Posted by: Patricia Salkin | February 17, 2012

The Idaho Supreme Court Explains Difference Between a Variance and a Conditional Use Permit

Burns Holding purchased a parcel of property in Teton County, Idaho near the city of Driggs to construct a concrete plant.  Although the land was not part of the city, it was within the city impact area and, thus, the city’s zoning laws apply.  As part of a Driggs’ zoning ordinance, no building was allowed to “exceed forty-five feet in height unless approved by conditional use permit.”  Seeking to construct a building seventy-five feet in height, Burns Holdings filed an application for a conditional use permit, in compliance with the statute.  The city approved the conditional use permit, however, the county—after finding they were responsible for the ultimate decision—denied the conditional use permit.  During the hearings, there was expressed confusion regarding whether the request for a conditional use permit was proper or whether Burns Holding should have actually requested a variance.  Ultimately, they did not decide this issue. 

Burns Holdings appealed to the district court, who remanded, ordering the county to submit written findings.  After Burns Holdings’ amended petition for judicial review, the county finally argued that a variance was required under Idaho Code, and thus, the application for the conditional use permit must be denied.  Although the district court disregarded this argument as waived, they upheld the county’s denial on other grounds.  Burns Holdings subsequently appealed. 

The Supreme Court of Idaho declines to address any argument raised by Burns Holdings.  Instead, the court quickly finds that Burns Holding was required to seek a variance, not a conditional use permit to build a taller structure.  The court explains that a conditional use permit is available where the applicant has a specific use for the land that is allowed if certain conditions are met.  On the other hand, a variance application is used to waive certain zoning restrictions.  Thus, even though the local ordinance specifically required a permit for a conditional use, the court finds that this requirement conflicts with the Idaho code and is, therefore, void.  

Here, since Burns Holding is seeking a waiver of zoning requirements, the court explains, they are actually seeking a variance.  To qualify for a variance, the applicant must show they are facing undue hardship because of the zoning restrictions on their land and that the variance would not conflict with the public interest.  Here, the court finds evidence of neither.  Thus, the court holds that neither the county nor the district court could waive the requirements under the Idaho code, and, thus, the denial of Burns Holdings’ conditional use permit application was appropriate.  

Burns Holdings, LLC v. Teton Cnty. Bd. Of Commrs., 2012 WL 206010 (Idaho 01/25/2012) 

The opinion can be accessed at:

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