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[W] Smith v. Washington County Idaho

October 6, 2010; withdrawn and opinion filed December 15, 2010

DAVID SMITH, PLAINTIFFS-APPELLANT,
v.
WASHINGTON COUNTY IDAHO, AND ITS COMMISSIONERS, RICH MICHAEL, ROY MINK, AND MIKE HOPKINS, ALL ACTING IN THEIR CAPACITY AS COMMISSIONERS OF WASHINGTON COUNTY, IDAHO, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Third Judicial District of the State of Idaho, Washington County. Hon. Stephen W. Drescher, District Judge.

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

2010 Opinion No. 105

The decision of the district court is affirmed.

I. NATURE OF THE CASE

David D. Smith appeals from the district court's decision to deny his request for costs and attorney fees he incurred while compelling Washington County to issue him a residential building permit.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the fall of 2006, David D. Smith, the appellant, bought an eighty-acre parcel near Midvale, Idaho. Sometime in early 2007, Smith sought a permit from the Washington County Board of Commissioners (the ―Board‖) to build a house on his property, which the County Planning and Zoning Commission (the ―Commission‖) refused. The Commission voted against granting the permit because it believed that, under the Washington County Zoning Ordinance and the International Fire Code, Smith's driveway was too narrow to allow fire equipment to reach his property. After several months of delay, the Board also refused to grant Smith's permit, again on the grounds that his driveway violated fire-safety regulations.

On May 23, 2008, Smith sought mandamus relief from the district court, which instead treated his motion as a petition for judicial review. In its Memorandum Decision and Order, the district court reversed the Board and ordered it to grant Smith his building permit. It found that the Board had delayed Smith's application for too long and had denied the permit arbitrarily.

Smith then requested an award of attorney fees under I.C. §§ 12-117, -120(3), and -121. The district court denied Smith's request under all three provisions, finding that the County's defense of the case ―was not frivolous,‖ but rather was ―a matter of confusion.‖ In their briefs on appeal, the parties disputed whether I.C. §§ 12-117, -120(3), and -121 entitle Smith to attorney fees that he incurred in compelling the County to issue his building permit, although at oral argument Smith expressly disavowed his claims under §§ 12-120(3) and -121. The parties nonetheless still disagree over whether, under I.C. § 12-117, the County acted with a reasonable basis in law and fact in denying the permit.

III. ISSUES ON APPEAL

1. Whether Smith is entitled to attorney fees under I.C. § 12-120(3).

2. Whether Smith is entitled to attorney fees under I.C. § 12-117.

3. Whether Smith is entitled to attorney fees under I.C. § 12-121.

4. Whether Smith is entitled to costs incurred in the ...


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