Neighbors for the Preservation of the Big & Little Creek Community v. Board of County Commissioners

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 41113
NEIGHBORS FOR THE PRESERVATION )
OF THE BIG AND LITTLE CREEK )
COMMUNITY, an unincorporated )
corporation; PEOPLE FOR PAYETTE’S )
FUTURE, INC., an Idaho nonprofit ) Boise, December 2014 Term
corporation; JOSEPH BERCIK and BETTY)
BERCIK; CODY BURLILE and ) 2015 Opinion No. 93
CHRISTINA BURLILE; DE BURLILE and )
LORI PRATT; LINDA BURLILE; JORDAN ) Filed: September 25, 2015
CARY and HARMONY CARY; LARRY )
DAHNKE and SUSAN DAHNKE; DALE ) Stephen Kenyon, Clerk
DELLINGER; RAY DENIG and JACKIE )
DENIG; RICHARD EVEY and SUSAN )
EVEY; KANE HUDDLESTON and JOYCE )
HUDDLESTON; LUKE HUDDLESTON; )
JOHN JEFFRIES and JO AN JEFFRIES; )
JERRY KORN; LEON KORN; CAMERON )
MAHLER and CINDY MAHLER; )
KIMBERLY CHRISTENSEN; CYRIL )
ROLAND; GREG SEMON and TERRI )
SEMON; ROGER SMITH and MARY )
VIVIAN SMITH; ELIZABETH STEPHENS; )
DICK TOWNER and SUE TOWNER; JOHN )
WALGENBACH and DENISE MORGAN; )
DEBORAH WEBER; and ENRIQUE )
YBARRA, JR., )
)
Petitioners, )
)
and )
)
JOHN (JACK) BURLILE; H-HOOK, LLC, )
an Idaho limited liability company; )
CLIFFORD MORGAN and MARY )
MORGAN; THOMAS PENCE; IRENE )
ROLAND; TOM ROLAND and MARCIA )
ROLAND; JAMES UNDERWOOD, JR.; and )
JEFFERY WEBER, )
)
Petitioners-Appellants, )
)
v. )
1
)
BOARD OF COUNTY COMMISSIONERS )
OF PAYETTE COUNTY, )
)
Respondent, )
)
and )
)
ALTERNATE ENERGY HOLDINGS, INC., )
)
Intervenor-Respondent. )
_______________________________________ )
Appeal from the District Court of the Third Judicial District of the State of Idaho,
Payette County. Hon. Molly J. Huskey, District Judge.
The decision of the district court is affirmed.
Andersen Banducci, PLLC, and Williams Bradbury, P.C., Boise, for appellants.
Wade L. Woodard argued.
Payette County Prosecutor’s Office, Payette, for respondent Board of County
Commissioners of Payette County.
Spink Butler, LLP, Boise, for intervenor-respondent Alternate Energy Holdings,
Inc. Thomas H. Clark argued.
_______________________________________________
HORTON, Justice.
The Payette County Board of Commissioners (the Commissioners) approved a
conditional rezone of a parcel of land from agricultural to industrial, subject to a development
agreement, in connection with a project to build a nuclear power plant. Various parties appealed
the approval to the district court. The district court upheld the Commissioners’ actions. H-Hook,
LLC (H-Hook), a neighboring landowner, appeals from the district court’s decision. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In late 2009, Alternate Energy Holdings Inc. (AEHI) looked to Payette County (the
County) as the proposed site of a nuclear power plant. AEHI contracted to purchase
approximately 5000 acres of property located off Big Willow and Stone Quarry Roads in the
County. The property was zoned Agricultural. Because the property needed to be rezoned in
order to accomplish AEHI’s objectives, AEHI started two proceedings.
1. Proceedings to revise the County’s Comprehensive Plan.
2
First, AEHI sought changes to the County’s comprehensive plan. AEHI submitted an
application to amend the comprehensive plan to change the designation of the subject property
from Agriculture 1, 2, and Mixed to Industrial. H-Hook’s principal, Michael Humphreys,
testified in opposition to the amendment of the comprehensive plan. H-Hook’s attorney argued
that the comprehensive plan did not contain the statutorily required plans for power plant sites
and utility transmission corridors. See I.C. § 67-6508(h); Sprenger, Grubb & Assocs., Inc. v. City
of Hailey, 133 Idaho 320, 322, 986 P.2d 343, 345 (1999). The County amended the
comprehensive plan, designating the subject property as Industrial and adding the following
language:
Energy producers who wish to locate electric, gas, or other energy production
facilities in Payette County must apply to the Payette County Planning and
Zoning Department and each application will be considered on an individual
basis in accordance in accordance [sic] with the Local Land Use Planning Act
(I.C. § 67-6500 et seq), Payette County Code and this plan.
Prior to this amendment, the comprehensive plan had only identified providers of electricity,
natural gas, home heating fuel and propane and had provided the following limited statement
regarding future energy and communication trends:
Power, gas, telephone, cable, newspaper, and post and parcel services will
continue to be offered to all developed portions of the county, as needed. Despite
regional growth trends, consumption of electrical power is actually declining due
to enhanced technological efficiency in transmission and distribution.
Only one sentence in the comprehensive plan arguably related to utility transmission corridors.
(“Telephone lines generally coincide with major electrical transmission lines.”)
2. Proceedings regarding the conditional rezone and development agreement application.
On June 22, 2010, AEHI submitted a Rezone and Development Agreement Application
to the County’s Planning and Zoning Commission. In this application, AEHI proposed the
rezone “of approximately 500 acres from A (agricultural) to I-2 (heavy industrial) zoning.”
AEHI submitted a draft development agreement in support of the application.
The draft development agreement was available for public review in the Planning and
Zoning office. In November of 2010, the County made the application and supporting documents
available to the public on a website. The County also made digital and hard copies available to
the public in advance of the first hearing before the Planning and Zoning Commission. That
hearing, originally scheduled for December 2, 2010, was continued to December 9, 2010. The
Planning and Zoning Commission recommended approval of AEHI’s applications.
3
H-Hook and other interested parties appealed the Planning and Zoning Commission’s
decision to the Commissioners. The draft development agreement was further revised, and
released to the public along with the County staff report on May 26, 2011, eleven days prior to
the June 6, 2011 hearing before the Commissioners. The revisions to the proposed development
agreement were color-coded to facilitate the public’s understanding of the revisions.
H-Hook and its attorney provided written testimony to the Commissioners. After
receiving extensive public testimony, the Commissioners approved AEHI’s application. The
Commissioners issued their findings of fact, conclusions of law, and order on August 29, 2011.
The Commissioners found that the proposed zoning was compatible with surrounding land uses
and that the 500 acre parcel that would be rezoned would be contained within a larger 5000 acre
parcel, resulting in a buffer zone from neighboring properties. On September 23, 2011, a number
of parties sought judicial review of the Commissioners’ decision. The district court granted
AEHI’s motion to intervene in the judicial review proceedings.
The district court reached three conclusions that are the subject of this appeal. First, the
district court rejected H-Hook’s contention that the comprehensive plan was invalid due to the
absence of statutorily required components regarding power plant siting and power transmission
corridors. Second, the district court determined the Commissioners’ approval of the rezone did
not constitute spot zoning because the rezone was in accordance with the County’s amended
comprehensive plan. Third, the district court determined the County did not violate H-Hook’s
due process rights by denying H-Hook an adequate opportunity to present objections to AEHI’s
application. The district court issued its Order on Appeal and Order of Remand on May 2, 2013.
H-Hook timely appealed.
II. STANDARD OF REVIEW
The Local Land Use Planning Act (LLUPA) permits an affected person to seek judicial
review of an approval or denial of a land use application, as provided in the Idaho Administrative
Procedures Act (IDAPA). I.C. § 67-6521(1)(d). “This Court has stated that for the purposes of
judicial review of LLUPA decisions, where a board of county commissioners makes a land use
decision, it will be treated as a government agency under IDAPA.” In re Jerome Cnty. Bd. of
Comm’rs, 153 Idaho 298, 307, 281 P.3d 1076, 1085 (2012).
When a district court acts in its appellate capacity pursuant to IDAPA,
“we review the district court’s decision as a matter of procedure.” Williams v.
Idaho State Bd. of Real Estate Appraisers, 157 Idaho 496, 502, 337 P.3d 655, 661
4
(2014) (quoting Jasso v. Camas Cnty., 151 Idaho 790, 793, 264 P.3d 897, 900
(2011)). When doing so, we conduct an independent review of the agency record.
[Dry Creek Partners, LLC v. Ada Cnty. Comm’rs, ex rel. State, 148 Idaho 11, 16,
217 P.3d 1282, 1287] (2009). This Court will affirm a district court’s decision
upholding a zoning board’s action unless the party contesting the zoning board’s
decision demonstrates that (1) the board erred in a manner specified in Idaho
Code section 67–5279(3), and (2) the board’s action prejudiced its substantial
rights. Id. Idaho Code section 67–5279(3) provides that a board’s decision will
only be overturned where its findings, inferences, conclusions, or decisions are:
(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.
I.C. § 67–5279(3).
917 Lusk, LLC v. City of Boise, 158 Idaho 12, 14, 343 P.3d 41, 43 (2015). “There is a strong
presumption that [a] zoning board’s actions were valid and that it has correctly interpreted its
own zoning ordinances.” Hawkins v. Bonneville Cnty. Bd. of Comm’rs, 151 Idaho 228, 231, 254
P.3d 1224, 1227 (2011). “This Court exercises free review over questions regarding whether the
board has violated a statutory provision, which is a matter of law.” In re Jerome Cnty. Bd. of
Comm’rs, 153 Idaho at 308, 281 P.3d at 1086. “Due process issues are generally questions of
law, and this Court exercises free review over questions of law.” Neighbors for a Healthy Gold
Fork v. Valley Cnty., 145 Idaho 121, 127, 176 P.3d 126, 132 (2007).
III. ANALYSIS
The issues presented in this appeal are whether: (1) this Court has jurisdiction to consider
a challenge to the validity of the comprehensive plan; (2) the comprehensive plan is invalid
because it is missing components required by Idaho Code section 67-6508; (3) the rezone was
illegal spot zoning; and (4) the notice and hearing procedures employed by the County were
defective.
A. This Court has jurisdiction to consider a challenge to the comprehensive plan.
AEHI and the County raise a new issue not presented to the district court. They contend
that due to the lack of a statutory grant of authority for judicial review of an amendment to a
comprehensive plan, this Court lacks jurisdiction to decide this question. H-Hook argues that it
has a statutory right to judicial review of a conditional rezone and that AEHI and the County
waived this argument by not presenting it below.
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We can easily dispense with H-Hook’s second argument. “Whether a court lacks
jurisdiction is a question of law that may be raised at any time. . . .” State v. Dieter, 153 Idaho
730, 733, 291 P.3d 413, 416 (2012) (quoting State v. Jones, 140 Idaho 755, 757, 101 P.3d 699,
701 (2004)).
In the absence of a statutory grant of authority, the courts lack jurisdiction to conduct
judicial review of local government actions under LLUPA. Taylor v. Canyon Cnty. Bd. of
Comm’rs, 147 Idaho 424, 433, 210 P.3d 532, 541 (2009). Under LLUPA there is a right to
judicial review for an “affected person aggrieved by a final decision . . . .” I.C. § 67–6521(1)(d).
Idaho Code section 67-6521(1)(a)(iii) defines an “affected person” as a person having a “bona
fide interest in real property which may be adversely affected by . . . [a]n approval or denial of an
application for conditional rezoning pursuant to section 67-6511A.”1 Idaho Code section 67-
6511A specifically addresses rezoning agreements, such as the rezone in the present case, that
are based upon a development agreement.
H-Hook’s challenge to the amended comprehensive plan is a component of its attack on
the County’s decision to grant AEHI’s application for conditional rezone. Idaho Code section 67-
6521 grants jurisdiction to the district court and this Court to conduct judicial review of that
decision. As H-Hook’s argument regarding the validity of the comprehensive plan is merely a
subsidiary issue related to its challenge to the conditional rezone, we conclude that we have
jurisdiction to decide this issue.
B. The comprehensive plan is not invalid for lacking components required by Idaho Code
section 67-6508(h).
H-Hook argues the rezone was invalid because the County’s amended comprehensive
plan does not contain the statutorily required “analysis” for “power plant sites” and “utility
transmission corridors” as required in Idaho Code section 67-6508(h). AEHI responds the
comprehensive plan met Idaho Code section 67-6508(h)’s requirement to show “general” plans
for power plant sites and utility transmission corridors.
“[A] valid comprehensive plan is a precondition to the validity of zoning ordinances.”
Sprenger, Grubb & Assocs., Inc. v. City of Hailey, 133 Idaho 320, 322, 986 P.2d 343, 345
(1999). “[A] valid comprehensive plan must contain each of the components as specified in § 67-
1
This language was added to Idaho Code section 67-6521 in 2010, prior to the petition for judicial review filed in
this case on September 23, 2011. 2010 Idaho Sess. L. ch. 175, § 3, p. 361.
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6508, unless the plan articulates a reason why a particular component is unneeded.” Id. Idaho
Code section 67-6508 provides:
It shall be the duty of the planning or planning and zoning commission to
conduct a comprehensive planning process designed to prepare, implement, and
review and update a comprehensive plan, hereafter referred to as the plan. . . . The
plan shall consider previous and existing conditions, trends, compatibility of land
uses, desirable goals and objectives, or desirable future situations for each
planning component. The plan with maps, charts, and reports shall be based on
the following components as they may apply to land use regulations and actions
unless the plan specifies reasons why a particular component is unneeded.2
Idaho Code section 67-6508 also provides a list of such components that must be addressed in a
comprehensive plan. In particular, Idaho Code section 67-6508(h) outlines the requirements of
the public services, facilities, and utilities component, requiring:
(h) Public Services, Facilities, and Utilities--An analysis showing general plans
for sewage, drainage, power plant sites, utility transmission corridors, water
supply, fire stations and fire fighting equipment, health and welfare facilities,
libraries, solid waste disposal sites, schools, public safety facilities and related
services.
“Statutory interpretation begins with ‘the literal words of the statute, and this language
should be given its plain, obvious, and rational meaning.’” Seward v. Pac. Hide & Fur Depot,
138 Idaho 509, 511, 65 P.3d 531, 533 (2003) (quoting Jen–Rath Co. v. Kit Mfg. Co., 137 Idaho
330, 335, 48 P.3d 659, 664 (2002)). H-Hook focuses on the statutory reference to “analysis,”
which suggests that the comprehensive plan should contain a certain measure of detailed
consideration of the subject. In our view, the requirement of a “general plan” diminishes the
degree of required “analysis.” “General” means “concerned or dealing with universal rather than
particular aspects” and “concerned with main elements rather than limited details.” Merriam
Webster’s Collegiate Dictionary 484 (19th ed. 1993).
As previously noted, the County responded to H-Hook’s attorney’s objection to the
comprehensive plan’s silence as to power plant siting by amending the comprehensive plan. The
amendment was not extensive:
Energy producers who wish to locate electric, gas, or other energy production
facilities in Payette County must apply to the Payette County Planning and
Zoning Department and each application will be considered on an individual
2
Idaho Code section 67-6508 has been amended twice during the pendency of this case. 2011 Idaho Sess. L. ch. 89,
§ 2, p. 193; 2014 Idaho Sess. L. ch. 93, § 4, p. 255. Neither amendment is pertinent to this case. For the sake of
convenience this opinion will cite to the current version of Idaho Code section 67-6508.
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basis in accordance in accordance [sic] with the Local Land Use Planning Act
(I.C. § 67-6500 et seq), Payette County Code and this plan.
H-Hook contends that this provision does not meet the requirements of Idaho Code section 67-
6508(h) because it merely states that the County will plan on an ad hoc basis. In support of its
argument, H-Hook directs us to our decision in Sprenger, Grubb & Assocs., Inc. In Sprenger,
this Court considered the City of Hailey’s comprehensive plan, which completely lacked two
components (land use map and property rights) required by Idaho Code section 67-6508. 133
Idaho at 321–22, 986 P.2d at 344–45. Because Idaho Code section 67-6508 mandated that
comprehensive plans contain these components, this Court decided that a rezoning ordinance
was invalid. Id. at 322, 986 P.2d at 345.
This case differs from Sprenger. As amended, the comprehensive plan addresses power
plant siting, albeit on a case-by-case basis. Although we acknowledge that this language provides
little guidance, it would be extraordinarily difficult, if not impossible, to develop detailed plans
for the many different types of power plants (i.e., natural gas, coal, wind, solar, hydroelectric,
biomass, geothermal, nuclear) that may be proposed, particularly since the size of such projects
can be widely variable. We agree with the district court that the amended comprehensive plan
satisfied the requirements of Idaho Code section 67-6508(h) as to power plant siting.
The comprehensive plan contains no meaningful discussion of power transmission
corridors, simply stating: “Telephone lines generally coincide with major electrical transmission
lines.” However, we view the requirement regarding power transmission corridors as relating to
high voltage power lines. The duty to analyze the location and possible routing of such lines is
only triggered by a notification from “the public utilities commission concerning the likelihood
of a federally designated national interest electric transmission corridor.”3 I.C. § 67-6508(p).
There is nothing in the record to suggest that the County has received such notice.
3
Idaho Code section 67-6508(p) provides:
(p) National Interest Electric Transmission Corridors—After notification by the public utilities
commission concerning the likelihood of a federally designated national interest electric
transmission corridor, prepare an analysis showing the existing location and possible routing of
high voltage transmission lines, including national interest electric transmission corridors based
upon the United States department of energy’s most recent national electric transmission
congestion study pursuant to sections 3681 and 12212 of the energy policy act of 2005. “High-
voltage transmission lines” means lines with a capacity of one hundred fifteen thousand (115,000)
volts or more supported by structures of forty (40) feet or more in height.
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Considering the “strong presumption that the zoning board’s actions were valid,” we
conclude that the amended comprehensive plan satisfies Idaho Code section 67-6508(h)’s
“general plans” requirement.
C. The district court correctly found that the rezone was not illegal spot zoning.
The district court held that the Commissioners’ approval of the rezone did not constitute
spot zoning because the rezone was in accordance with the County’s amended comprehensive
plan. On appeal, H-Hook contends the rezone is impermissible type one spot zoning because,
under the amended comprehensive plan, power plant siting does not have to follow any sort of
comprehensive planning analysis: instead the Commissioners are permitted to use an ad hoc
approach. H-Hook also argues that the district court erroneously concluded that type two spot
zoning can never occur if the zoning was consistent with the comprehensive plan.
“A claim of ‘spot zoning’ is essentially an argument the change in zoning is not in accord
with the comprehensive plan.” Evans v. Teton Cnty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003).
There are two types of “spot zoning.” Type one spot zoning may simply refer to a
rezoning of property for a use prohibited by the original zoning classification. The
test for whether such a zone reclassification is valid is whether the zone change is
in accord with the comprehensive plan. Type two spot zoning refers to a zone
change that singles out a parcel of land for use inconsistent with the permitted use
in the rest of the zoning district for the benefit of an individual property owner.
This latter type of spot zoning is invalid.
Id. at 76–77, 73 P.3d at 89–90 (internal citations omitted).
Here, the rezone was not invalid type one spot zoning. The rezone was in compliance
with the comprehensive plan’s designation of the land due to the amendment of the
comprehensive plan to designate the property as Industrial. Because the rezone was in accord
with the comprehensive plan, it was not impermissible type one spot zoning.
H-Hook also contends that the rezone is quintessential type two spot zoning because it
singles out the proposed site for an industrial nuclear power use when the proposed site is
surrounded by mostly agricultural land. The Commissioners found AEHI’s proposed zoning was
consistent with surrounding uses, stating:
The zoning proposed is compatible with surrounding uses and zones. The
surrounding uses include agriculture, confined animal feeding operations
(CAFO), a county landfill and residential. The surrounding agricultural property
is not deemed prime agricultural. Clay Peak Landfill is located approximately
three miles northwest of the subject property. There are four (4) CAFOs within
five miles. In addition, the proposed facility is over three miles away from the
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nearest residence. There is a five hundred (500) acre parcel that the rezoning
affects, however, a buffer zone is included in the proposed rezone to ensure the
facility is enclosed by ___ thousand acres of agriculturally zoned property.
According the [sic] application and testimony, the buffer zone will provide habitat
for wildlife and grazing animals.
The comprehensive plan provides that the Industrial use designation “encompasses existing
industrial operations, such as CAFOs and the Clay Peak Landfill.” Thus, there are five industrial
uses within five miles of the proposed site. The Commissioners’ factual determination is entitled
to deference when supported by substantial and competent evidence. See In re Jerome Cnty. Bd.
of Comm’rs, 153 Idaho 298, 307, 281 P.3d 1076, 1085 (2012). We agree with the district court’s
conclusion that the conditional rezone did not constitute impermissible type two spot zoning.
D. The notice and hearing procedures followed by the County were adequate.
The district court determined that H-Hook had an adequate opportunity to present and
respond to evidence related to AEHI’s application although the district court did not specifically
address H-Hook’s claim that it failed to have adequate opportunity to review revisions to the
development agreement. H-Hook argues the development agreement was the most critical part of
AEHI’s application and H-Hook was denied adequate time to review revisions to it, resulting in a
due process violation.
“Since decisions by zoning boards apply general rules to ‘specific individuals, interests or
situations,’ and are ‘quasi-judicial in nature’ they are subject to due process constraints.” Cowan
v. Bd. of Comm’rs of Fremont Cnty., 143 Idaho 501, 510, 148 P.3d 1247, 1256 (2006) (quoting
Chambers v. Kootenai County Bd. of Comm’rs, 125 Idaho 115, 118, 867 P.2d 989, 992 (1994)).
We have described the flexible nature of due process as:
Due process is not a concept to be rigidly applied, but is a flexible concept calling
for such procedural protections as are warranted by the particular situation. The
U.S. Supreme Court has stated that identification of the specific dictates of due
process generally requires consideration of three distinct factors: first, the private
interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and, third, the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute requirements would entail.
Neighbors for a Healthy Gold Fork v. Valley Cnty., 145 Idaho 121, 127, 176 P.3d 126, 132
(2007) (internal quotations omitted). The procedural due process “requirement is met when the
defendant is provided with notice and an opportunity to be heard. The opportunity to be heard
10
must occur at a meaningful time and in a meaningful manner in order to satisfy the due process
requirement.” Id. (citation omitted)
In its Rezone Application, AEHI proposed the rezone “of approximately 500 acres from
A (agricultural) to I-2 (heavy industrial) zoning.” In support of its Rezone Application, AEHI
submitted a draft development agreement. A development agreement is an agreement “between
the county and the developer, which affects the use or development of the parcel of property
which is the subject of a rezone or development request.” Payette County Code § 8-5-11A; see
also I.C. § 67-6511A. H-Hook directs our attention to Johnson v. City of Homedale, 118 Idaho
285, 796 P.2d 162 (Ct. App. 1990) and Fischer v. City of Ketchum, 141 Idaho 349, 109 P.3d
1091 (2005). In both cases, applications to Planning and Zoning Commissions were found to be
invalid for lack of notice because the applications did not contain necessary components when
submitted. Johnson, 118 Idaho at 287, 796 P.2d at 164 (invalidating a special use permit
application because it failed to contain a concept plan and narrative statement, which were
required to be included by Owyhee County Ordinance); Fischer, 141 Idaho at 354–55, 109 P.3d
at 1096–97 (invalidating conditional use permit application because it did not contain a
certification of an avalanche attenuation device by a licensed engineer, which was required by
Ketchum Zoning Code).
The development agreement in the present case is not similar to the missing components
in Johnson and Fischer for two reasons. First, a draft of AEHI’s proposed development
agreement was initially provided in AEHI’s Rezone and Development Agreement Application
filed on June 22, 2010, and was available for public review.4 In November, the County placed
the application, including the draft development agreement, on a website dedicated to providing
the public with access. Though the draft development agreement did not originally contain the
County’s revisions, a draft development agreement with revisions was made available on
November 24, 2010, eight days before the scheduled December 2, 2010, hearing before the
Planning and Zoning Commission. These eight days provided adequate time for H-Hook to
review the development agreement, especially since it already had access to an earlier version.
4
H-Hook argues this original development agreement was deficient because it did not contain the conditions of
approval, which it argues are “the most essential part of the development agreement.” However, it makes sense that
the conditions of approval would not be included in AEHI’s original Rezone Application because they were meant
to be negotiated with the County. The conditions of approval first appear in the record when the draft development
agreement was released on May 26, 2011, eleven days prior to the June 6, 2011 hearing. H-Hook does not explain
why there was insufficient time to review the conditions of approval prior to the June 6, 2011 hearing. We are
satisfied that eleven days was sufficient time to review the eight and one-half pages of conditions.
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The County’s efforts to make information available to the public were especially apparent in
proceedings before the Commissioners. The revised draft development agreement was made
public on May 26, 2011, eleven days prior to the June 6, 2011 hearing. This version of the
development agreement was color coded. Changes made by the county prosecutor were shown in
red, changes made as a result of comments received during the December, 2010 hearings before
the Planning and Zoning Commission were shown in blue, “clean up” changes were printed in
green, and changes made as a result of a third party review were reflected in purple.
The requirements for a development agreement are set by ordinances that a county’s
governing board adopts. I.C. § 67-6511A. Development agreements are not required for
conditional rezones under the County’s zoning ordinances. Payette County Code section 8-5-11
is silent as to a time frame for providing a development agreement, stating: “at any time during
any stage of the development process, a development agreement may be required by the board of
county commissioners, recommended by the commission or it may be requested by the
developer.” Unlike Johnson and Fischer, there is simply no requirement in the County’s zoning
ordinances that a conditional rezone application contain a development agreement.
Our decision in Neighbors for a Healthy Gold Fork is particularly instructive in
considering H-Hook’s due process claim. There, we held that the procedural due process rights
of parties opposing a proposed planned unit residential development were not violated when the
neighbors received a copy of a modified plan twelve days before a hearing. 145 Idaho at 126,
128, 176 P.3d at 131, 133. This Court held the modifications did not violate the neighbors’ due
process rights because their attorney “had adequate time to at least have some review of the
Modified Plan. Further, there [was] no testimony or other evidence in the record to support [the
neighbors’] contention that their experts’ opinions were rendered valueless by virtue of the
modifications.” Id. at 128, 176 P.3d at 133. This Court also noted that the neighbors had an
opportunity to be heard as their attorney presented testimony and exhibits at the hearing. Id.
H-Hook’s ability to respond to the revisions in the draft development agreement is
similar to the neighbors’ ability to respond to the modified plan in Neighbors for a Healthy Gold
Fork. Though the draft development agreement did not originally contain the County’s revisions,
a draft development agreement with revisions was made available eight days before the
December 2, 2010, proceeding before the Planning and Zoning Commission. These eight days
12
provided adequate time for H-Hook to review the document, especially since it had previous
access to the earlier draft development agreement.
Notably, although H-Hook’s principal, Humphreys, testified before the Commissioners
and identified problematic aspects of the development agreement, he did not contend that he
lacked adequate time to review the development agreement. In a letter dated June 7, 2011,
Humphreys again commented on aspects of the development agreement without stating that he
had any issue with the amount of time that he had to review the document. We conclude that H-
Hook’s claimed due process violation is without merit.
E. No party is awarded attorney fees on appeal.
H-Hook, the County, and AEHI all request attorney fees under Idaho Code section 12-
117. Under Idaho Code section 12-117 this Court “shall award the prevailing party reasonable
attorney’s fees, witness fees and other reasonable expenses, if it finds that the nonprevailing
party acted without a reasonable basis in fact or law.” Idaho Code section 12-117 requires that an
entity and a state agency be adverse parties. Lake CDA Invs., LLC v. Idaho Dep’t of Lands, 149
Idaho 274, 284, 233 P.3d 721, 731 (2010). “If the agency does not participate in the merits of the
appeal . . . , then it and the person are not adverse parties, even if the agency made the decision
being appealed.” Id.
H-Hook has not prevailed in this appeal and is therefore not entitled to an award of
attorney fees. AEHI is not adverse to the County; indeed, their respective attorneys signed the
same brief. Therefore, AEHI is not entitled to an award of attorney fees. Although H-Hook did
not prevail, we are unable to conclude that the pursuit of this appeal was unreasonable.
Therefore, we do not award the County attorney fees.
IV. CONCLUSION
We affirm the district court’s decision on judicial review. We award AEHI and the
County costs on appeal.
Chief Justice J. JONES, Justices EISMANN, BURDICK and Justice Pro Tem
WALTERS, CONCUR.
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