Evans v. BOARD OF COM'RS OF CASSIA COUNTY

• Decision Date: 31 May 2002
• Docket Number: No. 25986.,25986.
• Citation: 50 P.3d 443,137 Idaho 428
• Parties: In re Board of County Commissioners of Cassia County Idaho Sitting as the Cassia County Planning and Zoning Commission-Resolution No. 98-12-1. John EVANS and Jackson Allred, Appellants, v. BOARD OF COMMISSIONERS OF CASSIA COUNTY IDAHO, Respondent, and Larry R. Watterson, Intervenor-Respondent.
• Court: Idaho Supreme Court

50 P.3d 443

137 Idaho 428

In re Board of County Commissioners of Cassia County Idaho Sitting as the Cassia County Planning and Zoning Commission-Resolution No. 98-12-1.

John EVANS and Jackson Allred, Appellants, v. BOARD OF COMMISSIONERS OF CASSIA COUNTY IDAHO, Respondent, and Larry R. Watterson, Intervenor-Respondent.

No. 25986.

Supreme Court of Idaho, Twin Falls, March 2001 Term.

May 31, 2002.

Parsons, Smith & Stone, Burley; Marcus, Merrick, Montgomery, Christian & Hardee, LLP, Boise, for appellants. Randolph C. Stone argued.

Kerry D. McMurray, Burley, for respondent.

Jason D. Walker, Rupert, for intervenor-respondent.

SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED 1/17/02 IS HEREBY WITHDRAWN.

KIDWELL, Justice.

This appeal arises from the decision of the Board of County Commissioners of Cassia County, sitting as the Cassia County Planning and Zoning Commission (the Board), to grant a special use permit for the development of a gravel pit. The appellants, residents in an adjacent subdivision, argue that the Board erred and that the permit application was fatally flawed. The appellants bring this appeal following a decision by the district court affirming the Board. We affirm the decision of the Board.

I. FACTS AND PROCEDURAL BACKGROUND

Larry Watterson owns a tract of land of approximately forty-six-acres that is the subject of this appeal. Watterson purchased the property in 1975 and has historically used it for agricultural purposes. The property is located within an agricultural-residential zone, and contains high quality deposits of sand and gravel.

The property is located on Highway 27 in Cassia County, Idaho. To the north and to the east, the property is bordered by mostly agricultural property with some residential areas. On the immediate west side of the property there is more residential land, with more agricultural land farther to the west. The Third Lift Canal borders the property to the south, and an active gravel pit is situated beyond the canal. There are also several other active gravel pits in the near vicinity.

The "VIP Estates" is a residential subdivision sitting to the west of Watterson's property. The houses in the "VIP Estates" are described as $200,000 "luxury" homes. The appellants in this case, John Evans and Jackson Allred, own homes in the VIP Estates.

On October 5, 1998, Watterson filed an application for a special use permit, which would allow him to develop a gravel pit. A hearing was set for November 2, 1998, but was rescheduled for December 7, 1998, because of a defect in the notice requirements. On December 21, 1998, the Board granted Watterson a conditional special use permit. The permit contained approximately thirty-two specific conditions relating to the operation of the gravel pit.

On January 15, 1999, the appellants, along with two other homeowners, filed a petition for review with the district court, seeking to overturn the Board's decision. Following oral argument, the district court entered its decision on September 17, 1999, affirming the Board's decision to issue the special use permit. Specifically, the district court found that there was substantial evidence presented to the Board at the hearing. The district court also found that the Board had complied with its comprehensive plan in its decision to grant the special use permit. Finally, the district court determined that the Board's decision was based on sound evidence, and was not arbitrary, capricious, or an abuse of its discretion.

On October 29, 1999, appellants Evans and Allred filed a timely notice of appeal.

II. STANDARD OF REVIEW

Local zoning decisions made under the Local Land Use Planning Act (LLUPA), I.C. §§ 67-6501-6538, are reviewed according to the judicial review provisions of the Idaho Administrative Procedures Act (IDAPA), I.C. §§ 67-5270-5279. I.C. § 67-6521(d); Payette River Prop. Owners Ass'n v. Board of Comm'rs of Valley County, 132 Idaho 551, 554, 976 P.2d 477, 480 (1999). "In a subsequent appeal from the district court's decision where the district court was acting in its appellate capacity under the IDAPA, the Supreme Court reviews the agency record independently of the district court's decision." Payette River Prop. Owners Ass'n,132 Idaho at 554,976 P.2d at 480. This Court will not substitute its judgment for that of the zoning agency as to the weight of the evidence on questions of fact. I.C. § 67-5279(1); Lamar Corp. v. City of Twin Falls, 133 Idaho 36, 39, 981 P.2d 1146, 1149 (1999).

Additionally, this Court will defer to the agency's findings of fact unless those findings are clearly erroneous and are unsupported by the record. Lamar Corp., 133 Idaho at 39, 981 P.2d at 1149. There is a strong presumption of validity favoring the actions of the zoning agency when applying and interpreting its own ordinances. Id. The zoning agency's decision will be set aside only if it is: "(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; or (e) arbitrary, capricious, or an abuse of discretion." I.C. § 67-5279(3)(a)-(e). Even if the agency erred in one of these ways, the party attacking the agency's decision must still show that a substantial right of that party has been prejudiced. Payette River Prop. Owners Ass'n, 132 Idaho at 554, 976 P.2d at 480.

III. ANALYSIS

A. The Board Did Not Err In Granting Watterson A Special Use Permit.

In their statement of issues presented on appeal, the appellants allege that the Board's decision to grant Watterson the special use permit violated subsections (a), (c), (d), and (e) of I.C. § 67-5279(3). Appellants' brief does not present argument or cite authority for the proposition that the Board's decision should be reversed as being arbitrary, capricious, or an abuse of discretion under subsection (e). Therefore, we will limit our review to subsections (a), (c), and (d).

1. The Board Did Not Violate Statutory Or Constitutional Provisions.

In arguing that the Board violated statutory or constitutional provisions, the appellants point out the lack of specificity and detail contained in Watterson's application that was approved by the Board. Section 12-2 of the Cassia County Zoning Ordinance addresses the application requirements for a special use permit. It requires:

An application for [a] Special Use Permit shall be filed with the Administration by at least one (1) owner or lessee of property for which such special use is proposed. At a minimum, the application shall contain the following:

a. Name, address and phone number of applicant;

b. Legal description of property;

c. Description of existing use;

d. Zoning District;

e. Description of proposed special use;

f. A plan of the proposed site for the special use showing the location of all buildings, parking and loading area, traffic access and traffic circulation, open spaces, landscaping, refuse and service areas, utilities, signs, yards and such other information as the Commission may require to determine if the proposed special use meets the intent and requirements of this Ordinance.

g. A narrative statement evaluating the effects on adjoining property; the effect of such elements as noise, glare, odor, fumes and vibration on adjoining property; a discussion of the general compatibility with adjacent and other properties in the district; and the relationship of the proposed use to the Comprehensive plan.

h. A fee of $150.00.

In relation to subsection (g), which deals with the effects on adjoining property, Watterson provided the following information on the fill-in-the-blanks special use permit application:

We will excavate this 46 acres for the gravel, saving the top soil. After excavation is completed, the topsoil will be replaced & the 46 acres will be farmed.

As for the noise, it will not exceed the noise normal to this area. (farm equipment and the Highway Traffic of Hwy 27[)]. Glare, odors, vectors, fumes, vibrations should not be a problem in a gravel pit.

Appellants argue that Watterson's description does not sufficiently satisfy the requirements of section 12-2. However, a local land use ordinance is not a "statutory provision" enacted by the legislature, the violation of which provides grounds for reversal under I.C. § 67-5279(3)(a). Nowhere in the LLUPA is "ordinance" or "rule" likened to or used synonymously with "statute." The judicial review sections of the IDAPA, incorporated by reference in the LLUPA, provide a review mechanism that differs from that which a court would employ in reviewing the interpretation and application of a statute. See Lamar Corp., 133 Idaho at 39, 981 P.2d at 1149 (holding in part that there is a presumption of validity favoring the actions of a zoning agency when applying and interpreting its own ordinances); Payette River Prop. Owners Ass'n, 132 Idaho at 554, 976 P.2d at 480 (holding in part that, even if an agency erred under I.C. § 67-5279, the party attacking the agency's decision must still show that a substantial right of the party has been prejudiced). Thus, a local zoning agency's interpretation of its own ordinances, even if questionable, without more, does not necessarily amount to a violation of an Idaho statutory provision.

The appellants also argue that the information provided in the special use application, in relation to subsection 12-2(g) of the ordinance, failed to meet the requirements that adjoining land owners and the public be provided notice and an opportunity to present and rebut evidence, which requirements are found in I.C. § 67-6512 and I.C. § 67-6534. The appellants have not challenged the sufficiency of the information provided by Watterson in the application's section relating to section 12-2(f) of the ordinance. As for the challenged above-quoted narrative under section 12-2(g), Watterson gave a description of the general nature of the work to...