Nancy TAYLOR, Doug Houston, Petitioners, and Kirby Vickers and Cheryl Vickers, husband and wife, Petitioners-Appellants, v. CANYON COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Idaho, Defendant-Respondent. Edward Savala, Intervenor/Respondent.
No. 34809.
Supreme Court of Idaho, Boise, January 2009 Term.
June 8, 2009.
210 P.3d 532
courts. Article V, § 2, of the
The judicial power of the state shall be vested in a court for the trial of impeachments, a Supreme Court, district courts, and such other courts inferior to the Supreme Court as established by the legislature. The courts shall constitute a unified and integrated judicial system for administration and supervision by the Supreme Court. The jurisdiction of such inferior courts shall be as prescribed by the legislature. Until provided by law, no changes shall be made in the jurisdiction or in the manner of the selection of judges of existing inferior courts.
Under the Constitution, courts consist of a Supreme Court, district courts, and such other courts inferior to the Supreme Court as established by the legislature. The inferior courts established by the legislature are the Court of Appeals and the magistrate‘s division of the district court. As stated in
1-101. Courts enumerated. The following are the courts of justice of this state:
- The Supreme Court.
- The Court of Appeals.
- The district courts.
- The magistrate‘s division of the district courts.
There is simply no basis in law for holding that the legislature intended the word court in
Canyon County Prosecutor‘s Office, Caldwell, for respondents. Samuel Bedell Langheed argued.
Rose Law Group, Boise, for intervenor Savala. Todd Michael Lakey argued.
BURDICK, Justice.
This case requires the Court to consider whether we can review the following county-level land use decisions after our recent holdings in Giltner Dairy, LLC v. Jerome Cnty., 145 Idaho 630, 181 P.3d 1238 (2008), and Highlands Development Corp. v. City of Boise, 145 Idaho 958, 188 P.3d 900 (2008): (1) amendment to a repealed county comprehensive plan map, (2) sua sponte amendment to a county comprehensive plan map through judicial notice, and/or (3) approval of a conditional rezone and corresponding development agreement. Appellants Kirby and Cheryl Vickers, husband and wife (collectively the Vickers), appeal from the district court‘s order affirming various land use decisions rendered by Respondent Canyon County Board of Commissioners (Board) in response to Intervenor/Respondent Edward Savala‘s application for a comprehensive plan map change, a conditional rezone, and a development agreement for his property. We vacate that part of the district court‘s order affirming the Board‘s amendments to the 1995 Comprehensive Plan Map and the 2010 Comprehensive Plan Map, holding that the Vickers failed to provide a statutory basis for judicial review of either amendment. We affirm that part of the district court‘s order affirming the Board‘s order for a conditional rezone of Savala‘s property, holding that the Board‘s approval of the conditional rezone and corresponding Development Agreement was not arbitrary, capricious, or an abuse of discretion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Savala is the owner of a parcel of property approximately 8.09 acres in size located in Canyon County in an A (Agricultural) zone. Savala seeks to locate a medical and dental clinic on his property, as well as to promote other commercial uses such as building a service station/convenience store, a restau-rant,
Savala then requested the Board to review his application. The Board scheduled public hearings on the application for October 25 and October 27, 2005. The October 27 hearing was scheduled in anticipation of the Board‘s approval of Savala‘s request to amend the comprehensive plan map. The approval would constitute a material change from the P & Z Commission‘s recommendation, and, therefore require a second hearing on the amendment under
NOTICE IS HEREBY GIVEN, that the Canyon County Board of Commissioners is scheduled to hold a public hearing on a request by Edward Savala for a Comprehensive Plan Map Change from an Agricultural designation to a Community Commercial designation and a Conditional Rezone of approximately 8.09 acres from A (Agricultural) zone to a C-2 (Community Commercial) zone. Also requested is approval of a Development Agreement.
On October 20, 2005, in a separate action, the Commissioners adopted Resolution No. 05-229. The resolution repealed all prior comprehensive plans, including the 1995 Canyon County Comprehensive Plan (1995 Plan) that was in place at the time Savala filed his application, and adopted the 2010 Canyon County Comprehensive Plan (2010 Plan). The resolution contained no savings clause.
The first public hearing on Savala‘s application was held on October 25, 2005. During this hearing, questions were raised by both Savala‘s counsel and the Vickers’ counsel as to whether the 1995 Plan or the 2010 Plan applied to the application. The Board ultimately decided that the 1995 Plan was the plan to be applied since it was the plan in place at the time Savala filed his application.
Due to the volume of public comment, the first public hearing was continued to October 27, 2005, which was the date previously scheduled for the second public hearing on the amendment. At the close of the October 27 hearing, the Board, by a 2-1 vote, granted Savala‘s request to amend the 1995 Plan. Commissioner Robert Vasquez, the no vote in the split decision, chose to recuse himself from any further deliberations on Savala‘s application, explaining he could not impose something that he disagreed with. Because the Board‘s decision to amend the 1995 Plan constituted a material change from the P & Z Commission‘s recommendation, the Board was required to hold a second public hearing on the amendment pursuant to
The second public hearing on Savala‘s application was commenced on March 14, 2006. Again, due to the volume of public comment, the hearing was continued to March 31, 2006. At the close of the second hearing, the two remaining commissioners approved a motion to amend the repealed 1995 Plan. The two commissioners also approved Savala‘s request for a conditional rezone of his property. Because the commissioners’ approval of the conditional rezone once again overturned a recommendation of the P & Z Commission, thus constituting a material change, a second public hearing on the conditional rezone was required under
The third and final public hearing on Savala‘s application was commenced immediately following the continuation of the second on March 31, 2006. At the close of the third hearing, the two commissioners approved the conditional rezone, along with a corresponding Development Agreement as required by
On June 1, 2006, the Vickers, who are neighboring landowners to Savala‘s property,2 filed a petition for judicial review of the Board‘s orders. The district court issued an order affirming the Board‘s decisions in all respects. The Vickers then appealed to this Court. In response, the Board filed a motion to dismiss based on this Court‘s holdings in Giltner Dairy, LLC v. Jerome Cnty. (Giltner Dairy), 145 Idaho 630, 181 P.3d 1238 (2008), and Highlands Development Corp. v. City of Boise (Highlands), 145 Idaho 958, 188 P.3d 900 (2008), which were released after the district court issued its decision. In Giltner Dairy we held that there is no statutory right to judicial review of a county board of commissioners’ decision whether or not to amend a comprehensive plan map, 145 Idaho at 633, 181 P.3d at 1241; and in Highlands we held that there is no statutory right to judicial review of a county board of commissioners’ decision whether or not to approve a request for an annexation/initial zoning of land. 145 Idaho at 962, 188 P.3d at 904. The Board argued that Giltner Dairy is dispositive of the issue regarding the Court‘s jurisdiction to review the Board‘s amendments to the 1995 Plan and the 2010 Plan. The Board also argued that the Court has no jurisdiction to review the Board‘s approval of the conditional rezone under Highlands since a conditional rezone is not a permit authorizing the development, which is a prerequisite for judicial review under the statute. Savala also filed a motion for fees and costs should the appeal be dismissed, arguing the Vickers had pursued the appeal without a reasonable basis in fact or law based on this Court‘s holdings in Giltner Dairy and Highlands. The Vickers filed a response brief, arguing that this case is distinguishable from the actions disposed of in Giltner Dairy and Highlands since Savala was seeking affirmative approval of a course of development in the form of a conditional rezone and development agreement that would allow him to begin development on his project immediately upon approval. On September 3, 2008, this Court issued an order denying the Board‘s motion to dismiss and Savala‘s motion for attorney fees and costs.
II. STANDARD OF REVIEW
This appeal involves land use decisions rendered by a county board of commissioners, which are local government actions.
In cases where LLUPA authorizes judicial review of a county-level land use decision, we follow the standard of review set forth in IAPA. In a subsequent appeal from the district court‘s decision where the district court was acting in its appellate capacity
III. DISCUSSION
A. The Board‘s Amendment to the Repealed 1995 Plan
First, the Vickers argue that the Board erred in amending the 1995 Plan Map since the Board had previously repealed the 1995 Plan. The Vickers argue that amending a repealed act is a legal nullity and, therefore, the Board exceeded its legal authority when it amended the repealed 1995 Plan. The respondents, however, argue there is no statutory right to judicial review of the Board‘s decision to amend the 1995 Plan under this Court‘s holding in Giltner Dairy, and even if there was, the Vickers did not question the Board‘s legal authority to amend a repealed plan during the hearings, thus failing to preserve the issue for appeal. We agree with the respondents that the Vickers have failed to provide a statutory basis for judicial review of the Board‘s amendment to the 1995 Plan Map under the repealed 1995 Plan. As such, there is no need for us to go on to consider whether the Vickers preserved the issue for appeal.
In Giltner Dairy, 145 Idaho 630, 181 P.3d 1238 (2008), this Court recently addressed whether a party is entitled to judicial review of a county board of commissioners’ decision regarding an amendment to a county comprehensive plan map. We held that since a county board of commissioners does not fall under the definition of agency, IAPA does not apply. 145 Idaho at 632, 181 P.3d at 1240. This Court further held that a request to change the comprehensive plan map does not authorize development and, therefore, is not an application for a permit authorizing the development under
Likewise, the Vickers do not have a statutory right to judicial review of the Board‘s decision to amend the 1995 Plan Map. The Vickers filed their appeal for judicial review based on
B. The Board‘s Amendment to the 2010 Plan
Next, the Vickers argue that the Board violated their due process rights by taking judicial notice that an amendment to the 2010 Plan Map was necessary, and in doing so bypassed the notice and hearing requirements under
(a) The planning or planning and zoning commission, prior to recommending the plan, amendment, or repeal of the plan to the governing board, shall conduct at least one (1) public hearing in which interested persons shall have an opportunity to be heard. . . . Following the commission hearing, if the commission recommends a material change to the proposed amendment to the plan which was considered at the hearing, it shall give notice of its proposed recommendation and conduct another public hearing concerning the matter if the governing board will not conduct a subsequent public hearing concerning the proposed amendment. If the governing board will conduct a subsequent public hearing, notice of the planning and zoning commission recommendation shall be included in the notice of public hearing provided by the governing board. . . .
(b) The governing board, as provided by local ordinance, prior to adoption, amendment, or repeal of the plan, may conduct at least one (1) public hearing, in addition to the public hearing(s) conducted by the commission, using the same notice and hearing procedures as the commission. The governing board shall not hold a public hearing, give notice of a proposed hearing, nor take action upon the plan, amendments, or repeal until recommendations have been received from the commission. Following consideration by the governing board, if the governing board makes a material change in the recommendation or alternative options contained in the recommendation by the commission concerning adoption, amendment or repeal of a plan, further notice and hearing shall be provided before the governing board adopts, amends or repeals the plan.
. . .
(d) Any person may petition the commission or, in absence of a commission, the governing board, for a plan amendment at any time. The commission may recommend amendments to the land use map component of the comprehensive plan to the governing board not more frequently than once every six (6) months.
The statute first directs the P & Z Commission to provide notice and a public hearing on the applicant‘s request for an amendment to the county comprehensive plan map. After the P & Z Commission issues its recommendation, the statute then requires that the Board provide notice and a second public hearing on the amendment. See
Although the Vickers are correct that the Board bypassed at least two stages of due process requirements under
C. The Board‘s Approval of Savala‘s Request for a Conditional Rezone and Corresponding Development Agreement
Finally, the Vickers attribute error to the Board‘s approval of the conditional rezone of Savala‘s property. First, the Vickers argue that the Board committed an illegal type two spot zoning. Alternatively, the Vickers argue that the Board committed an arbitrary abuse of discretion by finding the proposed use (1) was harmonious with the 1995 Plan, (2) would not be injurious to other property in the immediate vicinity, and (3) would not change the essential character of the area. The respondents argue that there is no statutory right to judicial review of the Board‘s approval of the conditional rezone under this Court‘s holding in Highlands, and even if there was, the Board‘s decision is well-supported by evidence in the record and should not be overturned. We hold the Vickers have a statutory right to judicial review of the Board‘s approval of the conditional rezone and corresponding development agreement, but nevertheless uphold the Board‘s approval because it was not arbitrary, capricious, or an abuse of discretion.
1. The Vickers have a statutory right to judicial review of the Board‘s approval of the conditional rezone of Savala‘s property and corresponding Development Agreement.
Before considering the Vickers’ arguments, the Court must determine whether it is free to review the Board‘s decision to approve the conditional rezone of Savala‘s property. As aforementioned, the Vickers filed their appeal for judicial review based on
Section 07-06-07 of Canyon County Ordinance (CCO)
Canyon County Ordinance No. 05-002 also provides for conditional use permits. The term conditional use is defined under section 07-02-03 as follows:
A use that would not be appropriate generally or without restriction throughout the zoning district but which, if regulated, would not be detrimental to public health, safety, or general welfare. The term conditional use shall mean a use or occupancy of a structure, or use of land, permitted only upon the issuance of a conditional use permit and subject to the limitations and conditions specified therein. Conditional uses require a permit as provided for in
Idaho Code § 67-6512 and this ordinance.
Although there are notable differences for why an applicant would pursue a conditional use permit versus a conditional rezone—e.g., a conditional use permit is tailored more toward specific uses as compared to a conditional rezone and a conditional use permit expires within three years if not commenced or five years if not completed whereas there is no set expiration for a conditional rezone—the two are functionally equivalent. Both ultimately allow nonconforming uses to occur on the subject property.
We find it necessary to clarify two statements listed above. First, although a conditional use permit and a conditional rezone are generally not functional equivalents, they are in this case. The appeal concerns the Board‘s approval of a conditional rezone and corresponding development agreement in accordance with Canyon County Ordinance 05-002. As set forth above, if the Board determines that conditions are necessary to restrict the use of the rezoned property less than the full use allowed under the requested rezone, then the applicant must execute a written development agreement to implement and be bound by such conditions. CCO 05-002, section 07-06-07. Here, there were conditions attached to the conditional rezone; accordingly, the Development Agreement is integrally tied to our analysis of whether the Board‘s approval of the conditional rezone constitutes a permit authorizing the development under LLUPA.
We also seek to clarify our statement that both a conditional use permit and a conditional rezone ultimately allow nonconforming uses to occur on the subject property. Technically, a conditional rezone does not allow nonconforming uses to occur on the subject property since the land classification changes. This technicality aside, the point we are trying to make is that both a conditional use permit and a conditional rezone coupled with a corresponding development agreement ultimately allow the applicant to use the subject property in a manner that would have not been permitted before the issuance of the conditional use permit or before the approval of the conditional rezone, and in a manner differently than the surrounding property owners are currently permitted to use their property, assuming that no conditional use permits or conditional rezones have been approved in respect to their property as well. Thus, the end result of a conditional use permit as well as a conditional rezone coupled with a development agreement is to allow land to be used in a way that was both nonconforming and unpermitted before the Board‘s approval.
Returning to the facts at hand, Savala requested a conditional rezone from an A (Agricultural) zone to a C-2 (Community Commercial) zone. The Board preliminarily approved Savala‘s request and imposed various conditions on his property, which included the installation of drinking water and community waste systems; the improvement and paving of a private access road; landscaping, featuring a mix of trees and shrubs; the creation of natural material fence or similar barrier no less than four feet tall on the southern border of the property; and the paving of a parking lot. These conditions were incorporated into the Development Agreement, under which Savala agreed to comply with the conditions of the conditional rezone. The Development Agreement did not contain any standards under which the Board was to determine whether or not the conditions had been met. Once Savala fully complied with these conditions, the preliminary conditional rezone would become final and his property would be rezoned to C-2. At such time, without further approval from the Board, Savala could begin construction of the medical and dental clinics and begin promoting other commercial uses of his property once obtaining the necessary permits.
Therefore, we hold that the Board‘s approval of the conditional rezone of Savala‘s property and corresponding Development Agreement is a permit authorizing the development under LLUPA that is subject to review by this Court pursuant to the standard set forth in IAPA. Although the word permit is not defined under LLUPA, the Act does make other references to the term. For example,
2. The Board did not commit illegal type two spot zoning.
The Vickers argue that the Board committed an illegal type two spot zoning by singling out Savala‘s property for commercial use in the midst of an agricultural zoning district merely for Savala‘s private gain. However, the Board argues that we need not address the Vickers’ claim of type two spot zoning because only type one spot zoning occurred in this case, which is valid. We find that the Board‘s factual determination that Savala‘s application for a conditional rezone complied with the 1995 Plan is supported by substantial, competent evidence and, therefore, agree with the Respondents that there is no need to address the Vickers’ claim of type two spot zoning.
A claim of spot zoning is essentially an argument the change in zoning is not in accord with the comprehensive plan. Evans v. Teton Cnty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003). In Evans, this Court clarified that there are two types of spot zoning. The first type, referred to as type one spot zoning, may simply refer to a rezoning of property for a use prohibited by the original zoning classification. Id. The test for whether [type one spot zoning] is valid is whether the zone change is in accord with the comprehensive plan. Id. at 77, 73 P.3d at 90. [T]he question of whether a zoning ordinance is in accordance with the comprehensive plan is a factual question which can be overturned only where the factual findings are clearly erroneous. Friends of Farm to Market v. Valley Cnty., 137 Idaho 192, 200, 46 P.3d 9, 17 (2002). The second type, referred to as type two spot zoning, refers to a zone change that singles out a parcel of land for use inconsistent with the permitted use in the rest of the zoning district for the benefit of an individual property owner. Id.
Thus, the first step in our analysis is to decide whether the conditional rezone is in accordance with the county comprehensive plan. In order to answer this question, we must determine which comprehensive plan applies. The Vickers argue that because it is a legal nullity to amend a repealed plan, the Board was required to apply the 1995 Plan without its amendment to the 1995 Plan Map. Generally, courts hold that a repealed act cannot be amended since an amendatory act alters, modifies, or adds to a prior statute. 1A Sutherland Statutory Construction § 22:3 (6th ed. 2000).5 Without an act in place, there is nothing to amend. However, this principle is inapplicable when dealing with local land use decisions in this state as Idaho law is well established that an applicant‘s rights are determined by the ordinance in existence at the time of filing an application for the permit. South Fork Coalition v. Bd. of Com‘rs of Bonneville Cnty., 117 Idaho 857, 860-61, 792 P.2d 882, 885-86 (1990); Cooper v. Bd. of County Com‘rs of Ada County, 101 Idaho 407, 412, 614 P.2d 947, 952 (1980). The Court adopted this minority rule to prevent local authorities from delaying or withholding action on an application in order to charge or enact a law to defeat the application. See South Fork Coalition, 117 Idaho at 861, 792 P.2d at 886. In other words, this rule ensures that local authorities do not engage in arbitrary action before they render their decision on an application. The policy behind this rule is independent of whether the local authorities ultimately grant an applicant‘s request(s).
Here, the 1995 Plan was in effect at the time Savala filed his application. Pursuant
From the evidence in the record, we uphold the Board‘s determination that Savala‘s request for a conditional rezone of his property from an A (Agricultural) zone to a C-2 (Community Commercial) zone is in accordance with the 1995 Plan as amended. The record reflects that the Board approved Savala‘s conditional rezone application based on the testimony of experts and citizens, both in favor and in opposition to Savala‘s request. The Board conducted a thorough analysis of the relevant components of the 1995 Plan,6 finding factors in favor, neutral, and in opposition to Savala‘s request. Ultimately, the Board determined the weight of the evidence supported the finding that the conditional rezone is in accordance with the 1995 Plan. This finding is supported by substantial, competent, although conflicting, evidence in the record and, therefore, must be affirmed. See Friends of Farm to Market v. Valley Cnty., 137 Idaho 192, 196, 46 P.3d 9, 13 (2002). Consequently, the Vickers’ claim of spot zoning need not be addressed since the type one spot zoning that occurred in this case is valid. See Evans v. Teton Cnty., 139 Idaho 71, 77, 73 P.3d 84, 90 (2003).
3. The Board‘s approval of the conditional rezone and corresponding Development Agreement was not arbitrary, capricious, or an abuse of discretion.
The Vickers also argue the Board‘s approval of the conditional rezone was arbitrary, capricious, and an abuse of discretion, and therefore should be overturned. In support of their argument, the Vickers point to three alleged errors surrounding the Board‘s approval. First, the Vickers argue that the rezone is not harmonious or in accordance with the 1995 Plan. Section 07-06-05 of CCO 05-002, which mirrors
Before addressing this issue, we find it necessary to distinguish between a county comprehensive plan and a land use map, and to clarify what effect the Board‘s amendment to the 1995 Plan Map has on our determination of whether the rezone is harmonious and in accordance with the comprehensive plan. Under
In this case, Savala made a request to rezone his property in conjunction with his request to amend the 1995 Plan Map. When presented with a rezone request, the governing board must first determine whether the rezone would be in accordance with the policies set forth in the comprehensive plan.
After reviewing the evidence in the record, we find that the Board did not abuse its discretion in determining that the conditional rezone is harmonious and in accordance with the amended 1995 Plan. Although the Vickers cite to testimony in their brief that supports their interpretation of the red dot at issue, there is also evidence in the record to support the Board‘s interpretation of the red dot. Savala‘s counsel testified that the red dot indicates a C-2 (Community Commercial) designation. In addition, Steve Fultz
Second, the Vickers argue that the rezone will create a commercial strip mall in the midst of agricultural land, thereby injuring neighboring properties and changing the essential character of the area. Section 07-06-05(B) of CCO 05-002 requires that Board consider whether the proposed use will be injurious to other property in the immediate vicinity and/or will negatively change the essential character of the area. The Vickers claim the Board failed to give adequate weight to testimony in the record that the proposal will injure neighboring properties by negatively impacting the ability of neighboring agricultural properties to manage their crops through aerial spraying and by increasing traffic in the area, thus leading to additional safety concerns. The Vickers also contend that the Board approved the conditional rezone in spite of policies contained in the 1995 Plan stating that development activity should only be encouraged in incorporated cities and/or areas of city impact, and that agricultural land with best suited or moderately suited soil, such as Savala‘s property, should be protected.
However, we are unable to find that the Board abused its discretion in determining that the conditional rezone will not be injurious to other property in the immediate vicinity and/or will not negatively change the essential character of the area. Charles Robinson, a licensed agronomist and crop advisor living approximately three miles from the subject property, testified that a development of this type will not have any adverse effects on surrounding agriculture. Mr. Robinson also testified that Savala‘s proposal would fit in well in the area and would not take agricultural ground out of production. In regard to traffic concerns, Mr. Robinson testified that the proposal would have little impact on agricultural traffic since nearby farmers use Pride Lane and the back roads and seldom use Highway 55. Furthermore, Savala testified that his proposal would include extensive landscaping as well as some fencing to buffer other uses, including agricultural uses. The Board gave weight to the fact that Savala agreed to exclude certain types of businesses from the development in an effort to lessen any adverse impact on the adjacent land owners. The Board also concluded that the proposal would not negatively change the essential character of the area since there was already commercial activity in the area, specifically that across Highway 55 from Savala‘s property, to the east of his property, and to the south around the corner from his property; and that due to its small size, the subject property is not considered economically viable agricultural land. Therefore, we find that the Board‘s determination was not arbitrary, capricious, or an abuse of discretion. See
The Vickers also attribute error to the Board‘s conclusion that the proposal created convenience. The Vickers argue that a standard of convenience will make any area with people living in it, despite its rural character and lifestyle, a future site for a strip mall. Although the Board found Savala‘s proposal would provide retail, food, and agricultural services more readily available and convenient to the surrounding agricultural industry, this was but one basis for the Board‘s approval of the conditional rezone. The Board also determined that the proposal would bring 25 to 45 additional jobs to the area with estimated combined annual salary totaling approximately $1,000,000.00, and that development would include improvements to Highway 55 at the access point,
Finally, the Vickers argue that the conditional rezone violates the purpose behind LLUPA to protect and preserve agricultural land against overdevelopment and incompatible uses. In support of their argument, the Vickers cite to
However, LLUPA seeks to protect prime agricultural land. Although LLUPA does not define prime agricultural land,
Tilling of soil, pasturage, sod/turf farms, horticulture, aquaculture, viticulture, floriculture, raising crops directly from the soil, raising livestock, poultry, poultry products, dairy animals and dairy products, bee keeping or bee keeping products, fur animals, trees grown in row crop fashion, fruits of all kinds and their products, floral and ornamental and greenhouse products, including all uses customarily accessory and incidental thereto.
Webster‘s Dictionary defines prime as first in excellence or importance: having the highest quality or value. Webster‘s New International Dictionary 1801 (3d ed. 1969). Here, the property at issue is not prime agriculture land. Mr. Robinson testified that the subject property has been planted with onion seed crop and a sweet corn seed crop but that yields were poor due to the alkaline soil. Mr. Robinson also testified that the proposal would not take prime agricultural ground out of production. His testimony in no way indicates that Savala‘s property has high value for agricultural purposes, as that term is defined by
In regard to the Vickers’ argument that the Board‘s approval of the conditional rezone frustrates the purposes listed under
Based upon our analysis set forth above, we hold that the Board‘s approval of Savala‘s request for a conditional rezone of his property was not arbitrary, capricious, or an abuse of discretion. See
D. Attorney Fees on Appeal
All parties request attorney fees on appeal. First, the Vickers request attorney fees on appeal under
Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney‘s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.
(Emphasis added).
The Board also requests attorney fees under
Finally, Savala requests attorney fees under
IV. CONCLUSION
We vacate that part of the district court‘s order affirming the Board‘s amendments to the 1995 and 2010 Plan Maps because the Vickers failed to provide a statutory basis for judicial review of the Board‘s amendments to the comprehensive plan maps. We affirm that part of the district court‘s order upholding the Board‘s order approving the conditional rezone of Savala‘s property, holding that although the Vickers have a statutory right to judicial review of the Board‘s approval of the conditional rezone and corresponding Development Agreement, we are unable to find that the Board‘s decision was arbitrary, capricious, or an abuse of discre-tion.
Justices J. JONES and W. JONES, Concur.
HORTON, J., specially concurring in part and dissenting in part.
I concur in the result, save as to the denial of the Board‘s request for an award of attorney fees pursuant to
The majority correctly states that in order for a court to review the Board‘s action in approving the conditional rezone and accompanying development agreement, there must be a statute authorizing such review.
Although the word permit is not defined in the definitions section of LLUPA,
The majority contends that approval of a conditional rezone based upon a development agreement is the functional equivalent of an issuance of a special use permit, as mentioned in
The majority reasons that a grant of either of these things ultimately allow[s] noncon-forming
Because a conditional rezone based upon a development agreement is not a permit as defined by the LLUPA, I would conclude that there is no statutory authority for review of any portion of the Vickers’ petition for review. This conclusion renders irrelevant the question of whether a conditional rezone based upon a development agreement authorizes development for purposes of
Furthermore, because there is no statute authorizing review of the Vickers’ petition, I would conclude that not only are they not the prevailing party, but that they acted without a reasonable basis in fact or law in bringing their petition. Giltner Dairy, LLC v. Jerome Cnty., 145 Idaho 630, 633-34, 181 P.3d 1238, 1241-42 (2008). I would thus award the Board attorney fees pursuant to
We have previously awarded attorney fees to a party in Savala‘s position—an intervenor on the side of the county who prevails when a petition for review is dismissed for lack of statutory authority—under
Savala also asks for an award of attorney fees pursuant to
Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney‘s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.
The dispositive language is involving as adverse parties . . . a county . . . and a person. It is true that this case involves the county and the Vickers as adverse parties. However, I do not interpret the adversity between the county and the Vickers as satisfying the adversity requirement as between the county and Savala. The county and Savala are not adverse, and thus the legislature did not intend for a party in Savala‘s position to receive an award under
Such a holding might seem to conflict with our decision in Rural Kootenai Org., Inc. v. Bd. of Com‘rs, 133 Idaho 833, 845, 993 P.2d 596, 608 (1999). In that case, a developer intervened on the side of the county, and the county lost on appeal. We stated that, pursuant to
In sum, I find that there is no statutory basis for any portion of the Vickers petition for review and thus that they acted without a reasonable basis in fact or law in bringing it. I would accordingly remand with instructions to the district court to dismiss the petition and would award attorney fees to the Board but not Savala.
Justice TROUT, J., pro tem, Concurs.
Bradley J. ZENNER and Allison M. Zenner, Plaintiffs-Respondents, v. Lance D. HOLCOMB and Jennifer K. Holcomb, d/b/a Holcomb Construction, Defendants-Appellants.
No. 35034.
Supreme Court of Idaho, Lewiston, April 2009 Term.
June 16, 2009.
210 P.3d 552