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Idaho Supreme Court rules against permit for Sagle asphalt plant

by RACHEL SUN
Staff Writer | March 23, 2021 1:00 AM

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The Idaho Supreme Court ruled Monday that a conditional use permit originally granted in 2018 to move an asphalt batch plant from Sandpoint to Frank Linscott’s gravel pit in Sagle to be invalid because it was based on a void amendment in Bonner County Code.

In the ruling, judges affirmed some portions of the district court’s ruling while reversing others.

The ruling supported the district court’s decision that it could not rule on the amendment allowing for the asphalt batch plant, as it was a legislative action.

“Since there is no route by which the district court could consider the amendment’s validity without offering some binding legal conclusion or an inappropriate advisory opinion on the subject, the district court did not err in concluding that it could not consider the amendment’s validity,” according to a published decision of the ruling.

However, the ruling found that because of a subsequent order and judgment declaring the amendment void due to a lack of public notice, the CUP was also void.

Following the district court’s decision on the petition for judicial review, the unincorporated nonprofit, Citizens Against Linscott/Interstate Asphalt Plant (CAL), filed a separate declaratory judgment action seeking to have the amendment declared void.

Respondents challenged this in two ways: Firstly, by claiming the judgment declaring the amendment void was not properly before the court because it was not part of the original appeal.

Secondly, they argued that the Linscotts and Interstate Concrete and Asphalt Company had already had the right to conditional use granted, and as such it could not be retracted by the amendment being overturned.

In its ruling, the higher court affirmed that the amendment was void, stating in the analysis that although the judicial review must be confined to the agency of record, “courts may take notice of ‘official acts of the … judicial department [] of this state [.]’”

Further, the court ruled that because the amendment was void, the CUP was also void. The docket analysis states that the respondents are correct that in Idaho, land use applicants’ rights are measured under the law at the time of the application.

“The policy undergirding this rule is ‘to prevent local authorities from delaying or withholding action on an application in order to change or enact a law to defeat the application,’” according to the analysis.

However, it continued, previous cases considered the applicability of a subsequently enacted ordinance or comprehensive plan to a pending decision. This case, in contrast, related to whether the declaration that a then-existing law was void and thus invalidating the CUP.

“The Respondents’ argument on this front is unavailing,” according to the analysis. “Their proposed application of Idaho’s rule would turn the rationale for that rule on its head. Instead of protecting property owners from a government body enacting after-the-fact-legislation, the Respondents would allow a county or municipality to cement unlawfully enacted ordinances into law so long as they filed an application under the void ordinance before it was challenged.”

Idaho’s Supreme Court also ruled the district court had erred in its conclusion that the county’s interpretation and application of the zoning ordinance was not “arbitrary, capricious or an abuse of discretion,” and awarded CAL reasonable attorney’s fees against the county.

The analysis goes on to say that Bonner County Revised Code establishes that uses that were lawful before the enactment of zoning codes may continue as long as they are not “enlarged upon, expanded or extended, nor … used as a grounds for adding other structures or uses prohibited elsewhere in the same district or zone.”

Further, the lawful use is allowed to continue, but only so long as it does not extend beyond the area of land it occupied when the grandfathered rights were established.

In regards to the CUP, BCRC requires proposals have evidence of being in accordance with both “general and specific” objectives of the Comprehensive Plan, and that under the void amendment an asphalt batch plant is conditionally permitted use in a rural zone “only in association with a gravel pit.”

“[T]he county y determined that the amendment only required ‘an active gravel pit,’ not a gravel pit in conformity with the provisions of BCRC. As such, the county found, and no one disputes, that the Linscotts’ gravel pit is active and issued the CUP,” according to the analysis.

However, it continues, the county failed to consider whether issuing the CUP would violate the nonconforming use provisions of the BCRC.

In its appeal, CAL presented evidence noting the gravel pit had expanded between 230 and 500 percent since its grandfathered rights were created, according to the docket, and expanded onto additional parcels not part of its grandfathered rights.

“The gravel pit is not ‘otherwise lawful’ because it has violated the Idaho Department of Lands regulations and Idaho Surface Mining Act,” according to the analysis. “The addition of an asphalt batch plant would only further enlarge or expand the nonconforming use.”

While the court analysis states it is the county is responsible to determine whether the pit is in violation of BCRC — although the opinion notes it it “difficult to imagine” a factfinder could determine the pit to be in compliance with BCRC — the county’s CUP approval, which was indicated to be on an “legal nonconforming gravel pit,” and its failure to address the whether the CUP would intensify or enlarge the use of the gravel mine constituted action that was “arbitrary and capricious,” according to the analysis.

The ruling also affirmed the lower court’s decision that CAL has associational standing to pursue the matter, which respondents argued they did not have based on Idaho business entity statutory amendments made in 2015 in regards to abrogated associational standings for unincorporated nonprofits.

The court’s test for associational standing recognizes standing for a nonprofit when its members would otherwise have the right to sue in their own right, the interests it seeks are germane to the organization’s purpose, or neither the claim or relief requested require the participation of individual members in the lawsuit.

The County, the Linscotts, and Interstate, collectively “Respondents,” had argued against CAL’s standing by saying the group’s first petition for judicial review was rejected, and that CAL had not taken adequate remedial measures to obtain a filing related to its original petition.

Second, Respondents argued that the petition came outside the statutory time limit, making the claim that reconsideration of the decision “tolls the statutory clock rather than begins it,” according to the analysis.

In its analysis, the court docket states that CAL’s first petition was erroneously rejected. The filing was originally rejected because it lacked a case information sheet — however, procedures for judicial review such as the CUP in question, do not require a case information sheet.

The court further affirmed that CAL’s petition fell within the 28-day filing limit, as the period began when the county issued its decision on reconsideration.

In line with the lower court, the state Supreme Court affirmed the decision to dismiss efforts by respondents to have CAL’s petition dismissed for failing to serve Linscott or Interstate in a timely manner.

The court disregards all errors that do not affect the party’s substantial rights, according to the analysis. Because Linscott and Interstate were allowed to intervene early in the process and have their positions heard, this argument was dismissed.