dissenting.
For the following reasons, I dissent to the majority opinion.
First, I cannot agree with the majority’s quick dismissal of appellants’ contention that the issue of “conflict of interest” could not be raised before the district court because the issue had not been raised below.
The majority attempts to make a distinction between an issue not “formally” raised and an issue that was never raised. I do not see the distinction. I find the majority’s reliance upon I.R.C.P. 15(b) to be unsupportive of their position. As quoted by the majority, I.R.C.P. 15(b) states, “When issues not raised ... are tried by specific or implied consent of the parties, they shall in all respects be treated as if they were raised in the pleadings.” The key phrase here is “specific or implied consent.” The rule refers to whether one has allowed an issue to be raised during trial that was not raised in the pleadings. I do not find support in the record for the majority’s contention that the issue was “implicitly” before the court. The fact that both Purdy and Gardner ultimately disqualified themselves from voting on the zoning plans does not in itself interject the “conflict of interest” issue into the proceedings.
In Balser v. Kootenai County Board of Commissioners, 110 Idaho 37, 714 P.2d 6 (1986), this Court held that the landowners could not argue, on appeal from the Board of County Commissioners, that the county had failed to amend the zoning ordinance as mandated by I.C. § 67-6514, where the issue had not been raised in proceedings before the board.
Further, in M.K. Transport v. Grover, 101 Idaho 345, 612 P.2d 1192 (1980), this Court held that the requirement that the unpleaded issues be tried by at least the implied consent of the parties assures that the parties have notice of the issues before the court and an opportunity to address those issues with evidence and argument. See Cook v. City of Price, Carbon County, Utah, 566 F.2d 699 (10th Cir.1977); Cox v. Fremont County Public Building Authority, 415 F.2d 882 (10th Cir.1969); Otness v. United States, 23 F.R.D. 279 (D.Alaska 1959). The Court in MBI Motor Co., Inc., v. Lotus/East, Inc., 506 F.2d 709 (6th Cir.1974) states:
Implied consent to the trial of an unpleaded issue is not established merely because evidence relevant to that issue was introduced without objection. At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue.
I find nothing in the record indicating that the appellants had notice of the “conflict of interest” issue or, that they addressed the issue with evidence or argument before the county commissioners. Therefore, I would reverse the district court’s perusal of this issue.
Second, I disagree with the majority’s affirmance of the district court’s conclusion “that Nick Purdy and Robert Gardner had an economic interest” in the zoning plan.
According to I.C. § 67-6506, a member of the planning and zoning commission participating in a zoning proceeding may be disqualified for bias or interest. See generally, Josephson v. Planning Board of the City of Stamford, 151 Conn. 489, 199 A.2d 690 (1964); Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962); McNamara v. Borough of Saddle River, 60 N.J.Super. 367, 158 A.2d 722 (1960), affd. 64 N.J.Super. 426, 166 A.2d 391 (1960). Broadly, it may be said that in order to disqualify an officer *703from a zoning proceeding, there must be a clear showing of a direct, personal, and concrete interest in the outcome of the proceedings. The interest must be other than the general interest of members of the community. See Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 146 A.2d 111 (1958), wherein the court held that if every remote interest were to disqualify zoning officers, capable men would be discouraged from holding public office, so that while courts should scrutinize the circumstances with great care and should condemn anything which indicates corruption or favoritism, the actions of municipal officials should not be approached with a general feeling of suspicion. See also, Gellis v. Clark, 32 Misc.2d 597, 223 N.Y.S.2d 783 (1961) in which the court held that a member of the planning commission was not disqualified per se merely because he was also a member of a civic organization of residents in the vicinity of the described property.
Clearly, there must be more evidence in the records to support the existence of an “economic interest.” The majority purports to rely upon the “substantial evidence” test in reaching its conclusion. I.C. § 67-5215(f), (g)(5). However, the majority does not, it appears to me, actually rely upon this test, but instead upon the possible effects the transmission lines may have upon the property. In my view, these “possibilities” are not evidence that can be found in the record, but instead are the proposed evidence of the majority. The evidence in the record indicates that both Purdy and Gardner denied that the placement of the lines on their property would either increase or decrease the value of the property. It appears that the only effects of placement of the lines which concerned both Purdy and Gardner were visual. Further, payment for an easement across Purdy’s property had been made prior to the application to the Planning and Zoning Commission. Purdy stated at this deposition that he felt there was no conflict of interest because he “had gained all the money [he] would ever gain whether they put it [the transmission lines] there or not.” The only further protest made by Purdy at the hearing was to the placement of another set of transmission lines running parallel to another set on the opposite side of the highway. Purdy states “We didn’t want parallel lines down within 200' of each other because it just seemed awfully ridiculous, expensive.”
The majority should take note that I.C. § 67-6506 only prohibits participation in a proceeding when the member has an economic interest. The statute does not, however, address other concerns that a member may have, such as an interest in preserving the aesthetics of the property involved. From the record, it appears to me that both Gardner’s and Purdy’s main concern was for the visual impact that the proposed route would have on the thousands of persons who drive the road. In my view, respondents have thus failed to show how Purdy and Gardner are in violation of I.C. § 67-6506. I would reverse the ruling of the district court.