A case that started with a Ketchum Planning and Zoning Commission decision and wound up in Idaho Supreme Court has been resolved, with the city agreeing to pay plaintiffs $28,000 in attorney fees.
The Supreme Court agreed with appellant Catherine Fischer, reversing the P&Z's issuance in 2002 of a conditional-use permit to Douglas Delmonte for an avalanche attenuation device on a four-story duplex.
The court's opinion, filed March 25, states that the Ketchum P&Z failed to request an engineer's certification before granting the permit.
"The city wholly ignored the provision of its avalanche zone district ordinance requiring the certification by an Idaho-licensed engineer 'prior to the granting of a conditional-use permit,'" the opinion written by Justice Roger Burdick states.
During a City Council meeting Thursday, May 19, council members voted to authorize the mayor to execute a settlement agreement and pay the fees to Fischer and the other petitioners.
The city received a memorandum of fees and costs in the amount of $42,000 but that amount was negotiated down to $28,000. The city's insurance carrier may pay some of that, said City Attorney Ben Worst.
Delmonte filed two applications with the city: design review of a 9,000-square-foot duplex, and an application for a conditional-use permit related to an avalanche attenuation device.
After public hearings and a site visit, the P&Z approved the permit with certain conditions, including that building permit plans be signed by an Idaho-licensed engineer. The engineer would have to certify that the proposed construction could withstand an avalanche and that it wouldn't deflect avalanches toward other peoples' property.
Among conditions for the design-review approval was that Delmonte had to submit a construction plan to mitigate avalanche danger to the Warm Springs neighborhood.
Delmonte claimed that it was impractical and uneconomical to obtain an engineer's certification until the application was approved.
Fischer objected to the proposed construction and filed an appeal with the City Council.
Council members on May 14, 2002 voted in favor of upholding the commission's decision.
Fischer appealed to 5th District Court in Hailey, then to the Idaho Supreme Court.
The Supreme Court determined that the city violated its own zoning code by making the engineer's certification a condition of approval.
"Without the certification of the licensed engineer at the public hearings leading to the issuance of the conditional-use permit, the interested public has no meaningful chance to comment on the CUP's impact on community or other facts affecting surrounding property," the court's opinion reads. "The commission's two-step process of 'approval with conditions' prior to granting the CUP nullifies the importance of the statutory public hearing required ... "
Based on that decision, the city had two options, according to Worst: It could change the ordinance or change the way it is applied. The city chose the latter.
The city will now require that an applicant submit plans that are certified by an engineer before granting a CUP, Worst said.
The original matter has been remanded to P&Z for further proceedings.
