Comer v. County of Twin Falls

Decision Date24 July 1997
Docket NumberNo. 23045,23045
Citation942 P.2d 557,130 Idaho 433
PartiesMary COMER; Jeff Comer; Jack Goodman and Mary Goodman, Petitioners-Appellants, v. The COUNTY OF TWIN FALLS, a political subdivision of the State of Idaho; The Twin Falls County Board of Commissioners; Dale Gerratt and Becky Gerratt; Citizen'S Enterprises, Inc., an Idaho corporation, Respondents. Twin Falls, March 1997 Term
CourtIdaho Supreme Court

Benoit, Alexander, Sinclair, Harwood & High, L.L.P., Twin Falls, for plaintiffs-appellants. J. Walter Sinclair argued.

Rosholt, Robertson & Tucker, Twin Falls, for respondents Dale and Becky Gerratt. Gary D. Slette argued.

Alexander C. Yewer, Boise, for respondent Twin Falls County Board of Commissioners.

Felton & Felton, Buhl, for respondent Citizen's Enterprises, Inc.

SILAK, Justice.


This is an appeal from a district court decision affirming a decision by the Twin Falls County Board of Commissioners (the Board). The Twin Falls County Planning and Zoning Commission (Commission) refused to allow Dale and Becky Gerratt (the Gerratts) to further divide three parcels of their land. The Gerratts appealed to the Board, which reversed the Commission's decision. Mary and Jeff Comer (the Comers) and Jack and Mary Goodman (the Goodmans) appealed to the district court, which affirmed the Board.


The property which the Gerratts sought to divide is zoned agricultural, although the Board found that "[t]he site is partially surrounded by other approximately five acre sized parcels containing single-family dwellings." The parcels were originally part of a single 40-acre parcel owned by Cal Green (Green), who divided the property into pie-shaped parcels. Currently, 15 acres (three parcels: four acres, five acres, and six acres, respectively) are owned by the Gerratts, 10 acres (two parcels) by Mark and Jerry VanEldren (the VanEldrens) and 15 acres (three parcels) by the Comers. There is currently one home on the 40 acres.

The Gerratts filed a Conditional Use/Land Division Application with the Commission for each of their three parcels, and planned to divide each parcel in half. The Gerratts wished to divide the parcels because the area was marginal farm ground and the parcels too small to farm.

The Gerratt's argued the following in favor of the splits:

1. parcels were already approved for three homes;

2. split was consistent with the county's comprehensive plan to cluster homes;

3. the property was shallow, rocky, and not good farm land;

4. the land irrigated poorly;

5. two parcels were conditionally sold;

6. there was a demand for country housing;

7. it would be easier to sell the smaller parcels;

8. larger parcels create weed problems;

9. past county policy was supportive of those splits; and

10. property covenants say that it shall be used for residential purposes.

The appellants argued the following in opposition:

1. Goodman's well goes dry every spring and he was concerned about more wells drawing on the water table;

2. since the land was difficult to irrigate, splitting it up would make it difficult to keep it green;

3. potential problems with sewage on shallow rocky land;

4. possibility of insufficient water for irrigation;

5. potential problems with access to the splits;

6. the property was at the end of the Buhl airport, and Goodman had concerns about additional homes;

7. Goodman had cattle at the edge of this property, and was concerned about his ability to continue to feed his cattle if the Applications were approved; and

8. Comer disagreed that the land was poor agriculturally, and noted that there were cattle operations and dairies in the area.

In a 4-4 tie vote, the Commission denied the Applications. The Gerratts appealed to the Board, which held a hearing on August 14, 1995. A notice of the hearing, dated August 1, 1995, was sent to Jim Barker (Barker) (the Gerratts realtor), the Comers, the Goodmans, and Dix Hudson. The Appellants note that no notice of the August 14 hearing was mailed to Jerry VanEldren and they emphasize that VanEldren did not know about the subsequent meeting on August 21. However, VanEldren is not a party to the appeal.

The Board, the clerk, someone with the Twin Falls County Prosecutor's office, a representative from the County and the Commission, Mary Comer, Jack Goodman, the VanEldrens, and agents for the Gerratts were present at the August 14 hearing. At the conclusion of the hearing, the following exchange took place:

Mr. Maughan: Mr. Chair I'd like to table [ ] any decision on this until we can hear the tape reviewed from the original [ ] Planning and Zoning hearing. I'm curious to hear what we haven't heard. Since we're basing it on that evidence I'd like to hear more of it and then consider the evidence as presented and then set a date one week from today at 10:00 o'clock to make our final determination.

Mr. Hempleman: I second that.

Mr. Reinke: We have motion and second.

Male person: I just have one question [ ] do you have enough time to listen to the tape and look things over to make a final decision in a week or ... ?

Mr. Reinke: I think so.

Male person: Just want to make sure....

Mr. Reinke: Let's we'[ve] got to go out to the transfer station anyway let's stop by there. Motion has been made and seconded any further discussion on that particular motion. Hearing none then the date will be a week from today at 10:00 a.m.

Mr. Hempleman: The 21st.

Mr. Reinke: August 21st....

Mr. Reinke: [ ] shall we call for a vote. All those in favor of this motion should signify by saying I [sic].

All Commissioners: I [sic].

Mr. Reinke: It's unanimous we'll meet again here at 10:00 next Monday morning.

The Board did not give any written notice to the parties of the August 21 proceeding, although the Gerratts, Comers, and VanEldrens were present at the August 14 hearing. However, only the Board, Doug Howard, Lee Taylor (from the Planning and Zoning Commission) and Barker were present at the August 21 meeting. The Board rendered its decision approving the permits at the August 21 meeting, and discussed with Barker the conditions that would be attached to the permit. The Comers and Goodmans then appealed to the district court, which affirmed the Board's decision. The Comers and Goodmans now appeal to this Court.


The issues on appeal are:

1. Whether the Conditional Use/Land Division Application was the proper procedure to be used in dividing these parcels, which were in an area zoned agricultural and were the product of a previous land division.

2. Whether the appellants were denied due process by the Board when the Board:

a. Did not notify the parties in writing of the August 21 meeting; and

b. Viewed the property in question without notice, without the presence of any of the parties, and without making a record.

3. Whether the Board's decision to grant the conditional use permit was supported by substantial evidence on the record as a whole.

4. Whether the parties are entitled to attorney fees on appeal.


The Appellants first argue that there is some question regarding the standard of review for a local zoning authority decision. We note at the outset that contrary to the requirements of I.A.R. 35(a)(4), the Appellants did not list this as an issue on appeal. However, "this Court has indicated that this rule might be relaxed where the issue was addressed by authorities cited or arguments contained in the briefs." State v. Prestwich, 116 Idaho 959, 961, 783 P.2d 298, 300 (1989) (partially overruled on other grounds by State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992)). The Appellants and Respondents in this case did fully brief this issue, including authority and arguments. Therefore, we will address the issue.

The Appellants argue that the definition of "agency" in Idaho Code section 67-5201, the opening section to the Idaho Administrative Procedures Act (I.A.P.A.) 1 However, this Court recently decided a case involving the denial of a conditional use permit, after I.R.C.P. 84 became effective. In that case, we clearly stated:

leads to the conclusion that the I.A.P.A. applies only to state administrative decisions, not local. They further argue that because the definition of "agency" in I.R.C.P. 84 2 differs, the only explanation is that the legislature did not intend county proceedings to come under the I.A.P.A.

In a case such as this, the Idaho Supreme Court reviews the record independently of the district court's appellate decision. Nonetheless, this Court's review is limited to a determination whether the zoning authority's findings and conclusions are supported by substantial, competent evidence. In addition, there is a strong presumption of validity favoring the actions of zoning authorities when applying and interpreting their own zoning ordinances.

Howard v. Canyon County Bd. of Comm'rs, 128 Idaho 479, 480, 915 P.2d 709, 710 (1996) (citations omitted). See also Sprenger, Grubb & Assoc. v. City of Hailey, 127 Idaho 576, 580, 903 P.2d 741, 745 (1995). Pursuant to I.C. § 67-5279(2), we affirm an agency's decision unless it: (a) violates constitutional or statutory provisions; (b) is in excess of the agency's statutory authority; (c) is made upon unlawful procedure; or (d) is arbitrary, capricious, or an abuse of discretion. Sprenger, 127 Idaho at 580, 903 P.2d at 745.

Finally, contrary to the Appellants' assertions, there is no conflict between I.R.C.P. 84 and the I.A.P.A. I.R.C.P. 84 only sets forth procedures relating to review of agency decisions. Unlike the I.A.P.A., it does not set forth a standard of review. In addition, I.R.C.P. 84(u) specifically provides that "[t]he scope of judicial review on petition from an agency to the district court shall be as provided by law." Therefore, there is no conflict, and I.A.P.A. governs review of local zoning decisions.

A. The Conditional Use/Land Division Application...

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