Posted by: Patricia Salkin | February 13, 2015

Idaho Fed. Dist. Court Finds a Conditional Use Permit is not a Protect Property Interest

Plaintiff MountainWest Ventures, LLC, wanted to develop real property in the City of Hope, Idaho. To develop the property according to its plans, MountainWest applied to the City of Hope for a Conditional Use Permit. The City conducted public hearings on the application, and denied it. MountainWest then requested a regulatory takings analysis from the City. The City provided that analysis, and later denied MountainWest’s request for reconsideration. MountainWest now alleges that the City acted inappropriately at several points during these proceedings, and that the defendants violated its procedural due process rights under the Fourteenth Amendment.

MountainWest asserted a protected property interest in the conditional use permit it sought from the City. However, Idaho statutory law governing conditional or special use permits states that “such permits may be granted to an applicant if the proposed use is conditionally permitted by the terms of the ordinance, subject to conditions pursuant to specific provisions of the ordinance, subject to the ability of political subdivisions, including school districts, to provide services for the proposed use, and when it is not in conflict with the plan.” Thus, the use of the word “may” rather than “shall” in both the statute and the ordinance indicated that the City Council retained discretion to grant or deny a permit. Accordingly, MountainWest was not entitled to a conditional use permit and therefore did not have a protected property interest. Because the Court dismissed plaintiff’s federal due process claim, and the only remaining claims were based on Idaho state law, it dismissed them without prejudice so they could be refiled in state court.

Mountainwest Venture, LLC v City of Hope, 2015 WL 222448 (D. Idaho 1/14/2015)

The opinion can be accessed at: http://docs.justia.com/cases/federal/district-courts/idaho/iddce/2:2014cv00290/33771/34


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