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Marcia T. Turner, L.L.C v. City of Twin Falls

April 27, 2007

MARCIA T. TURNER, L.L.C., PLAINTIFF-APPELLANT,
v.
CITY OF TWIN FALLS, DEFENDANT-RESPONDENT.



Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Twin Falls County. The Hon. G. Richard Bevan, District Judge.

The opinion of the court was delivered by: Eismann, Justice.

Opinion No. 62

Stephen W. Kenyon, Clerk

The decision of the City Council is affirmed.

This is an appeal of a decision by the city council denying the request for a special use permit to construct a television transmission tower. We affirm the decision of the city council.

I. FACTS AND PROCEDURAL HISTORY

Marcia T. Turner, L.L.C., (Turner) desired to operate a primary television station on Blue Lakes Boulevard in the City of Twin Falls. In conjunction with the proposed television station, Turner wanted to build a 120-foot-tall, lattice transmission tower. The property on which Turner desired to operate the television station was zoned C-1, Commercial Highway District. The permitted uses in that zone included "television stations without transmission and receiving towers." Twin Falls Code § 10-4-8.2(A). A special use permit could be granted to operate "television stations with wireless communications facilities" if such use was "not in conflict with the comprehensive plan." Twin Falls Code § 10-4-8.2(B). In addition, Twin Falls Code § 10-13-2-2 required that the requested special use at the proposed location comply with nine standards.*fn1

On May 13, 2003, Turner filed an application for a special use permit to do so. That application was initially heard by the Twin Falls Planning and Zoning Commission (P&Z Commission). After a public hearing on July 8, 2003, it voted to grant Turner's request for a special use permit to construct the transmission tower. It issued its written findings and decision on July 29, 2003.

At the City Council's regularly scheduled meeting on July 21, 2003, the Planning and Zoning Director informed the members of the Council of the Commission's decision regarding the transmission tower. The Council voted to exercise its authority to review and hear that decision. On August 18, 2003, the City Council held a public hearing on Turner's application for the special use permit. At the conclusion of the hearing, the Council voted to deny the application. It issued its written findings of fact and decision on September 18, 2003.

On September 15, 2003, Turner filed a petition for judicial review. The matter was heard by the district court, which affirmed the decision of the City Council. Turner then appealed to this Court.

II. ISSUES ON APPEAL

1. Did the Twin Falls Code require the City Council to make specific factual findings in order to review the decision of the Commission?

2. Did the City Council violate due process by failing to limit its review to the record generated before the P&Z Commission?

3. Was the City Council's decision supported by substantial evidence? 4. Is either party entitled to an award of attorney fees on appeal pursuant to Idaho Code § 12-117?

III. ANALYSIS

A person aggrieved by a city or county land-use decision may seek judicial review of that decision in the district court under the Idaho Administrative Procedures Act (IAPA). County Residents Against Pollution from Septage Sludge v. Bonner County, 138 Idaho 585, 67 P.3d 64 (2003); Idaho Code ยง 67-6521(d). On an appeal from the district court acting in its appellate capacity under the IAPA, this Court reviews the record independently of the district court's opinion. Sanders Orchard v. Gem County ex rel. Bd. of County Comm'rs, 137 Idaho 695, 52 P.3d 840 (2002). This Court will not consider issues that were not raised before the district court ...


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