Marcia T. Turner, L.L.C. v. City of Twin Falls

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 32884

MARCIA T. TURNER, L.L.C., )
) Boise, March 2007 Term
Plaintiff-Appellant, )
) Opinion No. 62
v. )
) Filed: April 27, 2007
CITY OF TWIN FALLS, )
) Stephen W. Kenyon, Clerk
Defendant-Respondent. )
)

Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
in and for Twin Falls County. The Hon. G. Richard Bevan, District Judge.

The decision of the City Council is affirmed.

Clark Law Office, Eagle, for appellant. Eric R. Clark argued.

Wonderlich & Wakefield, Twin Falls, for respondent. Fritz Wonderlich argued.

EISMANN, Justice.
This is an appeal of a decision by the city council denying the request for a special use
permit to construct a television transmission tower. We affirm the decision of the city council.

I. FACTS AND PROCEDURAL HISTORY
Marcia T. Turner, L.L.C., (Turner) desired to operate a primary television station on Blue
Lakes Boulevard in the City of Twin Falls. In conjunction with the proposed television station,
Turner wanted to build a 120-foot-tall, lattice transmission tower. The property on which Turner
desired to operate the television station was zoned C-1, Commercial Highway District. The
permitted uses in that zone included “television stations without transmission and receiving
towers.” Twin Falls Code § 10-4-8.2(A). A special use permit could be granted to operate
“television stations with wireless communications facilities” if such use was “not in conflict with
the comprehensive plan.” Twin Falls Code § 10-4-8.2(B). In addition, Twin Falls Code § 10-
13-2-2 required that the requested special use at the proposed location comply with nine
standards.1
On May 13, 2003, Turner filed an application for a special use permit to do so. That
application was initially heard by the Twin Falls Planning and Zoning Commission (P&Z
Commission). After a public hearing on July 8, 2003, it voted to grant Turner’s request for a
special use permit to construct the transmission tower. It issued its written findings and decision
on July 29, 2003.
At the City Council’s regularly scheduled meeting on July 21, 2003, the Planning and
Zoning Director informed the members of the Council of the Commission’s decision regarding
the transmission tower. The Council voted to exercise its authority to review and hear that
decision. On August 18, 2003, the City Council held a public hearing on Turner’s application
for the special use permit. At the conclusion of the hearing, the Council voted to deny the
application. It issued its written findings of fact and decision on September 18, 2003.
On September 15, 2003, Turner filed a petition for judicial review. The matter was heard
by the district court, which affirmed the decision of the City Council. Turner then appealed to
this Court.

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City Code § 10-13-2-2(D) provides:
Standards Applicable to Special Uses: The Commission shall review the particular facts
and circumstances of each proposed special use in terms of the following standards and shall find
adequate evidence showing that such use at the proposed location:
1. Will, in fact, constitute a special use as established by zoning requirements for the zone
involved.
2. Will be harmonious with and in accordance with the general objectives or with any specific
objective of a comprehensive plan and/or zoning regulations.
3. Will be designed, constructed, operated and maintained to be harmonious and appropriate
in appearance with the existing or intended character of the general vicinity and that such
use will not change the essential character of the same area.
4. Will not be hazardous or disturbing to existing or future neighboring uses.
5. Will be served adequately by essential public facilities and services such as highways,
streets, police and fire protection, drainage structures, refuse disposal, water and sewer and
schools; or that the persons responsible for the establishment of the proposed use shall be
able to provide adequately any such services.
6. Will not create excessive additional requirements at public cost for public facilities and
services and will not be detrimental to the economic welfare of the community.
7. Will not involve uses, activities, processes, materials, equipment and conditions of
operation that will be detrimental to any person, property or to the general welfare by
reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
8. Will have vehicular approaches to the property which shall be so designed as not to create
an interference with traffic on surrounding public thoroughfares.
9. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of
major importance.

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 II. ISSUES ON APPEAL
1. Did the Twin Falls Code require the City Council to make specific factual findings in order
to review the decision of the Commission?
2. Did the City Council violate due process by failing to limit its review to the record generated
before the P&Z Commission?
3. Was the City Council’s decision supported by substantial evidence?
4. Is either party entitled to an award of attorney fees on appeal pursuant to Idaho Code § 12-
117?

III. ANALYSIS
A person aggrieved by a city or county land-use decision may seek judicial review of that
decision in the district court under the Idaho Administrative Procedures Act (IAPA). County
Residents Against Pollution from Septage Sludge v. Bonner County, 138 Idaho 585, 67 P.3d 64
(2003); Idaho Code § 67-6521(d). On an appeal from the district court acting in its appellate
capacity under the IAPA, this Court reviews the record independently of the district court’s
opinion. Sanders Orchard v. Gem County ex rel. Bd. of County Comm’rs, 137 Idaho 695, 52
P.3d 840 (2002). This Court will not consider issues that were not raised before the district court
even if those issues had been raised in the administrative proceeding. Cooper v. Bd. of Prof’l
Discipline of the State Bd. of Med., 134 Idaho 449, 4 P.3d 561 (2000).
When reviewing a land-use decision, this Court does not substitute its judgment for that
of the decision maker as to the weight of the evidence presented on questions of fact. Id.; Idaho
Code § 67-5279(1). Rather, this Court defers to the findings of fact unless they are clearly
erroneous. Likewise, in matters involving the exercise of discretion, this Court does not
substitute its discretion for that of the decision maker. Sanders Orchard v. Gem County ex rel.
Bd. of County Comm’rs, 137 Idaho 695, 52 P.3d 840 (2002). The land-use decision may be
overturned only where it: (a) violates statutory or constitutional provisions; (b) exceeds
statutory authority; (c) was made upon unlawful procedure; (d) is not supported by substantial
evidence in the record as a whole; or (e) is arbitrary, capricious, or an abuse of discretion. Id.;
Idaho Code § 67-5279(3). In addition, the land-use decision must be upheld if substantial rights

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of the appellant have not been prejudiced. Sanders Orchard v. Gem County ex rel. Bd. of County
Comm’rs, 137 Idaho 695, 52 P.3d 840 (2002); Idaho Code § 67-5279(4) (2001). If the land-use
decision is not affirmed, it shall be set aside in whole or in part and the case remanded. Idaho
Code § 67-5279(3)(e).

A. Did the Twin Falls Code Require the City Council to Make Specific Factual Findings in
Order to Review the Decision of the P&Z Commission?
At the regularly scheduled City Council meeting on July 21, 2003, the Planning and
Zoning Director informed the Council members that on July 8, 2003, the P&Z Commission had
approved the erection of a 120-foot-tall television transmission tower on Blue Lakes Boulevard.
After discussing the tower in general terms, the Council voted unanimously to review and hear
the matter. Turner contends that the City Council could not do so unless it made a factual
finding, based upon evidence in the record, that the action of the P&Z Commission may have a
significant adverse impact.
Section 10-17-2 of the Twin Falls Code2 permitted the City Council, on its own motion,
to review and hear any action taken by the P&Z Commission if the Council “determines, within
fifteen (15) days of Commission action, that there may be significant adverse impact as a result
of the Commission action.” At its meeting on July 21, 2003, the City Council did not receive
evidence as to any significant adverse impact that may result from the erection of the tower, nor
did it expressly find that the tower may cause a significant adverse impact. The City Code does
not expressly require that it do so.
A city council, as the governing board, may exercise all of the powers required and
authorized under the Local Land Use Planning Act, or it may delegate powers to a city planning

2
That ordinance provided:
There is hereby created, a planning and zoning commission and throughout this title is
referred to as the commission. The commission shall be constituted and shall function according to
the bylaws herein set forth and shall have all of the power or authority to consider ordinances or to
recommend amendments to or repeal of any portion of this title. The commission shall provide
guidance and assistance to the council, holding public hearings as required by law, and shall grant
or deny applications presented to the commission, and shall make timely written recommendations
to the council in all matters relating to this title in which the council has final decision making
powers. Any action taken by the commission which would be final unless appealed may be
reviewed and heard by the council when an appeal is not made but the council determines, within
fifteen (15) days of Commission action, that there may be significant adverse impact as a result of
the Commission action.

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and/or zoning commission it creates. I.C. § 67-6504. By City Code § 10-17-2, the City Council
created the P&Z Commission for the City of Twin Falls. The Council interpreted Section 10-17-
2 as reserving to itself the power to review and hear any action taken by the Commission if a
majority of the members of the Council believed that such action may have an adverse impact.
There is a strong presumption favoring the validity of a governing board’s zoning decisions,
including its application and interpretation of its own zoning ordinance. Chisholm v. Twin Falls
County, 139 Idaho 131, 75 P.3d 185 (2003); Sanders Orchard v. Gem County ex rel. Bd. of
County Comm’rs, 137 Idaho 695, 52 P.3d 840 (2002). The City Council’s interpretation of its
ordinance is reasonable. It therefore had the power to review and hear the action of the P&Z
Commission simply by a majority vote without the necessity for hearing evidence or making
findings as to whether such action may have a substantial adverse impact.
Turner asserts that interpreting City Code § 10-17-2 in this manner would violate due
process. It argues that if the City Council can decide, on its own, to review and hear an action of
the P&Z Commission, the City Council cannot be an impartial decision maker.
“The Due Process Clause entitles a person to an impartial and disinterested tribunal. . . .
Decisions by a zoning board applying general rules or specific policies to specific individuals,
interests or situations, are quasi-judicial in nature and subject to due process constraints.” Eacret
v. Bonner County, 139 Idaho 780, 784, 86 P.3d 494, 498 (2004) (citations omitted). “When
acting upon a quasi-judicial zoning matter the governing board is neither a proponent nor an
opponent of the proposal at issue, but sits instead in the seat of a judge.” Lowery v. Bd. of
County Comm’rs for Ada County, 115 Idaho 64, 71, 764 P.2d 431, 438 (1988). In this context,
the Due Process Clause would therefore apply to the zoning board in the same way that it applies
to judges.
In Republican Party of Minn. v. White, 536 U.S. 765 (2002), the United States Supreme
Court addressed the meaning of “impartiality” as it is used in the context of applying the Due
Process Clause to judges. It means “the lack of bias for or against either party to the proceeding.
Impartiality in this sense assures equal application of the law. That is, it guarantees a party that
the judge who hears his case will apply the law to him in the same way he applies it to any other
party.” Id. at 775-76. In the context of due process, it does not mean “lack of preconception in
favor of or against a particular legal view. This sort of impartiality would be concerned, not with
guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal

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chance to persuade the court on the legal points in their case.” Id. at 777. It also does not mean
having “no preconceptions on legal issues, but [being] willing to consider views that oppose his
preconceptions, and remain[ing] open to persuasion, when the issues arise in a pending case.”
Id. at 778. Impartiality under the Due Process Clause does not guarantee each litigant a chance
of changing the judge’s preconceived view of the law. Id. “A decision maker is not disqualified
simply because he has taken a position, even in public, on a policy issue related to the dispute, in
the absence of a showing that the decision maker is ‘not capable of judging a particular
controversy fairly on the basis of its own circumstances.’” Eacret v. Bonner County, 139 Idaho
780, 785, 86 P.3d 494, 499 (2004) (quoting from Hortonville Joint School Distr. No. 1 v.
Hortonville Education Ass’n, 426 U.S. 482, 493 (1941)).
When deciding to review and hear an action of the P & Z Commission pursuant to its
authority under City Code § 10-17-2, the City Council is not required to make a finding that the
Commission’s action was wrong. It must simply decide that “there may be significant adverse
impact as a result of the Commission’s action.” Having and exercising that power does not
violate the Due Process Clause.

B. Did the City Council Violate Due Process by Failing to Limit Its Review to the Record
Generated before the P&Z Commission?
Turner first argues that the City Council was required to hear the matter as an appellate
proceeding and to consider only the record developed before the P&Z Commission. Based upon
that assertion, Turner contends that it was denied due process because the Council received
evidence outside that record, specifically testimony at the public hearing held on August 18,
2003, and e-mails3 received by some Council members before it issued its written findings of
fact and conclusions of law. With the exception of one e-mail (the Bonnett e-mail) that will be
discussed below, four e-mails were sent to Council members on September 16 and 17, 2003,
after the Council had voted to deny Turner’s special use permit but just before it issued its
written findings of fact and conclusions of law on September 18, 2003. None of those e-mails
were mentioned in the findings of fact.

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With the exception of one e-mail discussed below, the e-mails were received on September 16 and 17, 2003. The
City Council voted to deny Turner’s requested special use permit on August 18, 2003, and it issued its written
finding of fact and conclusions of law on September 18, 2003.

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 The City Council interpreted its ordinance as retaining to itself the power to conduct a de
novo review of the application for a special use permit. There is a strong presumption favoring
its interpretation of its own ordinance. Chisholm v. Twin Falls County, 139 Idaho 131, 75 P.3d
185 (2003); Sanders Orchard v. Gem County ex rel. Bd. of County Comm’rs, 137 Idaho 695, 52
P.3d 840 (2002). City Code § 10-17-2 provides that any action by the P&Z Commission may be
“reviewed and heard” by the Council. The Council interpreted that code section as requiring a
public hearing. The City Code does not contain any provision outlining the procedures for
hearing a matter strictly in an appellate capacity. The procedures for conducting hearings by
either the City Council or the P&Z Commission are set forth in City Code § 10-17-4, entitled
“Procedures for the Conduct of Hearings.” That code section requires a public hearing at which
those interested can present testimony and exhibits and be questioned by members of the body
conducting the hearing. The presentation of additional evidence is consistent with a de novo
review and is inconsistent with an appellate review confined to the record made below. Petersen
v. Franklin County, 130 Idaho 176, 938 P.2d 1214 (1997). City Code § 10-13-2-2 directs the
City Council on appeals from an application for a special use permit “to reach a decision to
uphold, conditionally uphold or overrule the decision of the commission.” The Council’s
authority “to uphold, conditionally uphold or overrule” the decision of the P&Z Commission is
also consistent with the Council exercising de novo review. Davisco Foods Int’l, Inc. v. Gooding
County, 141 Idaho 784, 118 P.3d 116 (2005). The Council’s interpretation that its ordinance
required it to conduct a de novo review of Turner’s application for a special use permit is
reasonable. Since it was exercising de novo review, it was not confined to the record made
before the P&Z Commission.
Turner argues that even if the City Council was empowered to receive additional
evidence, the Council deprived Turner of due process when it voted on July 21, 2003, to review
and hear the P&Z Commission’s approval of the special use request. Turner contends it was
denied due process because it did not receive notice of that hearing and because some members
of the Council had received an ex parte communication before that hearing. The ex parte
communication was the Bonnett e-mail dated July 9, 2003, in which Bonnett expressed
opposition to the P&Z Commission’s action in approving the transmission tower.
A local governing body sits in a quasi-judicial capacity, and therefore must comply with
the requirements of due process, when the body is “applying general rules or policies to specific

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individuals, interests, or situations.” Cooper v. Board of County Comm’rs of Ada County, 101
Idaho 407, 410, 614 P.2d 947, 950 (1980). The requirements of due process did not apply to the
City Council’s decision on July 21, 2003, to review and hear the P&Z Commission’s approval of
Turner’s special use permit. The Council was not acting in a quasi-judicial capacity when it
decided to review the Commission’s action. That decision was not required to be made after an
evidentiary hearing, nor was it required to be based upon evidence in the record. It did not
involve applying “general rules or policies to specific individuals, interests, or situations.” The
Council was not making any determination regarding the merits of Turner’s application for a
special use permit. It was merely deciding to exercise its power to hear that application.
Therefore, there was no due process violation in connection with the Council’s decision to
review Turner’s application for a special use permit.
In its reply brief, Turner also contends that the City Council violated due process by
failing to disclose the existence of the Bonnett e-mail prior to the public hearing held on August
18, 2003. Turner contends it recently discovered the existence of the e-mail.
“‘[T]his Court will not consider arguments raised for the first time in the appellant’s
reply brief.’ A reviewing court looks only to the initial brief on appeal for the issues presented
because those are the arguments and authority to which the respondent has an opportunity to
respond in the respondent’s brief.” Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005)
(quoting from Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004)).
Although Turner’s appellate counsel may have just learned of the Bonnett e-mail, a letter from
Turner’s prior counsel objecting to the public hearing refers to the e-mail. Likewise, Turner’s
prior counsel mentioned the e-mail during the public hearing. Any allegation that the City
Council violated due process by failing to disclose the existence of the Bonnett e-mail should
have been raised below. It is too late to raise that issue in the reply brief. Therefore, we will not
address the issue.

C. Was the City Council’s Decision Supported by Substantial Evidence?
After reviewing and hearing the matter, the City Council concluded that the proposed
transmission tower was not consistent with the provisions of the Comprehensive Plan, was not
consistent with the zoning provisions of the City Code, was not a proper use in the C-1 zone, and

8
would be unsightly in the proposed location. Turner contends that the City Council’s findings
are not supported by substantial evidence.
Turner argues that the City Council did not present “‘substantial evidence’ to support
reversing the P & Z Commission’s decision. . . . [I]t appears the City Council was concerned
strictly with aesthetics and nothing more, as evidenced by the Findings of Fact and Conclusions
of Law.” (Emphasis in original.) Turner also criticizes the Council’s failure to address the P&Z
Commission’s findings, stating, “Notwithstanding the Planning and Zoning Commission’s
findings, in the City Council’s Findings of Fact, Conclusions of Law, and Decision the Council
make no reference to any information generated by the Commission.”
The City Council was not required to address the P&Z Commission’s findings or
decision, nor was it required to find that the Commission had made any legal error or that its
findings lacked support in the record. The Council heard this matter de novo. A de novo review
means “a trying of the matter anew—the same as if it had never been heard before.” Gilbert v.
Moore, 108 Idaho 165, 168, 697 P.2d 1179, 1182 (1985). The Council’s decision to conduct its
de novo review had the effect of removing the P&Z Commission’s decision from the record.
See, Leavitt v. Leavitt, 142 Idaho 664, 668, 132 P.3d 421, 425 (2006). Thus, the Council did not
err by failing to address the Commission’s decision.
In support of its assertion that the City Council’s decision is not supported by evidence in
the record, Turner argues, “What more compelling proof is there than not one citizen appeared
and objected to the tower during the Planning and Zoning hearings and not one person appeared
before the City Council, even after notice to the entire Magic Valley area, to voice any objection
to the tower?” Turner’s argument misapprehends the nature of the public hearing. It was not a
trial where the weight of the evidence presented determined the result. The City Code provided
that a special use permit “may” be authorized under certain circumstances. City Code § 10-13-2-
2. It did not state that a special use permit “shall” be granted if those circumstances are proven at
a public hearing. The use of the word “may” shows that the City Council had discretion
regarding the decision to grant or deny the special use permit. In the exercise of that discretion,
the Council could deny the application even if nobody testified against it.
The City Council was also entitled to consider aesthetics when deciding whether to grant
Turner’s application for a special use permit. As this Court stated in Lamar Corp. v. City of
Twin Falls, 133 Idaho 36, 41, 981 P.2d 1146, 1151 (1999) (citations omitted), with respect to

9
billboards: “A city’s appearance is a substantial government interest, and cities may enact
zoning ordinances to preserve aesthetics. A city may regulate the construction and placement of
billboards for the purpose of preserving aesthetics even though aesthetic judgments are
‘necessarily subjective.’” Likewise, in Williamson v. City of McCall, 135 Idaho 452, 19 P.3d
766 (2001), we upheld a district court’s determination that landowners had failed to prove that
their request to separate their property from the city would not materially mar the symmetry of
the city. In upholding the district judge, we stated: “This determination was based in part on the
judge’s visit to the property which is allowed under I.C. § 50-229. The district judge’s own
assessment of the aesthetic symmetry is competent evidence.” 135 Idaho at 454, 19 P.3d at 768.
The City Council did not abuse its discretion in denying the special use permit based upon its
finding that “[a] 120’ lattice transmission/receiving tower [at a gateway entrance to the city]
would be unsightly and appear to be out of place in this area.”

D. Is Either Party Entitled to an Award of Attorney Fees on Appeal Pursuant to Idaho
Code § 12-117?
Turner requests an award of attorney fees under Idaho Code § 12-117 if it is the
prevailing party on appeal. Since it is not, it is not entitled to an award of attorney fees.
The City of Twin Falls also requests an award of attorney fees under that statute. We will
award attorney fees on appeal under that statute if we find that the losing party acted without a
reasonable basis in law or in fact. We do not find that Turner’s appeal was so lacking in merit
that the City is entitled to an award of attorney fees under Idaho Code § 12-117.

IV. CONCLUSION
We affirm the decision of the City Council. We award costs on appeal to the City of
Twin Falls.

Chief Justice SCHROEDER and Justice BURDICK CONCUR. Justice TROUT
CONCURS EXCEPT AS TO PART III.A., IN WHICH SHE CONCURS IN THE
RESULT.

JONES, Justice, concurring in part and dissenting in part.

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 I concur in the Court’s opinion for the most part, including the analysis in Section IIIA
and B, as well as most of C, but disagree with the conclusion in Section IIIC that the City
Council need not have addressed the P&Z Commission’s findings or decision. It is my belief
that, even though the City Council had the ability to review the application de novo, it had the
obligation to make a reasoned decision, which included an obligation to explain its departure
from the findings and conclusions of the P&Z Commission, the initial finder of fact. As I
explained in Section II of my dissent in Davisco Foods Intern. v. Gooding County, 141 Idaho
784, 794-5, 118 P.3d 116, 126-7 (2005):
The Court adheres to the rule that under the APA, when an agency’s findings
disagree with the hearing officer’s recommended order, the reviewing court still
examines the agency’s findings and whether they are supported by substantial
evidence. Pearl v. Bd. of Prof’l Discipline, 137 Idaho 107, 112, 44 P.3d 1162,
1167 (2002). But, in such cases the Court “will scrutinize the agency’s findings
more critically,” since the Court imposes on agencies “an obligation of reasoned
decision making that includes a duty to explain why the agency differed from the
administrative law judge.” Id.

Our Court of Appeals first adopted this rule in Woodfield v. Bd. of Prof’l
Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1055 (Ct. App. 1995). In
Woodfield the Board of Professional Discipline of the State Board of Medicine
issued an order revoking the appellant physician’s license to practice medicine.
The hearing officer had expressed concerns with the physician’s conduct but did
not recommend the physician’s license be revoked. The Board of Medicine
conducted an independent review and “depart[ed] significantly” from the hearing
examiner’s findings. 127 Idaho at 743, 905 P.2d at 1052. On review, the district
court required the Board of Medicine to articulate its reasons for departing from
the hearing examiner’s decision. The Court of Appeals agreed, explaining:

[I]t is consistent with the Board’s statutory obligation to render a
reasoned decision to require the Board to identify facts, as well as
inferences drawn from the facts upon the application of its
expertise and judgment, which underlie its decision. Such an

11
 explanation is essential to meaningful judicial review, and it is a
logical adjunct to the agency’s statutory duty to supplement its
decisions with findings of fact and conclusions of law.
127 Idaho at 747, 905 P.2d at 1056. The court grafted this rule from several
federal cases involving the federal Administrative Procedure Act. Id. at 746 n.3,
905 P.2d at 1055 n.3. Because the court was not satisfied the Board of Medicine
had met its obligation, the court remanded the Board of Medicine’s decision “to
delineate its own findings as the basis for its contrary conclusion to that of the
hearing officer.” Id. at 747, 905 P.2d at 1056.

This Court has not considered whether to extend Woodfield to cases under
LLUPA where the county board of commissioners reverses its planning and
zoning commission. Why the principle would not apply in such cases, however, I
cannot say. Just as agencies must issue a reasoned statement for their conclusions
– I.C. § 67-5248 (which requirement formed part of the basis for the court’s rule
in Woodfield, see 127 Idaho at 746, 905 P.2d at 1055) – so, too, must county
boards of commissioners issue a reasoned statement explaining their decisions
under LLUPA. I.C. § 67-6535. If the APA’s reasoned statement requirement
produced the rule in Woodfield, one could reasonably conclude the rule would
apply to decisions that must conform to I.C. § 67-6535.

In Woodfield¸ the hearing officer played the role of initial fact finder, making
recommended findings and conclusions. The Board of Medicine was the decision-making entity
and had the right and authority to depart from the findings and conclusions proposed by the
hearing officer. In this case, it appears the City Council exercised its prerogative to conduct a de
novo hearing and, thus, was the decision-making entity. As in Woodfield, the decision-making
entity in a planning and zoning matter should provide an explanation for departing from the
findings and conclusions made by the initial fact finder.
The situation here is that the P&Z Commission made five findings of fact regarding
Turner’s application. The City Council’s findings are identical, except for the fifth finding. In
that finding, the P&Z Commission stated, “Blue Lakes Boulevard is a gateway arterial and a
main entrance into Twin Falls.” The City Council added to this sentence that, “The City has
worked to improve the appearance of its gateway entrances to the City. A 120’ lattice
transmission/receiving tower at this location would be unsightly and appear to be out of place in
this area. A television station without the requested transmission/receiving tower would be
permissible.” In its conclusions of law, the P&Z Commission determined: (1) that Turner’s
application for a Special Use Permit “is consistent with the purpose of the C-1 Zone, and is not
detrimental to any of the outright permitted uses or existing special uses in the area,” (2) that the

12
proposed use “is consistent with” the Comprehensive Plan and Zoning Ordinance of the City of
Twin Falls, (3) that the proposed use “is a proper use in the C-1 Zone” (subject to certain
conditions imposed by the P&Z Commission), and (4) that the application “should be granted”
subject to the conditions. The City Council essentially used the same language, except for the
following minor revisions: (1) the application “is not consistent with the purpose of the C-1
Zone, and may be detrimental” to other uses in the area, (2) the proposed use “is not consistent”
with the Comprehensive Plan and Zoning Ordinance of the City of Twin Falls, (3) the proposed
use “is not proper use in the C-1 Zone,” and (4) the application “should be denied.”
It is understandable that Turner might be somewhat mystified by these two substantially
different outcomes. The P&Z Commission determined all issues in favor of Turner, while the
City Council determined all issues against Turner. The two entities reached these opposite
conclusions on essentially the same evidentiary record. No explanation is provided as to why the
substantial turn-about occurred, other than two sentences in the City Council’s finding 5. This
type of decision-making process does not inspire confidence; rather, it gave the impression of
arbitrariness, whether we are dealing with a review on the record or a de novo review. While I
certainly believe that the City Council can make different findings of fact and conclusions of law
than its planning and zoning commission, and reach a different outcome, I would require that the
City articulate its reasons for departing from the P&Z Commission’s findings and conclusions.
This would seem to be an essential ingredient of a reasoned decision. Therefore, I would vacate
and remand to the City for this specific purpose.

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