by Hannah Dankbar and Gary Taylor
Lusk, LCC v City of Boise
Idaho Supreme Court, February 10, 2015
In fall 2011, Royal Boulevard Associates, LP applied for a conditional use permit (CUP) to build a 352,000 square foot, five-story, multi-family apartment complex called River Edge Apartments. The site is located near Boise State University and is zoned Residential Office with a Design Review Overlay (R-OD). Multi-family housing is allowed at this site, but Boise City Code requires a CUP to build a building that is more than 35 feet tall in an R-OD zone. River Edge was planned to be between 59 and 63 feet tall. Lusk, LLC owns a building next to the proposed site and was therefore entitled to notice of the application for a CUP.
In spring 2012, the Boise Planning and Zoning Commission (Commission) conducted a hearing and unanimously approved the CUP for River Edge. The Commission provided a written explanation for their decision for the height variance and the CUP. Lusk appealed this decision to City Council claiming that the Commission did not adequately address the criteria for a CUP found in the zoning code. Lusk claimed that the proposed building was incompatible with the buildings in the area and that constructing 622 bedrooms and 280 parking spaces would place an “undue burden on transportation and other public facilities in the vicinity” and “the proposed project will adversely affect other property in the vicinity.” The City Council denied this appeal. The District Court affirmed the City Council’s decision and Lusk appealed to the Idaho Supreme Court.
Lusk did not appeal the height variance, just the City Council’s decision affirming the CUP. Lusk argued that because the Commission did not follow the correct procedure for granting the CUP the City Council was wrong to affirm the Commission’s decision. Lusk argued that the district court erred in affirming the City Council’s decision because: (1) the Commission’s approval did not follow the legal procedure, (2) the decision was not supported by substantial evidence in the record, and (3) the decision was arbitrary, capricious and an abuse of discretion.
Boise City Code requires the Commission to consider the criteria set forth in Boise City Code section 11-06-04.13 before approving a height exception. It states, in part, that the Commission must find that “the site is large enough to accommodate the proposed use and all yards, open spaces, pathways, walls and fences, parking, loading, landscaping and other features as are required by this title.” Idaho Code §67-6512(d)(7) provides that “conditions may be attached” to a CUP “requiring more restrictive standards than those generally required in an ordinance.” The Boise City Code also requires that the Commission determine “that the proposed use…will not adversely affect other property of the vicinity.”
Lusk argued that the Boise Code requires the Commission to determine whether planned parking is adequate for the proposed project before granting a conditional use permit. The question is whether the Commission recognized that it possessed the discretionary authority to impose parking requirements beyond the minimum established by the Parking Chapter of the code. The record unambiguously demonstrated that the Commission failed to perceive that it had discretion to require additional parking as a condition of approval of the CUP. A staff member of Boise City Planning and Development Services said that the issue of parking is not before the Commission, rather the question of variance for a height exception and the Boise River System Permit were the only questions that can be addressed.
The Commission failed to recognize that Idaho statutes and the Boise City Code provided it with discretion to require the project to provide on-site parking beyond the minimum required by the Parking Chapter. As a result of this failure to apply governing legal standards, the Commission refused to consider the adverse effects on property in the vicinity. The Court found that the decision reflected an abuse of discretion.
The Court, deciding that the Commission abused its discretion, then had to consider whether Lusk identified prejudice to their substantial rights. Under Idaho caselaw, a party opposing a landowner’s request for a development permit has no substantial right in seeing someone else’s application adjudicated correctly. He or she must be in jeopardy of suffering substantial harm if the project goes forward, such as a reduction in the opponent’s land value or interference with his or her use or ownership of the land. Without even attempting to evaluate the impact of guests who arrive by automobile, if only half of the River Edge tenants have an automobile, there will be significant numbers of residents looking for parking in the vicinity. The potential devaluation of petitioner’s property, time and expense to police parking on petitioner’s property, and inconvenience to employees and visitors to the property suggest the real potential for substantial harm. The Court concluded that there was sufficient evidence that Lusk is in jeopardy of economic harm from the project to satisfy the requirements set forth in Idaho caselaw.
The Idaho Supreme Court reversed the district court’s decision to affirm the city’s CUP approval.
