IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49179
NORTH WEST NEIGHBORHOOD )
ASSOCIATION, an Idaho unincorporated )
nonprofit association & registered )
neighborhood association of the City of Boise,
)
)
Petitioner-Appellant, )
)
v. )
)
Boise, November 2022 Term
CITY OF BOISE, an Idaho municipal )
corporation, )
Opinion Filed: September 7, 2023
)
Respondent, )
Melanie Gagnepain, Clerk
)
and )
)
TRILOGY DEVELOPMENT, INC.; VIPER )
INVESTMENTS LLC; FASTWATER LLC; )
and COREY BARTON, )
)
Intervenors-Respondents. )
_______________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Darla Williamson, District Judge.
The decision of the district court is affirmed in part and reversed in part. The case
is remanded with instructions to invalidate Boise City Council’s actions and
remand to the City for the adoption of a reasoned statement.
Ertz Johnson, LLP, Boise, for Appellant. Brian Ertz argued.
Office of Boise City Attorney, Boise, for Respondent City of Boise. James Smith
argued.
Givens Pursley, LLP, Boise, for Intervenors-Respondents. Deborah E. Nelson
argued.
_______________________
BRODY, Justice
This appeal involves a petition for judicial review. Appellant challenges the district court’s
decision upholding Boise City Council’s approval of three interrelated land use applications. We
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agree with Appellant that Boise City Council failed to provide a reasoned statement explaining its
approval of the applications as required by section 67-6535(2) of the Local Land Use Planning
Act. We remand this matter to the district court with instructions to set aside Boise City Council’s
actions and remand to the Council for the adoption of a reasoned statement.
I. FACTUAL BACKGROUND
The North West Neighborhood Association (“NWNA”), the Appellant, is a group of
neighbors that reside in the northwest corner of Boise in an area some affectionately call “Old Hill
Road.” The neighborhood runs adjacent to the Boise foothills and was annexed into the City in
2014. The rural character and history of the neighborhood is important to many of its residents.
The City of Boise recognizes the neighborhood as the “Northwest Planning Area” in “Blueprint
Boise,” the City’s Comprehensive Plan.
In early 2018, Trilogy Development, Inc., Viper Investments LLC, Fastwater LLC, and
Cory Barton (together, the Intervenor-Respondents, hereinafter “Applicants”), through their
representative, submitted three interrelated land use applications to the City seeking approval of a
multi-use development project called “Prominence” on about 38 acres of land in the area. The
project as initially proposed consisted of 286 dwelling units (156 single-family homes and 130
multi-family units). The applications were for: (1) a rezone from R-1A to R-1C/DA to increase
residential density from 2.1 homes per acre to 8 homes per acre; (2) a planned unit development
(the “PUD”) with a use exception to provide flexibility in lot sizes and setbacks; and (3) a
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preliminary plat for a subdivision to provide a layout of the project and create and record legal
divisions of land to facilitate future land sales.
A city planning team reviewed the applications and recommended to the Planning and
Zoning Commission (“PZC”) that they be approved with conditions. The planning team’s
recommendations included a statement that “[c]omments from public agencies confirm the project
will not place an undue burden on the transportation system or other infrastructure in the
neighborhood.” NWNA, on the other hand, actively opposed the project. Shortly before PZC’s
public hearing, NWNA submitted a petition with approximately 2,500 signatures in opposition to
the project, along with oral histories of the land and photos of the open space. Ultimately, PZC
made the decision to deny the PUD and recommended to Boise City Council (the “Council” or
“City Council”) that it deny the rezone application and preliminary plat because, among other
reasons, there was a lack of essential fire services needed to support the project. Without an
approved zoning change and PUD, PZC also recommended denial of the preliminary plat since it
failed to conform to existing zoning requirements.
The Applicants immediately appealed PZC’s decisions to the City Council, arguing, among
other things, that PZC failed to provide a reasoned statement supporting its decision as required
by Idaho Code section 67-6535(2). About six weeks later, the Council held a public hearing that
lasted well into the night because of public participation. At the hearing, the Boise fire chief
explained that the fire departments in Boise, Meridian, and Eagle had a long-standing written
“mutual aid agreement” that permits the departments to ask each other for help in times of
emergency. With the advent of computer-assisted dispatch, the chief went on to explain that the
fire departments agreed to dispatch the closest engine, closest truck, and closest battalion chief
when a structure fire occurs. He explained that, in practice, they have what is called “automatic
aid.” He further explained that he thought the City could have a formal “automatic aid agreement”
in place by the end of 2019. The chief also explained that there would likely be a fire station built
in the northwest area by the end of 2025; while there was not one planned at the time of the hearing,
the fire departments were talking, and the construction project was in the City’s budget. After
hearing from the fire chief, the Applicants, and concerned citizens, the Council voted to start
deliberating on the applications at the Council’s next meeting on July 23, 2019.
At the July 23 hearing, the Council again took up the applications and heard from the fire
chief so that he could address some of the citizen concerns voiced during the prior public meeting.
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Specifically, he was asked to address the status of certain agreements with the Eagle Fire Protection
District. He explained that he expected a signed automatic aid agreement very soon:
Chief Doan: Okay Thank you, mayor, Council members. Yeah, this is a
whole bunch of things all combined into one. There is a mutual aid agreement.
There’s an automatic aid agreement. There’s a joint powers agreement. And then
there’s a contract for service. And all of that kept getting mixed up in the testimony
the other night. So, let me – let me try to clarify each one of them to be clear.
First, I appreciate how much support public safety, not only you, but all the
neighbors have been discussing. And I appreciate it as fire chief. But mutual aid
agreement, let’s start there. We do have a mutual aid agreement with all the county
agencies. It’s – it’s quite old. We have been working under that mutual aid
agreement for many, many years. So we do have a signed mutual aid agreement.
Automatic aid agreement. There is no automatic aid agreement, that is
correct. But we – we – through the mutual aid agreement, we automatically dispatch
all of our units just like one agency. So in essence, even though there’s not a signed
automatic aid agreement, in practice, we do it anyway. So I’m willing and already
working on it and I think we can have it done by the end of this month, maybe next
month, have a signed automatic agreement with Eagle. It’s not needed, but if that’s
what makes everybody feel comfortable, I will get it. And we’ve already – I’ve
already called the chief from Eagle. We’ve already started the discussions. What
we’re going to do is, in writing, we’re going to put down what we do. And that’s
simply it. So we will have a signed automatic aid agreement very, very soon.
The chief was also asked to address the assertion that the Old Hill Road area had
experienced a decline in service since it was annexed into the city. The chief explained that there
are two different levels of service – one set forth in Blueprint Boise and one internal standard used
by the Boise Fire Department – and that neither standard was mandatory. He also explained that
the Boise Fire Department meets its internal standard of 5 minutes and 30 seconds in the Northwest
Planning Area with the assistance of the Eagle Fire Protection District and the North Ada County
Fire and Rescue District:
Correct. So first, there was a quite a few – a bit of misinformation that there
was a mandated level of service, that there was state statute or – there is nothing in
federal or state or city that mandates a service, that the authority having jurisdiction,
us, get to decide the level of service. There’s two service level standards. There’s
the planning of four minutes a mile and a half in the Blueprint Boise. And there is
our Boise Fire Department standard of we respond to all emergencies in five
minutes and 30 seconds 90 percent of the time. Two different things. Neither are
mandated. The five-minute and 30 seconds is our chosen level of service and we
meet that in this area currently. All of us together – I know I’ve worked with all of
you – believe that we should increase the service in the northwest. And we’re
working towards that. And I’ve presented my plan to move the station to Gary Lane
to provide that service.
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So we adequately serve this community right now. We meet our five
minutes and 30 seconds with the help of Eagle, with North Ada County, with Boise.
That’s good government of all of us working together. And we do provide that level
of service. Can we provide better? Absolutely. And I think that’s all of our wish. I
hope I didn’t overstate that.
After addressing the fire service issues, Mayor Bieter also commented that he thought there
should be some discussion about the possibility of using the city’s open space and clean water
funds in the development area to address citizen concerns. Based on these discussions and the prior
public hearing, Council President Pro Tem Clegg moved to defer decisions on the applications so
that the Council could give the Applicants and NWNA “firm direction” on the project’s design
issues:
I would – I would move that – that we defer for as – whatever length we can [the
applications] with very firm direction from the council on some items that the
parties could try to resolve and bring back to us for a final decision.
Clegg clarified that she wanted the Applicants to work with NWNA to: (1) redesign open
space and pathways; (2) develop a phasing plan in concert with city plans for improved fire service
in the northwest; (3) examine the form and design of the view scape on Hill Road Parkway; and
(4) redesign the corner of Bogart and Hill Road Parkway to introduce an apartment complex that
consisted of more than just a single, large building. Council President McLean questioned the
procedural appropriateness of this move and stated that she would rather deny the applications
outright. There was some discussion about the length of the deferral, but the Council ultimately
decided, after discussing an acceptable hearing date with the Applicants, that a deferral until its
October 1 meeting was permitted under Boise City Code. The motion then passed 4-1.
After meeting with NWNA and the city planning team on August 21 and September 4,
Applicants submitted modified plans for the project which: included more publicly accessible open
spaces and pathways; eliminated proposed townhomes and replaced them with single-family
detached homes; and redesigned the apartment complex with more open space and multiple,
smaller apartment buildings. As modified, the applications proposed 226 dwelling units with 130
single-family units and 96 conceptual multi-family units. The overall density of the project was
reduced from 7.4 dwelling units per acre to 5.9 dwelling units per acre.
At the October public hearing, the city planning team presented the modified project,
stating in its report that it would not place a burden on public facilities in the vicinity:
Furthermore, the revised project is in compliance with the objective
standards of Boise City Code. There is also policy guidance supporting both the
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rezone and associated PUD and subdivision. Finally, a[s] detailed by ACHD, Boise
Fire, and public works, all the agencies demonstrate the requested use will not
place a burden on the transportation system or other public facilities in the vicinity.
(Emphasis added.) The lead planning team member also explained that Boise Fire had entered into
an automatic aid agreement with the Eagle Fire Protection District:
Mr. Letson: So, again, beyond mediation, there were discussions about two
other items that we felt we needed to get some more information on. So fire service
was the first one. And as you can tell in the planning team’s memo, Boise Fire and
Eagle Fire have successfully entered into an automatic aid agreement for
emergency services in the area.
This will ensure the proposed project, and a larger part of Northwest Boise
will officially be within a four-minute response time from Eagle Fire Station 42,
which is highlighted with the yellow star there in the upper left.
So the four-minute standard is the preferred standard as identified in
Blueprint Boise. As detailed in the memo from Boise Fire dated September 23, once
the city is able to move or if the city ultimately decides to move Boise Fire Station
No. 16, highlighted here with the yellow, north of State Street, along Gary Lane,
that would improve fire service in the area even more and be from the Boise Fire.
And I do have representatives from the fire departments to dive into those
details if you would like a little bit more information on fire service at this point.
The Council again received extensive comments from NWNA and its members. Ultimately, the
Council unanimously approved the rezone and preliminary plat and voted to reverse PZC’s denial
of the PUD. The written decision adopted by the Council expressly provided that phase III of the
project which involves the construction of multi-family apartment buildings shall not commence
until construction of Fire Station #16 is underway. The reasoned statement that was approved by
the City Council consisted of one and one-half pages of text with seven additional pages of
standard conditions. After the approval of the project, NWNA submitted a request for
reconsideration, which the Council denied. NWNA then filed a timely petition for review with the
district court.
II. STANDARD OF REVIEW
The Local Land Use Planning Act (“LLUPA”) allows an affected person to seek judicial
review of the approval or denial of a land use application, as provided for in the Idaho
Administrative Procedure Act (“Idaho APA”). 917 Lusk, LLC v. City of Boise, 158 Idaho 12, 14,
343 P.3d 41, 43 (2015); I.C. § 67-6521(1)(d). The actions of a governing board are afforded a
strong presumption of validity. Duncan v. State Bd. of Acct., 149 Idaho 1, 3, 232 P.3d 322, 324
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(2010). A reviewing court does not substitute its judgment for that of a governing board. Id. Rather,
under the Idaho APA, a land use decision shall be affirmed unless the reviewing court determines
the governing board’s findings, inferences, conclusions, or decisions, were:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) not supported by substantial evidence on the record as a whole; or
(e) arbitrary, capricious, or an abuse of discretion.
I.C. § 67-5279(3) (emphasis added). Importantly, even if a land use decision is made in violation
of section 67-5279(3), the governing board’s decision must be affirmed unless substantial rights
of the appellant have been prejudiced. I.C. § 67-5279(4).
When a district court acts in its appellate capacity under the Idaho APA, this Court
“review[s] the district court’s decision as a matter of procedure.” 917 Lusk, LLC, 158 Idaho at 14,
343 P.3d at 43.) (quoting Williams v. Idaho State Bd. of Real Estate Appraisers, 157 Idaho 496,
502, 337 P.3d 655, 661 (2014)). When reviewing the district court’s decision, this Court conducts
an independent review of the governing board’s record. Id. (citing Dry Creek Partners, LLC, v.
Ada Cnty. Comm’rs, ex rel. State, 148 Idaho 11, 16, 217 P.3d 1282, 1287 (2009)). When the district
court has affirmed a land use decision, this Court will uphold the district court’s decision provided
the governing board’s findings were supported by substantial and competent evidence; however,
we freely review the district court’s conclusions of law. Id.
III. ANALYSIS
A. Boise City Council’s written reason for decision failed to satisfy the requirements of
the Local Land Use Planning Act.
NWNA contends Boise City Council’s approval of the applications should be invalidated
under the Idaho APA because the written reason for decision failed to satisfy the requirements of
section 67-6535(2) of LLUPA. NWNA contends the Council’s reason for decision, particularly as
it relates to fire and traffic issues, is insufficient under LLUPA because it does not provide a
rationale for the approvals based on the relevant standards and factual findings. Citing a dissent in
Davisco Foods Intern., Inc. v. Gooding County, 141 Idaho 784, 794, 118 P.3d 116, 126 (2005)
(Jones, J., dissenting), NWNA also contends that the Council failed to explain why its decisions
vary from those of the PZC. The district court rejected NWNA’s arguments after summarizing the
Council’s reason for decision and concluding that a comprehensive plan does not operate as legally
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controlling zoning law, but rather serves to guide and advise the governing authority. We agree
with NWNA that the Council’s written reason for decision fails to satisfy LLUPA. We remand
this case to the district court with instructions to invalidate the Council’s actions and remand the
matter to Boise City Council for adoption of a reasoned statement that complies with LLUPA.
Section 67-6535 of LLUPA expressly provides that the approval of a land use application
must be based upon standards and criteria which are set forth in the governing authority’s
comprehensive plan, zoning ordinance, or other appropriate regulations:
The approval or denial of any application required or authorized pursuant to this
chapter shall be based upon standards and criteria which shall be set forth in the
comprehensive plan, zoning ordinance or other appropriate ordinance or regulation
of the city or county.
I.C. § 67-6535(1). The purpose of this requirement is so that “permit applicants, interested
residents, and decision makers alike may know the express standards that must be met in order to
obtain a requested permit or approval.” Id.
The Local Land Use Planning Act also requires a governing authority to issue a written
“reasoned statement” which accompanies its decision to explain why the land use application was
approved or denied:
The approval or denial of any application required or authorized pursuant to this
chapter shall be in writing and accompanied by a reasoned statement that explains
the criteria and standards considered relevant, states the relevant contested facts
relied upon, and explains the rationale for the decision based on the applicable
provisions of the comprehensive plan, relevant ordinance and statutory provisions,
pertinent constitutional principles and factual information contained in the record.
I.C. § 67-6535(2) (emphasis added). The failure to address compliance or noncompliance with
express approval standards or relevant decision criteria is grounds for invalidating a governing
authority’s decision:
Failure to identify the nature of compliance or noncompliance with express
approval standards or failure to explain compliance or noncompliance with relevant
decision criteria shall be grounds for invalidation of an approved permit or site-
specific authorization, or denial of same, on appeal.
I.C. § 67-6535(2)(a).
This Court explained in Jasso v. Camas County that the reasoned statement requirement
serves important functions, including facilitating judicial review:
The requirement of meaningful administrative findings serves important functions,
including “facilitating judicial review, avoiding judicial usurpation of
administrative functions, assuring more careful administrative consideration,
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helping parties plan their cases for rehearing and judicial review and keeping within
their jurisdiction.”
151 Idaho 790, 794, 264 P.3d 897, 901 (2011) (quoting Idaho Underground Water Users Ass'n v.
Idaho Power Co., 89 Idaho 147, 156, 404 P.2d 859, 863 (1965)).
In Jasso, a developer applied for a preliminary plat to construct a residential subdivision
consisting of fifteen lots. 151 Idaho at 792, 264 P.3d at 899. Two neighboring landowners objected
to the application, citing concerns over public use of a private easement, a planned cul-de-sac that
violated a length limitation imposed by county ordinance, and a failure to address flood mitigation.
Id. The Camas County Planning and Zoning Commission initially recommended that the Camas
County Board of Commissioners deny the application. Id. at 793, 264 P.3d at 900. The Board
deliberated and remanded the application to the Planning and Zoning Commission with
instructions to the developer to modify the plat. Id. The developer did as he was instructed, and
the Commission recommended the Board approve the application. Id.
The Camas County Board of Commissioners subsequently issued findings of fact and
conclusions of law approving the preliminary plat on several conditions, including that the road
over the private easement be built to county specifications and that it include a “hammerhead”
terminus. Id. Critically, the Board’s findings and conclusions did not address the applicability of
the floodplain provisions. Id. at 797, 264 P.3d at 904.
The neighbors filed a petition for judicial review with the district court. Id. The district
court ruled in their favor, holding that the planned road was a cul-de-sac and violated a length
ordinance. Id. The district court also held that the findings of fact and conclusions of law were
inadequate under the provisions of LLUPA discussed above and violated the neighbors’ substantial
right to due process. Id. This Court affirmed the district court’s decision. Id.
In addressing the reasoned statement requirement, this Court explained that we have
repeatedly held local governing authorities to the standard set forth in Idaho Code section 67-
6535(2). Jasso, 151 Idaho at 794, 264 P.3d at 901. We walked through a number of those decisions,
explaining when statements issued by governing authorities were deemed deficient:
In Crown Point Development, Inc. v. City of Sun Valley, the purported findings of
the city council were merely recitations of portions of the record, rather than
determinations of the facts disputed by the parties. 144 Idaho 72, 77–78, 156 P.3d
573, 578–79 (2007). This Court found the “findings” to be inadequate. Id. In
Workman Family Partnership v. City of Twin Falls, the city council’s factual
findings explained that a rezone application was denied because the rezone imposed
“[t]oo great a change,” would devalue nearby residential properties, and “would
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violate the integrity of existing residential zoning districts.” 104 Idaho 32, 37, 655
P.2d 926, 931 (1982). We held that “[t]he reasons listed for the denial of the
application … are basically conclusions. Nothing ... reveals the underlying facts or
policies that were considered by the Council. The reasons listed ... provide very
little insight into the Council's decision.” 104 Idaho at 38, 655 P.2d at 932. In
Cooper v. Board of County Commissioners of Ada County, the Court held that a
board of county commissioners' findings and conclusions, supplemented by a staff
report that stated some of the shortcomings for which the application was denied,
were inadequate where the board denied the application “because of items 1, 2, 3
and 4 and Agricultural Policies No. 4 and No. 5 and also because of the school
district.” 101 Idaho 407, 408–09, 614 P.2d 947, 948–49 (1980).
Id. At the end of the discussion, we provided a summary of what a reasoned decision must consist
of:
These cases demonstrate that the reasoned statement must plainly state the
resolution of factual disputes, identify the evidence supporting that factual
determination, and explain the basis for legal conclusions, including identification
of the pertinent laws and/or regulations upon which the legal conclusions rest.
Id. (emphasis added).
Ultimately, the Court concluded that the Camas County Board of Commissioners’ reasoned
statement contained only recitations of procedural history, not findings of fact. Id. at 795, 264 P.3d
at 902. The conclusions of law contained no explanatory language, but, rather, were only broad
conclusions. Id. The Court explained that while inferences could be made about the basis for the
Board of Commissioners’ decision, making those inferences was not the role of a reviewing court:
It may be inferred that the Board concluded that Fricke Creek Road is a stub street
and not a cul-de-sac, that the Subdivision Ordinance does not limit the length of
stub streets, that the proposed subdivision has access to a public road, and that the
floodplain ordinances are inapplicable. However, I.C. § 67–6535 requires more
than conclusory statements from which a decision-maker's resolution of disputed
facts and legal reasoning may be inferred. It is not the role of the reviewing court
to scour the record for evidence which may support the decision-maker's implied
findings and legal conclusions. To the contrary, the reviewing court's responsibility
is not to evaluate the sufficiency of the evidence or the soundness of the legal
principles upon which a decision may have rested; rather, the role of the reviewing
court is to evaluate the process by which the decision was reached, considering
whether substantial evidence supported the factual findings, and evaluate the
soundness of the legal reasoning advanced in support of the decision.
Jasso, 151 at 795–96, 264 P.3d at 902–03 (emphasis added) (footnote omitted).
In this case, there may, in fact, be an evidentiary and legal basis for the Council’s decision
to approve the land use applications. Having said that, the difficulty we face on appeal, much like
the situation in Jasso, is that we cannot engage in meaningful judicial review because no findings
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of fact have been presented to the Court and the Council’s one and one-half page “reason for
decision” is largely conclusory and does not identify decision criteria or address the fire safety or
traffic issues raised by NWNA in any meaningful fashion. To put it simply, we cannot evaluate
the process by which the Council reached its decision or the soundness of its legal reasoning
because the reason for decision failed to satisfy the requirements of section 67-6535(2).
The administrative record provided on appeal consisted of nearly 4,000 pages with
extensive documentary evidence and transcripts of multiple public hearings with presentations
from city planning staff, Applicants, and NWNA, statements from neighbors, and testimony from
city fire staff on multiple occasions. From the moment public input was accepted, NWNA raised
serious issues related to the level of fire protection service and traffic impacts of the project. In its
presentation to City Council, NWNA, citing statutory provisions, Boise City Code provisions, and
the City’s Comprehensive Plan, reasoned that the project should not be approved because the 4-
minute fire response time set forth in Blueprint Boise could not be met. After hours of public
hearing and deliberation, the Council adopted a cursory one and one-half page reason for decision
and seven pages of standard conditions. The entirety of the Council’s reasoned decision was as
follows:
Rezone
As further detailed in the attached findings, the requested rezone meets the
approval criteria of B.C.C. Section 11-03-04.03(C7). It is consistent with the
Comprehensive Plan. The subject property has two land use designations, with
the parcels to the north of Hill Road Parkway being "Suburban" and those to
the south being "Compact." The requested R-1C zone is allowed in both of
these land use designations. Furthermore, there are several principles within the
Comprehensive Plan that encourage new housing that complements the
surrounding neighborhood and does not require the costly extension of
infrastructure (Principles NAC3.1(a) and CC1.1). Principle NAC3.2 supports
residential infill and redevelopment in areas identified as suitable for change
within the "Areas of Stability and Change" map. This area of the Northwest
Planning Area has been identified as anticipated for "Significant New
Development/Redevelopment." The subject property is located adjacent to an
arterial roadway (Hill Road Parkway) and two collector roadways (Duncan
Lane and Bogart Lane), which are intended to carry larger volumes of vehicle
trips. Rezoning the property to allow more density along these roadways is in
the best interest of the public as it will accommodate additional residents that
can take advantage of existing services and amenities in the area.
The development agreement included in the application will ensure
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compatibility with the surrounding neighborhood as it includes specific design
and layout requirements for various aspects of the development. These include
a limit on the height, number of stories, and dwelling units associated with the
future multi-family building.
Planned Unit Development
The decision of the Commission was made in error as it was not supported by
substantial evidence. Specifically, deferring the project and requiring the
applicant team and representatives of the neighborhood to develop design
alternatives allowed for the establishment of conditions that ensure the project
will comply with the approval criteria for conditional use permits as outlined in
the Development Code (BCC 11-03-04.7(C7)) The mix of housing types are
compatible to the surrounding neighborhood. The higher density portion of the
development on the south side of Hill Road Parkway is surrounded by detached
single-family homes on typical R-1C lots (i.e., 5,000 square feet to 7,000 square
feet in size). The lower density portion of the development on the north side of
Hill Road Parkway is surrounded by vacant land and single-family homes on
large lots. With this layout, the applicant has attempted to transition from a
more intense development pattern along Hill Road Parkway to the less intense
development pattern of the area to the north, which consists of several large
vacant lots and single-family homes on large parcels. Overall, the development
effectively transitions in intensity from the area nearest the State Street corridor
in the south to the low density and open space areas in the north near the Boise
foothills. The project is consistent with several principles in Blueprint Boise
that encourage a mix of new housing and pedestrian-oriented infill development
that does not require the costly extension of infrastructure. All necessary
utilities and infrastructure are readily available to the site. The subject property
is a mix of "Suburban" and "Compact" designated land which both support the
type of project proposed, which consists of a mix of attached and detached
single-family homes, as well as multi-family housing. The density of the
project will not exceed the limitations of the R-1C zoning requested and the site
is large enough to accommodate the requested use, including parking, open
space, landscaping, and amenities. Comments from public agencies confirm the
project will not place an undue burden on the transportation system or other
infrastructure in the neighborhood. Finally, the proposed development will not
adversely impact other properties in the near vicinity. All required setbacks
have been met or exceeded and screening provided in the form of landscaping
and fencing. The design of the project incorporates a significant amount of
landscaped open space and several amenities that will be a benefit to the
surrounding neighborhood.
Preliminary Plat
The proposed preliminary plat conforms to the requirements of the proposed R-1C
(Single Family Residential) zone. The new public streets proposed with the
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development are supported by Principles CC2.1(a), CC2.1(b), GDPN.1(a)and NW-
C1.3asthey [sic] offer improved connectivity to the broader neighborhood. With
the recommended conditions of approval, the Preliminary Plat is in conformance
with Blueprint Boise, the Development Code, and other guiding documents.
Starting with the rezone decision, there were no findings of fact attached to the document
or anywhere else in the administrative record that we have been provided on appeal. Beyond the
failure to provide findings of fact, the Council’s citation to the criteria for rezone approval was in
error. The correct citation is Boise City Code section 11-03-04.3.C(7)(c) which provided that a
rezone application must meet the following criteria to be approved. It:
i. Is in compliance with the Comprehensive Plan.
ii. Is in the best interests of the public convenience and general welfare.
iii. Maintains and preserves compatibility of surrounding zoning and
development.
NWNA’s position from the outset has been the rezone application should be denied
because the project does not comply with the 4-minute level of fire service set forth in the
Comprehensive Plan and is not in the best interests of the public’s general welfare. The City
Council’s reason for decision fails to address the fire service issue in any way and is in violation
of the requirements of section 67-6535(2). The City Council must explain in a reasoned decision
whether the project complies with the level of fire service set forth in the Comprehensive Plan and
whether the project is in the best interests of the public’s general welfare, and the City Council
must also set forth the facts upon which it relies to make those determinations.
The PUD decision suffers from similar defects. The decision does not clearly identify the
standard of review that guided the Council’s decision. Although not cited, it appears the Council
may have started its analysis with Boise City Code section 11.03.03.9.C(2)(a)(i)-(vi) which sets
forth the grounds upon which the Council, sitting as a review body, may find error with a decision
made by PZC. It states:
i. The Council may find error on the following grounds:
ii. The decision is in violation of constitutional, state, or city law. An example
would be that the review body’s decision would be a taking.
iii. The review body’s decision exceeds its statutory authority.
iv. The decision is made upon unlawful procedure. An example would be if
notice of a required public hearing was inadequate. In such cases, the matter
may be remanded to correct the error.
v. The decision is arbitrary, capricious or an abuse of discretion in that it was
made without rational basis, or in disregard of the facts and circumstances
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presented. Where there is room for two opinions, action is not arbitrary and
capricious when exercised honestly and upon due consideration.
vi. The decision is not supported by substantial evidence.
B.C.C. § 11-03-03.9.C(2)(a)(i)-(vi).
After determining the PZC’s decision was not supported by substantial evidence, the
Council, without any analysis, appears to have applied the decision criteria in Boise City Code
section 11-03-04.7.C(7)(a)-(g) which governs PUD decisions made by PZC (not the City Council)
and provides:
(a) The location is compatible to other uses in the general neighborhood;
(b) The proposed use will not place an undue burden on transportation and other
public facilities in the vicinity;
(c) The site is large enough to accommodate the proposed use and all yards, pen
spaces, pathways, walls, fences, parking, loading, landscaping, and such other
features as are required by this Code;
(d) The proposed use, if it complies with all conditions imposed, will not adversely
affect other property of the vicinity;
(e) The proposed use is in compliance with the Comprehensive Plan;
(f) A multi-family building (any building containing more than two residential
units) is designed to comply with the Citywide Design Standards and
Guidelines;
(g) A drive-up window in a C-5 District, if it complies with all conditions imposed,
will not adversely affect pedestrian traffic or create an unsafe pedestrian
environment and that the location and design of the drive-up window provides
proper on-site vehicle stacking based on peak hours, and minimizes potential
circulation issues or other negative impacts to pedestrians or traffic.
Recommended conditions of approval submitted to a review body and made
available to the public shall not be altered by city staff or any other party prior
to the public hearing. The decision body may later or modify conditions of
approval.
Nowhere in the decision does the Council address the level of fire service protection. The
closest it comes is in the statement: “Comments from public agencies confirm the project will not
place an undue burden on the transportation system or other infrastructure in the neighborhood.”
This statement is as conclusory as those made by the Camas County Board of Commissioners in
Jasso, and there are no factual determinations to support it. In addition, the City now contends on
appeal that fire service is not a “public facility” and therefore subsection (b) of the decision criteria
does not require the City Council to consider the burden the project may place on fire service. The
City’s legal position seems to belie the requirement of Boise City Code section 11-03-03.4.A,
which required the City Council to forward the applications to all political subdivisions providing
services to the site, including the Boise Fire Department, for review and comment. However, the
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bigger point here is that it is the City Council that must first determine whether fire service is a
“public facility” as that term is used in the Boise City Code and provide a written explanation for
its decision. It is only then that we can engage in meaningful judicial review:
If there is to be any meaningful judicial scrutiny of the activities of an
administrative agency—not for the purpose of substituting judicial judgment for
administrative judgment but for the purpose of requiring the administrative agency
to demonstrate that it has applied the criteria prescribed by statute and by its own
regulations and has not acted arbitrarily or on an ad hoc basis—we must require
that its order clearly and precisely stated what it found to be the facts and fully
explain why those facts lead it to the decision it makes. Brevity is not always a
virtue.
Jasso, at 796, 264 P.3d at 903 (quoting Workman Family P’ship. v. City of Twin Falls, 104 Idaho
32, 37, 655 P.2d 926, 931 (1982)).
Like in Jasso, the Council’s failure to provide a reasoned statement explaining its decision
necessitates that the approvals of the applications be invalidated pursuant to Idaho Code section
67-6535(2)(a). The failure to provide a reasoned statement that enables this Court to engage in
meaningful judicial review has deprived NWNA of its substantial right to due process. We
therefore reverse the decision of the district court in part and remand this matter with instructions
to invalidate Boise City Council’s actions and remand for the adoption of a reasoned statement
that complies with the requirements of section 67-6535(2) of LLUPA. On a final note, we decline
to accept NWNA’s invitation to apply the dissent’s reasoning in Davisco Foods Intern., Inc. v.
Gooding County, 141 Idaho 784, 794, 118 P.3d 116, 126 (2005) (Jones, J., dissenting), to impose
a requirement under LLUPA that the City Council explain on a point-by-point basis why its
decision varies from PZC. Even if we were inclined to read such a requirement into LLUPA (we
will leave that question for another day), PZC’s reason for decision was as conclusory as the one
issued by the City Council.
B. The district court correctly held NWNA failed to preserve the Eagle Fire referral
issue.
Before addressing NWNA’s other procedural challenges to the PUD, we recognize that a
governing authority’s failure to provide a reasoned decision typically ends our review. In this case,
it is necessary to address some additional issues raised by NWNA because those alleged procedural
errors could affect the scope of the remand. To be clear, we are instructing the district court to
remand this matter for adoption of a reasoned statement. The Council may, but is not required to,
conduct further public hearings to receive testimony or other evidence.
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Turning to the procedural challenge, NWNA contends that the City failed to comply with
Idaho Code section 67-6511(2)(a) and follow its own requirement to refer the applications to the
Eagle Fire Protection District (“Eagle Fire”) for review and comment. LLUPA requires that
“particular consideration” be given to “the effects of any proposed zone change upon the delivery
of services by any political subdivision providing public services . . . within the planning
jurisdiction.” I.C. § 67-6511(2)(a). Correspondingly, the Boise Development Code provides that
“[a]pplications requiring public hearings shall be referred to all political subdivisions providing
services to the site . . . for review and comment.” B.C.C. § 11-3-03.4.A. The district court held that
NWNA waived its argument that the City of Boise violated these provisions, or, alternatively, that
Eagle Fire is not the fire service provider for the proposed project. We agree with the district court
that NWNA failed to preserve the Eagle Fire referral issue for judicial review. Thus, we affirm
that portion of the district court’s decision.
The district court set forth the legal standard for waiver early in its memorandum decision
in its recitation of the standard of review. Citing Balser v. Kootenai County Board of
Commissioners, 110 Idaho 37, 40, 714 P.2d 6, 9 (1986), the district court stated: “Judicial review
is limited to those issues that were raised before the agency and issues asserted for the first time
on judicial review will not be considered.” Applying this standard to the Eagle Fire referral issue,
the district court determined NWNA came “closer” to raising the issue when NWNA’s vice-
president testified at the July 16 public hearing that there was nothing in the record showing that
Eagle Fire had been asked whether the project would place a burden on Eagle Fire’s responsibility
to cover its own district. The vice-president testified:
Although this area relies on Eagle Fire District for coverage, Eagle Fire
District has not signed a contract with Boise Fire. There’s nothing in the record
that shows that Eagle Fire has been asked whether covering Prominence would be
feasible or whether it would place a burden on their primary responsibility to cover
their own district.
(Emphasis added.) The district court reasoned this statement only came “closer” to raising the
referral issue because it did not put the City Council on notice of a procedural violation: “While
this comes closer to showing that the issue was raised than many of NWNA’s citations to the
record, this still does not show that NWNA was raising the issue to the city council in the context
that it had violated its procedures in not doing this.” We agree with the district court’s legal
conclusion.
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This Court recently had occasion to examine issue preservation requirements in Ada
County Highway District v. Brooke View, Inc., 162 Idaho 138, 395 P.3d 357 (2017), and made it
clear that to preserve an issue for appeal the party must raise the issue and take a position. In
Brooke View, the Ada County Highway District (ACHD) took property from along the front of a
gated retirement community to install a drainage ditch and sidewalks for students walking to
school. Id. at 140, 395 P.3d at 359. Litigation ensued over the value of the taking, but it soon
focused on damage ACHD caused to a large brick wall adjacent to the construction project. Id. at
141, 395 P.3d at 360. Brooke View sought to recover damages as part of the value of the taking.
Id. ACHD consistently defended against the claim, taking the position “that damages caused
during construction were not recoverable as part of just compensation.” Id. at 142 n.2, 395 P.3d at
361 n.2. The district court rejected ACHD’s position and held that damages were part of the taking
claim. Id. at 141, 395 P.3d at 360.
On appeal, ACHD maintained its position that the valuation of just compensation did not
include damage done during construction, but cited for the first time a statute that defined the
valuation of just compensation, Idaho Code section 7-711, and the statute that provided that the
actual value of the property at the date of the issuance of the summons is used to determined
compensation and damages, Idaho Code section 7-712. Id. at 142 n.2, 395 at 361 n.2. Brooke View
argued that ACHD’s statutory support for its position was new on appeal and was therefore not
properly preserved. Id. This Court held that ACHD properly preserved the issue because only
specific arguments had changed, not ACHD’s issue or position on the issue:
Here, early in the proceedings before the district court ACHD adopted the position
that damages caused during construction were not recoverable as part of just
compensation. ACHD argued this position repeatedly, despite being admonished
numerous times by the district court to stop doing so. There is no question that
ACHD clearly raised the relevant issue before the district court. ACHD’s specific
arguments in support of its position may have evolved since the trial, but the issues
on appeal and ACHD’s position with respect to them remain the same.
Id.
In this case, NWNA’s vice president raised the referral issue when he testified that nothing
in the record showed that Eagle Fire was “asked” about the effects of the project on the delivery
of services. The record establishes that NWNA raised the referral issue, but never took the position
that there was a procedural violation because the City failed to submit the applications to Eagle
Fire for its review and comment. During the July public hearing, the vice-president gave a
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PowerPoint presentation which he used to walk through various provisions of Idaho Code, Boise
City Code, and the Comprehensive Plan and argued extensively how the project failed to meet
those requirements. In contrast, he never argued the city was legally required to submit the
applications to Eagle Fire or that the City had failed to comply with its own code provision. While
preservation principles are not so exacting as to necessarily require an objector to cite to a
particular code provision, under the facts of this case there was not sufficient context to put the
City Council on notice that NWNA was claiming a procedural violation. As such, NWNA’s
argument on appeal was not sufficiently preserved, and we affirm that portion of the district court’s
decision.
C. NWNA’s other procedural challenges to the PUD are not grounds for reversal
because any errors did not prejudice NWNA’s substantial rights.
NWNA contends that the Council’s handling of the PUD application was made upon
unlawful procedure. Specifically, NWNA contends the Council was obligated to confine its review
of the PUD to evidence presented to PZC and that it erred when it deferred its hearing of the PUD
(along with the rezone and preliminary plat) to give the Applicants the opportunity to submit a
revised application. We need not address the merits of these arguments because we agree with the
Applicants that NWNA has not shown these alleged errors prejudiced NWNA’s substantial rights.
The Idaho APA expressly provides that even if a land use decision is made in violation of
section 67-5279(3), the governing board’s decision must be affirmed unless “substantial rights” of
the appellant have been prejudiced. I.C. § 67-5279(4). In this case, NWNA contends the Council’s
alleged errors result in prejudice to its members’ use and enjoyment of their properties. We agree
with Applicants that this assertion is nothing more than a generalized grievance associated with
any development of the 38 acres and is not linked specifically to the proposed project and is
certainly not linked to approval of the PUD application.
NWNA also contends there is prejudice to their members’ right to safety because of the
“very real risk of fire and escalating opportunities for ignition that come with rising densities in a
neighborhood bordering the Wildland Urban Interface . . ..” The increased density created by this
project would result from the approval of the proposed rezone and is not unique to the approval of
the PUD. While we would not go so far as to say the PUD has no effect on density, where NWNA
has not pointed to any unique harm caused by the approval of the PUD there is no ground for
reversal. Because NWNA has not established prejudice to a substantial right caused by the alleged
procedural defects in the handling of the PUD application, there are no other grounds for reversing
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the Council’s decision.
D. No Party is Entitled to Attorney Fees.
The parties make competing requests for attorney fees pursuant to Idaho Code section 12-
117 which authorizes an award to a prevailing party in an action between a person and a political
subdivision if the court “finds that the non-prevailing party acted without a reasonable basis in fact
or law.” I.C. § 12-117(1). In a similar vein, the Applicants request attorney fees as a sanction under
Idaho Appellate Rule 11.2 because, among other reasons, they contend NWNA raised issues on
appeal that had been waived and NWNA misrepresented facts and made arguments not supported
by law.
The City is not the prevailing party so it is not entitled to attorney fees. NWNA is the
prevailing party, but the standard for evaluating whether a party acted without a “reasonable basis
in fact or law” under this statute is substantially similar to the standard for evaluating whether a
party pursued an action “frivolously, unreasonably, or without foundation” under section 12-121.
S Bar Ranch v. Elmore Cnty., 170 Idaho 282, 313, 510 P.3d 635, 666 (2022), as amended (June
14, 2022) (citations omitted). Like in Nemeth v. Shoshone County, we cannot conclude that the
City acted without a foundation in fact or law in defending on appeal the judgment it won in the
district court. Nemeth v. Shoshone Cnty., 165 Idaho 851, 861, 453 P.3d 844, 854 (2019) (“[W]e
cannot find that the [respondent] acted without a foundation in fact or law in defending on appeal
the judgment they won below.”). As a result, we decline to award NWNA attorney fees on appeal.
As for the Applicants’ request for attorney fees as a sanction, the claims that NWNA
misrepresented facts or made legal arguments without support go too far. While it is true the parties
have disparate interpretations of the record and divergent interpretations of the applicable laws,
those differences are the stuff that appeals are made of and hardly warrant sanctions. As such, we
decline to award attorney fees to any party. Costs on appeal are awarded to NWNA pursuant to
Idaho Appellate Rule 41.
IV. CONCLUSION
We reverse the decision of the district court in part and affirm in part. We remand the
matter to the district court with instructions to invalidate the actions of Boise City Council and
remand this matter for adoption of a reasoned statement. Costs on appeal are awarded to NWNA.
Chief Justice BEVAN, and Justices STEGNER, MOELLER and ZAHN, CONCUR.
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