Property owners were seeking to build new houses on their land, zoned as agricultural, to replace the existing houses which had become uninhabitable. In order to get from the owners’ property to the main road, “spur road,” a single lane road which ran over their neighbor’s property, must have been used. The prior land owners had regularly used the road for decades to access their properties although no court had ever adjudicated whether or what easement rights existed. A zoning ordinance which was enacted in 1959 required that dwelling lots in an agricultural zone have at least one-hundred feet of frontage along a county approved road. Although the ordinance went into effect after the existing houses were built on the properties and their prior nonconforming right did not comply and was “grandfathered in,” the property owners still sought variances for the new houses they were about to build.
Although the Zoning Commission held that the variances were not needed since the homes were a permitted prior nonconforming use, they decided to grant one anyway which the Board of Commissioners affirmed on the basis of the property owners being “grandfathered in.” A neighbor petitioned for judicial review of the decision which the District Court dismissed, holding that he did not have standing to file for judicial review since he hadn’t shown the County had prejudiced any of his “substantial rights.” The neighbor appealed again.
The court held that the neighbor did have standing to file a petition for judicial review. In order to gain standing, one must show they are an “affected person” meaning they “have an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development.” In a land-use case it is only necessary for the petitioner to allege, not prove, that “the development could potentially harm his or her real estate interests.” The neighbor here alleged that the possibility for his livestock to escape would be increased due to the increased traffic which would occur because of the new houses and also that emergency vehicles might not be able to reach the neighboring properties and in the case of fire, it could spread to his property if it was not combated.
The court also held that the Board’s decision did not prejudice the neighbor’s substantial rights. Although the neighbor tried showing that his rights were violated based on the fact that the county may have misapplied its own ordinance, interference with his ranching activities, and the granting of the variances constituting a possible fire hazard, the court held none of these to be enough to show prejudice to a substantial right and therefore the district court’s order was affirmed.
Hawkins v. Bonneville County Board of Commissioners, 2011 WL 2535609 (Idaho 6/28/11)
The opinion can be accessed at: http://www.isc.idaho.gov/opinions/Hawkins%20FINAL.pdf
