The Valley Signal

Growth & Land Use

Commissioners Deny Sweetwater Reconsideration on Standing; Phase 1 Approval Stands

Teton County commissioners voted 3-0 May 11 to deny the Sweetwater reconsideration on standing grounds, affirming the March 9 Phase 1 approval.

By The Valley Signal Editorial Board ·

DRIGGS — Teton County commissioners voted 3-0 on Monday to deny the Sweetwater reconsideration petition on standing grounds, affirming the March 9 approval of the Sweetwater Subdivision Phase 1 preliminary plat amendment.

The petition, filed March 20 by Howard Garber and 11 other signatories, challenged the expansion of a hangar-home development from 18 to 44 lots on the parcel adjacent to the Driggs-Reed Memorial Airport. After hearing the Sweetwater reconsideration on April 27, the commissioners tabled the question for legal counsel on whether the petitioners qualified as affected persons under Idaho Code § 67-6521(1)(a). On Monday, they gave their answer.

Commissioner Dan Powers moved to affirm the March 9 approval "with the findings that the appellant lacks standing as they have not demonstrated a particular harm that affects their real property interest." Reading from the standing rule, Powers said only those whose challenge to a decision demonstrates "actual harm, not a mere possibility," are entitled to a remedy. The Sweetwater reconsideration did not meet that standard.

Commissioner Brad Wolfe seconded the motion. "I don't like the law. I'd like to see it changed," Wolfe said, but no one on the reconsideration had standing, and the county had no right to override the federal government on airport jurisdiction.

Commissioner Ron James joined the majority. The Federal Aviation Administration supersedes the county on airport regulation, James said, and he did not see standing on the record. The vote was unanimous.

What the standing ruling decides

Witnesses at the April 27 hearing had focused on lead exposure, noise, and air quality near the airport. The applicant's attorney, Jon Stenquist of Parsons Behle & Latimer, had argued in writing and at the microphone that those concerns, however serious, did not establish a bona fide real-property interest under Idaho's Local Land Use Planning Act. None of the 12 petitioners' parcels sit within 300 feet of the Sweetwater Subdivision; many are more than a mile away. Exposure to airport-related externalities, Stenquist argued, is not the same as a property right.

The commissioners adopted that reading. Powers' findings track the language of Idaho Code § 67-6521(1)(a) and the standard the Idaho Supreme Court applied earlier this year in Crookham v. County of Canyon. Without standing, the board did not reach the merits of the seven grounds in Sweetwater's reconsideration, which included claims about ex parte communications, missing packet documents, and the choice between individual septic systems and a Driggs sewer connection. The board's April 13 written decision approving the plat stands.

A separate ask: lead testing

Before the vote, Powers raised a point outside the scope of the petition. The City of Driggs and Teton School District 401, he said, should consider a lead-testing program in response to the concerns raised at the April 27 hearing. Bob Whipple, a retired surgeon who testified that day, had asked the board to authorize a blood-lead study of children at Driggs schools and to impose fuel restrictions at the airport. Federal law preempts the fuel question, as the developer's separate FAA counsel documented in writing. It does not preempt the testing question.

A procedural footnote

Garber emailed the commissioners with additional comments before Monday's meeting. The commissioners forwarded the messages to county legal counsel without reading them. The original petition had alleged undisclosed ex parte communications between Garber's neighbors and Commissioner James in early March. On the day of the vote, Garber himself attempted the same kind of contact, and the board declined to read it.

What to watch

  • The written reconsideration ruling. Under Idaho Code § 67-6535 and Idaho Rule of Civil Procedure 84, the 28-day window for judicial review begins when the written decision is signed.
  • Whether the petitioners file in the district court. A judicial-review petition would test the strict reading of "affected person" that the commissioners adopted Monday against the broader reading that the petitioners and their supporters argued on April 27.
  • Whether Driggs or TSD 401 takes up the lead-testing suggestion. Powers raised it; the audience for it is a different body.

Sources