Comprehensive plan amendments met Idaho statutory requirement for an “analysis” of power plant and utility locations

by Andrea Vaage and Gary Taylor

Burlile v. Payette Board of County Commissioners
Idaho Supreme Court, September 25, 2015

Alternate Energy Holdings Inc. (AEHI) became interested in constructing a nuclear power plant in Payette County, Idaho in 2009. The property the company was targeting was zoned agricultural. AEHI petitioned the County to revise the comprehensive plan so that the property could be zoned industrial. AEHI also submitted a Rezone and Development Agreement Application to the Payette County Planning and Zoning Commission. The County accepted the petition to amend the comprehensive plan and included additional language relating to energy producers looking to site facilities in the County. After the development agreement was made public in various forms, the County held a public hearing in December 2010 before the Planning and Zoning Commission (PZC), during which the PZC recommended approval of the application for the nuclear power plant.

A neighboring landowner, H-Hook, and others appealed the decision to the Board of Commissioners (Board). A revision to the development agreement was made public and the Board received additional testimony from the public. In August 2011, the Board approved the decision of the PZC to approve the development application. H-Hook and other parties sought judicial review. H-Hook argued that (1) the comprehensive plan was invalid because it is missing components addressing power plant siting and power transmission corridors as required by Idaho Code section 67-6508; (2) the rezone was illegal spot zoning; and (3) the notice and hearing procedures employed by the County were in violation of due process. The district court rejected all arguments. H-Hook appealed.

Invalid Comprehensive Plan.  H-Hook argued the comprehensive plan was not valid because it did not include sufficient language regarding siting of a nuclear power plant. Idaho Code 67-6508(h) requires a comprehensive plan include “an analysis showing general plans for sewage, drainage, power plant sites, utility transmission corridors…”  H-Hook focused on the requirement for an “analysis” and argued that the comprehensive plan should contain a certain measure of detailed consideration of the subject. The Court, however, found that the requirement of a “general” plan diminishes the degree of required “analysis.” Reading the “plain, obvious, and rational meaning” of the terms “general” and “analysis,” the Court concluded that the comprehensive plan, as amended, met Idaho Code 67-6508(h).  It found that more detailed language would be difficult for a county to adopt and implement, due to the complicated and changing nature of energy facilities.

Illegal Spot Zoning.  H-Hook argued that the rezone from agricultural to industrial was an impermissible “type one” spot zoning.  Citing prior caselaw, the Court stated that a claim of “type one” spot zoning “is essentially an argument that the change in zoning is not in accord with the comprehensive plan.”  The Court determined that the claim of “type one” spot zoning failed because the amendment to the comprehensive plan designated the property as Industrial prior to the rezoning to Industrial.

“Type two” spot zoning in Idaho occurs when a parcel is singled out for treatment different from the uses permitted in the rest of the zoning district for the benefit of an individual property owner.  The Court disagreed.  The Board concluded that the industrial use designation “encompasses existing industrial operations, such as CAFOs and the Clay Peak Landfill” within a few hundred feet of the site in question.  The Board’s factual determination is entitled to deference when supported by substantial and competent evidence, and the Court determined that this standard was met.

Due Process Violation.  H-Hook argued that it was not given adequate time to review revisions to the development agreement; however, the County made the application available to the public in physical form and on a website well before the hearing before the PZC in December 2010. The application with revisions was made public eight days before the hearing. When the issue went before the Board, the County provided a color-coded version of the revision to the public eleven days before that meeting. These efforts gave H-Hook adequate time to review the development agreement.  No due process violation occurred.

The decision of the district court was affirmed.

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