S Bar Ranch v. Elmore Cnty.

• Decision Date: 18 May 2022
• Docket Number: Docket No. 47652
• Citation: 510 P.3d 635
• Parties: S BAR RANCH, an Idaho limited liability company, Plaintiff-Appellant-Cross Respondent, v. ELMORE COUNTY, Idaho, a political subdivision of the State of Idaho, Defendant-Respondent-Cross Appellant. Cat Creek Energy, LLC, an Idaho limited liability company, Intervenor-Respondent-Cross Appellant.
• Court: Idaho Supreme Court

510 P.3d 635

S BAR RANCH, an Idaho limited liability company, Plaintiff-Appellant-Cross Respondent,

v.ELMORE COUNTY, Idaho, a political subdivision of the State of Idaho, Defendant-Respondent-Cross Appellant.

Cat Creek Energy, LLC, an Idaho limited liability company, Intervenor-Respondent-Cross Appellant.

Docket No. 47652

Supreme Court of Idaho, Boise, January, 2022 Term.

Opinion filed: May 18, 2022

As Amended: June 14, 2022

Hawley Troxell Ennis & Hawley, LLP, Boise, for S Bar Ranch, Appellant and Cross Respondent. Merlyn W. Clark argued.

Holland & Hart, LLP, Boise, for Elmore County, Idaho, Respondent and Cross Appellant. Philip J. Griffin argued.

Lawson Laski Clark, Ketchum, for Cat Creek Energy, LLC, Intervenor-Respondent and Cross Appellant. Edward A. Lawson argued.

ZAHN, Justice.

This is an appeal from the district court's decision denying a petition for judicial review of Elmore County's decision to approve and later amend five conditional use permits to develop an alternative energy project. For the reasons discussed below, we affirm the district court's decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

S Bar Ranch owns approximately 3000 acres of land in rural Elmore County. S Bar purchased the land in 2015 from a different company, Half Moon Ranch, LLC. There are very few structures on S Bar's property, save for an airplane hangar that includes a five-hundred square-foot apartment. S Bar's address is listed in Sun Valley, Idaho, and its principal, Chris Stephens, uses the property for recreational purposes.

Cat Creek Energy, LLC, is an Idaho company, organized in 2013 and managed by John Faulkner. Faulkner is the president or manager of several other companies which, collectively, own more than 23,000 acres of land in Elmore County near Anderson Ranch reservoir. Faulkner, on behalf of his other companies, leased land to Cat Creek to develop the project at the heart of this dispute.

A. The course of proceedings before the Board.

In late 2014 and early 2015, Cat Creek began the process of obtaining conditional use permits ("CUPs") for a proposed alternative energy development ("the project") in Elmore County. As initially proposed, the project had five components—a 50,000 acre-foot reservoir with hydroelectric turbines, up to 39 wind turbines, approximately 174,000 photovoltaic solar panels, electrical transmission lines, and an onsite power substation. Cat Creek sought to build the project on approximately 23,000 acres of land that it had leased near Anderson Ranch Reservoir. After holding two neighborhood meetings regarding the project, Cat Creek submitted its applications for five CUPs, one for each component of the project, to the Elmore County Planning and Zoning Commission ("the P&Z Commission").

The P&Z Commission did not initially accept the CUP applications, and requested Cat Creek supplement its applications with additional information about the project. Cat Creek supplied the additional information, and the P&Z Commission accepted the CUP applications, and scheduled a public hearing to consider the CUPs for June 15, 2016. On May 25, the P&Z Commission published notice of the June 15 hearing in the Mountain Home News . The P&Z Commission also mailed notice to property owners within one mile of the project site. No party disputes that S Bar's property is located within one mile of the project's boundaries. However, the P&Z Commission did not mail S Bar notice because the P&Z Commission's mailing list still noted Half Moon Ranch, LLC, as the owner of S Bar's property. S Bar had purchased the property from Half Moon Ranch, LLC, on or about July 31, 2015, between when Cat Creek submitted its CUP applications and when the P&Z Commission scheduled its June hearing. No representative from S Bar ranch attended the P&Z Commission's June 15 hearing.

Following the hearing, on July 13, 2016, the P&Z Commission denied Cat Creek's CUP applications in a written order, concluding the applications did not comply with the Elmore County Comprehensive Plan or Elmore County Ordinances. Cat Creek appealed the P&Z Commission's order to the Elmore County Board of County Commissioners ("the Board") on August 26, 2016. The Board scheduled a hearing on Cat Creek's appeal for November 16 and 17, 2016, and provided notice of the hearing in the Mountain Home News , on physical signs near the proposed project site, and through mail to landowners within one mile of the project site. The notice did not indicate the precise location of the wind turbines nor their anticipated height. However, the notice provided that the wind turbines would be located in "portions" of forty-five sections.¹ This time, S Bar received mailed notice of the hearing on Cat Creek's appeal. However, no representative from S Bar attended the November 2016 hearings.

During the November 2016 hearings, Cat Creek submitted a new master site plan for the project that differed from the plan submitted with its original CUP applications. Also, Board members discussed Elmore County's future water needs and Cat Creek gave assurances to the Board that it would work with the Board to deliver upwards of 30,000 acre feet of water to Elmore County through the project's hydroelectric infrastructure.

The Board publicly deliberated on Cat Creek's appeal January 13, February 3, and February 10, 2017. During its deliberations the Board discussed Elmore County's water needs and the potential for the project to supply water to the county. On February 10, 2017, the Board issued its findings of fact, conclusions of law, and order approving the five CUPs ("2017 CUP Order"). The Board approved the CUPs subject to Cat Creek's compliance with forty-two conditions. One condition required Cat Creek to negotiate, execute, and record a "development agreement" between Cat Creek, the Faulkner entities that owned the project land, and Elmore County. The development agreement condition identified terms to be addressed by the development agreement, including terms relating to "furthering water delivery in the county for the transfer of county water to Little Camas Reservoir or other county water diversion or storage areas" as well as the "construct[ion] [of] necessary water development projects ... in order to transfer water into arid portions of Elmore County." The order also required the development agreement to include a term relating to the "[i]ncorporation of the Conditions as may be expanded and refined by the Board and Applicant." The Board indicated that the development agreement would need to be approved at a public hearing subject to the Local Land Use Planning Act ("LLUPA") and the Elmore County Zoning Ordinance ("ECO"). The order gave Cat Creek until November 15, 2017, to satisfy the development agreement condition, however it also allowed the Board to extend that timeframe for an additional six months. S Bar did not move the Board to reconsider the 2017 CUP Order.

Cat Creek spent the next several months drafting and negotiating the development agreement with county representatives, including Elmore County's civil attorney and individuals in the Elmore County Planning Department (collectively "the County"). On October 4, 2017, the Board published notice that it would consider the development agreement at a public hearing on October 20. That notice did not indicate the location or height of the proposed wind turbines. At the October 20 hearing, Cat Creek indicated that it needed to alter the development agreement on request of one of its financiers and requested that the Board extend the deadline for the development agreement's completion. The Board granted the request for an extension.

On December 6, 2017, the Board published notice that it would again consider the development agreement on December 22. The notice did not indicate the proposed height or location of the wind turbines. Prior to the hearing, on December 4, Cat Creek submitted a redlined draft of the development agreement showing changes made to the agreement since the last draft had been circulated to the County on November 7, 2017. The draft development agreement was provided to members of the public who requested it prior to the December 22 hearing and was made available to the public at the December 22 hearing.

At the December 22 hearing, the County's attorney moved the Board to continue the hearing to a future date, citing the need for the County to work through the approximately 1,000 redlined changes made to the development agreement submitted by Cat Creek. The County's attorney further stated that it was his understanding that Cat Creek sought to present the Board with a new site plan, which the County had not had an opportunity to review. The contract term relating to Cat Creek delivering water through the project to Elmore County was of particular concern to all the parties. Based on the magnitude of the proposed changes, and the need for further negotiations between the County and Cat Creek, the Board decided to continue the hearing and appointed Commissioner Hofer to participate in negotiations between Cat Creek and the County (collectively "the working group").

On January 10, 2018, the Board published notice that it would resume the public hearing on the development agreement on January 26. This notice did not include specifics about the height or location of the project's wind turbines. Prior to the hearing, S Bar requested a copy of the draft development agreement. On January 25, S Bar's attorneys provided written feedback to the County on the agreement.

At the January 26 hearing, the Board began by disclosing potential conflicts of interest among the Commissioners. Commissioner Hofer indicated that he had spent upwards of twenty hours with the working group to finalize the development agreement and that he would recuse himself from voting on its final approval. Commissioner Wooten disclosed that he had a brief social meeting with John Faulkner, during which they discussed "the Cat Creek thing." However, Commissioner...