Judge Brent Moss ruled recently on a petition for judicial review filed by Valley Advocates for Responsible Development (VARD) in 2004 pertaining the approval of Fox Meadows Subdivision and Fox Springs Planned Unit Development (PUD) by the Teton County Commissioners.
Judge Moss reversed the approval of the Fox Springs PUD, near the intersection of 600 S and 100 W., because the project does not have enough protected open space to meet the minimum requirements of the county ordinance. The 109 acre project is about 7 acres short of what was then the county minimum for 75% open space. Mitigation now needs to occur for the subdivision to come into compliance as a legitimate PUD. The PUD is owned by Kitchener and Sonja Head and has been developed by Mark Rockefeller.
This is the second time the court has reversed the Fox Springs PUD. The first came in December 2003, when Judge Moss found procedural violations in the county’s approval of the Fox Springs project as well as the adjacent Fox Meadows subdivision, one of which was a violation of due process by not properly noticing a public meeting.
VARD challenged both projects for the second time after the county re-approved them in April 2004. That second case led to last week’s ruling. VARD’s main concerns related to 3 issues: 1) the county’s failure to receive an “approval” from District 7 Health Department for the use of septic systems in a shallow groundwater area where studies showed the use would pollute the groundwater, 2) the Fox Springs PUD does not qualify as a PUD because it does not have enough open space as required by ordinance, and 3) the county’s adoption of the developers’ findings of fact and conclusions of law as justification for approving Fox Springs and Fox Meadows without having deliberated on these facts themselves.
The court ruled that lot-by-lot review of septic systems was allowable under Idaho law and the county ordinance. VARD had argued that the county ordinance required up-front consideration of groundwater pollution from the whole project, which showed the cumulative impacts of septic systems in a sensitive groundwater area, but Judge Moss disagreed.
But the court confirmed the county’s authority to require central sewer systems, saying "the plain language of that subsection indicates that whether a central sewer system is required is left to the Commission or Board." In this instance the court ruled in favor of the county, whose decision was in favor of the developer over the objections of local residents. Now, the burden of the cumulative impacts of septic systems in the subdivision has been placed on individual lot owners. At the Fox Springs PUD and Fox Meadows projects, groundwater is between 5.5 and 11 feet below the surface.
It is common that Idaho courts uphold local jurisdictions on their interpretations of their ordinances. In his ruling, Judge Moss clearly indicates the county has the power to not only enforce state and local regulations, but also its own by stating the “strong presumption of validity the Board [of County Commissioners] enjoys when applying its own ordinance.” It is unfortunate that the county used this discretion in favor of the developer and not for its residents by ensuring the protection of groundwater.
Finally, although the court did not conclude that the Board’s adoption of the developer’s decision document was clearly erroneous, it did caution the county on its process, stating “the court agrees that the practice of adopting findings of fact and conclusions of law verbatim is illadvised for the very reason VARD raises the issue in this review, to wit: “the practice smacks of open and hostile bias.”