Fischer v. City of Ketchum

• Decision Date: 25 March 2005
• Docket Number: No. 29469.,29469.
• Citation: 141 Idaho 349,109 P.3d 1091
• Court: Idaho Supreme Court
• Parties: Catherine G. FISCHER; David Nixon; Dorothy L. and W. Hunter Simpson, husband and wife; Sally Behnke, Petitioners-Appellants, and Paul and Carol S. Fremont-Smith, husband and wife; Timothy and Natalie Redpath, husband and wife; Frank and Jodine Tonnemaker, husband and wife; Lionel S. Mosley; Stanley C. & Gweneth Carlson, husband and wife; Hayward Sawyer; and Bruce D. Armstrong, Petitioners, v. CITY OF KETCHUM, an Idaho municipal corporation; the Ketchum City Council; and the Ketchum Planning and Zoning Commission, Respondents, and Douglas Delmonte, Intervenor-Respondent.

109 P.3d 1091

141 Idaho 349

Catherine G. FISCHER; David Nixon; Dorothy L. and W. Hunter Simpson, husband and wife; Sally Behnke, Petitioners-Appellants, and Paul and Carol S. Fremont-Smith, husband and wife; Timothy and Natalie Redpath, husband and wife; Frank and Jodine Tonnemaker, husband and wife; Lionel S. Mosley; Stanley C. & Gweneth Carlson, husband and wife; Hayward Sawyer; and Bruce D. Armstrong, Petitioners, v. CITY OF KETCHUM, an Idaho municipal corporation; the Ketchum City Council; and the Ketchum Planning and Zoning Commission, Respondents, and Douglas Delmonte, Intervenor-Respondent.

No. 29469.

Supreme Court of Idaho, Idaho Falls, September 2004 Term.

March 25, 2005.

Werth Law Office, PLLC, Ketchum, for appellants. Douglas A. Werth argued.

Benjamin Wilbur Worst, Ketchum, for respondents. Benjamin W. Worst argued.

BURDICK, Justice.

This is a case involving review of a conditional use permit application and a design review application submitted by Douglas Delmonte. Delmonte proposed to build a four-story duplex on his property located in a residential zone within the Mountain Overlay District and the Avalanche Zone District that are governed by specific provisions of the Ketchum Zoning Code. Because the Ketchum City Planning and Zoning Commission (Commission) failed to request an Idaho engineer's certification prior to granting the conditional use permit, the Commission could not legally grant the conditional use permit. The matter is remanded to Ketchum Planning and Zoning Commission for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners/Appellants (hereinafter Fischer) are owners of real property within the City of Ketchum, located on Sage Road in the vicinity of the undeveloped real property owned by Douglas Delmonte, which is more particularly described as Lot 13, Block 3, Warm Springs Village Subdivision, Fourth Addition. The Delmonte lot is located within the red avalanche zone of the City of Ketchum and is situated on a steep hillside within the City's mountain overlay district.

Delmonte filed an application for design review (Application No. 01-006) of his proposal to construct a 9,000 square foot duplex on his lot. Delmonte also filed an application for a conditional use permit (CUP) (Application No. M001-008) related to an avalanche attenuation device. After proper notice, public hearings were held on the applications on January 14, 2002 and February 11, 2002 by the Ketchum Planning and Zoning Commission. Following the second public hearing, the Commission requested additional materials and information from Delmonte, which he was to provide at the next meeting, scheduled for February 25, 2002. On February 12, 2002, the Commission conducted a site visit.

The Commission issued its findings of fact and conclusions of law on the CUP application and a separate set of findings of fact and conclusions of law on the design review application on March 11, 2002. The Commission concluded that the CUP application complied with the Ketchum Zoning Code Title 17 and the Ketchum Comprehensive Plan and approved the CUP application provided certain conditions were met. The condition which became the subject of the controversy herein was:

The building permit plans shall be signed by an engineer licensed in the State of Idaho certifying that "the proposed construction will withstand the avalanche forces set forth in the avalanche studies on file with the City and that the proposed construction will not deflect avalanches toward the property of others[.]"

With respect to the design review application, the Commission recited facts and concluded that the project "does meet the standards of approval under Chapters 17.96 and 17.104 of Zoning Code Title 17." The Commission approved the design review application subject to seven conditions. The conditions that became issues for the Petitioners were the following:

5. The applicant shall submit with the building permit a construction plan that identifies construction dates for excavation, the construction of the wall and any necessary back fill or building construction needed to avoid increasing the avalanche danger to the Warm Springs neighborhood during the winter months, and shall add construction fencing to the sides of the property to keep disturbance within the property[.]

6. Prior to the issuance of a building permit and prior to any on-site excavation, a construction mitigation plan shall be submitted to the Planning Department pursuant to Resolution Number 785[.]

Fischer objected to the proposed construction and filed a timely appeal from the decision of the Commission to the City Council, pursuant to Chapter 17.144.020 of the Ketchum Zoning Code and I.C. § 67-6521. The Council held a hearing on May 14, 2002, and voted two to one in favor of upholding the Commission. The Council issued its decision on June 3, 2002, adopting the findings of fact of the Commission and upholding the Commission's approval of the design review and CUP applications for the Delmonte duplex.

Seeking further review of the decision of the City Council and the adopted findings of the Commission, Fischer filed a petition for review to the district court.

Fischer filed a motion to augment the record in the district court based upon I.C. § 67-5276 which was denied. The denial was based on the rule that the City Council can only consider

Matters which were previously considered by the Commission as evidenced by the record, the order, requirement, decision or determination of the Commission and the notice of appeal, together with oral presentation by the appellant, the applicant, . . . and the Commission and/or staff representing the Commission.

The district court found because the City Council was limited to these things only and therefore ruled the new information was "not relevant, untimely and improperly filed."

The district court entered its memorandum decision on February 14, 2003, which affirmed the decision of the Council upholding the Commission's approval of Delmonte's applications for design review and for a CUP. Fischer timely filed a notice of appeal from the district court's memorandum decision.

II. ISSUES ON APPEAL

1. Was the Commission's failure to require an Idaho engineer's certification prior to approving Delmonte's conditional use permit a violation of the Ketchum Zoning Code, the Local Land Use Planning Act (LLUPA)?

2. Were the Commission's findings regarding the avalanche application supported by substantial evidence?

3. Were the Commission's findings regarding the design review application supported by substantial evidence?

4. Did the district court abuse its discretion in denying the Appellants' motion to present additional evidence for rebuttal?

5. Should Appellants be awarded attorney fees and costs under the private attorney general doctrine?

6. Should the Appellants be granted attorney fees and costs on appeal pursuant to I.C. § 12-117 and I.A.R. 41?

III. STANDARD OF REVIEW

The appellate courts will review decisions under the LLUPA and IDAPA independently of the decision of the district court. Evans v. Bd. of Comm'rs of Cassia County 137 Idaho 428, 430, 50 P.3d 443, 445 (2002). The standards governing judicial review in a case involving the LLUPA provide that this Court

does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. § 67-5279(1). Rather, this Court defers to the agency's findings of fact unless they are clearly erroneous. Price, 131 Idaho at 429, 958 P.2d at 586 (citing Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998)) (citing South Fork Coalition v. Board of Comm'rs of Bonneville County, 117 Idaho 857, 860, 792 P.2d 882, 885 (1990)). "In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial competent evidence in the record." Id.

The Board's zoning decision may only be overturned where its findings: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure: (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. Id. (citing I.C. § 67-5279(3)). The party attacking the Board's decision must first show that the Board erred in a manner specified in Idaho Code § 67-5279(3), and then it must show that its substantial right has been prejudiced. Id. (citing Angstman v. City of Boise, 128 Idaho 575, 578, 917 P.2d 409, 412 (Ct.App.1996)).

Friends of Farm to Market v. Valley County, 137 Idaho 192, 196, 46 P.3d 9, 13 (2002).

IV. ANALYSIS

A. March 11, 2002 Approval Of The Conditional Use Permit Application

Fischer argues that the action taken by the Commission on March 11, 2002, was a decision granting a CUP. That decision must be reversed, argues Fischer, because the application did not contain a certification from an Idaho licensed engineer, which is required pursuant to the Ketchum Zoning Code (KZC) § 17.92.010(D)(2) governing avalanche zone districts. The City denies any failure to comply with the procedural requirements of the Code and insists that the Commission has only approved the CUP application with conditions, including a condition that the engineer's certification is provided before the CUP will be granted and a building permit issued. Fischer contends that following the City's reasoning not only allows for the submission of the engineering certification to occur after the Commission's approval, but also she will be denied not only an opportunity to rebut the certification at the public hearing (I.C. § 67-6512(b)) but also obfuscates the final filing date for appeal or judicial review.

KZC Section 17.92.010(D)(2) provides:

Avalanche protective, deflective and preventative structures, devices or earthwork, which threaten to deflect

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