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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36943
                                                                                                    IN THE MATTER OF THE APPROVAL       )
                                                                                                    OF A CONDITIONAL USE PERMIT         )
#CUP-2008-3.                                                                                                                            )
                                                                                                                                        )   Lewiston, November 2010 Term
                                                                                                    MARY KREMPASKY,                     )
                                                                                                                                        )   2010 Opinion No. 134
                                                                                                    Petitioner-Appellant,               )
                                                                                                                                        )   Filed:  December 20, 2010
v.                                                                                                                                      )
                                                                                                                                        )   Stephen W. Kenyon, Clerk
                                                                                                    NEZ PERCE COUNTY PLANNING AND       )
ZONING,                                                                                                                                 )
)
Respondent                                                                                          )
)
Appeal from the Second Judicial District of the State of Idaho, Nez Perce County.
Hon. Jeff J. Brudie, District Judge.
The decision of the district court is affirmed.  No attorney fees are awarded on
appeal.  Costs to Respondent.
Edwin L. Litteneker, Lewiston, for Appellant.
Nez Perce County Prosecutor’s Office, Lewiston, for Respondents. Nance Ceccarelli
argued.
W. JONES, Justice
I.                                                                                                  NATURE OF THE CASE
Gary Kazda applied for and was granted a conditional-use permit by the Nez Perce
County Planning and Zoning Commission (the “Commission”) in order to develop a Tuscan
Wedding and Event Center (“Event Center”) on a five-acre parcel of land.   Appellant Mary
Krempasky, who lives near the parcel, challenged the Commission’s decision in the district
court.   The district court affirmed the Commission’s grant of the permit.   Krempasky appeals to
this Court, alleging several violations of I.C. § 67-5279(3).
II.                                                                                                 FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2008, Kazda filed an application with the Commission for a conditional-use
permit (titled “CUP-2008-3”) to develop the Event Center on a five-acre parcel.   Kazda also
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proposed  building  a  home  on  the  property,  but  the  residence  was  not  to  be  used  in  the
commercial venture.   The purpose of the Event Center was to hold weddings and other similar
outdoor events.   The application included, among other supporting documents, a narrative from
Kazda  describing  the  Event  Center  and  its  compliance  with  the  Nez  Perce  County
Comprehensive Plan Land Use Designation (the “Comprehensive Plan”), as well as a traffic
study comparison completed by Kazda’s engineer which concluded that traffic would not be
negatively affected by the Event Center.
Krempasky lives in a single-family residence located next to a residential subdivision
directly adjacent to the proposed Event Center.   Nez Perce County Planning and Building staff
prepared a review of the application and a recommendation (the “Staff Report”).   The Staff
Report found that the Event Center met the goals and policies of the Comprehensive Plan and
also met the criteria contained in Nez Perce County Ordinances  72cc and  72z,1 and thus
recommended that CUP 2008-3 be approved as a conditional use.
A public hearing regarding the permit was held on September 16, 2008.   Kazda and his
engineer  Brad  Marshall  both  testified  as  to  the  compliance  of  the  application  with  the
Comprehensive Plan, and also discussed the issues of noise and traffic of concern to residents.
Ten  residents,  including  Krempasky,  testified  regarding  their  opposition  to  CUP                                2008-3,
particularly their shared concerns of noise and traffic.   The residents provided no actual evidence
to support these fears or concerns.   Kazda and Marshall offered testimony in rebuttal, again
speaking to the neighbors’ concerns of noise and traffic, and answered questions from residents
in attendance and from the Commissioners.
The Commission then deliberated extensively based on the information contained in the
Staff Report, the testimony in opposition, the testimony in favor, and the petition in opposition
signed by forty residents, and voted unanimously to approve the application, but to lower the
maximum decibel level from seventy-five to sixty-five in order to accommodate the concerns
about noise.   As required by Nez Perce County Zoning Ordinance 72z, and I.C. § 67-6535, a
written version of the Findings of Fact and Conclusions of Law was prepared.  An initial attempt
1 Nez Perce County Ordinance 72cc was passed on September 2, 2008 and amends Nez Perce County Ordinance 72z
“to allow commercial special events centers as a conditional use in all zoning districts.”   Nez Perce County, Idaho,
Ordinances, Zoning Ordinance 72cc, at 1 (2008) [hereinafter Ordinance 72cc].   Krempasky makes no claim that
Kazda’s application should have been considered under the previous version of the ordinance, which did not provide
for event centers, and we therefore express no opinion on the matter.
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to adopt them at a meeting on October 21, 2008 failed because a quorum was not reached, but
the Findings and Conclusions were officially adopted at a special meeting of the Commission
held November 10, 2008.
On November 24, 2008, Krempasky filed an appeal of the Commission’s decision to the
Nez Perce County Commissioners, who subsequently held an administrative hearing pursuant to
§ 14.3(B) of Ordinance 72z.   The Board reportedly decided not to accept jurisdiction of the case
because the Commission had made its decision fairly.   Krempasky filed a petition for judicial
review to the district court on January 30,  2009, and after oral argument, the district court
affirmed the grant of the permit and held that the decision of the Commission was not an abuse
of discretion or based on unlawful procedure.   Krempasky now appeals the decision of the
district court, alleging the Commission violated I.C. § 67-5279(3).
III.                                                                                                 ISSUES ON APPEAL
1. Whether the decision to grant CUP 2008-3 prejudiced Krempasky’s substantial rights.
2. Whether the decision to grant CUP 2008-3 violated Krempasky’s due-process rights.
3. Whether the decision to grant CUP 2008-3 was arbitrary, capricious, or an abuse of discretion.
4. Whether the decision to grant CUP 2008-3 was made upon unlawful procedure or was not
supported by substantial evidence in the record.
5. Whether either party is entitled to attorney fees on appeal.
IV.  STANDARD OF REVIEW
“The Local Land Use Planning Act (LLUPA) allows an affected person to seek judicial
review of the approval  or denial of a land use application, as  provided for in  the  Idaho
Administrative Procedures Act (IDAPA).”   Evans v. Teton Cnty., 139 Idaho 71, 74, 73 P.3d 84,
87 (2003); I.C. § 67-6521(1)(d).   Krempasky is an “affected person” because she has “an interest
in real property which may be adversely affected by the issuance or denial of a permit”
authorizing development.  I.C. § 67-6521(1)(a).  A local agency making a land use decision, such
as the Planning and Zoning Commission, is treated as a government agency under the IDAPA.
Evans, 139 Idaho at 74, 73 P.3d at 87 (citing Urrutia v. Blaine Cnty., 134 Idaho 353, 357, 2 P.3d
738, 742 (2000)). On appeal from a decision of the district court acting in its appellate capacity
from an agency decision under the IDAPA, this Court reviews the agency record independently
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of the district court’s decision.  Stevenson v. Blaine Cnty., 134 Idaho 756, 759, 9 P.3d 1222, 1225
(2000).
However, this Court will not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact and will defer to the agency’s findings unless they
are clearly erroneous.   Id.   This Court also gives a strong presumption of validity to the zoning
body’s application and interpretation of its own zoning ordinances.   Evans v. Bd. of Comm’rs,
137 Idaho  428,  431,  50 P.3d  443,  446  (2002).    The decision of the Planning and Zoning
Commission will only be overturned if it violates a substantial right of a party and its findings:
(a) violate statutory or constitutional provisions; (b) exceed the agency’s statutory authority; (c)
are made upon unlawful procedure; (d) are not supported by substantial evidence in the record;
or (e) are arbitrary, capricious, or an abuse of discretion.   I.C. § 67-5279(3); Price v. Payette
Cnty. Bd. of Cnty. Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998).
V.    ANALYSIS
A.                                                                                                       The Decision to Grant CUP 2008-3 Is Affirmed Because Krempasky Fails to Show
Prejudice to a Substantial Right.
In order to prevail, Krempasky must show not only that I.C. § 67-5279(3) was violated in
one of the ways enumerated in the statute, but also that a substantial right has been prejudiced.
I.C. § 67-5279(4); Price, 131 Idaho at 429, 958 P.2d at 586.   Krempasky only briefly addresses
any prejudice to a substantial right, by alleging in a conclusory manner that her property rights
have been prejudiced by the grant of the permit because of “noise, commercial traffic and a
disproportionately large building in the residential area.”   However, she does not provide any
applicable authority to support the allegation that these complaints constitute prejudice to a
substantial right.   She relies on Lane Ranch Partnership v. City of Sun Valley, 145 Idaho 87, 91,
175 P.3d 776, 780 (2007), which holds only that an inability to properly access or develop one’s
land because of the denial of a permit prejudices a substantial property right.  Further, the district
court expressly found that Krempasky “has not met the second prong of her burden, which is to
show a substantial right of the Petitioner has been prejudiced by the granting of the permit,” and
Krempasky failed to challenge this finding on appeal.   Therefore, this Court need not review it.
Kirk-Hughes Dev., LLC v. Kootenai Cnty. Bd. of Cnty. Comm’rs, 149 Idaho 555, ---, 237 P.3d
652, 655 (2010).  Krempasky fails to sufficiently allege how her substantial rights are prejudiced
by the permit and thus this Court affirms the grant of CUP 2008-3 on those grounds.
B.                                                                                                       Krempasky Waived Her Due Process Argument Because It Was Not Raised Below.
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Krempasky argues that she was deprived of due process because the decision of the
Commission to grant CUP 2008-3 was based on prejudgment bias.   In particular, Krempasky
argues that “all of the Planning and Zoning Commissioners had concluded that the conditional
use application was going to be approved regardless of what the neighbors indicated” at the
public hearing.  This Court has held that “[d]ecisions 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 Cnty., 139 Idaho 780, 784, 86 P.3d 494,
498 (2004) (citing Cooper v. Bd. of Cnty. Comm'rs of Ada Cnty., 101 Idaho 407, 411, 614 P.2d
947, 951 (1980)).  Further, “[b]ias of a board member renders his participation in the due process
hearing constitutionally unacceptable.”   Eacret, 139 Idaho at 784, 86 P.3d at 498 (citing Johnson
v. Bonner Cnty. Sch. Dist. No.  82,  126 Idaho  490,  494,  887 P.2d  35,  39  (1994)).    Here,
Krempasky argues that the entire Commission was biased because it had already made its
decision before the public had a chance to comment at the hearing.   She states that comments
made by the Chairman and individual Commission members “rise to the level of injecting into
the process such a bias that Ms. Krempasky did not receive the process due.” 2
Krempasky did not raise this due-process argument below, and the district court made no
ruling on it.3                                                                                                           “It is well established that in order for an issue to be raised on appeal, the record
must reveal an adverse ruling which forms the basis for an assignment of error.”   Whitted v.
Canyon Cnty. Bd. of Comm’rs,  137 Idaho  118,  121,  44 P.3d  1173,  1176  (2002)  (citations
omitted).                                                                                                                “[I]ssues not raised below but raised for the first time on appeal will not be considered
2 The first comment Krempasky points to in her brief was made by the Chairman in the context of the application
meeting the criteria of the Comprehensive Plan.   He stated:
But if they meet it, and the sad part is that the comprehensive plan in this particular case doesn’t fit
well with the community around it. Having said that, we can’t take a comprehensive plan, in my
view, and put it together and put it out there for people to use and then when someone doesn’t like
it we go in and move the target and go, this is what we want you to do but when you get here
we’re going to move it over here. I don’t think it’s a prudent thing to do, because that’s what the
comprehensive plan is there for. It’s in writing. We’ve all approved it here.
The other comments she points to were made by unknown speakers.   The first was in response to the
Chairman’s call to vote on the application once the Commission had finished deliberating on the noise issue. The
speaker answered, “Yes, I don’t think we have much choice anyway,” and another stated, “I don’t think we have
much of a choice, honestly.”    However, immediately after those statements, the Chairman and Commissioners
deliberated even further on possible ways to limit the sound and traffic while still staying within the guide of the
Comprehensive Plan.
3 Krempasky did not allege a due process violation in her Petition for Judicial Review.   While her counsel did
reference the statements she now uses in support of her due process argument during oral argument before the
district court, he never argued that there was a violation of due process, and in addition, the district court did not
make a ruling based on any due process argument.
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or reviewed.”   Id. at 122, 44 P.3d at 1177 (citations omitted).   Thus, Krempasky waived this
argument on appeal and this Court will not consider it.
C.                                                                                                     The Commission’s Decision to Grant CUP 2008-3 Was Not Arbitrary, Capricious,
or an Abuse of Discretion.
Krempasky argues that the Commission’s decision was arbitrary, capricious, and an
abuse of discretion under I.C. § 67-5279(3).   She argues that the Commission failed to exercise
any  discretion,  and  uses  the  same  statements  made  by  the  Chairman  and  individual
Commissioners regarding the application’s compliance with the Comprehensive Plan that she
used in her due process argument above to support this argument as well.  See supra, n. 2 (listing
the comments).   So long as the Commission “perceived the issue in question as discretionary,
acted within the outer limits of its discretion and consistently with the legal standards applicable
to the available choices, and reached its own decision through an exercise of reason,” it did not
abuse its discretion.   Haw v. Idaho State Bd. of Med., 143 Idaho 51, 54, 137 P.3d 438, 441
(2006).   Here the Commission recognized and exercised its discretion by allowing for evidence
and testimony from both sides, and weighing that evidence and testimony in light of the goals of
the  Comprehensive  Plan  and  requirements  of  Ordinances  72z  and  72cc,  before  ultimately
concluding that the application met the criteria required by the ordinances, and should be
granted.   While Krempasky and the other residents presented no actual evidence to support their
fears and concerns regarding the Event Center, Kazda provided ample evidence in the form of
reports and testimony from his engineer, as well as several other supporting documents Kazda
attached to the application.   The Commission properly exercised its discretion in weighing this
evidence  and  determining  that  the  application  should  be  granted.    The  Commission  also
recognized and exercised its discretion in lowering the maximum decibel level that Kazda
initially applied  for  from  seventy-five  decibels  to  sixty-five  decibels  to  accommodate  the
concerns of the residents.    Thus, this  Court finds  that  the Commission  did  not  abuse its
discretion.
Krempasky argues that the decision of the Commission was arbitrary and capricious
because the Commission did not analyze and correctly apply the Comprehensive Plan to the
application.   She argues that the Comprehensive Plan does not allow for a commercial venture in
a “transitional” area.   This Court has held that while requirements of applicable ordinances are
binding on a body rendering a zoning or permit decision, a comprehensive plan is not.  Urrutia v.
Blaine Cnty., 134 Idaho 353, 357-58, 2 P.3d 738, 742-43 (2000).  A comprehensive plan reflects
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the “desirable goals and objectives, or desirable future situations” of the use of land.   I.C. § 65-
6508.                                                                                                   “[A] comprehensive plan does not operate as legally controlling zoning law, but rather
serves to guide and advise the governmental agencies responsible for making zoning decisions.”
Urrutia, 134 Idaho at 357-58, 2 P.3d at 742-43.    The purpose of the Comprehensive Plan here
is                                                                                                      “to guide future growth in a manner consistent with the reasons people enjoy living and
working in Nez Perce County.”
Here, the parcel in question was located in a “transitional” zone under the Comprehensive
Plan.   The Comprehensive Plan states that “transitional lands” are designated for “mixed-use”
and to provide opportunities for  “residential locations near employment, shopping and city
services.”   The Commission did not act arbitrarily or capriciously because it discussed at the
public hearing the other types of commercial ventures in Nez Perce County located in similar
areas to the proposed Event Center, and how those ventures had impacted the community.   The
Commission properly used the Comprehensive Plan as a guide, and was not bound by the
“residential” language contained in its designation for transitional lands.                             “Transitional lands” are
set up for mixed-use, and thus it was not arbitrary, capricious, or an abuse of discretion to find
that the Event Center was still in line with the general purpose stated in the Comprehensive Plan.
Further, the Commission found that the Event Center met the specific Land Use Goal #3 of the
Comprehensive Plan, “[t]o provide for areas of human habitation and commercial activity in
ways that will restrain urban sprawl, protect the human and natural environment, and insure
adequate support by public facilities.”   As required by this Court’s precedent, the Commission
“extensively reviewed  the comprehensive plan,  considering both  the  positive and negative
aspects of [the] proposal . . . [i]n the end, the [Commission] determined that the proposed use
was harmonious and in accordance with the comprehensive plan.”   Whitted, 137 Idaho at 123, 33
P.3d  at                                                                                                1178.    Therefore,  this  Court  finds  the  decision  to  approve  the  permit  using  the
Comprehensive Plan as a guide was not arbitrary or capricious.
D.                                                                                                      The Commission’s Decision to Grant CUP 2008-3 was Based on Lawful Procedure
and There Is Substantial Evidence in the Record to Support the Decision.
Krempasky argues  that  the  decision  to  grant  CUP  2008-3  was  based  on  unlawful
procedure and not supported by substantial evidence because the Commission did not make its
own  findings  of  fact  and  conclusions  of  law,  and  rather  just  approved  the  findings  and
conclusions of the Staff Report.   A finding of fact is  “a determination by a judge, jury, or
administrative agency of a fact supported by evidence in the record.”   Black’s Law Dictionary
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708 (9th ed., 2009).   The Findings of Fact entered by the Commission on November 10, 2008,
were supported by substantial evidence in the record, including the testimony taken by both sides
at the public hearing, the Staff Report, the traffic and noise reports, and the other documents
submitted along with the application.   The Commission stated at the start of its Findings of Fact
that it had “considered as part of the record of the proceeding the entire record and file of the
application for a Conditional Use Permit, and furthermore, considered any and all information,
whether oral or written, that was received at the time and place of the public hearing presented
by the Applicant or other interested persons.”   Thus, the totality of evidence considered by the
Commission in support of its Findings and Conclusions was substantial.
Krempasky also argues that because the Findings of Fact and Conclusions of Law were
not entered simultaneously with the grant of CUP 2008-3 at the public hearing, but rather were
adopted at a special meeting of the Commission on November  10,  2008, that this was an
unlawful procedure.  However, she cites no authority that states that the findings and conclusions
must be entered simultaneously with the adoption, or that not doing so is unlawful.   Rather,
Ordinance 72z requires only that a decision made pursuant to the authority of the Ordinance,
such as this one, shall include which ordinances and standards were used to evaluate the
application and “the reasons for approval or denial, including the relevant criteria and standards
of the Comprehensive Plan, the facts relied upon, and the rationale for the decision.”   Nez Perce
County, Idaho, Ordinances, Zoning Ordinance 72z, at 61 (2008).   Each of these requirements is
properly included in the Commission’s decision dated November 10, 2008.
Further, the Commission followed lawful procedure in considering the mandatory criteria
for a conditional-use permit.   Under the Idaho Code, a conditional-use permit may be granted if
the conditional use is “permitted by the terms of the ordinance” and “when it is not in conflict
with the [comprehensive] plan.”   I.C. § 67-6512.   Ordinance 72cc amends Ordinance 72z “to
allow commercial special events centers as a conditional use in all zoning districts,” subject to
the seven criteria contained within.   Nez Perce County, Idaho, Ordinances, Zoning Ordinance
72cc, at 1 (2008) [hereinafter Ordinance 72cc].4   While a decision to approve a permit is not
4 These seven criteria include:
1.                                                                                                   Minimum area - The size of the site must be adequate to accommodate the event, attendees, and
parking unless provisions have been made for off-site parking. Adequacy of the site shall be
reasonably determined by the Commission.
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required to strictly conform to a comprehensive plan, it must conform to the requirements of an
applicable ordinance.   Urrutia, 134 Idaho at 358-59, 2 P.3d at 743-44.   The Commission here
properly followed the law in evaluating each criterion of the applicable ordinance, Ordinance 72z
as amended by Ordinance  72cc, concluding that the application met each one, and further
concluding that the application did not conflict with the goals and policies of the Comprehensive
Plan.
Krempasky  also  argues  that  the  failure  of  the  Commission  to  consider  the  home
occupation  provision  of  Ordinance                                                                       72z  constituted  unlawful  procedure.    However,  under
Ordinance  72z, in order for the home occupation provision to apply, the  “professional or
commercial activity for financial gain” must be “carried on within the residence.”   Ordinance
72z, at 9.   Kazda stated that the residence to be built on the five-acre parcel would not be
involved in the Event Center, and therefore the commercial activity would not be carried on
within the residence.   As a result, the Commission was correct in declining to address the home
occupation provision.  Thus, this Court finds that the decision to grant CUP 2008-3 was based on
both substantial evidence and lawful procedure.
E.                                                                                                         No Attorney Fees Are Awarded on Appeal.
2.                                                                                                         A  detailed  plan  and  event  description  including  but  not  limited  to  security,  access,  people
management, traffic management, parking, waste control and disposition, litter control plans and
any  reasonable  information  requested  by  the  Zoning  Official  shall  be  submitted  with  the
application. Copies of the site plan and event descriptions shall be submitted to the Nez Perce
County Sheriff’s Department, Nez Perce County Road and Bridge Department, North Central
District Health Department, Idaho Department of Transportation, any applicable fire protection
district, Department of Environmental Quality, and any other agencies requested by the Zoning
Official.   The reviewing parties shall transmit their comments to the Department of Planning and
Building Services, who in turn, will compile and forward a report to the Commission.
3.                                                                                                         Lighting  shall  be  downward  directed  and  shielded  away  from  abutting  roads  and  lots  with
established residential uses.
4.                                                                                                         The Commission may impose such reasonable conditions as the record may indicate necessary to
visually  screen,  control  dust,  reduce  nuisance  factors  such  as  noise,  manage  traffic,  buffer
adjoining uses, mitigate affects [sic] on water or air quality, limit the duration of the permit, or
otherwise provide for the health, safety, or general welfare of the event participants.
5.                                                                                                         One (1) parking space will be provided for each three (3) seating spaces and said parking area
shall be restricted to a clearly designated area, which has clearly delineated boundaries.
6.                                                                                                         Maximum noise threshold shall be 75dBa as measured at the lot lines.
7.                                                                                                         There shall be no parking or construction over existing drainfields.
Nez Perce County, Idaho, Ordinances, Zoning Ordinance 72cc, at 2 (2008).
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Krempasky  asks  for  attorney  fees  under  I.C.                                                        §            12-117(1)  as  a  prevailing  party.
Krempasky is not the prevailing party and even if she were, “I.C. § 12-117(1) does not allow a
court to award attorney fees in an appeal from an administrative decision.”   Smith v. Washington
Cnty., No. 35851, 2010 WL 5093625, at *3 (Idaho Dec. 15, 2010).  Thus, no fees are awarded to
her under that section.  Nez Perce County requests an award of fees pursuant to I.C. § 12-121.  A
party can only be awarded attorney fees under I.C. § 12-121 in a “civil action.”   I.C. § 12-121.
This is a petition for judicial review from an administrative decision and thus is not a civil action.
Goodman Oil Co. v. Scotty’s Duro-Bilt Generator, Inc., 147 Idaho 56, 59, 205 P.3d 1192, 1196
(2009).  Thus, no attorney fees will be awarded to Nez Perce County.
VI.                                                                                                      CONCLUSION
This Court affirms the decision of the district court and upholds the grant of CUP 2008-3.
Krempasky fails to show that her substantial rights have been prejudiced.   She waived her due
process argument by failing to raise it below.   Further, the decision to grant CUP 2008-3 did not
violate Krempasky’s due process rights, was not arbitrary, capricious, or an abuse of discretion,
and was based on lawful procedure and supported by substantial evidence.   No attorney fees are
awarded on appeal.  Costs to the Respondent.
Chief Justice EISMANN, Justices BURDICK, J. JONES and HORTON CONCUR.
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