Johnson v. Blaine County

• Decision Date: 05 March 2009
• Docket Number: No. 34524.,34524.
• Citation: 204 P.3d 1127
• Court: Idaho Supreme Court
• Parties: Deane JOHNSON, Petitioner-Appellant, v. BLAINE COUNTY, Idaho, a political subdivision of the State of Idaho, Respondent-Respondent. and Clear Creek, LLC, an Idaho limited liability company, Intervenor-Respondent.

204 P.3d 1127

Deane JOHNSON, Petitioner-Appellant, v. BLAINE COUNTY, Idaho, a political subdivision of the State of Idaho, Respondent-Respondent. and Clear Creek, LLC, an Idaho limited liability company, Intervenor-Respondent.

No. 34524.

Supreme Court of Idaho, Idaho Falls, September 2008 Term.

March 5, 2009.

Haemmerle & Haemmerle, PLLC, Hailey, for appellant. Fritz Haemmerle argued.

Blaine County Prosecuting Attorney, Hailey, for respondent Blaine County. Timothy K. Graves argued.

Lawson & Laski, PLLC, Ketchum, for respondent Clear Creek, LLC. Michael Pogue argued.

EISMANN, Chief Justice.

This is an appeal from a decision approving the application for the final plat of a planned unit development. We hold that most of the issues raised cannot be addressed in this appeal because they were decided in the earlier decision approving the conditional use permit, which was a final decision from which no appeal was taken. We affirm the district court, albeit on different grounds.

I. FACTS AND PROCEDURAL HISTORY

On December 8, 2004, Clear Creek, LLC, (Clear Creek) filed with Blaine County applications for a conditional use permit (CUP), for a community housing planned unit development (CH-PUD), and for a subdivision permit seeking to develop three contiguous parcels of land totaling 23.37 acres. The properties were within an area designated by Blaine County as a community housing overlay district (CHOD). The CHOD ordinance allows housing densities above those permitted by the underlying zoning district to encourage the development of moderate and lower income housing that meets the price and size standards set forth in the guidelines of the Blaine County Ketchum Housing Authority (Housing Authority). Deane Johnson (Johnson) owns land adjoining the northern of the three parcels.

After holding four public hearings on the applications, the Blaine County Planning and Zoning Commission (P & Z Commission) issued its written findings, conclusions, and recommendation to the Blaine County Board of County Commissioners (Board) on March 24, 2005. The Board then held three public hearings on the applications. On June 7, 2005, it issued its written findings of fact, conclusions of law, and decision approving the preliminary plat of the CH-PUD and the CUP application subject to certain conditions. Johnson did not appear at any of the public hearings or raise any specific objections to the approval of the preliminary plat or the CUP. On May 2, 2005, he sent an e-mail to the Board making two suggestions. First, he suggested that a note be entered on the subdivision plat warning future residents of the development that it adjoined a light industrial district, so that the future residents should not complain about the noise. Second, he suggested that a traffic signal be added at a specific location to alleviate traffic congestion.

On March 21, 2006, the Board held a public hearing to consider the final plat of the CH-PUD. Johnson did not appear at the hearing, but by letter delivered to Blaine County on March 17, 2006, his attorney raised various specific objections. The Board approved the final plat subject to conditions and issued its written findings of fact, conclusions of law, and decision on April 12, 2006. Johnson filed a petition for review. The district court affirmed the decision of the Board, and Johnson appealed to this Court.

II. ISSUES ON APPEAL

1. Did the district court err in holding that the Blaine County Ketchum Housing Authority's involvement in the proposed development does not violate the County Housing Authorities and Cooperation Law?

2. Did the district court err in holding that the County's delegation of authority to the Blaine County Ketchum Housing Authority did not violate Article III, § 1, of the Idaho Constitution?

3. Did the district court err in holding that Blaine County did not violate the Local Land Use Planning Act by approving the proposed development subject to specified conditions?

4. Did the district court err in holding that Blaine County did not violate the community housing overlay district ordinance when it approved the proposed development?

5. Was Johnson substantially injured by the approval of the proposed development?

6. Is any party entitled to an award of attorney fees on appeal?

III. ANALYSIS

In order to obtain judicial review of final action under the Local Land Use Planning Act (LLUPA), I.C. §§ 67-6501 et seq., there must be a statute granting the right of judicial review. Highlands Development Corp. v. City of Boise, 145 Idaho 958, 960-61, 188 P.3d 900, 902-03 (2008). Idaho Code § 67-6521 provides that a person who has "an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development" and who is "aggrieved by a decision" granting or denying the permit may seek judicial review, after exhausting all remedies under the county ordinance. The approval of applications for a planned unit development, a conditional use, and a subdivision all constitute decisions granting permits.¹ The granting of a permit authorizes the development, and is therefore appealable, if it "places a developer in a position to take immediate steps to permanently alter the land." Payette River Property Owners Ass'n v. Board of Comm'rs of Valley County, 132 Idaho 551, 555, 976 P.2d 477, 481 (1999).

An affected person means "one having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development." I.C. § 67-6521(1)(a). Johnson owns land adjoining the proposed development. He may be adversely affected by the approval of a development that would have higher housing densities than would otherwise be permitted by the underlying zoning district. See Cowan v. Board of Commrs. of Fremont County, 143 Idaho 501, 509, 148 P.3d 1247, 1255 (2006) and Evans v. Teton County, Idaho Board of Commissioners, 139 Idaho 71, 75, 73 P.3d 84, 88 (2003). Therefore, Johnson is an affected person entitled to seek judicial review of the County Commissioners' approval of the planned unit development.

Review on appeal is limited to those issues raised before the administrative tribunal.² Balser v. Kootenai County Bd. of Comm'rs, 110 Idaho 37, 40, 714 P.2d 6, 9 (1986). "[A]n appellate court will not decide issues presented for the first time on appeal." Id. The court must affirm the decision of the administrative tribunal unless its findings, inferences, conclusions, or decision are: (a) in violation of the constitution or a statute; (b) in excess of its statutory authority; (c) made upon unlawful procedure; (d) not supported by substantial evidence in the record as a whole; or (e) arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). In addition, the decision shall be affirmed unless the substantial rights of the appellant have been prejudiced. I.C. § 67-5279(4).

A. Did the District Court Err in Holding that the Blaine County Ketchum Housing Authority's Involvement in the Proposed Development Does Not Violate the County Housing Authorities and Cooperation Law?

Clear Creek contends that the Housing Authority's involvement in this project violates the County Housing Authorities and Cooperation Law (County Housing Law), I.C. §§ 31-4201 et seq., because less than fifty percent of the housing units in the entire project will be dedicated to affordable housing. The County Housing Law was enacted to provide a framework for developing safe and sanitary dwelling accommodations for persons of low income. It permits a county to create an independent public body corporate and politic to be known as a housing authority. I.C. § 31-4205. A housing authority has a broad range of powers in order to effectuate the purposes of the County Housing Law. I.C. § 31-4204. At least fifty percent of the total number of dwelling units in a housing project subject to the County Housing Law must be made available to persons of low income. I.C. § 31-4204(j).

The Board created the Housing Authority pursuant to the County Housing Law. The Housing Authority's involvement in the proposed development would be to administer the community housing units in the development. Johnson contends that because of the Housing Authority's involvement, the proposed development is required to have at least fifty percent of its dwelling units made available to persons of low income. Since only thirty percent of the housing units in the proposed development would serve low-income persons, Johnson contends that the Housing Authority cannot be involved in this project.

The district court held that the proposed development was not a "housing project" subject to the County Housing Law because the Housing Authority was not the developer of the project. In so holding, the district court erred.

A "housing project" under the County Housing Law includes "any work or undertaking ... [t]o provide decent, safe and sanitary urban or rural dwellings, apartments or other living accommodations for persons of low income." I.C. § 31-4203(b). A county housing authority's powers are not limited to developing a housing project. Its powers include, "to prepare, carry out, acquire, lease and operate housing projects"; "to establish and revise the rents or charges [for any housing project]"; and "[t]o exercise all or any part or combination of [such] powers." I.C. § 31-4204(b), (d), & (k). Thus, a housing authority's involvement can be limited to operating a housing project. If it does operate the project, then such project must comply with the County Housing Law.

The district court also stated that if the Housing Authority Law were not restricted to situations in which the housing authority was the developer of the project, then private developers who constructed any low-income housing would be subject to the Law. That is incorrect. It is the county housing authority's involvement in the project that requires compliance with the County Housing Law....