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Three Steps When Your Land Use Application is Denied

By Joseph G. Ballstaedt

In Idaho, if you want to use your property in manner not authorized by current zoning ordinances, you must either seek to amend the zoning ordinance or seek a variance from the city council or board of county commissioners. Idaho law requires all zoning ordinances to include a variance procedure size for lot sizes and similar physical restrictions on lots and buildings. However, these special accommodations are not a “right or special privilege;” rather, a variance may granted only upon a showing of “undue hardship because of characteristics of the site.” It must also shown that the desired variance is not in conflict with the public interest.

Property owners often assume that any type of land use may be approved by way of a variance. But since variances may be used only to accommodate unique characteristics of the building site, a variance will not work for many land uses, leaving the property owner with only one option: amending the zoning ordinance to formally authorize the desired land use.

The planning and zoning board that approves or denies either type of application (variance or zoning ordinance change) has significant discretion, and courts presume the use of this decision is proper. See Wohrle v. Kootenai Cty., 147 Idaho 267, 274, 207 P.3d 998, 1005 (2009). Consequently, it is critical that property owners make a strong showing before the planning and zoning board, putting into evidence all information available to support their request. It is difficult to persuade a city council or county commission to overturn the decision of its planning and zoning board, and even more difficult to persuade a judge to overturn the decision of the city or county.

So what can you do if your application is denied?

1. Exhaust Administrative Remedies

If an administrative agency, such as a board of county commissioners, takes an unfavorable action against you, the first step you must normally take is exhaust any administrative remedies available. This means you must pursue any other internal process of the agency or local government that allows you to protest the decision, such as appealing it to the head of the agency or to the city council or county commission, before you seek to appeal the decision to a judge. With regard to actions taken by a zoning authority, you must pursue remedies available under “local ordinance.” However, Idaho courts have recognized exceptions to the rule that a party must exhaust administrative remedies: “(a) when the interests of justice so require, and (b) when the agency acted outside its authority.” Regan v. Kootenai Cty., 140 Idaho 721, 725, 100 P.3d 615, 619 (2004).

2. Appeal to a District Court

After all internal remedies with the agency have concluded, if you still have not obtain the decision you seek, you can appeal the agency’s decision to a district court judge. Generally you have only 28 days to file an appeal, so there is little time to waste. The district court will look at the administrative record—everything that happened before the agency—and determine whether certain errors occurred: whether the agency violated a constitutional or statutory provision, exceeded its authority, didn’t follow proper procedures, acted arbitrarily, abused its discretion, or made a decision without substantial supporting evidence. The court will generally defer to any factual determinations the agency made. Convincing a district judge to overturn agency decision is a hard task, but it is possible.

3. If Circumstances Change, Submit Another Application

Whether or not you follow the first two options, a third option may be available: wait to see if circumstances change and then submit another application. Generally speaking, a decision by any court is final, and the losing party cannot ask that the matter be reheard at a later date. “Res judicata” is a legal doctrine that prevents new litigation on resolved matters, and it applies to decisions by administrative agencies in Idaho. See Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 844, 70 P.3d 669, 682 (2003).

So, let’s suppose you submit a conditional use permit seeking to build a small convenience store on a property zoned for agricultural purposes only, but the local community heavily protests since the business would be located near an elementary school. The board of county commissioners agrees with these concerns and denies the application on this basis. Under the doctrine of res judicata, future applications for the same conditional use permit are generally barred. However, if two years down the road the school is torn down and a new one is built five miles away, the circumstances have materially changed so a second application seeking a conditional use permit may be appropriately considered. Although it does not appear any Idaho appellate courts have formally recognized this “material change in circumstances” exception to res judicata, courts in other states have. See, e.g., Johnston Ambulatory Surgical Assocs. v. Nolan, 755 A.2d 799, 809 (R.I. 2000). Idaho courts might follow suit if given the opportunity.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.


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