concurring in part:
In view of the majority’s amplification of the Court’s original opinion, resulting from the filing of the joint petition for rehearing, I deem it necessary to explain why I originally concurred only in the result reached by the majority in its reversal of the judgment of the trial court. A brief review of the pleadings is necessary.
*413Cooper and Edmonds requested a rezone from D-2 to R-5 of a 99 acre tract of property on which they had obtained an option to purchase. The requested rezoning could only be accomplished by an ordinance passed by the Board of Ada County Commissioners. Harrell v. City of Lewiston, 95 Idaho 243, 506 P.2d 470 (1973). The Board held a hearing and by an order dated May 8, 1975, denied the application for a rezone and refused to enact an ordinance rezoning the property.
Cooper and Edmonds filed a notice of appeal in the district court of the Fourth Judicial District on May 20, 1975, in which they alleged that the action of the board was defective in several respects, including the fact that the action of the board was not sustained by the facts in the record; that the decision of the board was arbitrary and capricious and an abuse of discretion; and that the procedure followed by the board was defective and denied the appellants due process.
On May 28, 1975, the appellants filed an amended notice of appeal adding as an additional ground that “[appellants] are entitled to a writ of mandamus ordering the said [board] to issue an order of the rezone sought by [appellants].”
On July 17, 1975, the attorney for the appellants and the Ada County prosecuting attorney entered into a stipulation providing that “Plaintiffs may amend their pleadings in this matter in order to fully plead any and all rights to which they may be legally entitled.” Pursuant to the stipulation of July 17, the appellants filed a document entitled “First Amended Complaint,” which set out two causes of action, the first alleging that the denial of the rezone request by the defendants was unreasonable, arbitrary, unnecessary and capricious and without legal basis, and further alleging that “plaintiffs are entitled to a Writ of Mandamus because of the arbitrary and capricious actions of the Defendants . . .” The second cause of action incorporated the first and merely added the allegation that plaintiffs “have expended large sums of money in detrimental reliance upon the R-5 zone classification and the Ada County Comprehensive Plan and have a vested right to the rezone sought by the Plaintiffs herein.”
The Ada County prosecuting attorney filed an answer to the plaintiffs’ complaint denying appropriate allegations and asserting as an affirmative defense that “defendants further allege as an affirmative defense that the defendants were and are acting fully within their discretionary powers and mandatory duties as Commissioners of Ada County, and for this reason the complaint should be dismissed as a matter of fact and law.”
The plaintiff appellants filed a motion for summary judgment which was denied by the district court below in a memorandum opinion in which he drew certain conclusions concerning the nature of the appeal which was pending before him. In my view this case turns upon the decision which the district court made at that time.
The district court, in its decision below, quickly and correctly disposed of the plaintiffs’ claim for a writ of mandate. The court pointed out that a petition for writ of mandate would not lie against the Board in a petition for a rezoning request because in acting on such a petition, the Board is required to exercise its discretion rather than merely to perform a ministerial act. In that regard the district court correctly anticipated the decision of this Court in Wyckoff v. Board of County Commissioners of Ada County, 101 Idaho 12, 14, 607 P.2d 1066, 1068 (1980), in which this Court stated:
“A Writ of Mandate will lie to require administrative action in zoning matters only when the party seeking the writ ‘has a clear legal right to have an act performed, [the] officer against whom the writ is sought has a clear duty to act, and [the] act be ministerial and not require the exercise of discretion. Saviers v. Richey, 96 Idaho 413, 415, 529 P.2d 1285, 1287 (1974); I.C. § 7-302.’ ”
In the Wyckoff case we held that a decision regarding the issuance of a zoning certificate is committed to the discretion of the *414board. Thus it is clear that the district court correctly disposed of the claim of the plaintiffs that mandamus would lie to compel the action which they sought.
After disposing of the mandamus isse, the district judge then concluded that on an appeal from the decision of the board of commissioners of Ada County he was “in effect bound to rehear the validity of zoning disputes de novo,” relying on the decision of this Court in Cole-Collister Fire Protection District v. City of Boise, 93 Idaho 558, 468 P.2d 290 (1970). Since in my view the disposition of this case turns entirely upon the correctness of that decision by the district court, a review of the appropriate statutes at this point is necessary.
At the time that the Board of County Commissioners of Ada County rendered its decision, the only apparent statutory authority for appeal from a decision of the Board of County Commissioners in zoning matters was contained in I.C. § 31-1509. See Application of Bennion, 97 Idaho 764, 554 P.2d 942 (1976). Upon the filing of such an appeal I.C. § 31-1512 provides that “the matter must be heard anew” by the district court. In Gardner v. Blaine County, 15 Idaho 698, 99 P. 826 (1909), the Court discussed the nature of a proceeding in the district court upon appeal from a board of county commissioners under I.C. §§ 31-1509 and —1512. The Court held that:
“What is meant by ‘heard anew,’ as used in this statute, is that the district court shall try the case as though originally brought in said court, and the case must be proven in the same way as before the board of commissioners. The affirmative and burden of proof is with the same party. It is a retrial of the case tried before the board of county commissioners.
“In the case under consideration, the trial court seems to have proceeded upon the theory that it was the duty of the appellant to disprove the judgment and order made by the board of county commissioners. In other words, the negative of the issue before the board became the affirmative when the case was appealed to the district court, and the appellant was placed in the position of being required to disprove the facts which the petitioners were required to prove before the board in order to authorize the board to make the order entered by them. Such is not the law, however, and when the case reached the district court upon the appeal from the order of the board, it was necessary for the petitioners to make their case there and prove the same facts they were required to prove before the board of commissioners; . . . 15 Idaho at 702-03, 99 P. at 827.
The district court’s decision that he had to try the matter de novo, or anew, was correct. Since the appeal to the district court was to be a trial de novo, most of what this Court has said in its original opinion in this case concerning procedural safeguards required in proceedings before zoning boards and county commissions was not really necessary. When the matter was appealed and heard anew by the district court all of the proceedings that had occurred before the zoning commission or the Board prior to that time were of no significance. Under the statute it was as if the slate were wiped clean, and the case proceeds in the district court “as though originally brought in said court . . . Gardner v. Blaine County, supra at 702, 99 P. at 827. Any procedural irregularities which may have occurred before the Board of County Commissioners, if they were not repeated in the district court, would be irrelevant. See Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976) (criminal conviction without benefit of a jury trial does not violate fourteenth amendment due process right to jury trial where accused has a right to “appeal” and have a trial de novo before a jury). Appellants do not allege, and there is nothing in the record to suggest, that there was any procedural deficiency in the proceedings before the district court. Thus, the only question before this Court is whether the district court properly tried the case de novo, or anew, rather than merely determining whether the Board of County Commissioners had “abused their discretion.”
*415If the statute had required an “abuse of discretion” standard for judicial review, I would unhesitatingly affirm the decision of the district court. There is ample evidence in the record to sustain the Board of County Commissioners’ decision. However, while the district court did make some de novo findings, particularly with regard to the overcrowding in the Lake Hazel School and the adverse impact which the rezoning request would have had upon that school, taking its decision as a whole, it appears as though the district court was in fact conducting an appellate type review. The court should have been making its own judgment of the facts and the law, unfettered by the opinion of the zoning board and the Board of County Commissioners below. In that regard the trial judge was not making his decision “as though originally brought in [the district] court,” based upon the facts proved at trial, but was evaluating the evidence to see whether or not the Board of County Commissioners below had “abused their discretion” in ruling as they did. It was for that reason that I originally concurred only in the result reached by the majority that the judgment of the district court must be reversed. However, I do not concur in the majority’s order that the matter be remanded to the county zoning authorities. I would merely reverse and remand to the district court for a true de novo decision, after first permitting the parties to submit any additional evidence which they might have bearing upon the issues.
I am not unmindful of the difficult and undesirable burden which this places upon the district judges of this state. Questions of zoning and rezoning raise policy questions which are more appropriately made by the zoning boards and commissions rather than the courts. However, the legislature, at the time that this case arose, had not seen fit to expressly address the question of judicial review by the courts of decisions in zoning matters. But for the general provisions in I.C. §§ 31-1509 to -1512, Application of Bennion, 97 Idaho 764, 554 P.2d 942 (1976), there would appear to be no review by the courts of zoning decisions at all, except by the use of mandamus which is available only where the action requested is merely a ministerial duty. Wyckoff v. Board of County Commissioners of Ada County, 101 Idaho 12, 607 P.2d 1066 (1980). In the absence of any other legislative basis for review of zoning matters by the district courts, I.C. § 31-1512 requires that “the matter must be heard anew” which means that the district court must try the case de novo as though originally brought in that court.
Therefore, I join in the majority’s reversal of the decision of the district court, but would merely remand the matter to the district court for a de novo trial under I.C. § 31-1512.