Posted by: Patricia Salkin | January 7, 2008

Idaho Supreme Court Finds No Due Process Violations in PUD Review and Approval

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:


  1. I earned a master’s degree in city planning in 1977, over 30 years ago. At that time, when I heard about PUDs, the tradeoffs with the original zoning were minor and benefited adjoining neighbors. The example I remember was a Manhattan building might be 52 floors instead of 50 if it included an outdoor public plaza. At no time, do I remember a discussion of how the adjoining neighbors should be protected from what is basically government corruption.

    Thirty + years later, my perspective on PUDs is completely changed mostly because of my terrible experiences as a homeowner in Steamboat Springs CO. Zoning benefits primarily accrue to adjoining property owners. The so called public benefits of PUDs today are so disperse they can be benefiting people in a different continent. It is fine to benefit the world but in my opinion the needs and guarantees to adjoining property owners have been unconstitutionally violated.

    If you look at all the original cases on zoning, constitutional issues were presented. Zoning was sold on the basis of the 5th and 14th Amendment, that it would convey benefits reliably to neighboring property owners.

    PUDs are sold and interpreted over a decade or so by changing “planning experts” who are intimidating the public. In many cases if you go back to the public meetings when PUD Enabling Ordinances were proposed and approved you will find public representations that neighbors will have the same protections against density and commercialization that they had before they were approved. If this were national legislation a court would look to the intent of Congress as expressed in public speeches but when it comes to zoning the developers are overwhelming the citizen advocates who aren’t able to timely gather the record of public representations.

    I lived in Steamboat Springs, CO, which has less than 10,000 people from 1991 to 2001. During that time, there were constant discussions about city planning. In 2001, a big show was made of paying a consultant over $400,000 to revise the development code, which included “PUDs”. I was in the middle of moving away to get away from malicious prosecution mounted because I complained about local government corruption including selective enforcement of the prior development code. However, I distinctly remember Steamboat Pilot articles in June and July 2001 quoting the city’s planners as saying that no property owner’s rights would be changed, the re-written document would simply be updated and made more clear. However, when I search the Steamboat Pilot for articles about variances and PUDs I see that homeowners who owned their properties in 2001 are now facing greatly increased density and commercialization in their immediate neighborhoods. Many quasi hotels have been built in what were zoned and previously occupied as single family residential zones.

    The original zoning regulations were written by locals for locals. I read them and never found them to be at all confusing. These regulations were used for about 25 years and the only reinforcing documents I remember as being needed was a memo stating that accessory uses in residential zones does not include garage apartments.

    My understanding of the right to rely on zoning is that it is only to be changed where the underlying conditions are greatly changed from something like a national calamity. However, my impression is that now land use regulation is being changed simply to financially benefit developers and local government employees. I think there are a lot of homeowners who might not have purchased their homes if they knew that was built next door could have been built. If you go back to the public representations made when these properties were purchased that even a lawyer or city planner would not have anticipated the scope of the changes in local land use regulation in just 15 or 20 years, before the mortgages on those properties are even paid off.

    It is possible for a zoning ordinance to include tradeoffs such as open space may be divided between units or it may be common. That tradeoff reflects the move towards large developers developing tracks as opposed to single lots being sold separately. That worked in some neighborhoods but not in others, where the developers failed to complete as agreed.

    Too many of the PUD regulations as administered amount to spot zoning. Local officials make discretionary decisions over development on many parcels and in the process have huge opportunities for graft and corruption. Equal protection of the laws is lost. People in identical properties identically zoned may not be able to build the same buildings. Predictability is lost. You buy a home or office and find that your next door neighbor is a strip club, bar or nightly rental. Instead of neighbor cookouts and ball games, there are neighbor safety patrols. People who were led to assume a certain quality of life were deceived by government officials.

    Courts have a reputation for “not wanting to deal with” zoning regulations. Even though zoning regulations are actually laws, judges are assumed to be too busy with “more important matters” to take the time to read them. In my opinion that is a huge mistake by the courts. Our financial and emotional investment in our homes is huge and inconsistent administration of regulations causes a huge amount of stress and bitterness in the population. Considering the details of someone’s divorce settlement must not be fun either but the judges and magistrates are paid to judge and they should take the time to do so conscientiously including with land use regulations. If the magistrates don’t have enough time to properly review the evidence, then they should request increased staff instead of short-changing litigants.

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