Posted by: Patricia Salkin | April 28, 2015

Idaho Supreme Court Finds Commission Abused its Discretion in Granting Conditional Use Permit for Student Housing Without Requiring Enough Parking

In an appeal from Ada County arising from a petition for judicial review of the Boise City Council’s decision granting a conditional use permit for Royal Boulevard Associates to build an apartment complex near Boise State University, the Supreme Court reversed the decision of the district court affirming the City Council’s approval of the Boise Planning and Zoning Commission’s decision to grant the conditional use permit. The Supreme Court held that the Commission and the district court failed to recognize that Idaho law and the Boise City Code provided the Commission with discretion to require the project to provide on-site automobile parking beyond the minimum required by the Parking Chapter. As a result of this failure to apply governing legal standards, the Commission refused to consider the adverse effects on property in the vicinity, and thus, the decision reflected an abuse of discretion. Additionally, the Supreme Court found substantial evidence supporting Lusk’s claim of potential prejudice to its substantial rights as the project calls for 622 bedrooms to be leased to students and the Parking Chapter requires only 280 parking spaces for the project.

Developer, Royal Boulevard Associates, LP (Royal) was granted a conditional use permit (CUP) to build a 352,000 square foot, five-story, multi-family apartment complex called River Edge Apartments (River Edge) in Boise, Idaho. The site of the proposed construction was near Boise State University and west of property owned by 917 LUSK, LLC (Lusk). The site was zoned Residential Office with a Design Review Overlay (R–OD). Multi-family housing was an allowed use for this location. However, the Boise City Code (BCC) required a conditional use permit (CUP) in order to construct a building more than 35 feet tall in an R–OD zone. If constructed as planned, River Edge would have between 59 and 63 feet tall. The Boise Planning and Zoning Commission (Commission) granted the application for a CUP and variance allowing the height exception.

Lusk, appealed the Commission’s decision to the City Council, contending that the Commission’s decision failed to address the requirements for a CUP. Lusk asserted multiple errors including claims that the proposed building was incompatible with buildings in the immediate vicinity due to its height and design aesthetics. Further, the proposed project would place an undue burden on transportation and other public facilities in the vicinity and other property. The City Council upheld the Commission’s approval determining that the project was correctly designated as multi-family and that the level of provided automobile parking was sufficient.

Lusk petitioned for judicial review of the City Council’s decision. The District Court of the Fourth Judicial District affirmed and Lusk appealed.

On appeal, the Supreme Court of Idaho reversed holding that:

1) The city’s refusal to consider adverse effects on property in vicinity of the project was an abuse of discretion, and 2) Lusk demonstrated prejudice to substantial rights.

The court only considered Lusk’s arguments regarding whether BCC section 11–06–04.13 required the Commission to consider additional parking requirements beyond those contained in the Parking Chapter of the BCC. The court stated that the plain language of BCC section 11–06–04.13.C simply required the Commission to determine whether the proposed site was of sufficient size to satisfy BCC minimum standards for parking. Chapter 11–10 of the BCC (Parking Chapter), established minimum automobile parking standards for different categories of development and states that the “number of required parking spaces was based on the primary use of the site. Therefore, BCC section 11–06–04.13.C was satisfied if a site was large enough to accommodate the proposed use along with the parking required by Chapter 11–10.

Further, BCC section 11–06–04.13.D required that the Commission find that “the evidence presented at the hearing was such as to establish that the proposed use would not adversely affect other property of the vicinity.” The inquiry is whether the Commission recognized that it possessed the discretionary authority to impose parking requirements beyond the minimum established by the Parking Chapter. The court stated that Idaho Code section 67–6512(d)(7) provided that “conditions may be attached” to a CUP “requiring more restrictive standards than those generally required in an ordinance.” BCC section 11–06–04.13.D required that the Commission determine “that the proposed use will not adversely affect other property of the vicinity.” The Commission failed to recognize that Idaho law and the BCC provided it with discretion to require the project to provide on-site automobile parking beyond the minimum required by the Parking Chapter. As a result of this failure the Commission refused to consider the adverse effects on property in the vicinity. Thus, the court found that the decision reflected an abuse of discretion.

The Supreme Court found that the district court failed to recognize that Idaho Code section 67–6512(d)(7) and BCC section 11–06–04.13.D authorized the Commission to impose parking requirements as a condition of approval beyond the minimum established by the Parking Chapter.  The record showed the project called for 622 bedrooms to house students at Boise State University. The Parking Chapter required only 280 parking spaces for the project. Without even attempting to evaluate the impact of guests who arrive by automobile, the Court noted that there will be significant numbers of residents looking for parking in the vicinity. The court concluded that there was sufficient evidence that Lusk was in jeopardy of economic harm from the project.

917 Lusk, LLC v City of Boise, 158 Idaho 12, 343 P3d 41 (ID 2/10/2015)

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/41214.pdf


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