Agenda - Planning Commission - 01/06/1998

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Z.B. December 10, ~997 -- Page 7 which the neighbors didn't attend, the board conditionally approved the Gerratts' permits. The neighbors appealed to court. The court upheld the board's decision, and the neighbors appealed. They argued the Gerratts should have sought approval to divide their property under the county's subdivision ordinance, not under its conditional use ordinance. The conditional use ordinance, which provided for the one-time division of property, stated such division was "not to be confused with a subdivision (two or more divisions of the same parcel of property)." The neighbors claimed that because the Gerratts' property had been divided once already (before 1979), any additional division was a subdivision. The neighbors also claimed the board deprived them of their due pro- cess rights by failing to give them written notice of the second hearing. Further, they said, the board failed to notify them of its visit to the property. State law required county boards to confine their review of commission decisions to the commission's record; the commission had not visited the property. DECISION: Reversed in part and returned to the board. The Gerratts properly sought approval under the conditional use ordinance, as opposed to the subdivision ordinance. The board didn't violate the neighbors' due process rights when it failed to give written notice of the second hearing. However, it did violate their rights when it visited the property. The issue had to be returned to the board for further proceedings. The conditional use ordinance was enacted in 1979, after the property was originally divided into eight parcels. Property like the Gerratts' that was divided before 1979 wasn't subject to the ordinance. The ordinance considered the Gerratts' three parcels to be the original parcels. Any further division would be the "first" division, so the subdivision ordinance (which applied to two or more divisions) didn't apply. The board wasn't required to give the neighbors written notice of the second hearing. The record showed the neighbors were present at the first hearing when the second hearing was scheduled. Because the neighbors couldn't prove they had left the hearing before the scheduling, written notice was unneces- sary. The board should not have visited the Gerratts' property without first notifying the neighbors, even if the commission had viewed the property in the earlier proceeding. The neighbors were entitled to contest the propriety of the board's visit. They also were entitled to be present at the visit to ensure the board viewed the correct property. Because the board failed to notify the neighbors of/ts visit, the court vacated the board's decision and returned the issue to the board. see also: Highbarger v. Thor~ock, 498 P..2d 1302 (J972).