Cooper v. Bd. of County Com'rs of Ada County

ON PETITION FOR REHEARING

DONALDSON, Chief Justice.

Appellants and respondent jointly petitioned for rehearing, seeking clarifica*412tion as to whether the Ada County Comprehensive Plan of 1968, which was in effect when the application for rezone was made, or the Ada County Comprehensive Plan of 1977 is to be applied on remand.

Appellants contend the 1968 Plan should be applied on remand, citing Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973) and Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). Those cases dealt with applications for building permits and subsequent enactment of zoning ordinances which were not pending before the governing body when the applications were made and, if given retroactive effect, would have defeated plaintiffs’ rights to the permits. In Ben Lomond and Ready-To-Pour, it was held the subsequently enacted ordinances could not be given such retroactive effect and that those effective at the time of application were determinative of plaintiffs’ right to the permits. The rationale for so holding was stated in Ben Lomond as follows:

“[T]o hold for the City in the present case would mean that a city, merely by withholding action on an application for a permit, could change or enact a zoning law to defeat the application. It could, in substance, give immediate effect to a future or proposed zoning ordinance before that ordinance was enacted by proper procedure. The present case effectively illustrates this possibility. The language of the Wisconsin Supreme Court in holding that a city could not deny an application for a building permit on the basis of an ordinance later enacted is pertinent here:
‘. . . It is apparent that the town officials were trying to keep one jump ahead of Humble and were attempting to change the rules after they had been hailed into court. ... If the town’s contention is upheld it would be tantamount to approving the proposition that every time a party came close to successfully challenging a town and its zoning board on its zoning actions, his gains could be legislated away by the enactment of an amendment to the ordinance.’ ”
(emphasis added) 92 Idaho at 602, 448 P.2d at 216, quoting from State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d 1, 130 N.W.2d 304, 311 (1964).

In Fasano v. Board of County Com’rs, 264 Or. 574, 507 P.2d 23 (1973), the Oregon Supreme Court, dealing with a statutory land use regulation scheme similar to Idaho’s, observed the following with respect to the relationship between the comprehensive plan and the zoning ordinances enacted in accordance therewith:

“Although we are aware of the analytical distinction between zoning and planning, it is clear that under our statutes the plan adopted by the planning commission and the zoning ordinances enacted by the county governing body are closely related; both are intended to be parts of a single integrated procedure for land use control. The plan embodies policy determinations and guiding principles; the zoning ordinances provide the detailed means of giving effect to those principles.” 507 P.2d at 27.

Accordingly, it is the decision of this Court that the Ada County Comprehensive Plan of 1968, in effect at the time appellants made application for rezone, is to be applied on remand to respondent Board.

The judgment of the district court is reversed and the case is remanded to the district court with order to remand to the Board of County Commissioners for further proceedings in accordance with I.C. §§ 67-6501 et seq. and this opinion.

SHEPARD, McFADDEN and BISTLINE, JJ., concur.