Posted by: Patricia Salkin | January 30, 2014

Fed. Dist. Court in Idaho Finds Procedural Requirements for Special Use Permit Hearings under Idaho’s Local Land Use Planning Act (LLUPA) and City Code Did Not Violate Due Process Nor Amount to Significant Substantive Restriction on City Council’s Decision Making

Burch (“plaintiff”) alleged in his complaint that the City Council violated his federal procedural due process and equal protection rights by denying – which differed from the Council’s treatment of two similar permit applicants – a special use permit application he submitted in June 2012. The application sought permission to operate a law office in a single family residential zone. Burch also claims the City’s hearing process violated various provisions of Idaho’s Local Land Use Planning Act (“LLUPA”) (Idaho Code § 67–6501 et seq.) and, by extension, the due process guarantee in the Idaho Constitution.

The court noted that the LLUPA provision governing the special use permitting process (Idaho Code § 67–6512(a)) provides: “A special use permit may be granted to an applicant if the proposed use is conditionally permitted by the terms of the ordinance”. Since this provision used the word “may” rather that “a special use permit shall be granted”, it indicates the Council has discretion to grant or deny a permit even if all other conditions are satisfied. Because Burch did not make the threshold showing of a constitutionally protected interest, the court held that his federal due process claim failed as a matter of law.

In the plaintiff’s equal protection claim, Burch did not contend the City Council’s stated reasons are untrue or illegitimate governmental concerns, but rather that the stated reasons are merely pretext for an otherwise irrational decision. The court concluded that no reasonable jury could find the City Council lacked a rational basis for distinguishing Burch’s law office permit application from the daycare’s application, since there was support in the record for each of the City Council’s stated reasons for denying Burch’s application. Accordingly, the Court granted summary judgment for defendants on Burch’s equal protection claim.

Ultimately the court held that while judicial review under LLUPA might have afforded a remedy, Burch’s state law claims also failed because he did not seek judicial review within 28 days of the City Council’s final decision. The court therefore granted the City Council’s motion for summary judgment on all of Burch’s claims.

Lacking a legitimate claim of entitlement to the special use permit and unable to demonstrate that similarly situated applicants were treated differently without rational basis, Burch cannot prevail on his federal constitutional claims. While judicial review under LLUPA might have afforded a remedy, Burch’s state law claims also fail because he did not seek judicial review within 28 days of the City Council’s final decision. Therefore, the City Council is entitled to summary judgment on all of Burch’s claims.

Burch v. Smathers, 2014 WL 29261 (D. Idaho 1/3/2014)

The opinion can be accessed at: http://www.gpo.gov/fdsys/pkg/USCOURTS-idd-3_12-cv-00632/pdf/USCOURTS-idd-3_12-cv-00632-0.pdf


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