Rural Kootenal Organization, Inc. v. Board of Commissioners

No. 22271 (Idaho December 9, 1999)

ELR Digest

The Idaho Supreme Court held that a county planning board's failure to determine the ownership of submerged land located in a wildlife sanctuary, which was designated in a planned unit development (PUD), before approving the PUD violated the county zoning ordinance. The court first holds that the board's order granting preliminary plat approval of the PUD is a final decision subject to judicial review. Appealibility turns on whether preliminary plat approval allows the developer to take immediate steps to permanently alter land before final plat approval. The governing ordinance in this case allowed the developer to take immediate steps to permanently alter the land by constructing the necessary infrastructure before final plat approval. The court next holds that the question of whether the PUD's proposed water supply system was feasible at the time preliminary plat approval was sought is moot because the state environmental department sub-sequently formally approved the system. The court then holds that a citizen group lacks standing to argue that its procedural due process rights were violated as a result of not receiving proper notice of two board meetings regarding approval of the PUD. In order to have standing to challenge the board's failure to comply with procedures for conducting public meetings, the group must show that a harm or peril personal to it is caused by the board's actions. The group presented no evidence that any of its members are abutting or otherwise affected real property owners.

The court next holds that the board erred when it failed to make factual findings with respect to ownership of submerged lands within the PUD. The developer of the PUD agreed to sell and donate 102 acres of land in the PUD for a wildlife sanctuary for use as common open space. Eighty acres of the designated common space consisted of submerged lands, and a question existed as to whether under state law, the state holds title to submerged lands. Under the county zoning ordinance, however, PUDs may not include public lands as common open space. Therefore, the issue of ownership of the submerged lands is remanded to determine compliance with the zoning ordinance concerning open space.

The court also holds that the transcripts of the proceedings before the board and other courts are adequate for judicial review. Similarly, the court holds that but for the board's findings on the ownership of the submerged lands, the board's factual findings were adequate. Last, the court holds that the citizen group is entitled to an award of attorneys fees and costs under a state provision for an award of attorneys fees against county boards.

The full text of this decision is available from ELR (22 pp., ELR Order No. L-137).

Counsel for Plaintiffs
Charles Sheroke
Sheroke & McGregor
1000 W. Hubbard Ave., Ste. 120-C, Coeur d'Alene ID 83816
(208) 667-2483

Counsel for Defendant
Dana Wetzel
Wetzel & Wetzel
1322 Kathleen Ave., Ste. 2, Coeur d'Alene ID 83815
(208) 667-3400

[30 ELR 20218]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]