Summary of a Recent
Judicial
Development in
Agriculture and Urbanization
Farmer Granted Conditional Use Permit
To Develop Residential Lots
Gaby R. JabbourNational AgLaw Center Research Assistant
In an action brought by several landowners challenging a county board of commissioner's decision to grant another landowner a conditional use permit that allowed the landowner to divide his farmland into residential lots, the Idaho Supreme Court has ruled that the proposed development was in harmony with the county's comprehensive plan and applicable statutes, and therefore affirmed the county board of commissioner's decision. Whitted v. Canyon County Board of Com'rs, 44 P.3d 1173, 1179 (Idaho 2002).
William Proesch applied to the Canyon County Planning and Zoning Commission ("Zoning Commission") for a conditional use permit that would allow him to divide some of his farmland that was located in an agricultural zone into residential lots. See id. at 1175. His land was surrounded by other farms and approximately sixty-five residences. See id. Proesch sought to develop "the rocky, poor farmland located on the southern portion of his property by creating residential lots ranging in size from three and one half to seven acres," and by "subdividing his land into six lots." Id.
The Zoning Commission denied Proesch's application because "the requested use was contrary to the existing ordinances and the county's comprehensive plan." Id. Proesch appealed the Zoning Commission's decision to deny his application to the Canyon County Board of Commissioners ("Board") and "amended his request to divide his land into five lots, only four of which would be used for residential purposes." Id. The Board reversed the Zoning Commission's decision and granted Proesch a conditional use permit that required marketing disclosures under the Idaho Right to Farm Act, Idaho Code §§ 22-4501-22-4504, and restricted Proesch's deeds to prevent a change in the character of the surrounding area. See id.
Landowners opposed to the division of Proesch's land into residential lots, appellants, brought an action in district court to challenge the Board's decision. See id. The district court affirmed the Board's decision, and the appellants requested a reconsideration of the matter by the district court. See id. The district court denied the request, and the appellants appealed directly to the Idaho Supreme Court. See id.
The appellants first alleged that the Board's hearing procedures "violated I.C. § 67-6534 by not providing the opportunity to the opponents to rebut evidence presented at the hearing on Proesch's application." Id. at 1176. The Idaho Supreme Court noted that "[t]he appellants' objection to a lack of surrebuttal under the hearing procedure was raised for the first time on the appeal to the district court." Id. The court explained that "in order for an issue to be raised on appeal, the record must reveal an adverse ruling which forms the basis for an assignment of error" and that "issues not raised below but raised for the first time on appeal will not be considered or reviewed." Id. at 1176-77 (citations omitted). The court ruled that it would not consider this argument because the appellants "did not preserve this issue before the Board but have raised it for the first time on appeal." Id. at 1177.
Next, the appellants contended that the Board's decision "is not supported by substantial, competent evidence nor is the decision in compliance with the county and state statutory provisions governing conditional use permits and land use planning." Id. They argued that "the proposed use is not harmonious with or in accordance with the county's comprehensive plan, and that the proposed use will be injurious to other property in the immediate vicinity or will change the essential character of the area." Id.
The court stated that a comprehensive plan "does not operate as legally controlling zoning law, but rather serves to guide and advise the governmental agencies responsible for making zoning decisions." Id. It also stated that "the Board may, therefore, refer to the comprehensive plan as a general guide in instances involving zoning decisions such as revising or adopting a zoning ordinance." Id. (citing Urrutia v. Blaine County, 2 P.3d 738, 742-43 (Idaho 2000)). The court noted that the Board had extensively reviewed the comprehensive plan and that after considering both the positive and negative aspects of Proesch's proposal, the Board found that the project fits well with pre-existing development in the area, that the land to be divided was least suited for agricultural purposes, that there were many residences in the area, and that the use of deed restrictions and marketing disclosures would aid in protecting the surrounding agricultural uses. See id. at 1178.
The court added that "nothing in the record shows that the Board acted arbitrarily or capriciously in arriving at the decision that the proposal was harmonious with the Canyon County comprehensive plan." Id. It ruled that "the Board's finding that Proesch's proposal was harmonious and in accordance with Canyon County's comprehensive plan was supported by substantial, competent evidence." Id.
Next, the court considered the appellants' argument regarding the change in the nature of the land and the damages agricultural surrounding lands would suffer by the addition of residential lots to the area. See id. It noted that the Board considered the lots proposed by Proesch as fitting well within the surrounding area and that there was a high demand for lots of this size in Canyon County. See id. It also noted that the Board believed that the development of Proesch's land would lessen the development pressure on areas more conducive to agriculture and that the deed restrictions and marketing disclosures would aid in preserving the agricultural nature of the surrounding area. See id. The court ruled that "the Board's findings that Proesch's proposed use will not be injurious to property within the immediate vicinity nor will it change the essential character of the area is supported by substantial, competent evidence." Id.
The court also considered the appellants' argument that the purpose of the Local Land Use Planning Act, Idaho Code §§ 6501-6538, "was to promote agriculture and encourage urban development," and that "Idaho Code § 67-6529 prevents regulations that deprive owners of the full and complete use of agricultural land." Id. The appellants also argued that "the Right to Farm Act discourages premature removal of land from agricultural uses." Id.
The court stated that the purpose of the Local Land Use Planning Act was "to encourage urban and urban-type development within incorporated cities and to ensure that the development on land is commensurate with the physical characteristics of the land." Id. at 1178-79 (citing Idaho Code § 67-6502(f),(h)). It added that "[t]he four additional residences that will be created under Proesch's proposal do not constitute an urban development within an incorporated city" and that "the evidence clearly shows that the land sought to be divided is the least suited for agricultural purposes and the land to be retained by Proesch is much more suitable for agricultural use." Id. at 1179. Therefore, the court held that the Board's conclusion "was not contrary to the purpose of the Local Land Use Planning Act" and that the "[a]ppellants are not, in any way, being deprived of the full and complete use of their agricultural land." Id.
Finally, the court considered the appellants' argument that the Board's decision should be reversed because the increase in the number of residences in the area would result in harm and prejudice to them in the use of their own properties. See id. The court stated that "[t]he possibility of harm or prejudice . . . is insufficient to afford the remedy of reversal." Id. (citing Idaho Code § 67-6535(c)). The court also noted that "actual harm or prejudice is relevant only where it is shown that the Board has acted arbitrarily or capriciously in issuing a conditional permit." Id. (citing Payette River Property Owners Ass'n v. Board of Comm'rs of Valley 976 P.2d 477, 480 (Idaho 1999) and Castaneda v. Brighton Corp., 950 P.2d 1262, 1265 (Idaho 1998)). The court stated that the Board's decision was supported by substantial and competent evidence and "in compliance with the county and state statutory provisions governing conditional use permits and land use planning." Id.
The case was decided on March 27, 2003; this summary was posted June, 2003