South Fork Coalition v. Board of Commissioners

BOYLE, Justice.

The South Fork Coalition (hereafter “South Fork”) appeals the decision of the district court approving a final development plan of a planned unit development (hereafter “PUD”) on the Hays ranch. We affirm.

On August 24, 1984, J.R. Hays and Sons, Inc. (hereafter “Hays”), owner of approximately 3,000 acres of agricultural ground in the Antelope Flats area of Bonneville County, applied for preliminary approval of a PUD consisting of sixty-six single family residential units on a portion of its property near the South Fork of the Snake River. The proposed development involves approximately 550 acres and is located in a G-l Grazing zone. In addition to the sixty-six proposed residential units, the development plans include a golf course and boat ramp. The sixty-six acres of property proposed to be developed are not used for agricultural purposes due to their location and terrain.

The Bonneville County Planning and Zoning Commission (hereafter “Commission”) held a public hearing, and thereafter recommended denial of the proposed PUD. Hays appealed that recommendation to the Bonneville County Commissioners (hereafter “Board of Commissioners”), which held a public hearing and subsequently approved the preliminary plan.

South Fork, which organized after the hearing before the Board of Commissioners, filed a petition for review and a notice of appeal with the district court. The district court reversed the decision of the Board of Commissioners and Hays appealed to this Court which ruled that the appeal was premature and stated that the district court should have dismissed the appeal. South Fork Coalition v. Board of Commrs., 112 Idaho 89, 730 P.2d 1009 (1986). This Court reversed in South Fork I because the Board of Commissioners had only given preliminary approval of the plan, had not rendered any final decision, and all administrative remedies had not been exhausted. South Fork Coalition v. Board of Commrs., 112 Idaho at 90, 730 P.2d at 1010.

At the time Hays applied for preliminary approval in 1984, the Bonneville County zoning ordinance permitted the type of PUD proposed. However, in May, 1986, following the district court’s ruling in the case appealed in South Fork I, Bonneville County amended ordinance 1-702 to permit only one residence for every sixty acres in A-l and G-l zoned areas.¹

On December 28, 1987, Hays submitted an application for approval of a final development plan. The Commission recommended approval and the Board of Commissioners approved the final development plan. In its May 11,1988 Findings of Fact, Conclusions of Law and Decision, the Board of Commissioners expressly adopted and incorporated by reference its December 4, 1984 order as being “still applicable to this PUD proposal.” South Fork filed a petition for review with the district court which found that the Board made a sufficient factual inquiry, that the findings of fact were supported by the evidence and the decision approving the plan was not clearly erroneous, arbitrary or capricious. South Fork now appeals from the district court’s order affirming the Board’s decision approving the final development plan.

South Fork asserts that the Board erred when it failed to apply the May 1, 1986 amended ordinance to Hays’ application of a final development plan. In addition, South Fork argues that Hays’ application for approval of a final development plan was not timely, and that the Bonneville County Comprehensive Plan prohibits the planned development.

I.

Standard and Scope of Judicial Review.

The standard of judicial review of an administrative decision is governed by the Administrative Procedure Act. I.C. § 67-5201. Idaho Code § 67-5215 defines the reviewing court’s scope of inquiry and provides that the review shall be confined to the record. I.C. § 67-5215(g) sets forth the standard for judicial review of agency decisions as follows:

(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions:

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (Emphasis added.)

The Board of Commissioners is treated as an administrative agency for purposes of judicial review, Intermountain Health Care, Inc. v. Board of County Commrs., 107 Idaho 248, 688 P.2d 260 (Ct.App.1984), rev’d on other grounds, 109 Idaho 299, 707 P.2d 410 (1985), and review of a zoning commission’s denial of a zoning request is governed by the Administrative Procedure Act, I.C. § 67-5215(b) through (g). Workman Family Partnership v. City of Twin Falls, 104 Idaho 32, 655 P.2d 926 (1982); Hill v. Board of County Commrs., 101 Idaho 850, 623 P.2d 462 (1981); Walker-Schmidt Ranch v. Blaine County, 101 Idaho 420, 614 P.2d 960 (1980); Cooper v. Board of County Commrs., 101 Idaho 407, 614 P.2d 947 (1980).

This Court’s responsibility and role in reviewing an administrative decision has been addressed on numerous occasions. First, there is a strong presumption favoring the validity of the actions of zoning boards, and we have upheld the validity of their actions whenever they are free from capriciousness, arbitrariness or discrimination. Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973). The Bonneville County zoning ordinances expressly give special consideration to planned unit developments,² and the Court must apply the presumption of validity afforded to the county commissioners when adopting, interpreting and applying its zoning ordinances.

It is also well settled that we can review the record independently of the district court’s review and decision. Ferguson v. Board of Commrs., 110 Idaho 785, 718 P.2d 1223 (1986); First Interstate Bank v. West, 107 Idaho 851, 693 P.2d 1053 (1984); Olson v. Ada County, 105 Idaho 18, 665 P.2d 717 (1983); Nicholls v. Blaser, 102 Idaho 559, 633 P.2d 1137 (1981). A reviewing court may not reverse the findings of the administrative agency where the findings are clear, dispositive and supported by evidence in the record. Van Orden v. State Dep’t of Health & Welfare, 102 Idaho 663, 637 P.2d 1159 (1981). Further, a “reviewing court may not substitute its judgment for that of the administrative hearing officer on questions of fact.” Id. at 667, 637 P.2d at 1163. The agency’s findings are binding even where there exists conflicting evidence. Lampe v. Zamzows, Inc., 102 Idaho 126, 626 P.2d 782 (1981).

II.

Amendment to Zoning Ordinance.

The first question before this Court is whether the ordinance in effect on August 24, 1984, when the initial application was filed, or whether the ordinance as amended on May 1, 1986 is applicable to the proposed PUD. South Fork contends that the applicable and controlling ordinance is the one amended on May 1, 1986, because it was in effect at the time of filing the application for final approval. Although a majority of courts from other jurisdictions have adopted that line of reasoning and held that a change in the law following an application for a building permit will be applied to the application,³ Idaho law is well established that an applicant’s rights are determined by the ordinance in existence at the time of filing an application for the permit. Cooper v. Board of County Commrs. of Ada County, 101 Idaho 407, 614 P.2d 947 (1980); Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973); Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209, (1968).

In Ready-To-Pour, this Court considered the issue and stated:

We consider first the threshold question as to whether the applicant’s rights are to be measured under Ordinance 85 in effect at the time of the application, or under Ordinance 133 in effect at the time this case went to trial. Idaho has adopted the minority view that the applicant’s rights are measured under the law in effect at the time of the application. See: McQuillin, The Law of Municipal Corporations, § 25.155 (3d ed.1965). In Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 601, 448 P.2d 209, 215 (1968), we stated:

“At least in those cases like the present one, in which no zoning ordinance was pending at the time an application for a building permit is filed, it is our opinion that an applicant is entitled to a building permit upon compliance with the then existing ordinance.” (Emphasis added.)

95 Idaho at 513, 511 P.2d at 795.

In Cooper v. Board of County Commrs. of Ada County, 101 Idaho 407, 614 P.2d 947 (1980), we further reinforced Idaho’s position with the minority jurisdictions that the ordinance in effect at the time of the application is controlling. On rehearing, we specifically addressed this issue and held that subsequently enacted ordinances would not be given retroactive effect, and the ordinance effective at the time of application was definitive of the parties’ rights. The Court’s rationale and analysis was stated as follows:

Appellants and respondent jointly petitioned for rehearing, seeking clarification as to whether the Ada County Comprehensive Plan of 1968, which was in effect when the application for rezone was made, or the Ada County Comprehensive Plan of 1977 is to be applied on remand.

Appellants contend the 1968 Plan should be applied on remand, citing Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973) and Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). Those cases dealt with applications for building permits and subsequent enactment of zoning ordinances which were not pending before the governing body when the applications were made and, if given retroactive effect, would have defeated plaintiffs’ rights to the permits. In Ben Lomond and Ready-To-Pour, it was held the subsequently enacted ordinances could not be given such retroactive effect and that those effective at the time of application were determinative of plaintiffs’ right to the permits. The rationale for so holding was stated in Ben Lomond as follows:

“[T]o hold for the City in the present case would mean that a city, merely by withholding action on an application for a permit, could change or enact a zoning law to defeat the application. It could, in substance, give immediate effect to a future or proposed zoning ordinance before that ordinance was enacted by proper procedure.” (Emphasis added.)

101 Idaho at 411-12, 614 P.2d at 952.

Hays filed its application with the Commission on August 24, 1984. The ordinance in effect at that time permitted the planned unit development of the size, nature and scope that Hays proposed. The ordinance was thereafter amended on May 1, 1986 as § l-702(4)(a)(2), and with the addition of the new sections, would no longer permit the development Hays had proposed in its 1984 application. However, the law is well established in Idaho that an ordinance in effect at the time of the original filing is controlling, Cooper v. Board of County Commrs. of Ada County, 101 Idaho 407, 614 P.2d 947 (1980); Ready-To-Pour v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973); Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968), and the decisions of both the Board of Commissioners and the district court in this respect are affirmed.

III.

Timely Filing of Application for Approval.

South Fork contends that Hays failed to timely file the application for approval of the final development plan and as such must refile for preliminary approval. This proposed procedure would obviously require Hays to comply with the provisions of 1986 amendment, and the PUD originally planned would be in violation of the new ordinance. In this case, preliminary approval of the PUD was granted by the Board of Commissioners on December 4, 1984, and the application for final approval was filed on December 28, 1987, more than four years later. In Blechmann v. Blaine County, 109 Idaho 181, 706 P.2d 70 (1985), this Court held that the two-year effective term of a conditional use permit continued to run, and in spite of the filing of an appeal the permit expired. However, the present case is clearly distinguishable from Blechmann because the Board of Commissioners, in the absence of a specific time period provided in the ordinance, advised Hays that the application for final approval of the planned unit development would have to be filed within one year of this Court’s decision in South Fork I.⁴

During the appeal process, Hays apparently attempted to proceed with the approval process but was informed that no action would be taken by the Board of Commissioners until there had been a final court determination.⁵ Due to the appeal by the Coalition in South Fork I and the County’s instructions to Hays, the application and approval process ceased. Hays filed his application on December .28, 1987, within one year from the date of issuance of this Court’s decision in South Fork I, and complied with the condition prescribed by the Board of Commissioners. The Board of Commissioners, in its first Finding of Fact, expressly found that Hays’ application for approval of the final plan was timely filed. Undpr the circumstances of an interim appeal, the ordinance not having a specific time frame within which to file for final approval, and the county advising Hays they would take no action on the PUD until a final court determination, we hold that the filing for final approval was timely.

IV.

PUD Located In a G-l Grazing Zone.

South Fork contends that a PUD may not be located in an area zoned as G-l Grazing in Bonneville County. However, this assertion is not supported by the record because § 1-2505(2) of the Bonneville County Zoning Ordinance specifically provided that “a PUD may be located within any zoning district.”⁶

v.

Comprehensive Plan Allows Hays’ PUD.

South Fork further contends that the proposed PUD is inconsistent with the Bonneville County Comprehensive Plan. In Bone v. City of Lewiston, 107 Idaho 844, 850, 693 P.2d 1046, 1052 (1984), this Court held that “[C]omprehensive plans do not themselves operate as legally- controlling zoning law, but rather serve to guide and advise the various governing bodies responsible for making zoning decisions.” In Balser v. Kootenai County Bd. of Commrs., 110 Idaho 37, 39, 714 P.2d 6, 8 (1986), this Court affirmed Bone and held that “[T]he determination of whether a zoning ordinance is ‘in accordance with’ the comprehensive plan is one of fact. As a question of fact, the determination is for the governing body charged with zoning— in the present case the Board of County Commissioners.”

In Ferguson v. Board of County Commrs., 110 Idaho 785, 718 P.2d 1223 (1985), this Court once again affirmed these principles of construction when considering comprehensive plans, and stated:

In Bone v. City of Lewiston, 107 Idaho 844, 693 P.2d 1046 (1984), and the cases following it, this Court provided that authority. In Bone, a unanimous Court held that the “in accordance with” language of I.C. § 67-6511(b) does not mean that a zoning ordinance’s land use designation must be exactly the same as the corresponding designation in the comprehensive plan.

The applicant in Bone sought to have his land rezoned from low density residential use to limited commercial use. The city of Lewiston’s land use map showed Mr. Bone’s land as zoned for commercial use. Bone argued that pursuant to § 67-6511 the city was required to rezone his property in conformance with the map. On appeal, we rejected Bone’s argument holding that “a city’s land use map does not require a particular piece of property, as a matter of law, to be zoned exactly as it appears on the land use map.” Id. at 850, 693 P.2d at 1052. Rather, we held that the question of whether a zoning ordinance is m accordance with the applicable comprehensive plan is a question of fact for the trier of fact.

“What a governing body charged to zone ‘in accordance with’ under § 67-6511 must do is make a factual inquiry into whether the requested zoning ordinance or amendment reflects the goals of, and takes into account those factors in, the comprehensive plan in light of the present factual circumstances surrounding the request.” Id. See also, Balser v. Kootenai County Board of Commissioners, 110 Idaho 37, 39, 714 P.2d 6, 8 (1986); Love v. Board of County Commissioners of Bingham County, 108 Idaho 728, 730, 701 P.2d 1293, 1295 (1985).

As we stated in Bone, the question of whether a zoning ordinance is “in accordance with ” the comprehensive plan is a factual question which can be overturned only where the factual findings are clearly erroneous. The governing body charged with zoning — in this case the board of county commissioners— must make a factual inquiry to determine whether the requested rezone reflects the goals of, and takes into account those factors in, the comprehensive plan in light of the present factual situation surrounding the request. The district court’s review of these findings is governed by I.C. § 67 — 5215(b) through (g). Pursuant to that section, the findings may only be overturned where they are clearly erroneous in view of the evidence in the record. Love, supra at 730, 701 P.2d at 1295. (Emphasis added.)

110 Idaho at 787-88, 718 P.2d at 1225-26.

The Bonneville County Comprehensive Plan in the instant action calls for protection of open spaces, natural resources, the environment, preservation of historic and scenic areas, critical game management areas and recreation areas, and requires the county to limit urban-type development to areas in close proximity with areas already subject to urban uses. The Board of County Commissioners’ Findings of Fact, Conelusions of Law and Decision, demonstrates careful consideration of the requirements of ordinance § 1-2520 as well as a factual inquiry into whether or not the proposal was in accordance with the Bonneville County Comprehensive Plan. The Boards’ conclusion should be reversed only if found to be arbitrary and capricious. Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973).

A review of the record in the present action supports both the Board of Commissioner’s findings and the district court’s decision on review.⁷ Although there exist conflicting facts, the Board’s decision and findings are supported by substantial evidence, were well written and carefully considered the issues presented. In its May 3, 1988 decision, the Board of Commissioners found the PUD to be in compliance with the county ordinances and that it would protect the public interest better than conventional development.⁸ The findings of the Board of Commissioners are not clearly erroneous, arbitrary or capricious, and are supported by substantial evidence. Although others may have reached a different result or conclusion, it is the responsibility of the Board of Commissioners, as the author of the ordinance and the finder of fact, to make that determination. Balser v. Kootenai County Bd. of Commrs., 110 Idaho 37, 714 P.2d 6 (1986). Accordingly, we affirm.

VI.

Attorney Fees.

The Board of Commissioners asserts a claim for an award of attorney fees on appeal, however, South Fork raises genuine issues which have a basis in law and in the record. As such, an award of attorney fees to the Board of Commissioners would be inappropriate. Minich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979).

The decision of the district court is affirmed. Costs to respondent.

BAKES, C.J., and McDEVITT, J. concur.

1 . Bonneville County Zoning and Building Ordinance § l-702(4)(a)(2), as amended in May, 1986, provides:

(2) Beyond this area a dwelling with a minimum lot size of one acre and an average density of one lot per sixty acres will be allowed.

2 . Zoning and Building Ordinance of Bonneville County § 2503 expressly provides priority status to PUDs and states:

Section 1-2503. Priority Of PUD

In all cases where there is a conflict with the language or requirements of this chapter dealing with the planned unit development and the language or requirements of any other chapter or section of this ordinance the language or requirements of this chapter shall be controlling.

3 . See annotation, "Retroactive Effect of Zoning Regulation in Absence of Saving Clause on Pending Application for Permit,” 50 ALR3d 596, § 3; and annotation, "Retroactive Effect of Zoning Regulation in Absence of Saving’Clause on Validly Issued Building Permit,” 48 ALR3d 13.

4 . The Board of Commissioners specifically addressed this issue in its May 11, 1988 Findings of Fact, Conclusions of Law and Decision:

7) The Bonneville County Zoning ordinance has no required time frame for which a Planned Unit Development must be submitted for final presentation after approval of a Planned Unit Development in concept.

8) The applicant was informed by the County that the County would require them to make application for final approval of the Planned Unit Development within one year of the Supreme Court's decision.

9) That the application was received within the time requirements set by the County. (Emphasis added.)

5 . Finding of Fact No. 5 provides: “The appellant was advised by the County that no action would be taken on the continuation of the PUD approval process until a final court decision was obtained.”

6 .Section 1-2505. Provisions Governing Planned Unit Development.

1. Application. The provisions of this section shall apply only to a tract of land to be developed of not less than five continguous acres within a designated zone or zones, which tract is under single ownership or unified control, and for which an application for planned unit development is made as hereinafter provided. Public roads shall not be deemed to divide acreage for this purpose.

2. A PUD may be located within any zoning district. (Emphasis added.)

7 . All exhibits and documents from the proceedings in South Fork I were included in the record before us with the exception of the Clerk’s Transcript. However, a review of the Notice of Appeal and the Notice of Cross-Appeal filed herein demonstrates that both parties requested all records automatically included pursuant to I.A.R. 28, which would have necessarily included the Clerk's Transcript from South Fork I. Both parties have referred to portions of that record, and we have taken judicial notice of our own files from the prior appeal which contains that transcript. City of Caldwell v. Roark, 98 Idaho 897, 575 P.2d 495 (1978).

8 . The Board of Commissioners stated the following:

That the proposed development plan is in compliance with the standards and criteria as required in the Planned Unit Development section of the Bonneville County Planning and Zoning Ordinance and the Bonneville County Compliance Plan as previously stated. That this PUD will better protect the public interests in this area than would a conventional development.