 feet according to state code?” Marvin asked.

 “Unless it’s deeded differently,” Haines said. “Parts of Jenkins Creek are 14 feet. Gentry Lane is 16 feet.”

 “Cow Creek is 12 feet, and some of Farm to Market is 100 feet,” Commissioner Gordon Wilkerson added. “It falls to 50 if there’s no deeded right-of-way,” Haines said. “I think if we tried to rewrite that section, if it’s deeded it’s deeded. It is what it is. I felt like we had good comment on the version we gave to everyone. Obviously, there are some who are opposed to a setback altogether.”

 I heard concern about some of the language and I checked this out some,” Wilkerson said. It has to do with the language behind prescriptive right of way instead of prescriptive easement. The description of right-of-way was pretty generic until I found, “any street, avenue, boulevard, road, highway, sidewalk, alley or easement that owned, leased, or controlled by government entity.

 “So, that was concerning to me in the way it’s drafted, ‘prescriptive right-of-way shall be used if there is no recorded street right-of-way’,” Wilkerson added. 

 My concern was changing from prescriptive right-of-way to prescriptive easement, because I’ve looked and looked and prescriptive easement is basically a generic agreement between landowners that something will happen. 

 “I did run this by Delton (Walker), the county’s prosecuting attorney, and he feels this application and language is correct, and it does not imply ownership, lease or control by the government until it goes to a public hearing.”

 Haines turned to Washington County’s own code, Chapter 5-2-1, the definition of an easement: 

 A grant by a property owner to specific persons or to the public to use land for specific purposes. Also, a right acquired by prescription.

 Comparing to the definition of right-of-way, Haines read, “A parcel of land dedicated or reserved for use as a public way, which normally includes streets, sidewalks, utilities or other service functions.”

 In the end, Wilkerson was comfortable with Walker’s take that the government doesn’t have control until it goes through the process and moved to approve the changes to the code 5-3-4 setback building lines. Marvin seconded, and the motion passed unanimously.

 In last week’s hearing, Haines said the commissioners proposal is a reduction from the 40-foot requirement to 15 feet for houses and outbuildings, which coincides with the existing 15-foot setback from property lines between neighboring property lines.

 Around a half dozen members of the public submitted comments, some saying it was an improvement over the 40-foot setback, while others still oppose any setbacks. 

 After hearing from some who completely oppose any measure of setbacks, and others strictly concerned with how the phrase “prescriptive right-of-way” might be applied to private easements, Haines pointed out the 2025 budget includes funding to pay a third party to do further research on easements in the county.

 “Any deeded right-of-way is what we go off of,” Haines said. “There are lots of roads in Washington County that nobody knows what the number is, and generally, when a dispute comes up the county does research to find out, but until a dispute arises we don’t always have that information.”

 The hearing was closed without a decision that day, and followed with the commission’s unanimous approval this week.