Posted by: Patricia Salkin | August 8, 2009

Commission Not Barred from Ruling Contrary to Staff Recommendation

A developer’s expenditure of $50,000 on a subdivision application, relying on a planning commission staff opinion that the project was not subject to the county’s mountain overlay district rules, did not prevent the county commission from taking the  opposite position and denying the application. 

Ed Terrazas and Jackie Weseloh (developer) own 115 acres of land on East Fork Road, 1.5 miles east of State Highway 75 and about six miles south of Ketchum. In 2004, the developer submitted an application for a four-lot subdivision. As a “short plat,” the subdivision could proceed directly to the board of county commissioners without a preliminary review by the planning and zoning commission. A staff planner prepared a report for the board in which he considered, inter alia, whether the subdivision’s area of disturbance fell within the county’s Mountain Overlay District (MOD). He concluded the areas of disturbance did not fall within the MOD because they were located on a “bench slope,” a relatively flat area, rather than a hillside slope. The planning and zoning administrator agreed. 

Even though the subdivision was a short plat, the county commission found it troublesome and referred it to the planning and zoning commission. That commission held public hearings and visited the site. It concluded, contrary to the staff report, that two of the four lots encroached upon the MOD and also violated an ordinance restricting development on hillsides visible from Highway 75. Specifically, the commission concluded that the areas of disturbance were located on a “ridge of a hillside slope,” not a “bench slope.” 

When the county commission revisited the application, it voted to deny it. The commission specifically rejected the notion that the MOD contained a “bench exception.” On review, the district court upheld the commission’s ruling. The developer raised a number of issues on appeal, including the county commission’s authority to make final decisions on subdivision applications and the applicability of estoppel to its action. The developer argued the county planning and zoning administrator had final authority to determine whether the proposed building sites fell within the MOD. It relied on a provision of the county code that the administrator has the authority to interpret zoning and overlay district boundaries, although that interpretation may be appealed to the board of commissioners.  However, the court noted, that provision applied only to single-lot applications. Another part of the code governs subdivision applications. That provides no preliminary plat may be approved unless the board determines the application complies with the applicable standards. The court agreed with the board’s position that it retained final authority to determine whether the proposed areas of disturbance fit within the MOD in the case of a subdivision application.

The court then turned to the question of estoppel.  The developer pointed to the significant amount of money spent on engineering, avalanche, soils and hydrology studies before the board made its decision. It claimed it would not have incurred those expenses without first appealing an adverse decision from the planning and zoning administrator. Although the court has yet to categorically refuse to apply estoppel to cases involving the application of zoning ordinances, its prior decisions indicated a reluctance to do so, it said. In the past, it has declared that while a municipality may be estopped in limited circumstances, generally, the government’s exercise of its police power is not subject to estoppel.  As in the court’s prior decisions, the developer in this case failed to show “exigent circumstances” that would warrant applying estoppel principles, it said.  Considering the underlying principles of estoppel, it cannot be said the board took an inconsistent position in denying the application, because the board’s one and only official position was that the proposed disturbance sites fell within the MOD. The developer did not claim the board’s actions induced it to change position.  Rather, it relied on the opinions of staff members.  Furthermore, the court said, that reliance was questionable considering the staff report cautioned that the determination regarding the MOD was subject to further examination by the board.  Adopting the developer’s position would create an unfortunate precedent, the court continued. Effectively, a staff opinion would bind a board of county commissioners if a developer spent money in reliance on that opinion. That would strip the board of its sole statutory authority to approve or deny subdivision applications as provided by state law. The court did not reject the notion that estoppel may be applied in appropriate circumstances, but said this was not such a circumstance.                                                            

Terrazas v. Blaine County, 147 Idaho 193, 207 P. 3d 169 (4/15/2009). 

The opinion can be accessed at:


Special thanks to James Lawlor, Esq. of the Land Use Legal Report for this abstract which appeared in Vol. 3 No. 10.  For subscription information to the LULR contact James at

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