The Record, Standing and Ex Parte Rules

Most people who testify at a planning and zoning hearing think of it as a speech. Lawyers for applicants think of it as building a file. The file wins. This lesson explains why, starting from the end of the process, the judicial review a district judge does on paper, and working backward to what you should do at the hearing and before it. The planning and zoning course covers the appeal process itself in Appeals and Takings; here the focus is on what a resident does so that a later appeal, by anyone, has something to work with.

Why the record is everything

Idaho's Local Land Use Planning Act sends land use appeals through the state Administrative Procedure Act. Idaho Code 67-6521(1)(d) says an affected person aggrieved by a final decision may seek judicial review under chapter 52, title 67, within 28 days after all local remedies are exhausted. Section 67-6535(3) gives an applicant who is denied or aggrieved the same 28 days.

Chapter 52 then sets the rules for the judge. Idaho Code 67-5277 says that, unless a statute provides otherwise, "judicial review of disputed issues of fact must be confined to the agency record," and review is by the court without a jury. The record may be supplemented only in limited ways under 67-5276. Idaho Code 67-5279(1) adds that the court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Under 67-5279(3), the court affirms unless the decision was:

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

And under 67-5279(4), even then, the decision stands unless "substantial rights of the appellant have been prejudiced."

Put plainly: the judge reads what the board had. If the board had the applicant's traffic study and no evidence against it, the study is substantial evidence, and the judge will not weigh it against a neighbor's affidavit filed later. If the board had your dated traffic counts, your photos and the highway district's letter, and its written decision ignored them, now there is a question of whether the decision is supported "on the record as a whole" and whether the reasoned statement resolved the contested facts, as 67-6535(2) requires.

What the record contains

Idaho Code 67-6536 requires that in every case where an appeal is provided, "a transcribable verbatim record of the proceeding shall be made and kept" for at least six months after a final decision, and minutes must be kept as well. Any person may have the record transcribed at their own expense by asking in writing within that period. The record usually also includes the application, staff report, agency letters, written comments received, exhibits handed in at the hearing, the minutes and the written decision.

In the record	Usually not in the record
Your written comment, received by the deadline and logged by staff	An email you sent to one commissioner's personal account, unless it was disclosed and entered
Your spoken testimony, on the verbatim recording	What you said to a commissioner in the parking lot
Exhibits handed to the clerk and accepted by the chair	A slide you showed that was never given to the clerk
Agency letters attached to the staff report	An agency's opinion you heard about secondhand
A disclosed ex parte contact, described at the hearing	An undisclosed one, which becomes a due process problem instead
Your reconsideration request listing specific deficiencies	Social media posts, news stories and petitions never submitted

Comment deadlines and exhibits

Written comment deadlines are set locally, and they vary a great deal. Three real examples show the range.

• Bannock County: for a May 21, 2025 hearing on a zoning ordinance amendment, the county's notice said written testimony had to be received no later than May 13, 2025, eight days ahead, had to be fewer than two pages, and had to meet the standards in section 560.7 of the county zoning ordinance. Late testimony had to be brought to the hearing and presented there. Oral testimony could be limited to three minutes.
• Canyon County: in a March 20, 2024 question and answer session, the development services director said hearing bodies receive their packets ten days in advance, and acceptance of late material at the hearing is at the chair's discretion. A commissioner said anything that can be read into the record in three minutes will be accepted.
• Bingham County: its 2024 procedures say all written testimony and exhibits go to the Planning and Development Department to be included in the official record, and no more than two pages of written testimony will be accepted at the hearing itself.
• City of Kuna: its hearing procedures require physical documents to be given to the clerk before testimony is received, paper displays to be readable from 10 feet or copied for everyone, and electronic presentations to be provided before the packet goes out. No late electronic submissions are allowed.

The pattern: the earlier you submit, the more likely your material is in the packet the board reads at home, and the more likely staff and the applicant respond to it in writing. Material handed in at the podium may or may not be accepted, and even if it is, board members may not have time to read it before they vote.

Standing: who can take a decision to court

Only certain people can seek judicial review of a land use decision. Idaho Code 67-6521(1)(a) defines an affected person as one "having a bona fide interest in real property" that may be adversely affected by the approval, denial or failure to act on a subdivision, variance or special use permit, by approval of a zoning ordinance upon annexation or a zoning district change for specific parcels, or by approval or denial of a conditional rezoning application. An owner nearby is the classic case. A resident across town with no interest in land that the decision could affect is not covered by that definition. The statute does not say whether a tenant's lease counts as a bona fide interest in real property, so a renter who wants to preserve an appeal should ask the planning department how the jurisdiction treats leaseholds and should put the lease and its location in the record.

Being an affected person gets you to the courthouse steps. To win, you also need to show prejudice to a substantial right under 67-5279(4). In Reese v. City of Blackfoot (June 13, 2023), neighbors of a 16-home planned unit development argued density, traffic, parking, narrow streets, rentals, an irrigation ditch and safety. The court held they had to "show, not merely allege, real or potential prejudice," such as reduced land value or interference with the use or ownership of their land. It found their evidence "either conclusory or cursory" and affirmed dismissal. The opinion noted that the court had reached the same result in earlier cases where traffic and fire access concerns were unsupported, and a different result in a case where economic harm from a parking shortage was supported by evidence in the record.

That last point is the bridge back to the hearing. A neighbor who will later need to prove harm should put the evidence of harm in the record while the board is listening: the appraiser's letter, the measured distance from the new structure to the well, the photos of the street at school pickup, the irrigation district's letter about the ditch. Saying it for the first time in a court brief is too late, because the court reviews the record.

Question	Where the answer comes from	What to put in the record
Are you an affected person?	67-6521(1)(a): bona fide interest in real property that may be adversely affected	Your address and its distance from the site; that you own or are buying it
Was a substantial right prejudiced?	67-5279(4) and cases such as Reese (2023)	Specific evidence of effect on your land's use, value or enjoyment
Did you exhaust local remedies?	67-6535(2)(b), 67-6521(1)(d) and Richardson (2023)	A timely written reconsideration request naming specific deficiencies
Is the decision supported?	67-5279(3)(d) and 67-6535(2)	The facts that contradict the applicant's evidence, so the board must resolve them

Reconsideration: the step you cannot skip

Idaho Code 67-6535(2)(b) requires an applicant or affected person seeking judicial review to first ask for reconsideration of the final decision within 14 days. The request must identify specific deficiencies in the decision. The board must decide in writing within 60 days of receiving the request, or the request is deemed denied. A decision is not final for judicial review until this process is followed, and the 28-day period for filing in court is tolled until the written reconsideration decision or the end of the 60 days, whichever comes first. Under 67-6535(3), the appeal is from the final decision and is not limited to the issues raised in the reconsideration request.

The Idaho Supreme Court enforces the deadline to the day. In Richardson v. Blaine County, decided March 20, 2023, the county approved a modified conditional use permit on March 15, 2021, allowing Idaho Power to build a power line above ground rather than underground. Neighbors filed their motion to reconsider on March 30, 2021, fifteen days later. The county denied it as untimely. The court held that the statute "unambiguously" requires a timely request, that the Blaine County Code's silence on reconsideration did not excuse it, and that "failure to timely file such a motion will bar judicial review of the agency action." The neighbors' case was over before any court looked at the merits.

Step	Deadline	Source
Request reconsideration, naming specific deficiencies	14 days after the final decision	67-6535(2)(b)
Board's written decision on reconsideration	60 days after receiving the request, or deemed denied	67-6535(2)(b)
Petition for judicial review in district court	28 days after local remedies are exhausted (tolled during reconsideration)	67-6521(1)(d), 67-6535(3)
Verbatim record kept and available to transcribe	At least six months after the final decision	67-6536

Counting is where people get hurt. The statute runs from the final decision, and a board may vote one night and sign a written decision weeks later. Ask the clerk in writing which date the jurisdiction treats as the final decision, and if there is any doubt, count from the earlier date and file early. A request filed on day 10 costs nothing. One filed on day 15 can cost the case.

Ex parte contacts: what officials must do, and what you should not do

In a quasi-judicial matter, the decision must rest on the record made at the hearing, which only works if everything the decision makers rely on is in that record. An ex parte contact is a communication about the pending matter between a decision maker and one side, outside the hearing. It is a problem because the other side cannot see it or answer it.

The leading Idaho case is Eacret v. Bonner County, 139 Idaho 780 (2004). An applicant sought a setback variance for a boathouse on Lake Pend Oreille, and adjoining landowners objected. Before the decision, one commissioner spoke privately with the applicant "a couple of times" and drove by the site. At the hearing he mentioned the contacts but did not disclose their substance or timing, and he did not disclose an earlier view of the property. He also said the variance "is going to get approved." The board granted it 2 to 1. The Idaho Supreme Court affirmed the district court's decision vacating the variance and remanding it to the board. Relying on Idaho Historic Preservation Council v. City Council of City of Boise, 134 Idaho 651 (2000), the court said a quasi-judicial officer "must confine his or her decision to the record produced at the public hearing," and any ex parte communication must be disclosed at the hearing with a general description so the other side can respond. A commissioner's prior view of the property, even one made for unrelated reasons, must also be disclosed so the parties can object or ask that all commissioners view it. And because his early statements showed his mind was irrevocably closed, and his was the deciding vote, his participation required reversal.

State agency hearings have their own rule. In a contested case under the Administrative Procedure Act, Idaho Code 67-5253 says the presiding officer "shall not communicate, directly or indirectly, regarding any substantive issue in the proceeding, with any party," except with notice and a chance for all parties to take part.

Local procedures often spell it out for residents. The City of Kuna's hearing page defines an ex parte contact as communication with a decision maker outside the formal process without the other party's knowledge, says an official who has one must make it known to staff and peers and may be excluded from voting, and tells the public to send communications about a case to the project planner or the planning and zoning director.

What a resident should and should not do

Instead of this	Do this	Why
Emailing a commissioner privately about a pending permit	Send the same email to the planning department for the record	It reaches every decision maker and the applicant can answer it, so it cannot taint the decision
Inviting a commissioner to your property to see the problem	Submit dated photos, or ask on the record for a noticed site visit by the whole board	Eacret requires disclosure of a site view and notice so all parties can respond
Calling a council member at home	Testify, or call the planner with procedural questions	Contacts must be disclosed at the hearing with a general description, and some local rules let a member with a contact be excluded from voting
Posting on a commissioner's social media page about the application	Put it in a written comment	A message the commissioner reads is a contact; one in the record is evidence
Asking a commissioner how they will vote	Ask staff about the process and the timeline	Answering would show prejudgment, which is exactly what Eacret condemned

None of this applies the same way to legislative matters. When a council considers a citywide code rewrite or a new comprehensive plan, members may meet with residents, groups and developers, like any legislator. The ex parte rule is tied to quasi-judicial decisions, which is one more reason to figure out what kind of decision is on the agenda before you pick up the phone.

Conflicts of interest

Conflicts are a separate rule with a criminal penalty. Under Idaho Code 67-6506, a member or employee of a governing board or commission may not participate in any proceeding or action when the member or employee, their employer, a business partner or associate, or a relative by blood or marriage within the second degree has an economic interest in it. Any actual or potential interest must be disclosed at or before the meeting where the matter is heard. "Participation" means taking part in deliberations under the Open Meeting Law, and a member with a conflict may not join any part of the decision. A knowing violation is a misdemeanor. The same section requires that a planning or zoning commission broadly represent the area and interests within its jurisdiction.

If you know of an undisclosed conflict, raise it in writing before the hearing, addressed to the chair through the clerk, with the facts. Accusations without facts tend to backfire. A recorded deed, a business registration from the Secretary of State or a family relationship you can document is a fact.