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.

Idaho Supreme Court finds real, substantial harm may come to neighbor of proposed multi-story apartment complex if development is approved

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.

Archives

Categories