This post was authored by Olena Botshteyn, Esq.
Linscotts own and operate a gravel pit mine on land, zoned for rural use. The mine existed on the property before the Bonner County enacted its zoning code and constitutes grandfathered nonconforming use. At the time of its creation, however, the mine occupied approximately 17 acres compared to current 112 acres. Interstate operates an asphalt batch plant nearby, which requires gravel from the Linscotts’ mine. In August 2018, Linscotts and Interstate petitioned the County to relocate the batch plant to the gravel pit. The application was based on an Amendment, which allowed to place asphalt batch plants in a rural zone so long as they occurred in an “active gravel pit” and subject to receiving a conditional use permit. The County approved the application in January 2019. A nonprofit titled Citizens Against Linscott/Interstate Asphalt Plant (“CAL”) appealed the decision and on March 25, 2019 the County approved the application once again, noting that the proposed use would occur in an “active, legal nonconforming gravel mine.”
On April 19, 2019, CAL attempted to file its petition for judicial review of the County’s decision, but due to mistakenly not submitted case information sheet the filing was rejected. The petition was ultimately submitted upon discovery of the mistake on May 1. The County then moved to dismiss the petition as untimely, as it was submitted nine days after the statutorily prescribed twenty-eight day filing period, and also for the fact that CAL had not served the Linscotts or Interstate as parties to the proceeding. The district court denied the motion to dismiss, stating that late filing was due to the circumstances outside CAL’s control. The court also stated that the County did not demonstrate prejudice with regard to Linscotts and Interstate, who joined the action as intervenors.
The main argument of CAL before the district court was that the conditional use permit was granted based on an unlawfully adopted Amendment, and thus, shall be void. The court determined that it could not consider whether the Amendment was invalid in a proceeding for judicial review and affirmed the County’s decision to grant the permit. A district court then declared the Amendment invalid in a separate proceeding, and CAL appealed the court’s decision, approving the grant of the conditional use permit.
On appeal, the court considered seven issues, in particular, whether CAL had standing, whether its filing exceeded the prescribed time limits, whether Linscotts and Interstate had to be served initially, whether the validity of the Amendment could be considered in this proceeding for judicial review, whether declaring the Amendment void also voids the conditional use permit, whether the district court erred when it approved the granting of the conditional use permit by the County and whether any of the parties was entitled to attorney’s fees.
First, the court concluded that CAL had associational standing here. The test for a nonprofit to assert standing requires to show that its members would otherwise have standing to sue individually, that the interests it seeks to protect are inherent in organizational purpose, and that the claim does not require individual participation of its members. CAL is comprised of members that own property adjacent to the mine, who will suffer the consequences if the conditional use permit is granted, and individual participation of the members is not required to reverse the County’s decision. The court thus concluded that the test for an associational standing was satisfied by CAL.
The court further determined that the petition was filed with the district court within the prescribed time limits. The key factor here is that civil actions must be filed with an information sheet, but this is an administrative appeal, not a civil action, and it is governed by the statute authorizing judicial review and Idaho Rules of Civil Procedure. Neither of these statutes require submittal of an information sheet. Therefore, the court concluded that CAL’s first filing was proper and within the twenty-eight-day deadline, which commenced on March 25, when the County issued its final decision to grant the conditional use permit.
On the third issue, the court held that the district court did not err in refusing to dismiss the petition for judicial review because CAL did not serve the Linscotts or Interstate. Although CAL indeed was required to serve them, the court concluded that they did not suffer any prejudice due to lack of service, as they intervened in the proceeding early on and presented their arguments before the court.
The court further held that the district court did not err in concluding that the validity of the Amendment could not be considered in this proceeding for judicial review. As the enactment of the Amendment is a legislative action, it may be challenged only in a declaratory action. Actions seeking declaratory relief may not be combined with petitions for judicial review. “Indeed, the district court may not have been required to declare the Amendment void, but any legal conclusion it drew concerning the validity of the Amendment would likely have preclusive effect in other actions.” The court thus concluded that the court properly declined to consider the validity of the Amendment or make any legal conclusions in this respect.
Having taken judicial notice of the separate judgment, declaring the Amendment void, the court concluded that this makes a conditional use permit void as well. The court held that an Amendment adopted in violation of the notice and hearing requirement is void ab initio, meaning that it never had any force or effect. A valid Amendment was a condition precedent for granting a conditional use permit, and thus, it shall be void.
The court then concluded that the district court erred in concluding that the County’s application of its zoning ordinances was not arbitrary and capricious. A nonconforming use may not “extend… to occupy a greater area of land than was occupied [when the grandfathered rights were established]”, but Linscotts’ gravel pit mine has expanded by between 230 and 500 percent since its grandfathered rights were created. It was therefore unreasonable for the County to conclude that the batch plant would be located in an “active, legal nonconforming gravel pit.” As the County failed to address the gravel pit’s nonconforming status when considering the conditional use permit application, the court came to a conclusion that it acted in a manner that was arbitrary and capricious.
Finally, the court awarded CAL reasonable attorney’s fees on appeal against the County, stating that the County not only acted in an arbitrary and capricious manner when granting the conditional use permit, but also defended on appeal after it was established that the Amendment was void. The court affirmed in part and reversed in part the decision of the district court.
Citizens Against Linscott/Interstate Asphalt Planning v Bonner County Board of Commissioners, 2021 WL 1897380 (5/12/2021)
LAW OF THE LAND 
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