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LLC v. City of Boise

Supreme Court of Idaho

February 10, 2015

917 LUSK, LLC, an Idaho limited liability company, Petitioner-Appellant,
CITY OF BOISE, a political subdivision in the State of Idaho, Respondent, and ROYAL BOULEVARD ASSOCIATES, LP, an Idaho limited partnership, Intervenor-Respondent

2015 Opinion No. 16

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Kathryn A. Sticklen, Senior District Judge.

The decision of the district court is reversed.

Spink Butler, LLP, Boise, for appellant. JoAnn Butler argued.

Givens Pursley, LLP, Boise, for respondent Royal Boulevard Associates, LP. Gary Allen argued.

Boise City Attorney's Office, Boise, for respondent City of Boise. Mary Watson argued.

HORTON, Justice. Justices EISMANN, J. JONES and Justice Pro Tem WALTERS CONCUR. Chief Justice BURDICK Dissents without opinion.


Page 42

HORTON, Justice.

This case arises from 917 Lusk, LLC's (Lusk) petition for judicial review of the Boise City Council's (City Council) decision granting a conditional use permit for Royal Boulevard Associates, LP (Royal) to build an apartment complex. The Ada County district court affirmed the City Council's decision and Lusk timely appealed. We reverse the decision of the district court.


In the fall of 2011, Royal's predecessor in interest applied for permission to build a 352,000 square foot, five-story, multi-family apartment complex called River Edge Apartments (River Edge) at 1004 West Royal Boulevard in Boise. The site of the proposed construction is near Boise State University, adjacent to the Boise River, east of Ann Morrison Park, and west of property owned by Lusk. The site is zoned Residential Office with a Design Review Overlay (R-OD). Multi-family housing is an allowed use for this location. However, the Boise City Code (BCC) requires a conditional use permit (CUP) in order to construct a building more than 35 feet tall in an R-OD zone. If constructed as planned, River Edge will be between 59 and 63 feet tall.

Lusk was entitled to notice of the application for a CUP due to the proximity of its property to the proposed project. Lusk owns the Keynetics, Inc., building located immediately east and south of River Edge's proposed building site.

On March 5, 2012, the Boise Planning and Zoning Commission (Commission) held a hearing on the River Edge application, receiving testimony from City staff, the applicant team, and members of the public. The Commission unanimously approved granting the River Edge application for a CUP and variance allowing the height exception. The following day, the Commission provided a written explanation for its decision as to the variance and the CUP. This document set forth the conditions of approval, including twelve site-specific conditions.

Lusk appealed the Commission's decision to the City Council, contending that the Commission's decision failed to address the requirements for a CUP. In a 15-page letter, Lusk outlined its claims of error. Lusk asserted multiple errors in the Commission's approval, including claims that the proposed building was incompatible with buildings in the immediate vicinity due to its height and design aesthetics. Of particular importance to this appeal is the focus that Lusk placed on the impact of constructing a 622-bedroom apartment complex with 280 automobile parking spaces, given that River Edge's plans were to lease the bedrooms on an individual basis to students. Lusk asserted that " the proposed project will place an undue burden on transportation and other public facilities in the vicinity" and " the proposed project will adversely affect other property in the vicinity."

On April 17, 2012, the City Council upheld the Commission's approval of the River Edge CUP and denied Lusk's appeal.[1] In addition

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to adopting the Commission's reasons for its decision, the City Council directly addressed Lusk's concern regarding parking: " The Council also found that the public record from the Planning and Zoning Commission meeting revealed a robust discussion regarding parking. The Commission determined that the project was correctly designated as multi-family and that the level of provided automobile parking was sufficient."

Lusk appealed to the district court, which affirmed the City Council's decision. Lusk timely appealed to this Court.


The Local Land Use Planning Act (LLUPA) allows an affected person to seek judicial review of an approval or denial of a land use application, as provided for in the Idaho Administrative Procedure Act (IDAPA). I.C. § 67-6521(1)(d); Dry Creek Partners, LLC v. Ada Cnty. Comm'rs, ex rel. State, 148 Idaho 11, 16, 217 P.3d 1282, 1287 (2009).

When a district court acts in its appellate capacity pursuant to IDAPA, " we review the district court's decision as a matter of procedure." Williams v. Idaho State Bd. of Real Estate Appraisers, 157 Idaho 496, 502, 337 P.3d 655, 661 (2014) (quoting Jasso v. Camas Cnty., 151 Idaho 790, 793, 264 P.3d 897, 900 (2011)). When doing so, we conduct an independent review of the agency record. Dry Creek Partners, 148 Idaho at 16, 217 P.3d at 1287 (2009). This Court will affirm a district court's decision upholding a zoning board's action unless the party contesting the zoning board's decision demonstrates that (1) the board erred in a manner specified in Idaho Code section 67-5279(3), and (2) the board's action prejudiced its substantial rights. Id. Idaho Code section 67-5279(3) provides that a board's decision will only be overturned where its findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; or (e) arbitrary, capricious, or an abuse of discretion.

I.C. § 67-5279(3).

This Court applies its well-established standard of review to evaluate whether there has been an abuse of discretion. The decision-maker must have " 'perceived the issue in question as discretionary, acted within the outer limits of its discretion and consistently with the legal standards applicable to the available choices, and reached its own decision through an exercise of reason.'" Krempasky v. Nez Perce Cnty. Planning & Zoning, 150 Idaho 231, 237, 245 ...

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