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In the Matter of the Approval of A Conditional Use Permit v. Nez Perce County Planning and Zoning

December 20, 2010

IN THE MATTER OF THE APPROVAL OF A CONDITIONAL USE PERMIT MARY KREMPASKY, PETITIONER-APPELLANT,
v.
NEZ PERCE COUNTY PLANNING AND ZONING, RESPONDENT



Appeal from the Second Judicial District of the State of Idaho, Nez Perce County. Hon. Jeff J. Brudie, District Judge.

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

2010 Opinion No. 134

#CUP-2008-3.

Stephen W. Kenyon, Clerk

The decision of the district court is affirmed. No attorney fees are awarded on appeal. Costs to Respondent.

I. NATURE OF THE CASE

Gary Kazda applied for and was granted a conditional-use permit by the Nez Perce County Planning and Zoning Commission (the "Commission") in order to develop a Tuscan Wedding and Event Center ("Event Center") on a five-acre parcel of land. Appellant Mary Krempasky, who lives near the parcel, challenged the Commission's decision in the district court. The district court affirmed the Commission's grant of the permit. Krempasky appeals to this Court, alleging several violations of I.C. § 67-5279(3).

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2008, Kazda filed an application with the Commission for a conditional-use permit (titled "CUP-2008-3") to develop the Event Center on a five-acre parcel. Kazda also proposed building a home on the property, but the residence was not to be used in the commercial venture. The purpose of the Event Center was to hold weddings and other similar outdoor events. The application included, among other supporting documents, a narrative from Kazda describing the Event Center and its compliance with the Nez Perce County Comprehensive Plan Land Use Designation (the "Comprehensive Plan"), as well as a traffic study comparison completed by Kazda's engineer which concluded that traffic would not be negatively affected by the Event Center.

Krempasky lives in a single-family residence located next to a residential subdivision directly adjacent to the proposed Event Center. Nez Perce County Planning and Building staff prepared a review of the application and a recommendation (the "Staff Report"). The Staff Report found that the Event Center met the goals and policies of the Comprehensive Plan and also met the criteria contained in Nez Perce County Ordinances 72cc and 72z,*fn1 and thus recommended that CUP 2008-3 be approved as a conditional use.

A public hearing regarding the permit was held on September 16, 2008. Kazda and his engineer Brad Marshall both testified as to the compliance of the application with the Comprehensive Plan, and also discussed the issues of noise and traffic of concern to residents. Ten residents, including Krempasky, testified regarding their opposition to CUP 2008-3, particularly their shared concerns of noise and traffic. The residents provided no actual evidence to support these fears or concerns. Kazda and Marshall offered testimony in rebuttal, again speaking to the neighbors' concerns of noise and traffic, and answered questions from residents in attendance and from the Commissioners.

The Commission then deliberated extensively based on the information contained in the Staff Report, the testimony in opposition, the testimony in favor, and the petition in opposition signed by forty residents, and voted unanimously to approve the application, but to lower the maximum decibel level from seventy-five to sixty-five in order to accommodate the concerns about noise. As required by Nez Perce County Zoning Ordinance 72z, and I.C. § 67-6535, a written version of the Findings of Fact and Conclusions of Law was prepared. An initial attempt to adopt them at a meeting on October 21, 2008 failed because a quorum was not reached, but the Findings and Conclusions were officially adopted at a special meeting of the Commission held November 10, 2008.

On November 24, 2008, Krempasky filed an appeal of the Commission's decision to the Nez Perce County Commissioners, who subsequently held an administrative hearing pursuant to § 14.3(B) of Ordinance 72z. The Board reportedly decided not to accept jurisdiction of the case because the Commission had made its decision fairly. Krempasky filed a petition for judicial review to the district court on January 30, 2009, and after oral argument, the district court affirmed the grant of the permit and held that the decision of the Commission was not an abuse of discretion or based on unlawful procedure. Krempasky now appeals the decision of the district court, alleging the Commission violated I.C. § 67-5279(3).

III. ISSUES ON APPEAL

1. Whether the decision to grant CUP 2008-3 prejudiced Krempasky's ...


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