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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35201
JOHN NOBLE, an individual, and CEDAR                                                              )
RIDGE HOMES, INC., an Idaho corporation,                                                          )
                                                                                                  )
Plaintiffs-Appellants,                                                                            )
)
v.                                                                                                )   Boise, January 2010 Term
)
KOOTENAI     COUNTY,     a     political                                                          )   2010 Opinion No. 39
subdivision  of  the  State  of  Idaho  acting                                                    )
through the KOOTENAI COUNTY BOARD                                                                 )   Filed:  April 1, 2010
OF COMMISSIONERS, ELMER R. (RICK)                                                                 )
CURRIE,   W.   TODD   TONDEE,   and                                                               )   Stephen W. Kenyon, Clerk
RICHARD  A.  PIAZZA,  Commissioners  in                                                           )
their official capacities,                                                                        )
)
Defendants-Respondents.                                                                           )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County.  Hon. John P. Luster, District Judge.
District  court  decision  affirming  Kootenai  County Board  of  Commissioners,
affirmed.
Lukins & Annis, PS, Coeur d‟Alene, for appellant.  Mischelle R. Fulgham argued.
Kootenai County Prosecutor‟s Office, Coeur d‟Alene, for respondent.   Patrick M.
Braden argued.
BURDICK, Justice
Appellants, John Noble and Cedar Ridge Homes, Inc. (collectively “Applicants”), appeal
the district court‟s decision affirming the Kootenai County Board of Commissioners‟ (the Board)
denial of Applicants‟ application for a residential subdivision.  We affirm.
I.  FACTUAL AND PROCEDURAL BACKGROUND
Applicants own approximately  152 acres of real property, zoned Rural, in Kootenai
County, Idaho, and filed an application for a major subdivision on February 8,  2006.   The
proposed subdivision was to contain 20 lots, ranging between 5 and 10 acres per lot, and a
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dedicated no-build area in the 70 acre area known as “the meadow.”   The meadow is known to
be a non-jurisdictional1 wetland subject to frequent flooding.
After an initial public hearing on Applicants‟ proposed subdivision on January 18, 2007,
the Hearing Examiner recommended approval of the application, subject to conditions, on
January 31, 2007.   The Board then conducted a second public hearing on April 12, 2007, and
visited the site of the proposed subdivision on May 22, 2007.   On June 21, 2007, the Board
issued a written order denying the application for subdivision, based upon Applicants‟ failure to
provide                                                                                                                “Base  Flood  Elevation”  information  with  respect  to  the  proposed  subdivision.
Applicants filed a timely Petition for Judicial Review of the Board‟s decision on July 19, 2007.
Following a hearing on January  3,  2008, the district court entered its Memorandum
Opinion and Order in Re: Petition for Judicial Review on February  7,  2008, affirming the
Board‟s denial of the subdivision application.  On April 7, 2008, Applicants filed a timely Notice
of Appeal with this Court.
II. ISSUES ON APPEAL
1.  Whether  the  Board  based  its  denial  of  Applicants‟  subdivision  application  upon
substantial and competent evidence.
2.  Whether the Board‟s visit to the site of the proposed subdivision was conducted in
violation of Idaho‟s open meeting laws.
3.  Whether  Applicants‟  substantial  rights  were  prejudiced  by the  Board‟s  rejection  of
Applicants‟ subdivision application.
4.  Whether Applicants are entitled to attorney fees on appeal.
III. STANDARD OF REVIEW
In Terrazas v. Blaine County ex. rel. Board of Commissioners, this Court summarized the
standard of review this Court applies when considering the denial of a permit, or its functional
equivalent, by a county board of commissioners:
A county board of commissioners is not a state agency for purposes of the
application of [the Idaho Administrative Procedure Act] in its totality.   In order to
obtain judicial review under [the Local Land Use Planning Act], I.C. §§ 67-6501
et seq., there must be a statute granting the right of judicial review.   Idaho Code §
67-6519(4) provides that                                                                                               “[a]n applicant  denied a permit  or aggrieved by a
decision” may seek judicial review after exhausting all remedies available under
1 “Non-jurisdictional” in this context means that the wetlands do not discharge into the waters of the United States
and are therefore not subject to the federal Clean Water Act.   This determination was made by the Army Corps of
Engineers.
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county ordinances.   The decision regarding a subdivision application is a decision
granting a permit, I.C. § 67-6513, and is therefore subject to judicial review.
147 Idaho 193, 197, 207 P.3d 169, 173 (2009) (some internal citations omitted) (third alteration
in the original).
As this Court stated in In re Idaho Department of Water Resources Amended Final Order
Creating Water District No. 170:
In an appeal from a district court, where the court was acting in its appellate
capacity under  [the Idaho Administrative Procedure Act], the Supreme Court
reviews the agency record independently of the district court's decision.”   Spencer
v. Kootenai County,  145 Idaho  448,  452,  180 P.3d  487,  491  (2008). If the
sufficiency  of  factual  findings  was  challenged  before  the  district  court  and
subsequently challenged in this Court, we review the agency record de novo to
see if those factual findings are supported by substantial and competent evidence.
Where the agency record provides substantial and competent evidence supporting
the agency's findings of fact, and the agency conclusions of law follow from those
facts, and the district court affirmed the agency decision, we affirm the district
court's decision as a matter of procedure.   See Losser v. Bradstreet, 145 Idaho
670, 672, 183 P.3d 758, 760 (2008).
148 Idaho 200, __, 220 P.3d 318, 322-23 (2009).
“Although interpretation of an ordinance is a question of law over which this Court
exercises free review, „there is a strong presumption of favoring the validity of the actions of
zoning  boards,  which  includes  the  application  and  interpretation  of  their  own  zoning
ordinances.‟” Terrazas, 147 Idaho at 197, 207 P.3d at 173 (internal citation omitted) (quoting
Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley County, 132 Idaho 551, 554, 976
P.2d 477, 480 (1999)).
IV. ANALYSIS
This Court shall not overrule the decision of the Board unless that decision: “(a) violated
statutory or constitutional provisions; (b) exceeded the Board‟s statutory authority; (c) was made
upon unlawful procedure; (d) was not supported by substantial evidence in the record; or (e) was
arbitrary, capricious, or an abuse of discretion.”  Terrazas, 147 Idaho at 197-98, 207 P.3d at 173-
74.                                                                                                   Under  the  appellate  standards  provided  in  I.C.   §  67-5279(4),  Applicants  must  also
demonstrate that the Board‟s decision prejudiced one or more of their substantial rights.   Id. at
198, 207 P.3d at 174.
A.   The Board did not err in finding that Applicants had failed to provide the Board with
adequate information to determine compliance with the Subdivision Ordinance, and in
denying the subdivision application on these grounds.
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In  considering  Applicants‟ subdivision application, the Board was  bound to  follow
Kootenai  County  Subdivision  Ordinance  No.                                                                     344                                                                                       (Subdivision  Ordinance).    Subdivision
Ordinance § 2.01(C)(1)(k) provides a list of what the hearing body (in this case the Board) must
find in order for the hearing body to recommend approval of the subdivision application.  Section
2.01(C)(1)(k)(1) requires that the subdivision applicant must provide “adequate information to
determine compliance with the requirements.”   The Subdivision Ordinance further requires that,
in order to recommend approval of a proposed subdivision, the hearing body must, inter alia,
find that the proposed subdivision will meet the County Flood Ordinances without variance.
In a typical case, the Hearing Examiner makes a recommendation under § 2.01(C)(1)(k)
either recommending that the Board approve the subdivision application, if the requirements are
met, or recommending that the Board deny the application.   This case is atypical in that the
initial hearing was held by the Hearing Examiner, who recommended approval of the subdivision
application, but upon review, under § 2.01(C)(1)(l), the Board opted to schedule its own hearing
to  allow  for  the  submission  of  additional  information.    Final  decisions  on  subdivision
applications are made by the Board, and when the Board acts as the hearing body it shall draw its
own reasonable conclusions regarding the application‟s compliance with the required findings
under                                                                                                             §  2.01(C)(1)(k)  of  the  Subdivision  Ordinance,  and  make  its  final  decision  on   the
application accordingly.
In the Conclusions of Law section of the Board‟s Decision, the Board found that:
The Applicant has failed to meet the required burden of proof in providing
adequate information to determine compliance with Kootenai County Subdivision
Ordinance No. 344 [Subdivision Ordinance].   The proposed subdivision design
does not adequately address existing site constraints and/or special hazards.
It is unclear whether the plan and the proposed lots/development features are
capable of meeting the elevation requirements of the Flood Damage Prevention
Ordinance because base flood elevation [(BFE)2] information was not provided.
Without  the  identification  of                                                                                  [BFE]  information,  the                                                                  [Board  is]  unable  to
                                                                                                                  positively determine whether or not the proposed lots will be of reasonable utility
2 Base Flood Elevation is defined by the Flood Ordinance as the:
Height of Floodwaters during discharge of the base flood as indicated on the Flood Insurance Rate
Maps, or as designated by FEMA or another authoritative source, or the height of floodwaters
during the largest flood of record, whichever is higher.   The base flood is measured in feet using
the National Geodetic Vertical Datum.
Base Flood, in turn, is defined as “(Generally referred to as the 100-year flood.)   This is the flood having a
one percent chance of being equaled in any given year.   Designation on maps always includes the letters A
or V.”
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and livability, capable of being built upon without imposing an unreasonable
burden on future owners.
Without  the  identification  of                                                                        [BFE]  information,  the   [Board  is]  unable  to
positively determine whether or not all of the proposed drain field locations will
be of reasonable operational utility to the future owners, and will not negatively
effect [sic] area water resources.
Without  the  identification  of                                                                        [BFE]  information,  the   [Board  is]  unable  to
positively determine whether or not the proposed “meadow” roadway location
will be of reasonable operational utility to the future owners.
Without  the  identification  of                                                                        [BFE]  information,  the   [Board  is]  unable  to
positively  determine  whether  or  not  the  proposed  road  design  will  require
mitigation of any negative environmental impacts to the flooding hazard area, or
to positively determine how its design or construction is the minimum necessary
at this site.    Further, it is unclear because of the road‟s location within the
wetlands/flood  area,  whether  the  road  is  capable  of  meeting  the  required
construction standards.
These findings clearly demonstrate that the Board, in its discretion, found that it had been
provided  with  insufficient  information  pertaining  to  flooding  on  the  site  of  the  proposed
subdivision, and, as such, did not find that Applicants had demonstrated compliance with
multiple requirements of § 2.01(C)(1)(k) of the Subdivision Ordinance.
Applicants  contend  that  they  were  not  required  to  provide  the  Board  with  BFE
information - as the site of the proposed subdivision, including the no-build meadow area - was
not properly classified as an Area of Special Flooding Hazard (ASFH) under Kootenai County
Flood Damage Prevention Ordinance No. 311 (Flood Ordinance).   Applicants further argue that,
in the event that the Board was concerned that the site was an ASFH, the Board was required to
have the Administrator (as defined in the Flood Ordinance) determine the boundaries of the
ASFH.
By failing to provide the Board with BFE information for the site of the proposed
subdivision, Applicants failed to meet their obligations under the Flood Ordinance.   In failing to
demonstrate compliance with the Flood Ordinance, Applicants likewise failed to meet their
burden under the Subdivision Ordinance.
Section 3.2(F) of the Flood Ordinance, pertaining to subdivisions, requires that “[w]here
base flood elevation data has not been provided or is not available from another authoritative
source, it shall be generated by the developer‟s engineer for projects which contain at least 5 lots
or  5 acres  (whichever is less).” Here, the BFE information was not available from another
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authoritative source, and was, therefore, to be generated by Applicants‟ engineer for the project.
By  failing  to  have  Applicants‟  engineer  generate  this  information  Applicants  failed  to
demonstrate compliance with the Flood Ordinance, which is one of the requirements under the
Subdivision Ordinance.
Applicants‟ argument that they had no duty to provide BFE data unless the property was
within an ASFH is utterly inconsistent with the Flood Ordinance.   Under the terms of the Flood
Ordinance, an ASFH is defined in reference to BFE data.   Section 2.0 of the Flood Ordinance
provides the relevant definitions.   An ASFH is defined as “the 100-year floodplain subject to a
one-percent or greater chance of flooding any given year.”  A “base flood” is the “flood having a
one percent chance of being equaled or exceeded in any given year.”   Under these definitions, it
is impossible to determine the existence of an ASFH without reference to BFE data.   This is
obviously why developers are required to provide BFE data.   The developer must provide BFE
data from an  “authoritative source” and, in the absence of such a source, the developer‟s
engineer must generate the data.   As they failed to provide BFE data, Applicants failed to
provide                                                                                                                “sufficient  information  to  conclusively  demonstrate  compliance”  with  the  Flood
Ordinance.   Under § 2.01(C)(1)(k)(4) of the Subdivision Ordinance, a subdivision application
may not be approved if Applicants fail to meet the burden of demonstrating that all applicable
County ordinances (such as the Flood Ordinance) will be met without variance.   Therefore, the
Board properly denied the application.
B.   The Board’s visit to the site of the proposed subdivision was conducted in violation of
Idaho’s open meeting laws.
Applicants allege that the Board conducted its visit to the site of the proposed subdivision
in a manner that violated Idaho‟s open meeting laws, I.C. § 67-2340, et seq.,3 and was a violation
of Applicants‟ due process rights.   Idaho Code § 67-2342(1) requires that “all meetings of a
governing body of a public agency shall be open to the public and all persons shall be permitted
to attend any meeting except as otherwise provided by this act.”   Under I.C. § 67-2341, the
Board is a governing body of a public agency for purposes of I.C. § 67-2342(1).   Idaho Code §
3 Applicants allege that the Board also acted in violation of the Idaho Administrative Procedure Act, specifically
I.C. § 67-5242, in not allowing Applicants to communicate with the Board during the site visit.   However, the Board
is not an agency, as defined by I.C. § 67-5201. See Terrazas v. Blaine County ex. rel. Bd. of Comm’rs, 147 Idaho
193, 197, 207 P.3d 169, 173 (2009). Idaho Code § 67-5242 applies to “contested cases,” and the I.C. § 67-5240
definition of “contested case” begins “[a] proceeding by an agency”; therefore, the requirements mandated by I.C. §
67-5242 for contested cases are inapplicable.
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31-710 governs how meetings shall be conducted by county boards of commissioners, and
subsection four provides that “[a]ll meetings of the board must be public.”
At the conclusion of its hearing on the proposed subdivision on April 12, 2007, the Board
chose to leave the hearing open for two purposes:                                                      (1) to receive additional information from
Applicants regarding the location of drain fields, no-build zones, and building envelopes in the
proposed subdivision; and (2) to allow the Board‟s observations made during the site visit to be
included within the record of proceedings.   The manner in which the site visit was conducted is
the source of the controversy.   Proper notice of the public hearing/site visit was provided, and
this has not been contested by Applicants.
Applicants allege that after providing notice to the public of when the site visit would
occur, the Board acted in bad faith by intentionally avoiding a group that was gathered near the
entrance to the site location, thereby precluding the interested parties from actually attending.
According to the site visit transcript, when the site visit was nearly concluded an unidentified
party (either a Commissioner or staff member) asked whether the Board should go and park by
the group of interested parties, at which point two members of the staff, John Cafferty and Mark
Mussman, counseled against stopping as the group would likely attempt to question the Board.
An affidavit prepared by Applicants‟ engineer, Russell Helgeson, states that after the Board had
viewed the site the Board‟s van parked up the road from the group.   Soon after the van had
parked, Mussman jogged over to the group and stated that the Board did not wish to be
approached or talked to.
Applicants cite this Court‟s opinion in Comer v. County of Twin Falls, 130 Idaho 433,
942 P.2d 557 (1997), in support of their argument that the Board violated Applicants‟ procedural
due process rights in conducting the site visit as they did.   In Comer this Court stated that the
appellants‟ procedural due process rights had been violated  “when  [the Board] viewed the
property without notice, and without giving the parties or their representatives the right to be
present.”   Id. at 440, 942 P.2d at 564.   We noted that “[b]ecause none of the parties [were]
present during the viewing, and because no record was made of the viewing, the parties have no
way of knowing if the correct parcels of property were examined by members of the Board.”   Id.
at                                                                                                     439,  942 P.2d at  563.   Here, Applicants were given notice of the site visit, Applicants‟
representatives saw the Board arrive on site, and a record was made of the site visit.   Clearly the
site visit here was more procedurally sound than that which occurred in Comer; nevertheless, it
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cannot be said that the procedure followed here alleviated all of the concerns expressed in
Comer.   In the case at hand, we know that the correct parcels of property were examined, as the
Applicants‟ representatives saw the Board arrive onsite; however, the transcript of the site visit
demonstrates that the Board was uncertain as to what different colored flags designated, and in
some instances disagreed as to the color of flag they were looking at.   These are issues that
Applicants‟ engineers could certainly have assisted the Board with.
It cannot be said that the Board made a good faith effort to conduct its site visit in a
manner that was open to the public in any meaningful way.   Idaho‟s open meeting laws, I.C. §
67-2340, et seq., are designed to allow the public to be present during agency hearings.   At the
very least this means that the public must be permitted to get close enough to the hearing body to
hear what is being said.   It is clear that the Board did not wish for the public to participate in the
site viewing, as far as providing comments or presenting evidence, and in attempting to avoid
this the Board precluded the public from even listening to the hearing.
Idaho‟s open meeting laws do not require an agency conducting a meeting to allow
comments from the public.   However, in order to comply with the spirit of the open meeting
laws, details should be provided to the interested parties regarding the type of meeting being
conducted, and these details should be provided prior that hearing being conducted.  Details as to
whether the meeting is being held in order to conduct additional evidence gathering, or merely to
confirm what an agency has already decided based upon the evidence in the record.  Details as to
whether the hearing body will be accepting public comment, and generally, what the procedures
for that meeting shall be.    There are clear reasons why it may be preferable not to allow
comments or the submission of evidence during a site visit, but the interested public must be
provided with notice of the scope of the visit and, at a minimum, must be given the opportunity
to accompany the hearing body, close enough to hear what is being said.
We hold that, in making it practically impossible for the public to be present while the
visit was conducted, this site visit was held in violation of Idaho‟s open meeting laws.
C.    Applicants’  substantial  rights  were  not  prejudiced  by  the  Board’s  rejection  of
Applicants’ subdivision application.
In accordance with I.C. § 67-5279, even where the Board has reached its decision upon
unlawful procedure, the Board‟s decision shall still be affirmed unless Applicants‟ substantial
rights have been prejudiced by that decision.   Although, generally, the right to develop one‟s
property is a substantial right, Terrazas v. Blaine County ex. rel. Board of Commissioners, 147
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Idaho 193, 198, 207 P.3d 169, 174 (2009), it cannot be said that Applicants‟ right to develop
their property has been prejudiced by this decision.   The Board‟s denial of the subdivision
application was not a final denial, and Applicants were provided with details on the information
they could provide to the Board on a subsequent subdivision application in order to gain
approval.   Although subsequent approval is not guaranteed, the possibility is sufficient so that it
cannot be said that Applicants‟ substantial rights have been prejudiced at this point.   In addition,
Applicants  have no right  to  approval  of a subdivision  application that  does not  meet  the
requirements of the governing ordinances.
D.  Applicants are not entitled to attorney fees on appeal.
Applicants have requested attorney fees under I.C. § 12-117 and Idaho Appellate Rules
40 and 41.  As Applicants are not the prevailing party, no attorney fees shall be granted.
V. CONCLUSION
We affirm the district court decision affirming the Board‟s decision.   The Board had
substantial and competent evidence supporting its determination that Applicants‟ had failed to
demonstrate that their subdivision complied with the requirements of the Subdivision Ordinance.
Although the Board erred in conducting its site visit in violation of Idaho‟s open meeting laws, it
cannot be said that this procedural error prejudiced a substantial right of Applicants.   No costs
awarded to either party.
Chief Justice EISMANN and Justices W. JONES, HORTON and TROUT, Pro Tem,
CONCUR.
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