Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Teton County. The Hon. Gregory W. Moeller, District Judge.
The opinion of the court was delivered by: Eismann, Justice.
The judgment of the district court is affirmed.
This is an appeal from the decision of the district court upholding the denial of a conditional use permit seeking to waive the provision of a zoning ordinance limiting the maximum height of buildings and structures. We uphold the district court on the correct theory that the height restriction can be waived only by a variance, not by a conditional use permit.
This case illustrates the time and expense that can be expended due to the confusion between a variance and a conditional use permit. Burns Holdings, LLC, desired to construct a concrete batch plant in Teton County near the City of Driggs. It purchased a 6.5 acre parcel of property located in an unincorporated part of the county that was within the Driggs area of city impact. Teton County and Driggs had agreed pursuant to Idaho Code section 67-6526 that the city's zoning laws would apply in the area of impact. Pursuant to that agreement, the county had passed an ordinance providing, "The officially adopted comprehensive plan, zoning ordinance and subdivision ordinance of the city of Driggs together with any subsequent amendments thereto shall apply to the land in the city area of impact, provided the County Board of Commissioners adopt such amendment." Teton County, Idaho, Code § 7-1-3.
Burns Holdings applied to the county for a zoning change from C-3 (commercial) to M-1 (light industrial), and on February 26, 2007, the county approved the zoning change on the conditions that Burns Holdings and the county execute a development agreement, that the zoning will revert back to C-3 if the project does not come to fruition, and that Burns Holdings pay the impact area application fee. The county and Burns Holdings later entered into a development agreement dated August 31, 2007.
The Driggs zoning ordinance provided that "[a]ny building or structure or portion thereof hereafter erected shall not exceed forty-five (45) feet in height unless approved by conditional use permit." Driggs, Idaho, Ordinance Ch. 2, § 13(c) (emphasis added). Based upon the highlighted provision of the ordinance, on June 13, 2007, Burns Holdings filed an application with the city for a conditional use permit (CUP) to exceed the height limitation. It wanted to erect a structure that was 75 feet high. As will be explained below, the Local Land Use Planning Act (LLUPA), I.C. §§ 67-6501 through 67-6538, did not permit a CUP to be used to waive that zoning restriction.
On July 11, 2007, the city planning and zoning department approved the conditional use permit to increase the height limitation on Burns Holdings's property to 75 feet. On July 19, 2007, the matter was then sent to the county for its approval. The county scheduled a public hearing for September 13, 2007. At that hearing, there was confusion as to whether the matter being considered was an appeal from the decision of the city planning and zoning department or a decision for the county to make, and whether the county even had jurisdiction to make the decision because of the terms of the area of city impact agreement. The county had advertised the hearing as an appeal from the decision of the city planning and zoning department. The county commissioners ultimately decided that the decision of the city department was merely a recommendation and that the county had the responsibility to decide the CUP application.*fn1 At the request of Mr. Storer, counsel for Burns Holdings, the public hearing was rescheduled so that proper notice could be sent out. There was also confusion as to whether permission to exceed the 45-foot height limitation should be by a variance or by a CUP. The following exchange occurred.
MR. CHAIRMAN: We're using the term CUP and variance interchangeably here, which is a Driggs custom, and not ours.
COMMISSIONER STEVENSON: I just said CUP.
MR. STORER: I'm not much for labels. I think the question is, can we build a plant 75 feet high, period. You put whatever label you want, but I think that's the issue.
The rescheduled hearing was held on November 15, 2007, and at the end of the hearing the county commissioners voted to deny the CUP. On December 11, 2007, Burns Holdings filed a petition for judicial review based in part upon the lack of any written decision by the board of county commissioners. The parties briefed and argued the matter, and on October 30, 2008, the district court remanded it back to the county ...