Bracken v. City of Ketchum

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48721

ROY BRACKEN, an individual; RRJ LLC, )
an Idaho limited liability company; and )
PENGUIN LLC, an Idaho limited liability )
company, )
)
Plaintiffs-Appellants, )
) Boise, November 2022 Term
v. )
) Opinion filed: September 15, 2023
CITY OF KETCHUM, IDAHO an Idaho )
municipal corporation; MICAH AUSTIN, ) Melanie Gagnepain, Clerk
an individual, SUZANNE FRICK, an )
individual, and NINA JONAS, an individual, )
)
Defendants-Respondents. )
__________________________________________)

Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
Blaine County. Jonathan Brody, District Judge.

The district court’s decision is affirmed in part, reversed in part, and remanded.

Robert J. Elgee, and Alturas Law Group, LLC, Hailey, attorneys for Appellants.
Robert J. Elgee argued.

White, Peterson, Gigray & Nichols, P.A., Nampa, attorneys for Respondents.
Matthew A. Johnson argued.
_________________________________

BEVAN, Chief Justice.
This appeal is about whether an aggrieved applicant may bring a direct action against a
city, its administrators, and its mayor for alleged misconduct pertaining to the granting of a
conditional use permit without first exhausting administrative remedies and seeking judicial
review. The answer is almost always “no,” but based on the unique facts in this case we hold that
the applicant was excused from exhausting administrative remedies.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual background and procedural history of this case are complex, but the relevant
facts are not in dispute. On April 29, 2016, Roy Bracken applied for a conditional use permit to

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operate a gas station off Main Street in Ketchum, Idaho. Bracken had secured an option on the
property where he wished to locate the gas station. When Bracken filed his application, gas stations
were permitted at the site under Ketchum’s applicable zoning laws. While Bracken’s application
was pending, the City of Ketchum, through its mayor Nina Jonas, commissioned an online public
survey for opinions about whether a gas station should be permitted at the proposed site. The
results of the survey were introduced at a public hearing before the Ketchum Planning and Zoning
Commission (the “P&Z Commission”) on July 9, 2016. According to Steve Cook, an architect in
Ketchum since 1972, who also served on the P&Z Commission for almost nine years, the survey
was unprecedented. Also, at some unknown time during the application process, Mayor Jonas,
City Administrator Suzanne Frick, and former Sun Valley Mayor Ruth Lieder attended a dinner at
Barbi Reed’s house. Reed lived across from the proposed site and was the chairperson of a group
called the “Citizens Against Bracken Station.” Frick admitted that the meeting was “about
[Bracken’s] application.”
Bracken’s first application was ultimately denied based on the possibility of a traffic flow
problem. Rather than appeal the denial of his first application, Bracken revised his application, and
nearly one year later, on April 10, 2017, he presented a second application and site plan that was
redesigned to address the concerns raised about his first application. Bracken presented the second
application to Micah Austin—the Ketchum Planning Director and Zoning Administrator. Austin
denied Bracken’s application, claiming that it was the same, or substantially the same, as Bracken’s
earlier application.
On May 8, 2017, Bracken appealed Austin’s rejection of his second application to the P&Z
Commission, which orally reversed Austin’s decision at a hearing on June 8, 2017. Before a written
decision was entered, Bracken resubmitted the second application to Austin on June 19, 2017,
along with the appropriate plans and payments. Austin rejected the application as untimely
because: (1) the P&Z Commission had not entered a final written decision, and (2) upon
preliminary review, Planning and Building Staff advised that the application was incomplete and
missing required information. Austin physically returned the application to Bracken.
Around this time, Austin—in collaboration with the Ketchum City Council, Frick and
Mayor Jonas—decided the previous traffic study Bracken submitted could not be used because his
engineer had not used a valid Idaho engineer stamp. Austin emailed Bracken, stating that any
application submitted must include not only the application and application fee, but also several
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new requirements: (1) a site plan, (2) a new traffic study from someone other than Bracken’s
original engineering firm, (3) circulation plans and exhibits, (4) a lighting plan, (5) a photometric
plan, (6) a letter from the Idaho Transportation Department stating the proposal complied with
certain standards, (7) a draining plan, and (8) a landscaping plan. None of these added items were
required by the applicable Ketchum Municipal Code.
In the interim, between the P&Z Commission’s oral decision and the written decision it
entered on July 7, 2017, the City passed a new ordinance prohibiting gas stations from accessing
Main Street in Ketchum. The ordinance’s adoption was unusually expedited. At one point in the
hearing on the proposed ordinance, a councilman asked Austin, “My question is directed at Micah
[Austin] and why is there a sense of urgency for passing this . . . P&Z should just do their job. I
don’t think the sense of urgency should come from us, P&Z doesn’t think this is appropriate,
because it sure sounds to me like passing three readings is going after one person. So tell me why
I’m not doing that.” Austin replied:
Sure, I’d be happy to explain that. In the State of Idaho an applicant’s rights are
vested at the time an application is accepted by the city and so if that application is
submitted when a certain ordinance is on the books their rights are vested according
to that ordinance that is on the books. When we presented this amendment to the
P&Z Commission on April 10, that same day the applicant for the Bracken station
submitted another application on April 10 that very morning. We rejected that
because the code says you can’t resubmit for a denied conditional use permit within
12 months. They appealed my decision to deny that application and the Planning
and Zoning Commission overturned my decision and found that the application that
was submitted on April 10th was a brand-new application never-before-seen in the
City of Ketchum and that it was substantially different. According to that ruling,
then they had to submit findings of fact no later than July 8th. After July 8th, that
applicant, assuming we get the findings out, after July 8th, that applicant for
Bracken station can resubmit that “new application” and their rights will be vested
under whatever ordinance is on the books at the time.
We have a special meeting on this Friday at 4 o’clock to approve those findings and
it’s up to the Commission to approve those findings at that time, but the reason we
are recommending the waiver of those 2nd and 3rd readings is because we don’t
believe that application reflects the community’s values. And we do believe there
is a sense of urgency and that we have been through this, like I’ve mentioned, over
seven months last year and with the P&Z Commission, and, quite frankly, we don’t
believe that it would do the applicant service, the community, or staff to accept a
new application while we have an ordinance on this and before you all that
everyone agrees on. So, yes, there is a sense of urgency, and yes, there is no
question about it. We are concerned about a single application coming in and tying

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 up city staff and the community for months and months and months which is what
we know is not what the community wants.1
The Ketchum City Council ultimately voted to waive the usual second and third readings of the
proposed ordinance and adopted it immediately at the hearing on July 3, 2017.
As noted above, the P&Z Commission issued its written decision on July 7, 2017, holding
that Bracken’s second application was substantially and materially different from his first
application, and ordering “the Administrator [Austin] receive and review the Second Application
for completeness, and upon determination that such is complete, initiate the typical [conditional
use permit] application review process set forth in Ketchum Municipal Code and pursuant to the
Idaho Local Land Use Planning Act.” On that same day, the City published the newly adopted
ordinance in the Idaho Mountain Express and Guide. Ketchum Municipal Code section 1.20.010
designates the Idaho Mountain Express as Ketchum’s official paper for publication, not the Idaho
Mountain Express and Guide.
On July 7, 2017, Bracken talked to Austin about his second application. Although the
ordinance had not yet been published in the City’s official paper, Austin told Bracken that a city
ordinance prohibiting gas stations on Main Street had just been published. But the ordinance was
not published in the official paper, the Idaho Mountain Express, until five days later, on July 12,
2017. Respondents took no further steps to review Bracken’s second application.
On December 11, 2017, Bracken hand delivered a letter to Austin reciting the P&Z
Commission’s order that directed Austin to “receive and review” his second application. Bracken
critiqued Austin’s handling of the second application, provided another check for the application
fee, and made a formal request for the City to process his application and initiate the typical
conditional use permit process. Austin stated that the new law dictated that there would be no gas
stations on Main Street, emphasizing that the redesigned and appealed application was never
accepted. Austin informed Bracken that, in his view, no application had been submitted because

1
A copy of the transcript from the July 3, 2017, hearing was not in the record on appeal. But Ketchum City Council
meetings are public events, are video recorded, and are available online by visiting the City of Ketchum website at
https://www.ketchumidaho.org/citycouncil/page/city-council-regular-meeting-59. Because the information is
publicly available and not disputed by Respondents, this Court takes judicial notice of the quoted exchange pursuant
to Idaho Rule of Evidence 201 (“The court may judicially notice a fact that is not subject to reasonable dispute because
it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”).
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that would require action on the City’s part and there was no action taken by the City. Austin stated
refiling was not an option because “they had been careful about not keeping anything here.”
When Bracken submitted his identical copy of the appealed application for filing on
December 13, 2019, Austin again refused to accept it. The return of Bracken’s applications was
known and approved by Mayor Jonas. In fact, Jonas admitted at one point that she instructed Austin
to return one of the applications based on Austin’s belief that the application was incomplete.
Five days after the final rejection of his second application, Bracken filed a 14-page notice
of tort claim with the City Clerk. Following the City’s refusal to process his second application
even after he filed his tort claim, Bracken let his option to purchase the Main Street property expire.
On June 5, 2019, Bracken filed a complaint against Austin, Frick, Jonas, and the City
(“Respondents”) that set forth eight causes of action: (1) negligence in operational functions; (2)
gross negligence; (3) reckless, willful, and wanton conduct in refusing to accept the application;
(4) acceptance of benefits/ratification of actions of employees; (5) a claim for declaratory judgment
seeking a declaration that the Ketchum city ordinance was invalidly enacted; (6) a claim for
declaratory judgment seeking a declaration that Ketchum’s ordinance was illegal spot zoning; (7)
damages under 42 U.S.C. section 1983; and (8) a claim against the City of Ketchum for violating
42 U.S.C. section 1983. The lawsuit was based on the extraordinary difficulties encountered in
Bracken’s attempts to apply for a conditional use permit from the City of Ketchum. Bracken
requested the following relief: special damages of at least $206,000, compensatory damages for
lost profits and income in an amount to be proven at trial, but asserting annual losses more than
$299,000, declaratory judgment that the ordinance passed by the City of Ketchum was void due to
defects in the ordinance enactment process, and attorney fees and costs under 42 U.S.C. section
1988.
Respondents filed an answer that asserted five affirmative defenses, including: (1) failure
to state a claim upon which relief could be granted; (2) Bracken’s action was premature and not
ripe for adjudication; (3) Bracken’s action was barred by the governmental immunity provisions
in the Idaho Tort Claims Act; (4) Bracken failed to exhaust administrative remedies; and (5)
Bracken’s attempts to resubmit the permit application were barred by city ordinances.
Respondents later moved for partial summary judgment on Count One (negligence), Count
Two (gross negligence), Count Five (declaratory judgment on the validity of the Ketchum

5
ordinance), and Count Eight (liability under 42 U.S.C. section 1983). The parties separately agreed
to dismiss Count Six (declaratory judgment on spot zoning).
The district court entered a memorandum decision granting Respondents’ motion for
partial summary judgment, dismissing Counts One and Two, the negligence and gross negligence
claims, after concluding they were barred by the economic loss doctrine. The court also granted
declaratory judgment as to the validity of the ordinance (Count Five), and held the ordinance
became valid on July 12, 2017. The court denied summary judgment on Count Eight, allowing
Bracken’s claims under 42 U.S.C. section 1983 to proceed. The court recited Bracken’s allegations
that the City’s actions amounted to willful disregard of the City’s legal responsibilities, a
“conscious disregard of law and fact” resulting in a purposeful deprivation of constitutional rights.
As a result, the court determined there were issues of material fact over the possibility of municipal
liability under 42 U.S.C. section 1983.
Respondents later filed a second motion for summary judgment on Count Three (reckless,
willful, and wanton conduct) for failure to state a claim recognized by Idaho law and Count Four
(acceptance of benefits/ratification of actions of employees), asserting that it was barred by
statutory immunity.
While Respondents’ second motion for summary judgment was pending, Bracken filed a
first amended complaint that added a claim for punitive damages related to his 42 U.S.C. section
1983 claims. Respondents answered Bracken’s first amended complaint, adding two new
affirmative defenses: (1) that the district court lacked subject matter jurisdiction over some or all
of Bracken’s claims, and (2) that Bracken failed to mitigate damages.
The district court entered a memorandum decision granting Respondents’ second motion
for summary judgment. The court dismissed Count Three after finding it did not allege an
independent cause of action. That said, the court declined to strike Count Three from the complaint
and allowed Bracken to reference it as a factual allegation that could support other cognizable
causes of action. Next, the court dismissed Count Four after holding it was barred by statutory
immunity. The court recognized the claim arose from the City’s failure to issue a permit or similar
authorization. Because governmental entities have absolute immunity under these circumstances,
the court granted summary judgment on Count Four.

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 In January 2020, Bracken filed his own motion for summary judgment, ostensibly seeking
rulings on twelve legal questions.2 The district court entered its decision on Bracken’s motion six
months later, declining to enter the rulings Bracken requested based on its finding that “summary
judgment [was] procedurally improper due to lack of clarity as to how the twelve issues presented
relate[d] to the claims in [Bracken’s] complaint.” The court recognized that the issues had some
relevance to Bracken’s position, but determined it was unclear how Bracken was trying to connect
those issues to the claims presented, noting that some issues seemed more appropriate as
independent claims which would need to be raised in the complaint.
After Bracken’s motion for summary judgment was denied, Respondents filed a third
motion for summary judgment on Bracken’s remaining claims, Counts Seven and Eight (42 U.S.C.
section 1983 claims), on constitutional ripeness grounds. Respondents also sought summary
judgment on Count Nine (punitive damages) on liability grounds.
While the Respondents’ third motion for summary judgment was pending, Bracken filed a
motion for rulings on issues of law and a subsequent motion for summary judgment. Bracken’s
motion included eighteen propositions of law for the district court to rule on and argued that under
Idaho Code section 9-102 the court had a statutory duty to decide the issues “when submitted.”
Bracken summarized the eighteen motions as, among other things, breaking down “what Austin
did into discrete and different acts,” such as removing public records, defying P&Z orders, and
making up fabricated requirements. Bracken argued the point of his eighteen motions was to get

2
Bracken’s brief in support of the motion for summary judgment was not included as part of the record, so the full
extent of Bracken’s argument is unclear. The district court summarized Bracken’s request as asking the court to make
these rulings and findings: (1) The filing and processing of a conditional use permit application is an operational
function that involves ministerial duties and is not a discretionary function; (2) The City assumed a duty by enacting
KCO 17.116.040(A) to take reasonable steps to process Bracken’s application in due course, safeguard said
application, and do so in a non-negligent manner; (3) Bracken’s Second Application was complete and properly
submitted on April 10, 2017, because it met all the filing requirements in KCO 17.116.040(A); (4) The defendants
lacked the authority to add any new filing requirements for Bracken’s Second Application; (5) Bracken’s April 10,
2017, application rights vested on April 10, 2017, which was known by the individual defendants; (6) The City had
no legal basis to return Bracken’s June 19, 2017, submission of his April 10, 2017, [application]; (7) The June 19,
2017, resubmission of Bracken’s Second Application was timely, and Bracken should have received his April 10,
2017, application date; (8) The City had no legal basis to reject Bracken’s July 7, 2017, verbal submission or his
December 11, 2017, and December 13, 2017, submissions of his Second Application; (9) The notice of tort claim filed
on December 17, 2017, put Ketchum on notice that they were proceeding in the face of a known risk; (10) Except for
Bracken’s April 10, 2017, application, none of the rejections to file Bracken’s April 10, 2017, application by Austin
were “decisions” subject to appeal or administrative review; (11) [Bracken has] made out a prima facie case that the
defendants acted intentionally, willfully, and wantonly or recklessly such that the $500,000 statutory limitation on tort
claims does not apply; and (12) [The defendants] have failed to assert any arguments or facts that support their
affirmative defenses.
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the district court to the ultimate conclusion that Austin acted repeatedly without authority in
refusing to accept Bracken’s application.
Bracken’s motion for rulings on issues of law also sought summary judgment against two
of Respondents’ affirmative defenses: (1) failure to exhaust administrative remedies; and (2) that
Bracken’s attempts to resubmit the permit application were barred by city ordinance. Bracken also
moved for summary judgment “on the issue of whether defendants injured and interfered with a
valuable property right when they refused to accept, process, or hold a hearing on Bracken’s
Second Application as required by law.”
While the cross-motions for summary judgment were pending, the district court granted
Bracken’s motion for leave to file a second amended complaint. On October 2, 2020, Bracken filed
his second amended complaint to add these allegations to Count Three:
Individual defendants Micah Austin, Suzanne Frick, and/or Nina Jonas had a duty
existing by virtue of Idaho state law [including I.C. [§§] 67-6519(1) and (2)] and
Ketchum’s municipal code (Chapter 17.116) to timely accept and/or process
Bracken’s Second Application for a conditional use permit, and/or submit the
application to the Planning and Zoning Commission for proper processing. These
individual defendants either individually or collectively refused to perform or
comply with this legal duty. The failure to comply with this duty was not the
product of accident or simple negligence but was carried out willingly and
purposefully and intentionally.
(Alterations in original). Bracken also added Count Ten, a claim for intentional interference with
economic expectancy against all defendants.
In December 2020, the district court granted Respondents’ third motion for summary
judgment and dismissed Counts Seven, Eight and Nine. The district court determined Bracken did
not have a constitutional right in a conditional use permit or the procedures in obtaining such a
permit, and therefore did not have a viable 42 U.S.C. section 1983 claim. The district court also
held Bracken’s 42 U.S.C. section 1983 claims were not ripe since administrative remedies
available to Bracken were not exhausted before bringing the complaint. Because Counts Seven
and Eight were decided on summary judgment, the court held there was no liability for which to
attach punitive damages under 42 U.S.C. section 1983 and dismissed Count Nine.
On that same day, the district court entered a memorandum decision denying Bracken’s
motion for rulings of law and subsequent motion for summary judgment. The court acknowledged
the procedural posture of the case, noting that although Bracken’s second amended complaint had
alleged ten counts against Respondents, Counts One, Two, Four, Five, Six, Seven, Eight, and Nine
8
had all been dismissed in previous summary judgment decisions. The district court then held
Bracken’s claims were barred because he failed to exhaust administrative remedies and did not
provide sufficient evidence that exhaustion of remedies was excused. The court determined that
because administrative remedies were not exhausted, it had no jurisdiction over any state law
claims related to Respondents’ actions towards Bracken’s applications. And the district court held
it was procedurally improper to determine a motion for rulings on issues of law before a trial began.
Bracken had suggested that Idaho Code section 9-1023 required the court to decide the legal issues
“when submitted.” The district court disagreed, concluding instead that the statute’s use of the
phrase “upon the trial” meant the court had to decide the issues when the trial commenced. The
court ultimately denied Bracken’s request after determining Bracken had failed to explain or cite
any authority to support why his motion was proper at that point in the proceedings.
Bracken filed a motion for reconsideration. The district court denied Bracken’s motion,
reasoning “the law is clear. The overall trend in the law is clear that these decisions are really
geared for local administrative review and then judicial review of that and not tort claims.” On the
same day, the district court entered a judgment.
Respondents moved for $204,256.13 for attorney fees and costs. Bracken moved to
disallow the application for costs and attorney fees. The district court denied the Respondents’
request for attorney fees but granted discretionary costs. The court found that Respondents were
entitled to discretionary costs because such costs were necessary and exceptional since Bracken’s
claims lacked any legal merit. The court denied the Respondents’ request for attorney fees based
on its determination that they failed to apportion fees under the appropriate and controlling statutes.
Bracken filed a timely notice of appeal.
II. STANDARDS OF REVIEW
This Court employs the same standard as the district court when reviewing rulings on
summary judgment motions. Jones v. Lynn, 169 Idaho 545, 551, 498 P.3d 1174, 1180 (2021)
(citing Owen v. Smith, 168 Idaho 633, 640–41, 485 P.3d 129, 136–37 (2021)). Summary judgment
is proper “if the movant shows that there is no genuine dispute as to any material fact and the

3
Idaho Code section 9-102 provides that “[a]ll questions of law arising upon the trial, including the admissibility of
testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules
of evidence, are to be decided by the court when submitted and before the trial proceeds, and all discussions of law
are to be addressed to the court.”
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movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). A moving party must support
its assertion by citing particular materials in the record or by showing the “materials cited do not
establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact[s].” I.R.C.P. 56(c)(1)(B). Summary judgment is improper “if
reasonable persons could reach differing conclusions or draw conflicting inferences from the
evidence presented.” Jones, 169 Idaho at 551, 498 P.3d at 1180 (quoting Owen, 168 Idaho at 640–
41, 485 P.3d at 136–37). “Even so, a ‘mere scintilla of evidence or only slight doubt as to the facts
is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.’”
Id.
When reviewing the grant or denial of a motion for reconsideration, the district court, as
well as this Court, “must apply the same standard of review that the court applied when deciding
the original order that is being reconsidered.” Drakos v. Sandow, 167 Idaho 159, 162–63, 468 P.3d
289, 292–93 (2020) (quoting Alsco, Inc. v. Fatty’s Bar, LLC, 166 Idaho 516, 524, 461 P.3d 798,
806 (2020)). Thus, “when reviewing the grant or denial of a motion for reconsideration following
the grant of summary judgment, this Court must determine whether the evidence presented a
genuine issue of material fact to defeat summary judgment.” Id. (citing Ciccarello v. Davies, 166
Idaho 153, 159, 456 P.3d 519, 525 (2019)).

III. ANALYSIS
Before reaching the merits of Bracken’s arguments on appeal, we must address what claims
are properly before us. Bracken’s original complaint alleged eight causes of action: (1) negligence
in operational functions; (2) gross negligence; (3) reckless, willful, and wanton conduct in refusing
to accept the application; (4) acceptance of benefits/ratification of actions of employees; (5) a
claim for declaratory judgment seeking a declaration that the Ketchum city ordinance was invalidly
enacted; (6) a claim for declaratory judgment seeking a declaration that Ketchum’s ordinance was
illegal spot zoning; (7) damages under 42 U.S.C. section 1983; and (8) a claim against the City of
Ketchum for violating 42 U.S.C. section 1983. Bracken later amended his complaint to add Count
Nine (punitive damages related to his 42 U.S.C. section 1983 claims) and Count Ten (a claim for
intentional interference with economic expectancy).
The district court dismissed Count One (negligence) and Count Two (gross negligence) on
Respondents’ first partial motion for summary judgment after concluding Bracken’s negligence
claims were barred by the economic loss rule. The district court dismissed Count Four (acceptance
10
of benefits/ratification of actions of employees) after concluding it was barred by statutory
immunity. The district court granted Respondents’ motion for summary judgment on Count Five
(seeking a declaration that the Ketchum City ordinance was unlawfully enacted) and declared
Ketchum ordinance 1174 became valid on July 12, 2017. Count Six (seeking a claim for
declaratory judgment that Ketchum’s ordinance was illegal spot zoning) was dismissed based on
a stipulation between the parties.
Bracken has not challenged these alternative bases for dismissing these claims on appeal.
In the context of summary judgment, this Court has repeatedly held that “an appellant’s failure to
address an independent ground for a grant of summary judgment is fatal to the appeal.” La Bella
Vita, LLC v. Shuler, 158 Idaho 799, 806, 353 P.3d 420, 427 (2015) (quoting Weisel v. Beaver
Springs Owners Ass’n, Inc., 152 Idaho 519, 525–26, 272 P.3d 491, 497–98 (2012)). “[T]he fact
that one of the grounds may be in error is of no consequence and may be disregarded if the
judgment can be sustained upon one of the other grounds.” Id. (quoting Andersen v. Prof’l Escrow
Servs., Inc., 141 Idaho 743, 746, 118 P.3d 75, 78 (2005)). Thus, the district court’s dismissal of
Counts One, Two, Four, Five, and Six is affirmed.
The district court had originally dismissed Count Three on Respondents’ second partial
motion for summary judgment after concluding it did not state an actionable claim under Idaho
law. However, the district court later allowed Bracken to amend Count Three in his second
amended complaint to cure any defects. The district court did not rule on Count Three as amended.
That said, in response to a question at oral argument before this Court, Bracken’s counsel asserted
that Count Three was part of his 42 U.S.C. section 1983 claims, and conceded it was “not a separate
count, it’s not a separate state law count.” Bracken’s attorney concluded, “there’s one state law
claim that’s in existence, and that’s the intentional interference with a tort, I think that’s the last
one that got dismissed on summary judgment.” Counsel then confirmed that he was only appealing
the dismissal of the federal 1983 claims (Counts Three, Seven, Eight, and Nine), and the intentional
interference of economic expectancy claim (Count Ten).
A. Bracken’s rights vested under the second application when it was filed on April 10,
2017.
The first issue Bracken raises on appeal pertains to when his rights vested under the second
application. Bracken argues his rights vested when the application was first filed on April 10, 2017,
and again when it was refiled on June 19, 2017. Bracken claims that once the application vested

11
on April 10, his rights could not be taken away by Ketchum’s enactment of the new ordinance on
July 12, 2017, the date it was published in the official newspaper.
Idaho law is well established that an applicant’s rights are determined by the ordinance in
existence at the time of filing an application for the permit. See S. Fork Coal. v. Bd. of Comm’rs
of Bonneville Cnty., 117 Idaho 857, 860–61, 792 P.2d 882, 885–86 (1990); Cooper v. Board of
Cnty. Comm’rs of Ada Cnty., 101 Idaho 407, 614 P.2d 947 (1980); Ready-To-Pour, Inc. v. McCoy,
95 Idaho 510, 511 P.2d 792 (1973); Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448
P.2d 209 (1968). This Court originally explained its adoption of this rationale in Ben Lomond:
[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.
92 Idaho at 602, 448 P.2d at 216.
Our holding in Ben Lomond prohibits the Respondents’ bad faith conduct in this case.
“Certainly, if the applicant does not comply with the Ordinance, a permit cannot be issued.
However, the vested right in question is not the guaranteed right to obtain the permit, but rather
the right to have the application evaluated and measured under the Ordinance in effect at the time
of application.” Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho
551, 556, 976 P.2d 477, 482 (1999), overruled on other grounds by City of Osburn v. Randel, 152
Idaho 906, 277 P.3d 353 (2012); see also Ready-to-Pour, 95 Idaho at 513, 511 P.2d at 795 (holding
that the rule regarding the ordinance under which an applicant’s rights are determined is the
minority view “that the applicant’s rights are measured under the law in effect at the time of the
application.”) (emphasis in original).
Austin, with the encouragement of Jonas, intentionally withheld action on Bracken’s
second application until the City could amend its ordinance in an attempt block Bracken’s
proposed gas station. Other than Austin’s unsubstantiated suggestion that Bracken’s second
application was “incomplete,” no facts show that Bracken skirted the original ordinance. Rather,
it appears Respondents delayed accepting Bracken’s second application so the City could rush to
pass the new ordinance. The district court elaborated on the impediments to Bracken’s application
process, explaining:
As noted by two witnesses who have been around Ketchum Planning and Zoning
for a while, the difficulties [Bracken] encountered were unusual. Steve Cook, a
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 Ketchum Planning and Zoning Commission[er] for 9 years, and an architect in
Ketchum since 1972, found that the requests were out of sequence. The staff
continually requested more information, made more expensive requests, and
declined studies or materials Bracken submitted. The design review process was
initiated before even accepting Bracken’s application, but this process normally
would not begin until after a conditional use permit was granted. There were an
unusual number of hearings considering the size of the issue. Garth McClure, a civil
engineer who had been involved in public process and public hearings for land use
application in all jurisdictions in Blaine County with zoning or permit applications,
concurs. Among other expenses, the traffic studies cost $25,935, and the necessary
site planning work cost $26,332.
We hold that the ordinance in effect on April 10, 2017, controls. Bracken’s right to have
the application evaluated under the then-existing ordinance vested when he attempted to file his
second application. This is even more true because the P&Z Commission had orally ruled in
Bracken’s favor and ordered Austin to accept and process Bracken’s second application before the
proposed ordinance was officially enacted. Having determined Bracken had a vested right, we
must consider: (1) whether judicial review was the exclusive remedy available to Bracken; and if
so, (2) whether he was excused from exhausting administrative remedies and petitioning for
judicial review.
B. Typically, an aggrieved land use applicant must exhaust administrative remedies
under LLUPA before challenging those land use decisions or actions in court;
however, based on the unique facts here, Bracken was excused from exhausting
administrative remedies before pursuing judicial review.
The primary issue raised by this appeal is whether the district court had authority to act on
Bracken’s complaint. The district court held it lacked jurisdiction to consider Bracken’s state law
claims because he failed to both exhaust administrative remedies and pursue judicial review.
Bracken argues that “[o]nce the district court glued itself to this remedy, it dismissed any notion
that Bracken had a tort claim and used this as the basis to dismiss all of Bracken’s claims . . . .” As
explained above—nearly all Bracken’s state law claims were dismissed on alternate grounds that
Bracken has not challenged on appeal. Still, we consider the applicability of the district court’s
holding to Count Ten, Bracken’s remaining state law claim for intentional interference with
economic expectancy.
1. LLUPA standards in general.
The administrative exhaustion doctrine is well-established in American jurisprudence,
dating back to the turn of the twentieth century. Hartman v. Canyon Cnty., 170 Idaho 666, 670,

13
516 P.3d 90, 94 (2022). “Generally stated, administrative exhaustion ‘requires that where an
administrative remedy is provided by statute, relief must first be sought by exhausting such
remedies before the courts will act.’” Id. (quoting Regan v. Kootenai Cnty., 140 Idaho 721, 725-
26, 100 P.3d 615, 619-20 (2004)). The rule serves twin purposes. First, it safeguards agency
autonomy to make decisions within an agency’s expertise. Id. (citing McKart v. United States, 395
U.S. 185, 194 (1969)). Second, as a corollary of allowing agencies to resolve disputes within their
jurisdiction, exhaustion protects judicial economy. Id. (citing McKart, 395 U.S. at 194–95).
In general, LLUPA requires litigants to utilize available administrative remedies before
seeking judicial review. I.C. §§ 67-6521(1)(d) and 67-6519(5). Idaho Code section 67-6521
provides that an “affected person aggrieved by a final decision concerning matters identified in
section 67-6521(1)(a), Idaho Code [the failure to act upon an application for a special use permit],
may within twenty-eight (28) days after all remedies have been exhausted under local ordinances
seek judicial review as provided by chapter 52, title 67, Idaho Code.” Decisions about a conditional
use permit are the type of land use decision that fall within the purview of LLUPA and its
exhaustion requirement. City of Ririe v. Gilgen, 170 Idaho 619, 626, 515 P.3d 255, 262 (2022);
see also Citizens Against Linscott/Interstate Asphalt Plant v. Bonner Cnty. Bd. Of Comm’rs, 168
Idaho 705, 715, 486 P.3d 515, 525 (2021).
This Court has held that the failure to exhaust administrative remedies deprives courts of
jurisdiction to consider challenges to local land use decisions. Palmer v. Bd. of Cnty. Comm’rs of
Blaine Cnty., 117 Idaho 562, 565, 790 P.2d 343, 346 (1990); S Bar Ranch v. Elmore Cnty., 170
Idaho 282, 301, 510 P.3d 635, 654 (2022) (district court did not have jurisdiction to consider S
Bar’s challenge to a Board of County Commissioners’ denial of a conditional use permit because
S Bar failed to exhaust administrative remedies and timely petition for judicial review). Thus,
direct collateral attacks on land use decisions are unavailable when review is available under
LLUPA.
For example, in Palmer, homeowners brought what their attorney characterized as a “tort
claims case” against county commissioners after they were prohibited by a stop work order from
completing a residence for which they had obtained a building permit. Their action was dismissed
on summary judgment for their failure to exhaust administrative remedies. We held that failure to
exhaust administrative remedies doomed their direct action:

14
 Since the Palmers did not apply for a special use permit and obtain a decision of
the county commissioners on that application, they did not exhaust their
administrative remedies under the Act. The Act commits to local units of
government the authority over planning and zoning matters. It is the county through
its planning and zoning commission and the county commission that should make
the decision whether a special use permit should be issued. Only after the
exhaustion of remedies provided under the Act and under local ordinances may an
unsuccessful applicant or an affected person seek judicial review.
117 Idaho at 565, 790 P.2d at 346; see also Regan v. Kootenai Cnty., 140 Idaho 721, 725-26, 100
P.3d 615, 619-20 (2004) (The Regans’ failure to exhaust their administrative remedies deprived
the district court of subject matter jurisdiction over their claim for declaratory relief).
2. LLUPA applies to Bracken’s claims.
Normally, an applicant in Bracken’s shoes would have to pursue the administrative
remedies required of him under LLUPA before seeking redress in the courts. Bracken had
administrative remedies available that he did not pursue. This is not a case in which the City is
alleged to have taken actions against Bracken unrelated to his application for a conditional use
permit. LLUPA applies because the City’s actions involved the handling of, and its actions (or
inaction) related to Bracken’s application for a conditional use permit. Thus, his claim is not
independent of his land use application; instead, it is tied to it.
Section 17.144.010 of the Ketchum Municipal Code provides that “[a]n appeal of any
order, requirement, decision or determination of the administrator made in the administration or
enforcement of this title may be taken by any affected person.” The Ketchum Municipal Code
specifies that an “affected person” is defined just as an “affected person” under LLUPA as: [“one
having a bona fide interest in real property which may be adversely affected by . . . the approval,
denial or failure to act upon an application for a . . . special use permit”]. I.C. § 67-6521. Austin
was the director of the Planning and Building Department in 2017, and thus was the
“administrator” of the zoning ordinance. Bracken was aware of his obligations under the City code
because he appealed Austin’s first refusal to accept his second application to the P&Z Commission.
Thus, Bracken harnessed some of the administrative remedies available. He was aware of and used
administrative remedies, ostensibly to his benefit.
3. In rare instances, exhaustion of administrative remedies under LLUPA is excused.

15
 While we have recognized the important policy and legal canon underpinning the
exhaustion doctrine, this Court has also acknowledged that, “in unusual circumstances,” failure to
exhaust administrative remedies can be excused. See Palmer, 117 Idaho at 564–65, 790 P.2d at
345–46 (“This Court has frequently announced that except in unusual circumstances parties must
exhaust their administrative remedies before seeking judicial recourse.”). We have elaborated on
this point, noting two exceptions to the black-letter rule:
As a general rule, a party must exhaust administrative remedies before resorting to
the courts to challenge the validity of administrative acts. We have recognized
exceptions to that rule in two instances: (a) when the interests of justice so require,
and (b) when the agency acted outside its authority.
KMST, LLC v. Cnty. of Ada, 138 Idaho 577, 583, 67 P.3d 56, 62 (2003) (citation omitted); see also
Regan, 140 Idaho at 725, 100 P.3d at 619 (acknowledging the two exceptions to the exhaustion
rule). “Styled differently, courts will not require exhaustion ‘when exhaustion will involve
irreparable injury and when the agency is palpably without jurisdiction.’” Park v. Banbury, 143
Idaho 576, 581, 149 P.3d 851, 856 (2006) (quoting Sierra Life Ins. Co. v. Granata, 99 Idaho 624,
627, 586 P.2d 1068, 1071 (1978)).
a. Bracken is excused from exhausting administrative remedies due to the biased
conduct of Respondents.
The “when justice so requires” exception referenced above encompasses those rare
circumstances when bias or prejudgment by the decisionmaker can be shown. See Owsley v. Idaho
Industrial Comm’n, 141 Idaho 129, 135–36, 106 P.3d 455, 461–62 (2005) (recognizing an
exception to the exhaustion requirement “where bias or prejudgment by the decisionmaker can be
demonstrated” because due process entitles a person to an impartial tribunal and requiring
exhaustion before a biased decision maker would be futile). “[T]he due process clause entitles a
person to an impartial and disinterested tribunal.” Id. at 135, 106 P.3d at 461 (citing Eacret v.
Bonner Cnty., 139 Idaho 780, 784, 86 P.3d 494, 498 (2004)). Actual bias on the part of a
decisionmaker is “constitutionally unacceptable.” Id. at 135, 106 P.3d at 461 (quoting Johnson v.
Bonner Cnty. Sch. Dist. No. 82, 126 Idaho 490, 493, 887 P.2d 35, 38 (1994)).
We reached a similar conclusion in Johnson. Mr. Johnson, a school principal, had engaged
in a public dispute with members of the school board. Both Johnson and members of the board
traded barbed comments that were published in the local newspaper. Id. When the board acted to
fire him, Johnson, alleging bias, sought a restraining order in district court to prevent the board

16
from acting as the adjudicator at his termination hearing. Id. at 491–92, 887 P.2d at 36–37.
Reasoning that it was not empowered to enjoin the board under those circumstances, the district
court dismissed Johnson’s action. Id. at 492, 887 P.2d at 37. On review, this Court reversed the
district court’s dismissal. Id. at 494, 887 P.2d at 39. We found that requiring a litigant to submit to
a biased decisionmaker to be a “constitutionally unacceptable” violation of due process. Id. at 493,
887 P.2d at 38. Therefore, “upon a showing that there is a probability that a decisionmaker in a
due process hearing will decide unfairly any issue presented in the hearing, a trial court may grant
an injunction to prevent the decisionmaker from participating in the proceeding.” Id. at 494, 887
P.2d at 39.
Bracken argues that seeking additional administrative remedies was excused because
further administrative remedies would have been futile, given the bias demonstrated by the City’s
leaders and representatives. He alleges that the City, through its agents, was biased against him
and thus provided him with no fair forum in which to seek any further administrative redress. He
alleges that Mayor Jonas, who supervises the city staff, including Austin and Frick, ran an
unprecedented anonymous poll to influence the City’s consideration of Bracken’s applications.
Jonas also instructed Austin to reject Bracken’s second application on at least one occasion.
Additionally, Jonas, City Administrator Suzanne Frick, and former Sun Valley Mayor Ruth Lieder
attended a dinner at Barbi Reed’s house directly across from the property where Bracken held his
option to purchase. Reed was the chairperson of a group called the “Citizens Against Bracken
Station.” Frick admitted that the meeting was “about [Bracken’s] application.” Further, the
Ketchum City Council approved the expedited passing of the ordinance in a targeted effort to
prohibit Bracken’s application from being approved. Frick admitted that the City made a conscious
decision in December 2017 that Bracken was not going to be allowed to file his application.
Based on these circumstances, Bracken argues that seeking additional administrative
remedies was excused because further administrative remedies would have been futile given the
bias demonstrated by the City’s leaders and agents, and the district court would have had no
administrative action to review. We agree.
The general principles underpinning the exception stated in Johnson and Owsley are at play
here. Given that we are reviewing this case de novo, we apply a focused review as we did in
Owsley, with all disputed facts construed “liberally in favor of [Bracken], and all reasonable

17
inferences that can be drawn from the record are to be drawn in [his] favor.” Dep’t of Fin., Sec.
Bureau v. Zarinegar, 167 Idaho 611, 629, 474 P.3d 683, 701 (2020).
Respondents’ actions throughout this case specifically targeted Bracken’s efforts to obtain
a conditional use permit to construct a gas station on Main Street, a use permissible when he filed
his original applications. Austin admitted as much, explaining there was a sense of urgency in
passing the new ordinance to prevent “a single application coming in and tying up city staff and
the community for months and months and months.” Austin’s comments establish that Bracken’s
second application would never be processed, even if he had continued to seek relief by exhausting
administrative remedies. Austin’s conduct exemplifies how Bracken’s attempts to seek redress by
administrative process were and would be “futile.”
We thus hold that, while Bracken would normally have to exhaust administrative remedies
in front of a fair, unbiased decisionmaker, such action is excused here under these exceptional
circumstances. Accordingly, the district court’s dismissal of Count Ten—the tort claim for
interference with economic expectancy—is reversed.
C. The district court did not err in dismissing Bracken’s 42 U.S.C. section 1983 claims.
Next, Bracken argues the district court erred in dismissing his federal claims. Bracken
argues the district court erred in grouping his substantive due process claims in with his procedural
due process claims and concluding Ketchum’s conditional use permit application process was not
entitled to due process protection or that Bracken did not have a constitutionally protected property
interest. Bracken also disputes the district court’s conclusion that his federal claims were not ripe
for adjudication. In response, Respondents argue Bracken could not have a constitutionally
protected property interest in a conditional use permit application because he has no legal
entitlement to a conditional use permit. The decision to grant or deny a conditional use permit is
within the discretion of City officials empowered to evaluate the merits of the application. With
no protected property interest, Respondents add, Bracken also lacks a protected interest in the
procedures for obtaining a conditional use permit.
United States Code, Title 42, Section 1983 “does not confer any substantive rights. It is a
vehicle for vindicating rights secured by the United States Constitution or federal law. It provides
a cause of action to anyone who is deprived, by a person acting under color of state law, of rights
secured by federal law.” Bryant v. City of Blackfoot, 137 Idaho 307, 314, 48 P.3d 636, 643 (2002).
42 U.S.C. section 1983 only provides a remedy for violating constitutional rights, not for violations

18
related to “benefits” or “interests.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). As a result,
for a 42 U.S.C. section 1983 claim to survive summary judgment, the district court must determine
whether there is a “factual basis for the claimed violations of the Constitution” that was violated
by individuals acting under the color of state law. Bryant, 137 Idaho at 315, 48 P.3d at 644.
The district court determined Bracken did not have a constitutional right in a conditional
use permit or the procedures employed in obtaining such a permit, and so Bracken did not have a
viable 42 U.S.C. section 1983 claim. The district court dismissed Counts Seven (damages under
42 U.S.C. section 1983) and Eight (a claim against the City of Ketchum for violating 42 U.S.C.
section 1983). The district court further held that Bracken’s federal claims were not ripe since
administrative remedies available to Bracken were not exhausted before bringing the complaint.
2. Bracken did not have a constitutional right to a conditional use permit because
Respondents had discretion to deny it.
Addressing the district court’s first basis for dismissing Bracken’s federal claims, Bracken
argues that a vested right to have his CUP considered under the then-existing ordinance is a
property right. Bracken contends the district court erroneously found Bracken’s constitutional
claim was solely grounded on process or procedure when Bracken had distinct property interests
at stake that the district court failed to address.
First, Bracken argues that he had the vested right to have his application “evaluated and
measured.” Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley Cnty., 132 Idaho 551,
556, 976 P.2d 477, 482 (1999), overruled on other grounds by City of Osburn v. Randel, 152 Idaho
906, 277 P.3d 353 (2012) (an applicant has a vested right to have an application evaluated and
measured under the Ordinance in effect at the time of application). Bracken argues that vested
right also protects and insures against a due process invasion of another property right—the right
of access to one’s land from a public way. Bracken concludes the district court erred in holding
that his vested right was not a constitutionally protected right that must be afforded due process.
In support of his contention that he had a “protectable property right in the procedures
governing his application” Bracken quotes the First Circuit decision in Raper v. Lucy:
The district court ruled that since the issuance of an operator’s license is
discretionary with the state, a constitutionally guaranteed “right” was not involved.
By so holding, the court misconceived the issue. In his complaint, plaintiff did not
argue that he had a right to an operator’s license, and we may take it as settled that
such a right, federal or state, does not exist. See, e. g., Perez v. Tynan, 307 F. Supp.
1235, 1238 (D.C. Conn. 1969); United States v. Carter, 275 F. Supp. 769, 770 (D.C.

19
 D.C. 1967). However, the plaintiff did assert that he had a constitutionally protected
right to procedural due process in the state application procedures whereby a
determination of whether to issue such a license will be made. With this assertion,
we are in complete agreement.
. . . In Wall v. King, 206 F.2d 878 (1st Cir.), cert. denied, 346 U.S. 915, 74
S. Ct. 275, 98 L. Ed. 411 (1953), this court was faced with the contention that the
personal liberty provision of the due process clause should be extended to cover the
use of a motor vehicle. After careful analysis, the court accepted this proposition,
remarking:
“We have no doubt that the freedom to make use of one’s own property,
here a motor vehicle, as a means of getting about from place to place,
whether in pursuit of business or pleasure, is a ‘liberty’ which under the
Fourteenth Amendment cannot be denied or curtailed by a state without
due process of law.” 206 F.2d at 882.
488 F.2d 748, 751–52 (1st Cir. 1973). The First Circuit concluded that “[F]ourteenth [A]mendment
due process will attach to state procedures regulating the application and issuance of a motor
vehicle operator’s license. Consequently, the claims asserted in the complaint must be said to
involve a federally protected right.” Id. at 752.
Respondents counter that Raper is inapt because it involves an application for a driver’s
license, and federal law recognizes a due process liberty interest in driving a vehicle. Courts have
recognized no comparable liberty or property interest for a conditional use permit. See Welch v.
Paicos, 66 F. Supp. 2d 138, 164 (D. Mass. 1999) (“The courts have not recognized a similar [due
process] right to develop one’s own property as one pleases; indeed, they have reached the opposite
result.”).
The district court relied on several cases to hold that an applicant only has a due process
guarantee in procedures which ultimately affect a constitutional right. These cases are persuasive.
For example, in Gerhart v. Lake Cnty, Montana, 637 F.3d 1013 (9th Cir. 2011), a plaintiff had
experienced some difficulties with a few employees of the county, including one of the county
commissioners when trying to obtain an approach permit for his property. This animosity
contributed to an outright denial of the plaintiff’s approach permit by the commissioners, even
though denial of approach permits was exceedingly rare. Id. at 1016–19. The plaintiff alleged that
his constitutional rights were violated by the denial. Id. at 1020. The Ninth Circuit held that the
plaintiff did not have a protected constitutional interest in an approach permit since state law
granted the county a large amount of latitude in granting such permits. Id. It also determined that
since the plaintiff did not have any informal agreement or understanding with the county, the
20
policies and practices of the county related to approach permits did not create a constitutionally
protected interest. Id.
Closer to home, the federal district court for Idaho held that an application for a conditional
use permit was not a constitutionally protected property interest because, as a matter of state and
local law, a city has full discretion to deny the application. MountainWest Ventures, LLC v. City
of Hope, Case No. 2:14-cv-000290-BLW, 2015 WL 222448 (D. Idaho 2015). By way of
background, MountainWest Ventures applied for a conditional use permit to develop certain real
property, and that application was denied at the end of a public hearing. Id. MountainWest filed
suit in federal court, alleging various procedural deficiencies with the City’s denial of its
application, claiming that its Fourteenth Amendment right to due process had been violated.
Among other things, MountainWest alleged that the City itself, or certain members of the City
Council:
(1) did not provide timely or adequate information to MountainWest before or after
the public hearings; (2) did not allow MountainWest to participate in the application
review meeting; (3) met with, and provided information to officials from the Idaho
Transportation Department, without first notifying MountainWest; (4) improperly
remanded the application to MountainWest after the May 8, 2013 hearing; (5) did
not include in the record all of the information MountainWest had provided; (6) did
not timely decide the application; (7) conducted an executive City Council session
without identifying the basis for doing so; (8) refused to provide MountainWest
with a copy of the preliminary decision document denying MountainWest’s
application; and (9) provided no forum for an appeal of the City’s administrative
land use decisions.
Id. at *1 (internal citations omitted). The City of Hope moved to dismiss on grounds that
MountainWest did not have a protected property interest in the conditional use permit it sought.
The federal district court granted the motion, reasoning that since the issuance of the permit was
discretionary under the plain language of the applicable state law and local ordinance,
MountainWest had no “legitimate claim of entitlement” to the permit.
As recognized by Idaho’s federal court, Idaho statutory law governing conditional or special
use permits grants wide discretion to Idaho’s political subdivisions in making these decisions.
Idaho Code section 67-6512(a) provides:
A special use permit may be granted to an applicant if the proposed use is
conditionally permitted by the terms of the ordinance, subject to conditions
pursuant to specific provisions of the ordinance, subject to the ability of political
subdivisions, including school districts, to provide services for the proposed use,
and when it is not in conflict with the plan.
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(Emphasis added).
Noting the permissive language in both Idaho Code section 67-6512(a) and the applicable
local ordinance, the federal district court determined under well-settled principles of statutory
construction that the City of Hope retained the discretion to deny the permit application. It
concluded MountainWest had no “legitimate claim of entitlement” that could support a claim for
violating due process:
The use of the word “may”—rather than “shall”—in both the statute and the
ordinance indicates that the City Council retained discretion to grant or deny a
permit. See Marcia T. Turner, L.L.C. v. City of Twin Falls, 159 P.3d 840, 848–89
(Idaho 2007); see also Burch v. Smathers, 990 F. Supp. 2d 1063, 1073 (D. Idaho
2014). As a result, MountainWest cannot plausibly allege that it has a legitimate
claim of entitlement to a conditional use permit.
Id. (emphasis in original).
The MountainWest decision aligns with Burch v. Smathers, 990 F. Supp. 2d 1063 (D. Idaho
2014). In Burch, the plaintiff applied for a special use permit with the City of Orofino to operate a
law office in a residential zone. Id. at 1067. After a public hearing, the Planning and Zoning
Commission voted to recommend approval of the application to the City Council. The City Council
held a public hearing on the matter, during which it heard testimony from individuals who were
concerned that the operation of a law office would cause traffic and safety concerns, and that the
proposed use conflicted with the character of the residential zone. Id. The City ultimately denied
Burch’s application, remarking on the traffic and neighborhood character concerns raised during
the public hearing before the City Council. Id. at 1068.
In his complaint against the mayor and city council members under 42 U.S.C. section 1983,
Burch alleged that the City Council’s hearing procedures did not comply with LLUPA, and that
because permits had been granted to other applicants, the City Council deprived him of his rights
to due process and equal protection. Id. The district court dismissed Burch’s due process claims at
summary judgment, ruling that he had no constitutionally protected property interest in an
application for a permit that the City had full discretion to deny. Citing the same permissive
language in Idaho Code section 67-6512, and the relevant sections of the Orofino City Code, the
court determined that, notwithstanding Burch’s allegations that the City Council did not comply
with the procedural requirements set forth in the City Code and LLUPA, Burch could not satisfy
the threshold requirement of a constitutionally protected property interest:

22
 In sum, Idaho law does not impose a constitutionally significant restriction on the
City Council’s discretion to issue or deny special use permits. Notwithstanding
Burch’s unilateral expectation, the procedural requirements of LLUPA and the
Orofino City Code create no legitimate claim of entitlement to a special use permit.
Because Burch does not make the threshold showing of a constitutionally protected
interest, his federal due process claim fails as a matter of law.
Id. at 1074.
Bracken argues that these cases do not apply because the Ketchum ordinance requires a
permit to be issued once certain requirements are satisfied. The applicable Ketchum ordinance
provides:
A conditional use permit shall be granted by the commission only if the applicant
demonstrates that:
A. The characteristics of the conditional use will not be unreasonably
incompatible with the types of uses permitted in the applicable zoning
district;
B. The conditional use will not materially endanger the health, safety and
welfare of the community;
C. The conditional use is such that pedestrian and vehicular traffic
associated with the use will not be hazardous or conflict with existing and
anticipated traffic in the neighborhood;
D. The conditional use will be supported by adequate public facilities or
services and will not adversely affect public services to the surrounding
area, or conditions can be established to mitigate adverse impacts; and
E. The conditional use is not in conflict with the policies of the
comprehensive plan or the basic purposes of this chapter.
KMC 17.116.030 (emphasis added). Respondents concede the language of the ordinance restricts
the Commission’s discretion, but assert it does not mandate the approval of the application as
Bracken asserts. The ordinance provides that a conditional use permit will be granted “only if” the
applicant shows that the criteria for granting a permit are met. Thus, it constrains the discretion of
the Commission in granting a permit; the ordinance does not restrict the Commission’s discretion
to deny one. Indeed, if the Commission finds that any of the criteria are not met, it may deny the
permit.
Still, Bracken maintains that “[a]s a matter of established fact, the Commission had no
further reason to deny Bracken a [conditional use permit]. Bracken’s First Application met four of
the five conditions for a permit, and he had cured the last ‘potential’ issue with his Second
Application.” Respondents counter that Bracken ignores the considerable discretion involved in
23
determining whether the criteria for granting a permit are met. For example, the Commission has
discretion to determine whether the use will generate too much traffic, whether it will conflict with
the character of the neighborhood, whether it conflicts with the policies of the comprehensive plan,
and whether it aligns with the health, safety, and welfare of the community. These are criteria
about which reasonable minds may disagree, and thus, the Commission has broad discretion to
determine whether, in its judgment, these criteria are met.
Given the discretion inherent in determining whether to grant a conditional use permit, the
district court correctly found Bracken did not have a constitutional right that was infringed. Thus,
we hold Bracken had no claim under either a procedural or substantive due process theory because
he had no “legitimate claim of entitlement” to a permit that the City had discretion to deny in a
reasonable exercise of its discretion. See Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1019 (9th
Cir. 2011).
Bracken focuses on Respondents’ disregard for “procedural safeguards,” as adequate to
support the infringement of his constitutional rights. However, the poor conduct on the part of the
City and its agents does not foreclose Respondents’ discretion to ultimately grant or deny the
application. Because that discretion remained with the Respondents, regardless of their bad
conduct, we affirm the district court’s dismissal of Bracken’s federal claims—Counts Three,
Seven, and Eight.
Since we have affirmed the district court’s dismissal of Bracken’s federal claims, we do
not address whether Bracken’s federal claims were ripe. See Brunobuilt, Inc. v. Strata, Inc., 166
Idaho 208, 222, 457 P.3d 860, 874 (2020) (declining to reach alternative bases for dismissal
considered by district court once this Court had affirmed the district court’s decision).
D. The district court did not err in dismissing Bracken’s punitive damage claim.
Count Nine of Bracken’s first and second amended complaint sought punitive damages for
Respondents’ alleged 42 U.S.C. section 1983 violations. The district court dismissed Bracken’s
punitive damages claim once it dismissed Bracken’s other 42 U.S.C. section 1983 claims,
reasoning there could be no punitive damages without other liability.
On appeal, Bracken argues that punitive damages may be awarded even with no other
liability. Bracken cites Smith v. Wade, 461 U.S. 30 (1982), which noted “punitive damages may
be the only significant remedy available in some § 1983 actions where constitutional rights are
maliciously violated but the victim cannot prove compensable injury.” Id. at 55, n. 21. Respondents

24
counter that the quoted statement from Smith simply means punitive damages may be assessed to
punish a defendant that violates the plaintiff’s constitutional rights even when the plaintiff can
prove no compensable damages. The Respondents are correct.
Here, the district court dismissed Bracken’s punitive damage claim because punitive
damages cannot be assessed against a defendant absent liability, and the district court found there
was no violation of Bracken’s constitutional rights. The district court did not err in dismissing
Bracken’s punitive damages claim. Since Bracken’s claims asserting constitutional violations were
dismissed, there is no underlying liability to use as the springboard from which to award punitive
damages. See Peden v. Suwannee County. Sch. Bd., 837 F. Supp. 1188, 1197 (M.D. Fla. 1993) (in
a section 1983 action, “a jury may properly award[ ] punitive damages even though it awards no
compensatory damages, but only where the jury first finds that a constitutional violation was
committed by the party against whom the punitives are imposed.”). The district court’s dismissal
of Count Nine is affirmed.
E. The district court did not err in refusing to rule on Bracken’s motions for rulings on
issues of law.
Next, Bracken alleges there are no identified issues of fact, and so the district court erred
in refusing to rule on Bracken’s motion for rulings of law. A district court’s decision whether and
when to consider a motion for rulings of law is reviewed for an abuse of discretion. See
McCandless v. Pease, 166 Idaho 865, 872, 465 P.3d 1104, 1111 (2020). When this Court reviews
an alleged abuse of discretion by a trial court, the Court considers the following: “Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries
of its discretion; (3) acted consistently with the legal standards applicable to the specific choices
available to it; and (4) reached its decision by the exercise of reason.” Lunneborg v. My Fun Life,
163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
While Respondents’ third motion for summary judgment was pending, Bracken moved for
rulings on eighteen issues of law along with a subsequent motion for summary judgment. Many
of these eighteen “motions” asked the district court to rule on the propriety of actions taken by
Austin. The motions asked the court to conclude that Austin acted repeatedly without authority in
refusing to accept Bracken’s application.
Bracken based his motion on Idaho Code section 9-102:
All questions of law arising upon the trial, including the admissibility of testimony,
the facts preliminary to such admission, and the construction of statutes and other
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 writings, and other rules of evidence, are to be decided by the court when submitted
and before the trial proceeds, and all discussions of law are to be addressed to the
court.4
(Emphasis added).
The district court held it was procedurally improper to determine a motion for rulings on
issues of law before a trial commences. The court found the phrase “upon the trial” meant when
the trial starts and determined Bracken had failed to explain or cite any authority to support why
his motion was proper at an earlier point in the proceedings.
There appears to be an inherent conflict within the timing designated in the statute. On one
hand, “upon” is defined as “immediately following on,” “very soon after,” or “at the time of.”
Upon, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993). Thus, the meaning of “upon
the trial” would be immediately following the start of trial or at the time of trial. On the other hand,
the statute designates all questions of law are to be decided “when submitted.”
“[A]ny ambiguity in a statute should be resolved in favor of a reasonable operation of the
law.” State v. Neal, 159 Idaho 439, 445, 362 P.3d 514, 520 (2015) (quoting Lawless v. Davis, 98
Idaho 175, 177, 560 P.2d 497, 499 (1977)). Here, we must consider the timing of Bracken’s
motion. Bracken submitted his motion while Respondents’ third motion for summary judgment
was pending, at the same time he moved for summary judgment. But he then claimed a ruling on
his motions was necessary “for the district court to properly instruct the jury at trial.” Based on the
pending motions it was unclear whether a trial would ever occur. As a result, it was impractical to
ask the district court to decide issues of law for a trial that may never happen. We hold the district
court did not abuse its discretion in denying Bracken’s motion.
F. We vacate the district court’s award of all costs to Respondents.
The district court granted Respondents’ request for discretionary costs after concluding
Bracken’s claims lacked “any legal merit.” The court found that in defending any lawsuit where
all adverse claims lacked a reasonable basis in law, discretionary costs are necessary and
exceptional since those claims should have never been brought in the first place. Here, the district
court found Respondents’ costs were exceptional because the case should have been confined to

4
The statute appears to encroach on the judiciary’s authority to set its own procedural rules. In re SRBA Case No.
39576, 128 Idaho 246, 255, 912 P.2d 614, 623 (1995) (quoting State v. Beam, 121 Idaho 862, 863, 828 P.2d 891, 892
(1992) (“[T]his Court’s rule making power goes to procedural, as opposed to substantive, rules.”)). That said, neither
party has raised the propriety of section 9-102 on appeal, so we leave that determination for another day.
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administrative remedies followed by judicial review. Bracken argues the district court erred in
awarding discretionary costs because his factual allegations remained unchallenged and had merit.
Respondents counter that the district court based its award of discretionary costs on the lack of
merit in Bracken’s legal arguments, not his factual claims.
An award of discretionary costs is authorized under Idaho Rule of Civil Procedure
54(d)(1)(D) “on a showing that the costs were necessary and exceptional costs, reasonably
incurred, and should in the interests of justice be assessed against the adverse party.” An award of
discretionary costs is reviewed for abuse of discretion, and the party opposing the award of costs
bears the burden of showing that the district court abused its discretion. Easterling v. Kendall, 159
Idaho 902, 917, 367 P.3d 1214, 1229 (2016). When this Court reviews an alleged abuse of
discretion by a trial court the sequence of inquiry requires consideration of the four essential
questions noted above. See Lunneborg 163 Idaho at 863, 421 at 194.
Because we have reversed the district court’s dismissal of Count Ten, we vacate the district
court’s award of all costs, discretionary and automatic, pending the outcome of Bracken’s
remaining claim on remand.
G. We decline to award attorney fees on appeal.
Both parties request attorney fees on appeal. In his opening brief, Bracken states he is
seeking “an award of attorney fees on this appeal pursuant to 42 USC [section] 1988. Larez v. Los
Angeles, 946 F.2d 630 (9th Cir. 1991).” Bracken does not provide any analysis or argument in
support of his request in his initial brief. “A party seeking attorney fees on appeal must state the
basis for such an award.” Jones v. Lynn, 169 Idaho 545, 565, 498 P.3d 1174, 1194 (2021) (citing
Bromund v. Bromund, 167 Idaho 925, 932, 477 P.3d 979, 986 (2020)). This means that the party
seeking fees must provide argument on the issue and not simply cite a statute. I.A.R. 35(a)(6),
(b)(6). “[A]bsent any legal analysis or argument, ‘the mere reference to [a] request for attorney
fees is not adequate.’” Jones, 169 Idaho at 565, 498 P.3d at 1194 (quoting Johnson v. Murphy, 167
Idaho 167, 176, 468 P.3d 297, 306 (2020) (second alteration in original)).
Although Bracken thoroughly supports his request in his reply brief, “this Court will not
consider arguments raised for the first time in the appellant’s reply brief.” Suitts v. Nix, 141 Idaho
706, 708, 117 P.3d 120, 122 (2005) (quoting Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495,
508, 95 P.3d 977, 990 (2004)). A reviewing court looks only to the initial brief on appeal for the

27
issues presented because those are the arguments and authority to which the respondent can
respond in the respondent’s brief. Id. Thus, Bracken’s request for attorney fees is denied.
Respondents also request attorney fees on appeal under Idaho Code sections 12-117, 12-
121, and 42 U.S.C. section 1988. Section 12-117 “mandates an award of reasonable attorney fees
to the prevailing party ‘in any proceeding involving as adverse parties a state agency or a political
subdivision and a person’” if the court finds that “the nonprevailing party acted without a
reasonable basis in fact or law.” Byrd v. Idaho State Bd. of Land Comm’rs, 169 Idaho 922, 933,
505 P.3d 708, 719 (2022). Similarly, attorney fees may be awarded on appeal under Idaho Code
section 12-121 when the court is “left with the abiding belief that the appeal was brought, pursued
or defended frivolously, unreasonably or without foundation.” Florer v. Walizada, 168 Idaho 932,
936, 489 P.3d 843, 847 (2021).
Respondents argue Bracken’s state law claims were pursued without a reasonable basis in
fact or law because Bracken sued for damages against the City when his sole remedy was judicial
review, and because he failed to exhaust administrative remedies before pursuing an action in
district court. We have reversed the district court’s order, holding that Bracken may pursue a legal
claim related to Count Ten. Thus, Bracken’s arguments about the doctrine of exhaustion are not
frivolous. Accordingly, we decline to award Respondents attorney fees on appeal under Idaho
Code sections 12-117 or 12-121.
Separately, Respondents request attorney fees for Bracken’s federal claims under 42 U.S.C.
section 1988. Section 1988(b) provides: “In any action or proceeding to enforce a provision . . . of
this title . . . the court, in its discretion, may allow the prevailing party, other than the United States,
a reasonable attorney’s fee as part of the costs.” Like the standard in Idaho Code section 12-121,
attorney fees may be awarded under 42 U.S.C. section 1988 to a prevailing defendant if “the
plaintiff’s action was frivolous, unreasonable, or without foundation.” Hughes v. Rowe, 449 U.S.
5, 14 (1980). Respondents claim Bracken’s 42 U.S.C. section 1983 claims were frivolous,
unreasonable and without foundation because they contravened years of federal precedent holding
that there is no legitimate claim of entitlement to a discretionary land use permit.
We decline to award Respondents attorney fees related to Bracken’s federal claims.
Although we have held Bracken lacked a constitutional right to a conditional use permit, he made
good-faith arguments about the deprivation of the process he endured to obtain the conditional use
permit. Given the Respondents’ conduct below, we decline to award them attorney fees on appeal.
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 IV. CONCLUSION
We affirm the district court’s dismissal of Counts One through Nine in Bracken’s second
amended complaint but reverse the district court’s dismissal of Count Ten based on our conclusion
that Bracken was excused from exhausting administrative remedies under the uniquely egregious
facts here. We therefore vacate the judgment: (1) against Bracken as to Count Ten; and (2)
awarding costs to the Respondents. No attorney fees or costs are awarded on appeal.

JUSTICES MOELLER and ZAHN, JUSTICE HORTON, pro tem, and JUDGE PETTY,
pro tem, CONCUR.

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