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Kirby Vickers v. Pamela K. Lowe

February 8, 2011

KIRBY VICKERS, PETITIONER-APPELLANT,
v.
PAMELA K. LOWE, P.E., IN HER CAPACITY AS DIRECTOR OF THE IDAHO TRANSPORTATION DEPARTMENT, AND THE IDAHO DEPARTMENT OF TRANSPORTATION, RESPONDENTS.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. D. Duff McKee, District Judge.

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

Boise, December 2010 Term

2011 Opinion No. 20

Stephen W. Kenyon

I. NATURE OF THE CASE

Kirby Vickers challenges the Idaho Transportation Department's (ITD) decision to grant his neighbor, Dr. Edward Savala, a permit to expand an encroachment onto Highway 55. This permit is conditioned on Dr. Savala implementing certain additional safety features. Vickers claims that the ITD is not authorized to issue conditional-encroachment permits and that the new approach would impermissibly degrade highway safety. We affirm the conditional permit because it complies with the ITD's safety regulations.

II. FACTUAL AND PROCEDURAL BACKGROUND

Dr. Edward Savala owns just over eight acres of land abutting the south side of an east-west stretch of Highway 55 in rural Canyon County. Although the highway runs straight for a considerable distance to the east of the parcel, it immediately begins a gradual curve to the south on the western edge of the property. In May of 2006, the Canyon County Board of Commissioners rezoned the land to permit Savala to build a commercial development containing a medical clinic, small restaurant, and a gas station. This Court upheld the conditional rezoning in Taylor v. Canyon County Board of Commissioners, 147 Idaho 424, 210 P.3d 532 (2009).

On December 21, 2005, Savala applied to the ITD for a right-of-way encroachment permit to upgrade his existing residential approach to a light commercial approach. Because a pre-existing ditch-rider approach was too close to Savala's proposed encroachment, he had to seek a variance to the spacing rules.*fn1

Shortly after Savala filed his original encroachment application, Kirby Vickers, who owns three parcels of land adjacent to Savala's property, was permitted to intervene and participate fully as an interested party before the ITD. Vickers opposed granting the permit, contending that a commercial approach would be unsafe for a number of reasons, including that drivers coming east around the curve would not have enough sight distance to safely avoid the traffic moving through the entrance to Savala's development.

After a series of denials, Savala's engineers submitted a proposal in September of 2007 (the "approved proposal") that included left and right turning lanes on Highway 55 for cars entering the encroachment. It also extended through the approach a passing lane for traffic coming around the curve and heading east on the highway, allowing vehicles turning right out of the development to gradually merge into traffic. On November 2, 2007, District 3 of the ITD (the "District") finally granted Savala a conditional permit for the encroachment. Before he could begin building the encroachment, however, the conditional permit required Savala to submit final plans to the ITD for approval as well as to obtain from a neighbor and transfer to the ITD an as-yet unknown amount of additional right-of- way to expand the highway. It also mandated that these final plans include the turning and passing lanes that appeared in the approved proposal.

Vickers petitioned the ITD to deny Savala's variance and conditional permit. After a two-day hearing, the hearing officer issued his Recommended Findings of Fact, Conclusions of Law, and Recommended Order ("Recommended Order"), concluding that Savala's encroachment would not degrade safety and traffic flow on Highway 55 and that the District was justified in granting the variance. The ITD Director then issued a Final Order adopting the Recommended Order. Vickers sought judicial review of this Final Order, but the district court affirmed the ITD and awarded fees and costs.

On appeal, Vickers contends that the ITD has no authority to issue conditional- encroachment permits. He also argues that the new approach will compromise highway safety because there will not be enough time to see the approach for motorists approaching from the west. The ITD responds that it properly followed its design standards and variance policy.

III. ISSUES ON APPEAL

1. Whether the ITD could, within its statutory authority, grant a conditional permit to

Savala without reviewing final construction plans.

2. Whether the ITD's decision to grant Savala a conditional permit and variance was based on substantial evidence.

3. Whether the district court properly awarded attorney fees and ...


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