Burns Holdings, LLC v. Teton County Board Of Commissioners

152 Idaho 440 (2012)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P desired to construct a concrete batch plant. This case illustrates the time and expense that can be expended due to the confusion between a variance and a conditional use permit. P desired to construct a concrete batch plant in Teton County near the City of Driggs. P purchased a 6.5-acre parcel of property located in an unincorporated part of the county that was within the Driggs area of city impact. Teton County (D) and Driggs had agreed pursuant to Idaho Code section 67-6526 that the city's zoning laws would apply in the area of impact. P had passed an ordinance providing, 'The officially adopted comprehensive plan, zoning ordinance and subdivision ordinance of the city of Driggs together with any subsequent amendments thereto shall apply to the land in the city area of impact, provided the County Board of Commissioners adopt such amendment.' P for a zoning change from C-3 (commercial) to M-1 (light industrial), and on February 26, 2007, D approved the zoning change on the conditions that P and D execute a development agreement, that the zoning will revert back to C-3 if the project does not come to fruition, and P pay the impact area application fee. The Driggs zoning ordinance provided any building or structure from exceeding forty-five (45) feet in height unless approved by conditional use permit. P filed an application with the city for a conditional use permit (CUP) to exceed the height limitation. It wanted to erect a structure that was 75 feet high. The administrative agencies approved the conditional use permit to increase the height. D scheduled a public hearing for September 13, 2007. At that hearing, there was confusion as to whether the matter being considered was an appeal from the decision of the city planning and zoning department or a decision for D to make, and whether D even had jurisdiction to make the decision because of the terms of the area of city impact agreement. The public hearing was rescheduled. The rescheduled hearing was held and D voted to deny the CUP.P filed a petition for judicial review based in part upon the lack of any written decision by D. D eventually issued written findings of fact and conclusions of law, and P faxed to the court an amended petition for judicial review. D argued for the first time that the application for a CUP must be denied because Idaho Code section 67-6516 of LLUPA required a variance in order to obtain a waiver of a zoning ordinance provision limiting the height of buildings. The court rejected D's argument that P should have applied for a variance rather than a CUP because the ordinance allowed for a CUP and D's argument came too late. The court did not address the conflict between that provision of the ordinance and Idaho Code section 67-6516. D denied the application on the ground that Idaho Code section 67-6516 required a variance to obtain a waiver of a zoning ordinance provision limiting the height of buildings. P filed a second amended petition for judicial review. The court rejected the contention that a variance was required to waive the height limitation, but it upheld the denial of the CUP on other grounds. P appealed.