Cowan v. Board of Com'Rs of Fremont County, 30061.

• Decision Date: 29 November 2006
• Docket Number: No. 30061.,30061.
• Citation: 148 P.3d 1247
• Parties: Robert G. COWAN, Plaintiff-Appellant-Cross Respondent, v. BOARD OF COMMISSIONERS OF FREMONT COUNTY, Idaho and the Individual Commissioners Donald Trupp, as successor to Glen Davis, William Forbush and Gordon Smith, as successor to Richard Baker, Defendants-Respondents-Cross Appellants.
• Court: Idaho Supreme Court

148 P.3d 1247

Robert G. COWAN, Plaintiff-Appellant-Cross Respondent, v. BOARD OF COMMISSIONERS OF FREMONT COUNTY, Idaho and the Individual Commissioners Donald Trupp, as successor to Glen Davis, William Forbush and Gordon Smith, as successor to Richard Baker, Defendants-Respondents-Cross Appellants.

No. 30061.

Supreme Court of Idaho, Idaho Falls, October 2006 Term.

November 29, 2006.

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Hopkins, Roden, Crockett, Hansen & Hoopes, Idaho Falls, for appellants. C. Timothy Hopkins argued.

Karl Harry Lewies, Fremont County Prosecuting Attorney, St. Anthony, for respondent. Karl Harry Lewies argued.

BURDICK, Justice.

Appellant Robert Cowan (Cowan) appeals from a district court decision affirming the Fremont County Board of Commissioners' (the Board) approval of the preliminary and final plats for the proposed Eagle's Nest Ranch subdivision (Eagle's Nest). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal involves several petitions for review, all filed by Cowan, which the district court consolidated. It concerns two applications filed by Dr. Dean Bawden (Bawden) to subdivide and develop home sites on a parcel located adjacent to Cowan's property and near Island Park Reservoir in Fremont County, Idaho.

Bawden purchased two separate parcels of land in 2000 either personally or through his family or business entities. The land owned by Bawden or his family or business is rectangular and consists of 147 acres. Bawden has retained the sixty-one acre parcel for residential and agricultural use. However, he proposed to develop the eighty-six acre parcel into residential lots with road access. Additionally, Bawden's son, Eric, owns a parcel northwest of the Eagle's Nest development. This parcel was separated from Eagle's Nest pursuant to a Class I permit issued by the County.¹

A. The First Application

On April 24, 2000, Bawden filed his first application for a Class II permit with Fremont County, seeking to subdivide the eighty-six acre parcel of land into twenty-nine lots.² The Fremont County Planning and Zoning Commission (P & Z) considered Bawden's application and preliminary plat at a public hearing in June of that year. P & Z recommended approval of the plat to the Board and issued Bawden a permit. Cowan appealed this decision to the Board. In August 2000, the Board heard Cowan's appeal and later held a closed work session to consider the matter. This meeting, however, was incorrectly noticed as an executive session. Later that same month, the Board approved Bawden's application for a permit, but remanded the matter to P & Z to consider the issue of whether the proposed development site would eliminate historically existing access to public lands.

Later, in September 2000, Cowan filed two separate petitions for judicial review of the Board's decision and filed a lawsuit alleging that the Board violated Idaho's Open Meetings Act when it held the incorrectly noticed meeting to consider Bawden's application. On May 21, 2001 the district court determined that the Board had violated the Open Meetings Act.

In November 2000, P & Z held a public meeting to address the issue of whether the development would eliminate historically existing access to public lands. Bawden, at that meeting, declared his intention to leave open access to the public. P & Z then found the issue was moot. At that meeting P & Z also considered and recommended approval of Bawden's final plat for phases I and II of the development. Cowan appealed this decision to the Board; however, his appeal was postponed indefinitely and never heard because in May, 2001, Bawden decided to not pursue the first application any further.

Meanwhile, in January 2001, the Board held a second meeting and once again approved Bawden's preliminary plat.³ After the Board issued its written findings of fact, conclusions of law and decision, Cowan filed a second petition for judicial review. In May 2001, the district court issued its decision in Cowan's first petition for judicial review, declaring that the Board's incorrect notice for its August 23, 2000, meeting voided its August 28, 2000 decision and ordered the Board to schedule a new hearing. In the midst of this, Bawden sent letters to the Board and Cowan withdrawing this application. Since then the Board has taken no action on the first application.

B. The Second Application

On May 17, 2001, Bawden filed a new application and preliminary plat with Fremont County; this time he sought to subdivide and develop twenty residential lots. The following month P & Z held a hearing to consider Bawden's second application and plat and recommended that the application be approved. Once again, Cowan appealed P & Z's decision to the Board. Bawden then submitted his final plat to P & Z for review. On July 16, 2001, before the Board heard Cowan's appeal of the preliminary plat, P & Z considered and recommended Bawden's final plat to the Board for approval. Cowan then appealed that decision as well.

On July 30, 2001, the Board held a hearing on Cowan's appeal of the preliminary plat. Cowan's attorney was present at this meeting and submitted a written brief objecting to the notice the Board had provided for the meeting, indicating that the notice failed to include several items the FCDC requires of all notices. After a work session in August 2001, the Board approved Bawden's preliminary plat and issued a written decision on September 10, 2001. Cowan filed a petition for judicial review of this decision. On September 11, 2001, the Board held a hearing and considered and approved Bawden's final plat conditioned on Bawden entering into a development agreement as the FCDC required. On October 9, 2001 the Board issued a written decision and on October 22, 2001 the Board and the developer executed a development agreement. Cowan once again filed a petition for review, and because all four of the petitions contained common questions of law and fact the district court consolidated the petitions.

On August 19, 2003, the district court issued its memorandum decision on Cowan's four petitions for judicial review. The district court determined that Cowan's arguments relating to the first application were moot. As to his arguments regarding the second application, it affirmed the Board's decision in part, but remanded to the Board for a determination of whether Bawden's application complied with the FCDC's provisions concerning state and federal wetlands protection. The district court also awarded Cowan attorney's fees because although the district court found that Cowan had not prevailed on the issues relating to the second application, he had prevailed "in forcing the County to follow the law and its own ordinance — something it should have done without Cowan's persistence." Cowan then filed a notice of appeal of the district court's decision and Fremont County filed a cross-appeal. However, on November 18, 2003, this Court suspended Cowan's appeal.

Meanwhile, on remand from the district court, the Board held a public hearing in January 2004, to determine whether Bawden's second application complied with the state and federal wetlands protection provisions adopted by the FCDC. After hearing testimony and taking evidence the Board took the matter under advisement pending briefing by the parties. On March 22, 2004, the Board issued written findings and conclusions and found that the proposed subdivision complied with the FCDC's wetlands protection provision. Cowan then filed his fifth petition for judicial review. On June 16 2005, the district court issued its memorandum decision on this petition for judicial review, affirming the Board's decision. Cowan then proceeded with the instant appeal.

II. STANDARD OF REVIEW

The Local Land Use Planning Act (LLUPA) allows an affected person to seek judicial review of an approval or denial of a land use application, as provided for in the Idaho Administrative Procedural Act (IDAPA). Idaho Code § 67-6521(1)(d); Evans v. Teton County, 139 Idaho 71, 74, 73 P.3d 84, 87 (2003). For purposes of judicial review of LLUPA decisions, a local agency making a land use decision, such as the Board of Commissioners, is treated as a government agency under IDAPA. Urrutia v. Blaine County, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000).

In a subsequent appeal from a district court's decision in which the district court was acting in its appellate capacity under the Administrative Procedure Act . . ., the Supreme Court reviews the agency record independently of the district court's decision. As to the weight of the evidence on questions of fact, this Court will not substitute its judgment for that of the zoning agency.

The Court shall affirm the zoning agency's action unless the Court finds that the agency's findings, inferences, conclusions or decisions are: "(a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; and (e) arbitrary, capricious, or an abuse of discretion." The party attacking a zoning board's action must first illustrate that the board erred in a manner specified therein and must then show that a substantial right of the party has been prejudiced.

Eacret v. Bonner County, 139 Idaho 780, 784, 86 P.3d 494, 498 (2004) (internal citations omitted). Finally, planning and zoning decisions are entitled to a strong presumption of validity; this includes the board's application and interpretation of their own zoning ordinances. Sanders Orchard v. Gem County, 137 Idaho 695, 698, 52 P.3d 840, 843 (2002).

III. ANALYSIS

As a preliminary matter, Cowan identifies twenty-four separate issues in his brief to the Court. Nonetheless, not all of these issues are supported by argument and/or authority. As such, we will not address those...