Posted by: Patricia Salkin | January 4, 2011

Idaho Supreme Court Upholds Conditional Use Permit Challenge By Neighhor

Appellee was granted a conditional use permit to develop a wedding and event center.  The application met all requirements in the relevant county ordinances.  At the public hearings, neighbors voiced concerns about the potential increase in noise but they did not provide any evidence that there would be an actual increase in noise and traffic. Despite the voiced concerns, the Commission approved the application but at a lower decibel to accommodate the neighbors. Neighbor challenged the granting of the permit and filed an appeal.

The Court, however, found that the neighbor failed to sufficiently allege how her substantial rights were prejudiced by the permit.  Also, she did not raise a due process argument at the lower court level and therefore, the argument has been waived. Further, the neighbor asserted that the Commission’s decision to grant the permit was an abuse of discretion.  The Court disagreed with this argument because the Commission exercised its discretion appropriately when it held a public hearing and listened to evidence and testimony from concerned neighbors.  The neighbor also sought attorney fees but she is not the prevailing party in this case and as such, the Court denied awarding her attorneys fees.  The Court upheld the approval of the conditional use permit.

 In re Approval of Conditional Use Permit #CUP-2008-3, 2010 WL 5140813 (Idaho, 12/20/2010)

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/KREMPASKY%2036943.pdf


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