Where Subdivision Access Is Uncertain, Approval of the Subdivision Must Be Contingent Upon Judicial Resolution


In the case of Shinn v. Bd. of Comm’rs of Clearwater Cnty., released June 17, 2014, the Idaho Supreme Court covered some new ground and revisited some old ground.

New Ground:

"If a land use application is submitted and proper access to the land is not certain, the decision-maker must make the application’s approval expressly contingent upon judicial resolution of the access issue."

A Board acts arbitrarily in approving a subdivision without proof of proper access.

"On remand it will be necessary for the parties to address the authority [of the county] to grant an exception or variance to the road requirements" when the county ordinance defines "variance" as a "modification of the requirements of this Ordinance as to, lot size, lot coverage, width, front yards, rear yards, setbacks, parking spaces, height of a building or other ordinance provisions affecting the size or shape of a structure or the size of the lots."

"Arguably, granting approval of a subdivision without having determined the adequacy of the access road could prejudice the substantial rights of the servient estate owner upon which the road is located, but it would appear premature to make any such determination until such time as the scope of the easement has been definitively determined in a declaratory judgment action. Because of our decision to reverse and remand, any consideration of the issue of prejudice to substantial rights is clearly unripe for determination."

Old Ground:

"The applicable statutory framework for reviewing agency action is found in I.C. § 67-5279."

Pursuant to I.C. § 67-5279(3):

The court shall affirm the agency action unless the court finds that the agency’s findings, inferences, conclusions, or decisions are:

  1. in violation of constitutional or statutory provisions;
  2. in excess of the statutory authority of the agency;
  3. made upon unlawful procedure;
  4. not supported by substantial evidence on the record as a whole; or
  5. arbitrary, capricious, or an abuse of discretion.

I.C. § 67-5279(4) lays out an additional requirement: "agency action shall be affirmed unless substantial rights of the appellant have been prejudiced."

"The party attacking a zoning board’s action must first illustrate that the board erred in a manner specified [in Section 67-5279(3)] and must then show that a substantial right of the party has been prejudiced." Cowan v. Bd. of Comm’rs of Fremont Cnty., 143 Idaho 501, 508, 148 P.3d 1247, 1254 (2006).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:


Stoel Rives LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.