Group accuses government of inadequate public notice and due process

The watchdog nonprofit Valley Advocates for Responsible Development has filed a complaint against the Driggs City Council and the Driggs mayor, stating that they deprived local community members of due process in a recent annexation decision.

The complaint stems from a contentious land use decision that was scheduled for council’s consideration on March 17. Gavin Mathews, the owner of a 11.2-acre property south of downtown Driggs across the highway from Creekside Meadows, had applied for the property to be annexed into city limits and rezoned for commercial mixed use. VARD and some community members, including the Creekside Meadows developers, had submitted comments in opposition and were prepared to attend the public hearing to speak against the annexation.

Then on March 14, the news broke that a Teton Valley resident had tested positive for coronavirus. That week the county and city government passed a series of emergency resolutions and notices to discourage public gatherings, and the Driggs mayor announced on the city’s website that the March 17 meeting would be continued to March 24. It was again rescheduled as an online council meeting on March 31. At the beginning of that meeting, the mayor informed the city council that the city had not provided online meeting access information to the public far enough in advance, and asked the council to approve continuing the public hearing until April 7.

Since the beginning of the coronavirus shutdown, VARD had been pushing Driggs and other local governments to postpone public hearings, saying that during the pandemic, people were not focusing on big land use decisions. The day before the March 31 Driggs council meeting, VARD executive director Shawn Hill emailed the members of the council urging them not to hold a public hearing on a discretionary annexation during a pandemic. Mayor Hyrum Johnson responded to the email by reminding Hill that the matter is quasi-judicial, meaning the council members were not allowed to receive outside communication about the application.

In its complaint, VARD clarifies that, according to state and city statute, an annexation is a legislative matter, while a rezone is quasi-judicial.

VARD and its members continued to ask Driggs to delay the decision, reasoning that the April 7 meeting wasn’t adequately noticed to the public. On April 7, city attorney Stephen Zollinger addressed that concern, saying that the city was allowed to “daisy-chain continuances” as long as the original notice had been published in the newspaper and that notices of continuance were posted online and at city hall.

“You simply have to make sure that everyone who wanted to be heard had adequate opportunity to be heard,” Zollinger said, pointing out that people could have emailed their comments before the meeting or called or texted during the public comment portion of the meeting.

VARD attorney Anna Trentadue disagrees. She told the Teton Valley News this week that because there had been so many continuances, adjacent property owners didn’t even know about the April 7 public hearing.

“I do not think sitting in a closed meeting that no one had access to and unilaterally making a pronouncement to continue a meeting no one knows you’re holding is adequate notice,” she said about the March 31 continuance.

During the April 7 meeting, the Driggs council voted 2-2 on approving the annexation and rezone, and the mayor broke the tie in favor of the application. At its next meeting on April 21, the council voted on restricting some of the allowed uses in the commercial zone, and passed the annexation ordinance, which was published in the newspaper on April 29. On that day, VARD submitted a public records request for all documents and communications regarding the application. The city is still compiling those records.

On May 6, VARD filed its complaint in district court, alleging that the council and mayor failed to comply with open meeting law and due process requirements. Driggs resident Vancie Turner is a co-plaintiff in the complaint and says she was denied an opportunity to participate in the public hearing because, as she informed the council in a letter, she didn’t have the technology to access the April 7 meeting. VARD is still gathering written statements from aggrieved property owners and other involved parties, but Trentadue explained they wanted to file the complaint within the 30-day deadline.

She said the city can answer the complaint and “cure its own deficiencies” by re-noticing and re-holding the meeting per the Idaho Local Land Use Planning Act. “The [land use planning] act anticipates good faith on the part of the city. If the city refuses, we’ll consider it a show of bad faith.”

If the city refuses to re-hold the meeting, Trentadue said, VARD’s civil complaint will become a lawsuit.

“The bigger issue is the policy concern of holding a high-stakes hearing during a pandemic and forbidding community members from asking that it be delayed,” she added. “I don’t think the city appreciates how scary and all-encompassing this pandemic is for people—they’re not thinking of religiously checking the website for meeting updates or running down to city hall to see the notice posted.”

Mayor Johnson is not permitted to comment on pending legal matters, but did say that he feels the city handled the annexation appropriately and will be vindicated.

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