Gardiner v. BOUNDARY COUNTY BD. OF COM'RS

• Decision Date: 18 March 2010
• Docket Number: No. 35007.,35007.
• Citation: 229 P.3d 369
• Parties: Patrick GARDINER and Ada Gardiner, husband and wife, Petitioners-Respondents, v. BOUNDARY COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant, and Tungsten Holdings, Inc., Intervenor-Appellant.
• Court: Idaho Supreme Court

229 P.3d 369

Patrick GARDINER and Ada Gardiner, husband and wife, Petitioners-Respondents, v. BOUNDARY COUNTY BOARD OF COMMISSIONERS, Respondent-Appellant, and Tungsten Holdings, Inc., Intervenor-Appellant.

No. 35007.

Supreme Court of Idaho, Boise, September 2009 Term.

March 18, 2010.

Philip H. Robinson and Louis E. Marshall, Sandpoint, for appellants. Louis E. Marshall argued.

Paul Vogel, Sandpoint, argued for respondent.

Janet Robnett, Coeur d'Alene, argued for intervenor-appellant.

FACTUAL AND PROCEDURAL BACKGROUND

W. JONES, Justice.

Tungsten Holding, Inc. (Tungsten) owns a parcel of land in Boundary County, Idaho that is zoned agriculture/forestry under Boundary County, Idaho, Zoning and Subdivision Ordinance 99-06 (the Zoning Ordinance). In order to operate a commercial gravel pit on its premises, on March 22, 2005, Tungsten filed an application to obtain a special use permit. The Boundary County Planning and Zoning Commission held a public hearing on the application on May 19, 2005, and made a recommendation to deny the special use permit. The Boundary County Board of Commissioners (the Board) subsequently held public hearings on July 26, 2005, and August 8, 2005, and the Board thereafter granted a special use permit on September 6, 2005.

The respondents, Patrick and Ada Gardiner, own real property located a quarter mile from the commercial gravel pit on which they operate a registered Angus cattle breeding ranch. Following the grant of the permit, the Gardiners filed a petition for judicial review. Before review could occur, however, the parties agreed to remand the proceeding to the Board for consideration without the participation of Commissioner Dan Dinning, the brother of Rick Dinning, the principal owner of Tungsten. Commissioner Dan Dinning had participated in the public hearings and deliberations that led to the Board's initial decision, but refrained from voting on the issue.

On remand, the Board held an additional public hearing on July 26, 2005, without Dan Dinning, and the Board ultimately granted the special use permit on September 7, 2006. Following the grant of the special use permit, the Gardiners again filed a petition for judicial review. In a Memorandum Opinion and Order, the district court overturned the Board's ruling and declared the special use permit void. The Board timely filed this appeal. Tungsten was subsequently given leave to intervene in these proceedings.

ISSUES ON APPEAL

1. Whether the special use permit was granted unlawfully because Chapter 7, Section 1(E) of the Zoning Ordinance conflicts with I.C. § 67-6512(a), and because operation of a gravel pit does not qualify as a conditional use.

2. Whether the grant of the special use permit amounted to unlawful spot zoning.

3. Whether the Gardiners were deprived of an impartial tribunal by the Board.

4. Whether operation of a gravel pit conforms to Boundary County's Comprehensive Plan.

5. Whether the justification of the Board for the grant of the special use permit is supported by substantial evidence in the record.

6. Whether the Board held Tungsten to the burden of proof.

7. Whether the Board's "Findings and Decision" contains information sufficient to comply with I.C. § 67-6535.

8. Whether the Gardiners needed to show a violation of their substantial rights in order to overturn the ruling of the Board.

9. Whether this Court should affirm the district court's award of attorney fees and costs.

10. Whether this Court should award attorney fees and costs on appeal.

STANDARD OF REVIEW

The Local Land Use Planning Act allows an affected person to seek judicial review of an approval or denial of a land use application. I.C. § 67-6521(1)(d); Neighbors for a Healthy Gold Fork v. Valley County, 145 Idaho 121, 126, 176 P.3d 126, 131 (2007) (citing Evans v. Teton County, 139 Idaho 71, 74, 73 P.3d 84, 87 (2003)). Where the district court acted in an appellate capacity, this Court reviews the Board's record independent of the district court's decision. Neighbors, 145 Idaho at 126, 176 P.3d at 131. As a matter of procedure, this Court affirms or reverses the decision of the district court. Losser v. Bradstreet, 145 Idaho 670, 673, 183 P.3d 758, 761 (2008).

When reviewing questions of fact, the Board's "decisions are entitled to a strong presumption of validity, including the Board's application and interpretation of its own zoning ordinances." Neighbors, 145 Idaho at 126, 176 P.3d at 131. The party attacking the decision of the Board must first demonstrate that the Board erred in a manner specified in I.C. § 67-5279(3). Id. Under I.C. § 67-5279(3), the attacking party must show that the Board's conclusions or decisions were: "(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." Id. Second, the attacking party must show that one of their substantial rights was prejudiced. I.C. § 67-5279(4).

Like construction of a statute, interpretation of an ordinance is an issue over which this court exercises free review. Friends of Farm to Mkt. v. Valley County, 137 Idaho 192, 196, 46 P.3d 9, 13 (2002).

ANALYSIS

I. This Court affirms the ruling of the district court that the special use permit was not lawfully issued.

When granting Tungsten the special use permit, the Board applied Chapter 7 of the Zoning Ordinance. Chapter 7 prescribes three categories of uses within an agriculture/forestry zone, the location of Tungsten's property. The categories include "uses by right," "permitted uses," and "conditional uses." In addition, Chapter 7, Section 1(E) states, "Any use not specified in this section as a use by right or conditional use is eligible for consideration as a special use, subject to the provisions of Chapter 13." The Board found the gravel pit to be a conditional use as defined by Chapter 7, Section (D)(1): "Commercial businesses supplying products and services for agricultural and forestry activities."

The district court held that Chapter 7, Section 1(E) of the Zoning Ordinance conflicts with I.C. § 67-6512(a), and consequently, Section 1(E) is void. The court also held that a gravel pit is not a prescribed conditional use because it does not fit within Chapter 7, Section (D)(1), the conditional use relied upon by the Board. This Court affirms the rulings of the district court.

A. This Court affirms the ruling of the district court that Chapter 7, Section 1(E) of the Zoning Ordinance conflicts with I.C. § 67-6512(a).

Tungsten and the Board claim I.C. § 67-6512(a) and Chapter 7, Section 1(E) are in alignment. They argue that the unambiguous meaning of I.C. § 67-6512(a) allows for the grant of a special use permit so long as certain conditions are satisfied. Tungsten and the Board assert that Section 1(E) is in alignment with I.C. § 67-6512(a) because it conditionally permits the grant of special use permits subject to compliance with specified conditions, as specified in Chapter 13 of the Ordinance.

Idaho Code § 67-6512(a) is clear and unambiguous, and accordingly, the statute is to be given its plain meaning. Hamilton v. Reeder Flying Serv., 135 Idaho 568, 573, 21 P.3d 890, 895 (2001). Idaho Code § 67-6512(a) provides: "A special use permit may be granted to an applicant if the proposed use is conditionally permitted by the terms of the ordinance." Specifically, the wording within the statute, "conditionally permitted," is unambiguous. The statute requires the use, not the permit, to be "conditionally permitted." Thus, under I.C. § 67-6512(a), a special use permit may be granted for uses prescribed within the Zoning Ordinance, and because operation of a gravel pit was not prescribed in the Ordinance, the grant of the special use permit was improper.

Moreover, the plain meaning of Chapter 7, Section 1(E) cannot be reconciled with I.C. § 67-6512(a), and as a result, Section 1(E) is void. See Boise v. Bench Sewer Dist., 116 Idaho 25, 33, 773 P.2d 642, 650 (1989) (holding that a county ordinance may not conflict with a state statute). Tungsten and the Board assert that both provisions I.C. § 67-6512(a) and Chapter 7, Section 1(E) allow the grant of a special use permit so long as particular conditions are met, as are specified in Chapter 13 of the Ordinance. They claim the district court's interpretation of I.C. § 67-6512(a), requiring the specific use to be set out in the Zoning Ordinance in order for a special use permit to be granted, would defeat the need for special use permits. Conditionally permitted uses necessary to obtain a special use permit will be synonymous with prescribed uses to obtain a conditional use permit, eradicating the need for special use permits, Tungsten and the Board claim. Although the language of I.C. § 67-6512 is not particularly ideal, a careful reading of the statute discloses that a special use permit and a conditional use permit are essentially one and the same. Chapter 7, Section 1(E) of the Zoning Ordinance is void since it conflicts with I.C. § 67-6512(a) because it purports to authorize practically any type of land use or development not otherwise allowed under the ordinance, simply by complying with the rather generic provisions of Chapter 13 of the ordinance. Section 1(E), states: "Any use not specified in this section as a use by right or conditional use is eligible for consideration as a special use, subject to the provisions of Chapter 13." In other words, if a particular use is not specified for a specific piece of property as either a use of right or a use permissible under conditions, the owner has carte blanche to seek and possibly obtain any use available under the sun. This is an "anything goes" provision. Chapter 13 contains no provisions either limiting or allowing proposed uses of land located in the County. Section 1(E) is obviously inconsistent...