specially concurring in part and dissenting in part.
I concur in the result, save as to the denial of the Board’s request for an award of attorney fees pursuant to I.C. § 12-117. However, I cannot agree entirely with the majority’s analysis of the substantive issues presented by this appeal. Specifically, I do not read the LLUPA as authorizing our review of any part of the Vickers’ petition for review, including the portion addressed to the Board’s approval of Savala’s application for a conditional rezone based upon the development agreement. Thus, I would remand with instructions to the district court to dismiss the Vickers’ petition in its entirety. In addition, I would award attorney fees to the Board but not Savala.
The majority correctly states that in order for a court to review the Board’s action in approving the conditional rezone and accompanying development agreement, there must be a statute authorizing such review. Idaho Const. art. V, § 13; I.R.C.P. 84(a)(1). The majority further recognizes that I.C. § 67-6521 would authorize judicial review of the Board’s approval, as long as that approval amounts to an issuance of a “permit authorizing development.” The majority then reasons that “since the Board’s approval of the conditional rezone and corresponding Development Agreement is the functional equivalent of a conditional use permit, which is in essence a special use permit, the Board’s approval of the conditional rezone and corresponding Development Agreement is ... ‘a permit authorizing development’ under LLU-PA.” In my view, this conclusion stretches the statutory language too far.
Although the word “permit” is not contained in the definitions section of LLUPA, I.C. § 67-6517 refers to “a permit as defined in this chapter.” Thus we know, as the majority points out, that “what constitutes a permit is defined by the Act.” The act refers to special use permits (I.C. § 67-6512), subdivision permits (I.C. § 67-6513), planned unit development permits (I.C. § 67-6515), variance permits (I.C. § 67-6516), building permits (I.C. § 67-6517), and conditional use permits (I.C. §§ 67-6512, 67-6532). There is no provision in the LLUPA that refers to a permit for a “conditional rezone based upon a development agreement.” We are therefore not authorized to review the Board’s action in granting a conditional rezone based upon a development agreement pursuant to I.C. § 67-6521 — such action is not the issuance or denial of a permit. If the legislature had intended to allow for judicial review of such action, it would have included a conditional rezone based upon a development agreement within the act’s delineation of the different kinds of permits or otherwise so stated.
The majority contends that approval of a conditional rezone based upon a development agreement is the functional equivalent of an issuance of a special use permit, as mentioned in I.C. § 67-6512, and that thus we are authorized to review the Board’s action pursuant to I.C. § 67-6521. I disagree. A special use permit is a different animal than a conditional rezone and accompanying development agreement. The LLUPA addresses the former in I.C. § 67-6512, while the latter is governed by I.C. § 67-6511A. A special use permit may be granted in cases where the “use is conditionally permitted by the terms of the ordinance, subject to conditions pursuant to specific provisions of the ordinance .... ” I.C. § 67-6512(a). In applying for a special use permit, an owner avers that his use is one permitted by the ordinance and that if given the permit he will abide by the conditions set out in the ordinance. In contrast, with a conditional rezone and corresponding development agreement, a county may “require or permit as a condition of rezoning that an owner or developer make a written commitment concerning the use or development of the subject parcel.” I.C. § 67-6511A. In applying for a conditional rezone based upon a development agreement, an owner seeks a new classification of his property that will be conditioned upon terms to which he and the county agree.
The majority reasons that a grant of either of these things “ultimately allow[s] noncon*443forming uses to occur on the subject property” and that thus they are functionally the same. This is incorrect. A special use permit does not change the zoning of the subject property. By contrast, once a conditional rezone and corresponding development agreement has been approved, the subject property is rezoned so that the use conforms. In short, the granting of a special use permit allows a nonconforming use if that use is one enumerated in the ordinance and the owner abides by the conditions set out in the ordinance. The zoning classification of the land does not change. Conversely, approval of a conditional rezone based upon a development agreement changes the zoning classification of the land, subject to the owner’s compliance with agreed upon conditions. The differences between these two grants, though perhaps subtle, are important enough that the legislature dealt with each of them in separate provisions, subjecting only one of them to judicial review by terming it a “permit.” Savala requested and received a rezone of his property conditioned upon his compliance with a development agreement in which the Board requires him to make various installations and improvements on his property. This is the very process described by I.C. § 67-6511A, which is not a process by which a county issues a “permit” as that word is defined by Idaho Code, title 67, chapter 65.
Because a conditional rezone based upon a development agreement is not a permit as defined by the LLUPA, I would conclude that there is no statutory authority for review of any portion of the Vickers’ petition for review. This conclusion renders irrelevant the question of whether a conditional rezone based upon a development agreement “authorizes development” for purposes of I.C. § 67 — 6521(l)(a), and thus I would decline to address it.
Furthermore, because there is no statute authorizing review of the Vickers’ petition, I would conclude that not only are they not the prevailing party, but that they acted without a reasonable basis in fact or law in bringing their petition. Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 633-34, 181 P.3d 1238, 1241-42 (2008). I would thus award the Board attorney fees pursuant to I.C. § 12-117. Id.
We have previously awarded attorney fees to a party in Savala’s position — an intervenor on the side of the county who prevails when a petition for review is dismissed for lack of statutory authority — under I.C. § 12-121. Id. Although I joined in the decision in Giltner Dairy, I am convinced that our award in that case was in error. Idaho Code § 12-121 states in relevant part that “[i]n any civil action, the judge may award reasonable attorney’s fees to the prevailing party....” (Emphasis added). In Lowery v. Board of County Commrs. for Ada County, 117 Idaho 1079, 1082, 793 P.2d 1251, 1254 (1990), this Court held that an appeal from an administrative proceeding is not a civil action. Pursuant to Lowery, Savala is not entitled to attorney fees under I.C. § 12-121.
Savala also asks for an award of attorney fees pursuant to I.C. § 12-117. That statute states, in relevant part, that:
Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney’s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.
The dispositive language is involving as adverse parties ... a county ... and a person. It is true that this case involves the county and the Vickers as adverse parties. However, I do not interpret the adversity between the county and the Vickers as satisfying the adversity requirement as between the county and Savala. The county and Savala are not adverse, and thus the legislature did not intend for a party in Savalas position to receive an award under I.C. § 12-117.
Idaho Code § 12-117 initially allowed for an award of attorney fees to an adverse person and against a county. 1994 Idaho Sess. Laws, ch. 36, p. 55. It was later amended to allow for an award to a county from an adverse person. 2000 Idaho Sess. Laws, ch. 241, p. 675. It has never been amended, however, to allow for an award to a *444person who is not adverse to the county in a case in which a county happens to be involved, and I would decline to infer that this was the intent of the Legislature. Thus I would hold that Savala is not entitled to an award of attorney fees under I.C. § 12-117.
Such a holding might seem to conflict with our decision in Rural Kootenai Org., Inc. v. Bd. of Commrs., 133 Idaho 833, 845, 993 P.2d 596, 608 (1999). In that case, a developer intervened on the side of the county, and the county lost on appeal. We stated that, pursuant to I.C. § 12-117, “[the intervenor] shall share the burden of appellate costs with the County.” Id. at 846, 993 P.2d at 609. This holding may suggest that, since we levied costs against an intervenor who was not adverse to the county under I.C. § 12-117, we may also logically make an award of attorney fees to Savala under that same provision. The Court in Rural Kootenai was explicit, however, that it was only awarding costs and not attorney fees against the intervenor pursuant to I.C. § 12-117. And because costs are awarded to a prevailing party on appeal as a matter of course pursuant to I.A.R. Rule 40, it follows that the Court’s citation to I.C. § 12-117 for the award of costs is dicta. Thus, I would hold that our decision in Rural Kootenai does not conflict with a denial of Savala’s request for attorney fees under I.C. § 12-117.
In sum, I find that there is no statutory basis for any portion of the Vickers petition for review and thus that they acted without a reasonable basis in fact or law in bringing it. I would accordingly remand with instructions to the district court to dismiss the petition and would award attorney fees to the Board but not Savala.
Justice TROUT, J., pro tern, Concurs.