SNAKE RIVER VENTURE, a limited partnership, Appellant (Plaintiff), v. BOARD OF COUNTY COMMISSIONERS, TETON COUNTY, Wyoming, Appellee (Defendant), 616 P.2d 744

ROSE, Justice. This is a zoning controversy with a tortured procedural development. We will affirm the trial court, which held that the Board of County Commissioners (hereinafter Board) unlawfully gave final approval to a project, which, when initially approved, was probably in conformity with county regulations but was in non-conformity with amended regulations at the time the Board gave its final approval. The fact that the appellant-developer had not begun any actual construction on the project at the time of the trial court’s decision is highly significant to our disposition of this appeal.

THE FACTS This case comes to us upon a set of stipulated facts, which we will reproduce in the abridged form indicated immediately below. It may, however, first be helpful for us to provide a simplified overview. Appellant, Snake River Venture, is a limited partnership seeking to construct a subdivision and commercial development in Te-ton County. It applied to appellee, Board of County Commissioners of Teton County, for permission to do so. At first, the Board denied the application because it felt that the plan failed to conform to Board regulations.

The Board was subsequently advised by its counsel that the regulations were not legally effective, whereupon initial approval was given to the subdivision plan. The Board then amended the county zoning regulations to make them more specific and in so doing followed the proper procedure to make the amended regulations effective. Thereafter, the Board completed its approval of appellant’s project by issuing a planning certificate and approving the final plat.

Subsequently, in May, 1974, various county residents filed a declaratory-judgment action against the appellee-Board asking the court to declare that the Board had granted approval for the subdivision in violation of its regulations and that the authority for the development be rendered of no force and effect. Snake River was not a party to this action and the trial judge awarded judgment generally in favor of the county residents. In 1976, appellant-Snake River filed a declaratory-judgment action alleging the prior judgment to be a cloud on its title and thus a deterrent to its right to develop its project.

Snake River asked that the earlier judgment be declared to have no effect with respect to it and for a determination of the validity of the plat for its proposed development, which had been approved by the appellee. To this petition for declaratory judgment, the Board took the position, in its answer and counterclaim, that its approval of the development project had originally been illegal. The district court awarded judgment in favor of appellee-Board and Snake River has appealed. The above-mentioned stipulation of facts is as follows: “1.

Plaintiff is a limited partnership which is the owner of lands in Teton County, Wyoming, more fully described as follows: [Lands described here] “2. Defendant is the Board of County Commissioners of Teton County, Wyoming. “3. On or about December 6, 1972 the plaintiff partnership was formed for the purpose of acquiring and developing subject lands for condominium, apartment, townhouse and commercial purposes in accordance with plans and specifications earlier prepared. The property was acquired at a price of $225,044.44.

Plaintiff expended the sum of $56,422.74 in formulating a development plan for the property and in securing planning, environmental and economic feasibility studies up to the date of approval of the subdivision plat by the County Commissioners. “4. On August 1, 1967 the Board of County Commissioners for Teton County, adopted a resolution relating to the approval of subdivision plats, pursuant to the authority of §§ 34-12-101-115, Wyoming Statutes, 1977 [§§ 34-112 to 34-115, 34-117 to 34-126, W.S.1957] . . . “5.

Pursuant to and in conformity with the procedural provisions of §§ 289.-1-289.9, Wyoming Statutes, 1957 (now §§ 18-5-201 — 18-5-207, Wyoming Statutes, 1977), on the 19th day of November, 1970 the Defendant, Board of County Commissioners for Teton County approved a master plan entitled ‘Master Plan for Teton County’ . . .

Pursuant to and in conformity with the procedural provisions of §§ 18-289.1-289.9, Wyoming Statutes 1957, (now §§ 18-5-201 — 18-5-207, Wyoming Statutes, 1977), on the 3rd day of October, 1972 the Defendant, Board of County Commissioners, adopted a Subdivision Resolution for the regulation of subdivision applications and development in Teton County, The resolution was to become effective January 1, 1973. “6.

During January, 1973, pursuant to the subdivision resolution, plaintiff filed an application for permit to subdivide and develop the premises (50.7 acres) above described proposing to develop 550 residential units and a commercial frontage area. The proposed subdivision is within the unincorporated area of Teton County and the plans provided for a central water and sewer system to serve the entire subdivision. The application was filed with the Teton County Planning Commission. “7.

After preliminary discussions the Planning Commission, at a hearing held February 28,1973, took the matter under advisement and by letter dated April 18, 1973 rejected the plat and offered to consider a revised proposal, . “8. Plaintiff submitted a modified plat and proposal in June of 1973, having reduced the density to 350 units and retaining the commercial area. An environmental impact study was also submitted along with other materials .

The application and the plat were considered by the Planning Commission at the June 8, 1973 meeting and additional information as to sewerage facilities and environmental matters were requested by the Planning Commission at its June 20, 1973 meeting, a report submitted on behalf of plaintiff was considered and reviewed at the July 18, 1973 meeting of the Planning Commission and the project was again considered at the August 15 meeting and a special meeting was set for September 5, 1973. “9.

At a hearing held September 5, 1973 the Planning Commission voted to recommend disapproval of the new application relating their conclusions of September 5 hearing in their recommendations to the County Commissioners . “10. A joint meeting of the Board of County Commissioners and the Planning Commission was held on October 17, 1973 to review and consider the recommendations of the Planning Commission .

The joint meeting was adjourned without any action being taken and the Commissioners requested an opinion of the County Attorney relating to the applicability of the Master Plan in approving or denying subdivision applications. “11. Following receipt of an opinion from the County Attorney, Robert Ranck, the meeting of the Commissioners was reconvened on October 18, 1973 and having received, considered and following the advice of the County Attorney, the Commissioners approved plaintiff’s project, . . . subject to plaintiff providing the Planning Commission with certain additional information. “12.

On March 15, 1974, after receiving a request from a citizen’s [sic] group calling themselves ‘Friends of Jackson Hole,’ the Board of County Commissioners refused to reconsider their decision of October 18, 1973, to approve the plaintiff’s subdivision plat and proposed development ... “13. Thereafter and following additional submittals by plaintiff regarding sewer and water systems to the Planning Commission and the defendant Board, the County Commissioners on April 3, 1974, issued a Planning Certificate authorizing commencement of development upon approval of a final plat.

On July 2, 1974 defendant Board approved the final plat of the subdivision entitled ‘Teton Rendezvous.’ . . . The plat was filed and recorded in the records of Teton County, Wyoming on July 2, 1974 in Book 1 of Maps at page 9. “14. At a meeting of the County Commissioners held December 11, 1973, the Commissioners amended the 1972 Subdivision Resolution, incorporating a density requirement of one residence for each three acres and revising certain procedural provisions, and readopted the Resolution . . . The Subdivision Resolution, as amended, was filed with the Secretary of State on February 1,1974.

Pri- or to this filing the previous Resolution, [sic] had not been filed with the Secretary of State, nor had notice of that Subdivision Resolution been mailed to the Wyoming Attorney General’s office prior to its adoption, through an omission of which the County Commissioners were unaware. “15. On May 13, 1974 certain third-party residents of Teton County commenced a civil action in Teton County District Court (Civil 3011) against defendant Board wherein plaintiffs sought to have the Court declare subdivision permits acted on by the Board to have been improperly issued.

Plaintiff herein, Snake River Venture, though having knowledge of the litigation, was not joined as party and did not seek joinder . A Judgment favorable to the Teton County residents who were plaintiffs was entered by the Court on November 12, 1974. “16.

Teton County, in administering its Master Plan and Subdivision Regulations from and after January 1, 1973, up to and until the adoption of the current Teton County Comprehensive Plan and Implementation Program on January 1, 1978, approved the following applications to subdivide land in the unincorporated areas of the County: [The stipulation contains a lengthy list of subdivision applications, almost all of which have a density of less than one lot per acre.

Appellant’s application has the greatest density of any in the list.] “No highway commercial development was approved in any of the above subdivisions adjacent to a public highway between January 1, 1973 and January 1, 1978 with the exception of Plaintiff’s application and no formal applications were made for a commercial area bordering on a public highway during such period except Plaintiff’s and the Letellier application approved with Plaintiff’s and later rejected. “17.

Plaintiff filed this civil action on December 6, 1976, seeking a determination of the validity of the subdivision plat and permit approved by the Defendant Board of County Commissioners. “18. The Board of County Commissioners has, since the filing of this litigation, adopted a Comprehensive Plan, effective January 1, 1978, which superseded the early Master Plan and subdivision Resolution. “19.

Plaintiff has undertaken no physical development of the property.” (Bracketed matter supplied.) The Issues Initially, appellant-Snake River argues that the 1974 declaratory judgment was void because it was a necessary but unnamed party and therefore the district court was without jurisdiction to hear the case. The declaratory-judgment action filed by the appellant sought to collaterally attack this earlier declaratory judgment. We construe Snake River’s first argument as an appeal from the refusal of the district court to rule favorably on this collateral attack.

Appellant’s second argument is that the district court was without jurisdiction to consider appellee’s counterclaim in the later declaratory-judgment action. Finally, appellant argues that its subdivision plat was legally approved by the appel-lee-Board and, therefore, the district court was wrong in the later declaratory judgment when it arrived at a contrary conclusion. The appellee-Board does not argue that the 1974 Declaratory Judgment should be binding on the appellant, but does take issue with appellant’s other contentions.

As we perceive the totality of this appeal, Snake River seeks to render void or ineffective the two declaratory judgments discussed above. Such a result would leave Snake River with valid authority to start its project. We view the main issue in this case to be whether the appellee acted unlawfully in approving the project. This issue is closely related, but distinct from, the question of whether the appellee could lawfully have refused to approve a certificate and final plat for the proposed development.

DISCUSSION Appellee’s Counterclaim In urging that the district court is without jurisdiction to consider the appellee-Board’s counterclaim, the theme of which is that its own decision is illegal, Snake River says that the declaratory-judgment route is not the way appellee should appeal its own decision, and, in any case, an agency such as a board of county commissioners may not appeal its own decision. These arguments are irrelevant because we consider appellee’s counterclaim to be surplusage and unnecessary to our decision here.

Appellant’s declaratory-judgment complaint squarely placed before the district court the issue of the validity of appel-lee’s approval of appellant’s subdivision plat. Appellant’s complaint contains this language: “WHEREFORE . . . plaintiff [appellant] prays that the Court determine and declare the validity and effectiveness of its Final Plat in order that plaintiff may proceed with development of its property free of the cloud. . . ” See, also, paragraph 17 of the stipulated facts.

Since the question of the validity of the final plat was properly before the district court in the second declaratory-judgment action and was resolved in the negative — a result we will affirm — there is no need for us to evaluate the procedural correctness of the first declaratory judgment. Was the Appellee’s Approval of Appellant’s Subdivision Plat Binding on Appellee or Was it an Illegal Act Which was Void? As we have mentioned, the appellee-Board undertook three separate steps in approving appellant’s project. They were: Initial approval, issuance of the certificate, and approval of the final plat.

We seriously doubt that any validly promulgated zoning ordinances specific enough to be enforceable were in conflict with the proposed development at the time that appellee gave its initial approval. However, this issue need not be reached since a density requirement of no more than three residences per acre became effective prior to the last two approval steps of the appellee. (See paragraph 14 of the stipulated facts. Furthermore, appellant’s brief does not quarrel with the validity of the December 11, 1973, amendment. Nonetheless, the dissent does dispute the validity of the amendment.

We will respond to the dissent’s argument separately.) From paragraphs 6 and 8 of the stipulated facts, it can be seen that appellant’s modified proposed development was in conflict with the new density requirement. We will assume, arguendo, that appellee’s initial approval of the project was lawful and valid. Even so, we are led to the conclusion that appellee’s final approval of the project was unlawful.

Appellant directs attention to § 18-289.9, W.S.1957, 1975 Cum.Supp. [now § 18-5-207, W.S.1977], which says that a zoning resolution shall not prohibit the continuance of the use of any land, building or structure for the purpose for which it is used at the time the resolution takes effect. From this, the appellant argues that “the use of the land had already been determined” by the appellee’s initial approval of the project.

However, we do not equate the word “use” in the statute with the above-quoted clause from appellant’s brief. (It is stipulated that no construction has been undertaken on the land.) We cannot agree with appellant that the express language of § 18-5-207, W.S.1977, supra, required that the ap-pellee not revoke its original permission despite the subsequent change in its zoning laws. 4 Antieau, Local Government Law, County Law, § 35.11, p. 128 (1966), is helpful: “Mere possession of a building permit confers no vested rights upon the recipient and even thereafter, the county can amend its zoning ordinance to outlaw the activity or structure covered by the permit.

However, where a valid permit has been followed by substantial construction or irrevocable contractual commitments courts speak of a vested right and equitable estoppel and deny counties authority to revoke the permit or outlaw the activity or structure at the permitted site. A California Supreme Court decision interpreting a statute similar to our § 18-5-207, supra, is also helpful. San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972, 974-977 (1951). A businessman had some gasoline storage tanks on his property prior to a zoning-law change which prohibited such a use of the property.

The tanks already there were uncontestedly “grandfathered.” The businessman, after the zoning change, built additional tanks and the city initiated suit. The businessman argued that the .use of the property for storing gasoline had been grandfathered, but the California Supreme Court rejected this argument and held that only the original tanks were grandfathered. Despite the businessman’s contention that he had intended to construct more tanks as soon as possible, the court held that he had no vested right to build more tanks since he had not begun construction of the tanks before the zoning-law change.

We have encountered a number of cases in which the county or a similar authority was estopped from revoking its prior approval of a development; however, in all of these cases the estoppel was conditioned upon actual construction having been performed in reliance upon the earlier approval. Prince George’s County v. Blumberg, Md.Ct.Spec.App., 407 A.2d 1151 (1979); Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977); Kaeslin v. Adams, Fla., 97 So.2d 461 (1957); and Griffin v. County of Marin, 157 Cal.App.2d 507, 321 P.2d 148 (1958). Boise City, supra, is particularly helpful.

Discussing Idaho law, the court said: “When a zoning ordinance is enacted, it cannot outlaw previously existing nonconforming uses . . . The non-conforming use must, however, be one which already exists, not one which is merely contemplated . Such is the balance which is struck between private property rights on the one hand, and, on the other, the right of a municipality to exercise its police power by enacting a zoning ordinance in behalf of the general welfare ... It follows that the correct rule ... is: “ ‘ . . .

While- a landowner who merely obtains a building permit is not protected against a future zoning change, he will be protected if, in reliance on the permit or the existing zoning, he has made substantial expenditures or otherwise committed himself, to his substantial disadvantage, before the zoning is changed. Annot., 49 A.L.R.3d 13, 20 (1973).”’ 572 P.2d at 894. See, also, Rogin v. Bensalem Township, 3 Cir., 616 F.2d 680 (1980).

In view of the above authorities, we must conclude that appellant had no vested right to construct the partially approved project at the time the appellee-Board changed its zoning requirements. This brings us to the conclusion that the Board, in approving the final plat and issuing the planning certificate, acted in violation of its own regulations without adequate legal justification.

Section 18-289.3, W.S.1957, 1975 Cum. Supp. [now § 18-5-203, W.S.1977] specifically provides, in part, that “ . . .no zoning certificate shall be issued unless the plans for the proposed building, structure or use fully comply with the zoning regulations then in effect. . ” (Emphasis supplied.) It, therefore, follows that the issuance of the certificate and approval of the final plat was unlawful. Even so, we are left with the need to make fuller and further comment. We hear the appellant’s argument that the entire process has operated unfairly to its detriment.

It is true that the appellee, although hostile to appellant’s proposed development, concluded that the lack of enforceable regulations forced it to give initial approval to the proposed development. Then, while appellant was undertaking to satisfy the county’s administrative requirements, the Board enacted an enforceable zoning regulation. The appellee completed its approval of the project and then took the position that its approval was invalid. Should the law condone this behavior on the part of the Board? A number of comments are in order. First, there is no evidence that the Board acted in bad faith.

Appellee intended to honor its approval until sued by third parties contesting that approval. When the district court declared that appellee had acted unlawfully in approving the project, it was not in any sense improper for the appellee to heed the court’s position. Second, as discussed above, we are basing the exercise of our jurisdiction — and justifying the jurisdiction of the district court which ruled below — not on appellee’s counterclaim, but on appellant’s own request for declaratory judgment, which we construe to be broad enough to support — indeed to require — the judgment of the district court.

Third, it becomes appropriate to ask whether the appellee achieved a result through this unusual chain of events that it could not have achieved directly. In other words, if we assume that appellee had no enforceable regulations to prohibit appellant’s project proposal in 1973, did appellant have a right to approval of its project, despite appellee’s apparent belief that approval was not in the interests of the general welfare? In Schoeller v. Board of County Com’rs, Wyo., 568 P.2d 869, 878 (1977), we stated that § 18-289.1, W.S.1957, 1975 Cum.

Supp. [now § 18-5-201, W.S.1977], gives counties either express or implied power to enact a “freeze-resolution,” without notice and hearing, providing that such a freeze is only for a reasonable length of time. Schoeller says that a county can impose a temporary building and development freeze if some time is needed to draw up comprehensive regulations.

Thus, under Schoeller, the absence of valid county zoning regulations at a particular time does not force the county to accede to a particular proposed development, in view of the fact that the county has the authority to stop development for any reasonable amount of time required to properly promulgate regulations. This is, of course, simply a more specific statement of the general rule that a property owner has no vested right (which will withstand a later zoning regulation) in a development which is merely contemplated.

We conclude that there is no inherent unfairness in holding that the issuance of the certificate and approval of the final plat for appellant’s project was unlawful and that the law dictates such a holding. THE VALIDITY OF THE DENSITY REQUIREMENT There remains the issue, raised only by the dissent, of the validity of the December 11,1973 amendment which imposed a density requirement on new developments. The fact that this issue was not presented to us in appellant’s brief would dispose of the issue for the author of this opinion.

However, not all members of the majority agree that such a simple disposition is warranted. Accordingly, it becomes necessary to discuss this issue in some detail. The dissent finds that the density requirement was ineffective for two reasons. First, it attacks the density requirements as an improper exercise of power by the Board. Second, the dissent argues that the amendment expired without any further action upon the passage of 160 days.

The Board had Authority to Enact the Density Requirement As discussed in paragraph 5 of the stipulation, reproduced supra, the Board of County Commissioners, in 1970, adopted a Master Plan for development of the county. From our review of the Master Plan, it is clear that the plan was advisory and philosophical; it was not, nor was it intended to be, enforceable legislation or regulation. Also, as mentioned in paragraph 5 of the stipulation, the Board, in 1972 adopted a subdivision resolution to become effective in early 1973.

According to our review of this document, we conclude that it imposed no valid substantive requirements for subdivisions contemplated under the facts of this case. As described in paragraph 14 of the stipulation, the Board, on December 11, 1973, amended the subdivision resolution which it had enacted in 1972.

The amendment imposed a density requirement of no more than three residential units per acre. (See fn. 1, supra, for an explanation of the discrepancy between this statement and the stipulation.) The dissent has created the strawmen of zoning and planning and then has explained why the subdivision resolution (and its amendment) was neither of those. The statutory justification for the resolution and amendment is §§ 18-289.1 through 18-289.9, W.S. 1957, 1975 Cum.Supp. [now §§ 18-5-201 through 18-5-207, W.S.1977.]

Section 18-289.1, supra, states: “In order to promote the public health, safety, morals and general welfare, the board of county commissioners of any county shall be and hereby is authorized to regulate and to restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public use, and other purposes in the unincorporated area of the county.

It is provided, however, that nothing in this act [§§ 18-189.1 to 18-289.9] shall be construed to contravene any zoning authority of any incorporated city or town and no zoning resolution or plan shall prevent any use or occupancy reasonably necessary to the extraction or production of the mineral resources in or under any lands subject thereto.” (Emphasis supplied.) We read the very lucid first sentence of the statute to mean that the board of county commissioners, acting as the board, has power to regulate and restrict the use and location of buildings.

The dissent says that this statute “does not pertain in any manner to subdivision control.” We cannot agree. The language is a broad grant of authority. As the dissent points out, zoning power derives from the State’s police power. We think it abundantly clear that the statute just quoted delegates whatever police power is necessary to promulgate a subdivision, zoning, or planning ordinance. The dissent contrasts the statutes just cited with §§ 18-5-101 through 18-5-107, W.S.1977, a current subdivision-control law which was not in effect during the time pertinent to this case.

But no inherent barrier is apparent that would have prevented the board of county commissioners from adopting the same provisions that now appear in §§ 18-5-301 through 18-5-310, W.S.1977. Under our statutory and case law, there are two ways for the county board to exercise the regulatory power delegated to it by the legislature under § 18-289.1, supra. This statute states that the board may create a planning and zoning commission. Sections 18-289.3 and 18-289.4, supra [now § 18-5-202(

b) and (c), W.S.1977], provide for the planning and zoning commission to prepare and present to the board a comprehensive plan; certain procedural requirements (a public hearing and notice) are imposed on the planning and zoning commission.

In addition to the above-described statutory procedure, we held in Schoeller, supra at 874, that § 18-289.1, supra, gives the board “implied power to do those things which would make its express power to regulate and restrict the use of buildings and land in unincorporated areas of the county meaningful.” In that opinion, we held that the county board could freeze all development for a limited time until a planning and zoning commission could draft appropriate regulations to protect the unincorporated areas of the county from unplanned development.

However, in Schoel-ler, the majority held that such a freeze could not continue for five years without a public hearing. The Schoeller majority compared the five-year freeze with confiscation of property. (The Schoeller dissent would have gone even further and argued that the county board’s implied powers were great enough to enforce a five-year freeze while comprehensive regulations were being developed.) The density requirement, whose validity the dissent in this case, sua sponte, contests, was denominated as an emergency resolution.

A requirement of no more than three dwelling units per acre of land in unincorporated areas of the county is far less intrusive and onerous than a freeze on all development. Indeed, a density requirement of no more than three residential units per acre of land, unlike a freeze on development, might easily become a permanent regulation without giving rise to any reasonable constitutional challenge that the regulation is a confiscation of property. We think it is clear that the density requirement amendment was authorized by the statute.

Unquestionably, it is sustained by the county board’s implied powers under Schoeller, supra. Since the dissent focuses on the original resolution rather than the amendment, it is appropriate to confront the argument that an amendment to an invalid original resolution had no force. First, there were procedural requirements in the original resolution, the validity of which the dissent does not contest. These requirements gave the original resolution a vitality even if the resolution’s substantive directives were too vague to be enforced. It is to be observed that the original resolution had a savings clause.

Second, we cannot see why the savings clause of the original resolution could not operate to save the amendment if the entire original resolution were struck down. Third, the Board’s implied powers under Schoeller, supra, gave it power to enact the emergency density requirement independently of the original resolution. The dissent attacks the resolution (and presumably the amendment) as not being comprehensive enough and complains that “[i]t is applicable only to subdivisions.

The requirements contained in it do not apply to designated zones of districts in the county in a comprehensive manner . . . .” We think the discussion of Schoeller adequately rebuts the dissent’s argument about comprehensiveness if the burden of the argument is that the requirement of comprehensiveness comes from §§ 18-289.2 through 18-289.4 supra. Is the dissent questioning whether it is a reasonable legislative classification to temporarily impose a density requirement only on subdivisions?

We are dealing predominantly with rural land (unincorporated areas of the county) and the most common way to crowd people into rural land is through subdivision. In Washakie County School District No. One v.

Herschler, Wyo., 606 P.2d 310, 333 (1980), we said: “. . [Wjhen an ordinary [non-fundamental constitutional] interest is involved, then a court merely examines to determine whether there is a rational relationship between a classification . and a legitimate state objective. . .” Neither the parties nor the dissent have presented any argument to the effect that it is irrational to impose a density requirement on subdivisions in order to avoid undesirable development. Secondly, it is argued that the resolution does not comply with the statutory authority it relies on. § 18-289.1, et seq., supra.

It is urged that the resolution contains water-supply and sewage-regulation provisions which are properly regulated under another statute with different procedures. The dissent does not argue that the density requirement is solely a water-supply or sewage-regulation requirement. Therefore, in light of the severability clause discussed above, we fail to see the relevance of this argument. Third, the dissent argues that the resolution is too vague. But the density amendment is not at all vague.

The 160-Day Issue The two actions by the county board which are the subject of dispute here are its final approval on July 1, 1974, of the appellant’s subdivision plat for its proposed project and the Board’s April 3, 1974, issuance of a planning certificate for the project. (Earlier, the Board had given its initial approval to the project; and we can all assume that prior to the passage of the density amendment, the Board acted lawfully in giving original approval to the proposed project.) As previously discussed, on December 11, 1973, the Board passed an amendment to the original resolution imposing a density requirement on all new subdivisions of no more than three units per acre.

The minutes of the meeting at which this amendment was adopted contain the following: “After the three hour discussion the following motion was made by Mr. Brown: “To accept the following Density Resolution for a period of 160 days. “Mr. Ashley added an amendment, that at the end of the 160 day period, a survey be taken to determine which way the county wants to go. “Ralph commented on the work that the other three on the Planning Board had done. “Motion carried 2 to 1.” (Exhibit 14.) The dissenter apparently claims that it was a stipulated fact that the amendment was to be effective for only 160 days.

Paragraph 14 of the stipulation, supra, does not so stipulate, and that is not the only possible conclusion to be drawn from these minutes. The record does not reveal what, if any, action the Board took 160 days later. The amendment itself contains no language limiting its life span to 160 days. We think it proper to give the language of paragraph 14 of the stipulation its ordinary meaning and conclude simply that the resolution was amended.

However, even if the dissent is correct in assuming that the amendment was to extend for only 160 days, the planning certificate was issued within 160 days of passage of the amendment. Issuance of a valid planning certificate is a procedural requirement to subdivide land. See

Article 1,

Section 6, of the Resolution. The issued planning certificate was in conflict with a valid regulation and was, therefore, improperly issued. Thus, the district court was correct in declaring void appellant’s authority to commence its subdivision project. Further, the appellant argues that the amendment could not become effective until filed with the Secretary of State on February 1, 1974. If this is true and if, as the dissent argues, the amendment had a 160-day life span, then July 2, 1974, the date when the Board approved the final plat, fell within that 160-day life span if it is calculated from February.

Thus, approval of the final plat was also invalid. The judgment of the district court that “the Planning Certificate issued to the Plaintiff by the Defendant on May 3, 1974, and the plat approved and filed of record in the Office of County Clerk on July 1, 1974, in Book 1 of Maps, Page 9, as Plat No. 248, are of no force and effect. . . .’’is affirmed. There is no need to rule on the correctness of the trial court’s judgment that appellee’s initial approval of the project was unlawful. Affirmed. . The stipulated facts state the amendment required a density of one residence per three acres.

However, the exhibit attached to the amendment shows the density requirement to be no more than three dwelling units per acre. At any rate, regardless of whether the density requirement is three acres per unit or three dwellings per acre, the modified proposal for the development involved 350 units on 50.7 acres of land, and that density was clearly in excess of the density requirement.