The requirement that municipal bodies hold hearings for the purpose of putting the public on notice of what actions are being proposed satisfies the basic constitutional due process protections. At times, although the public may receive notice of the meeting and subject matter, and members of the public are present to learn more about a project and/or to provide input to the reviewing body, some continue to question whether due process is satisfied if the scope of the project changes during this process. This analysis may require a balancing, since if the purpose of the public hearing is to gather input and to enable the reviewing body to consider that information and perhaps negotiate reasonable project changes with the application, this would seem to be a good thing and due process would be satisfied. However, if a project scope is so completely changed that one might not recognize the relationship between the two proposed projects, a question arises as to whether this warrants a new application and a hearing. A recent Idaho Supreme Court opinion considers what happens when there are minor changes to a project and where there are ministerial mistakes in labeling exhibits.
Wildwood Development, LLC filed an application for approval of an 88 unit residential planned unit development (PUD) on approximately 30 acres of land. With an overall density of the PUD of less than 3 units per acre, the two-phase project consists of 11 single family detached residential lots, 65 single family attached townhouses, 12 affordable housing units and contains a set aside of over 15 acres of common/open space. Following two public hearings, the Planning and Zoning Commission recommended conditional approval to the Board of Commissioners. The Board then held two more public hearings and subsequently approved the application subject to certain conditions, and issued a conditional use permit. Neighbors for a Healthy Gold Fork were opposed to the project, and through their experts and attorney, they provided information to the zoning staff in advance of the public hearings and they appeared at and participated in, the hearings. At the first public hearing, Neighbors became aware of modifications to the proposed site plan, and when they requested a copy to review, it was sent to them in advance of the second hearing. Neighbors also expressed concern that the modified plan was not the plan the Commission recommended, so they asked the Board to deny approval or remand it to the Commission. Staff informed Neighbors that the modifications were made in response to the Commission’s request for certain setbacks. The Board denied the Neighbors’ objection to consideration of the plan, concluding that the changes were illustrative and explanatory, that they were not material or significant, and that submission of modifications is consistent with common practice that issues raised during public hearings be addressed or explained.
In reviewing the procedural due process claims raised by Neighbors, the Idaho Supreme Court reminds that “Due process is not a concept to be rigidly applied, but is a flexible concept calling for such procedural protections as are warranted by the particular situation…” and that “…in planning and zoning decisions, due process requires: (a) notice of the proceedings; (b) a transcribable verbatim record of the proceedings; (c ) specific, written findings of fact; and (d) an opportunity to present and rebut evidence.” Citing to Cowan v. Bd. of Comm’rs of Fremont County, 143 Idaho at 501, 148 P. 3d 1247 (2006). Noting that there were four public hearings on the application, that Neighbors was heard and participated in each hearing both orally and in writing, the Court found that Neighbors clearly had an adequate opportunity to be heard and were not denied due process. The Court found that the fact that a modified plan was presented at one of the hearings did not violate due process because Neighbors became aware of the revision at that first hearing, they received a copy of the revised plan well in advance of the next hearing, and there was nothing in the record to support their allegation that their experts’ opinions were rendered valueless by virtue of the modifications. Further, the fact that one of the exhibits was mislabeled did not amount to a due process violation. The Court noted that “The record, which includes over five volumes of testimony and meeting minutes, demonstrated Neighbors received an adequate opportunity to present evidence and demonstrated the basis upon which the Commission made its decision.” Further the Court stated that Neighbors had not demonstrated how it has been harmed as a result of the manner in which the exhibits were labeled.
Neighbors next argued that the Board did not follow strict application of the regulations for subdivisions and conditional permits when it came to lot lines, setbacks, and other substantive review issues. The Court, however, pointed out that “By its very nature, a planned unit development may have features that depart from those of a regular subdivision…” and that the county regulations specifically authorize the Board to waive or modify these standards, and the regulations specifically provide for variances in the case of a PUD without a requirement of filing separate applications for the needed variances. Turning to the subject of driveway design, Neighbors argued that as proposed, they were not in conformance with the State’s Standard Approach Policies. In reviewing the State Policies, the Court noted that the provisions, by their plain meaning, were recommended, and not mandatory. As to a number of other remaining issues, the Court found nothing in the record to indicate that the Board acted in an arbitrary or capricious manner, and therefore the Court affirmed the decision below upholding the project approval.
Neighbors for a Healthy Gold Fork v. Valley County, 2007 WL 4531786 (Idaho 12/27/2007).
The opinion can also be accessed at: http://www.isc.idaho.gov/opinions/neighbors.pdf
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