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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 33658-2006 MICHAEL J. ROLLINS, Petitioner-Respondent, v. BLAINE COUNTY, State of Idaho, a body politic and political subdivision of the State of Idaho, acting through it duly elected BOARD OF COUNTY COMMISSIONERS, Defendant-Appellant, and BRIAN POSTER, Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Boise, June 2009 Term 2009 Opinion No. 89 Filed: July 7, 2009 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Blaine County. The Hon. Robert J. Elgee, District Judge. The judgment of the district court is vacated. Jim J. Thomas, Blaine County Prosecuting Attorney, Hailey, for appellant. Timothy K. Graves argued. Lawson & Laski, PLLC, Ketchum, for respondent. Edward A. Lawson argued.

EISMANN, Chief Justice. This is an appeal from a decision of the district court on a petition for judicial review from a decision made by the county commissioners on an appeal of the issuance of two building permits. Because there was no right to seek judicial review of the decision made by the county commissioners, we vacate the decision of the district court.

I. FACTS AND PROCEDURAL HISTORY In 1997, Michael J. Rollins (Landowner) purchased a parcel of real property in Blaine County, intending to construct a home upon it. As part of its zoning law, Blaine County had adopted a Mountain Overlay District (MOD) restricting development on hillsides within the District. Blaine County has a Planning and Zoning Administrator (Administrator), whose duties include interpreting the boundaries of zoning districts, including whether property is within the MOD. In May 1997, the Landowner asked the Administrator for an opinion as to whether the Landowner's property was within the MOD. The Administrator responded by letter that it was and that the Landowner would need a site alteration permit in order to build a home upon it. In 2004, the Landowner began planning to construct his home. At the suggestion of one of his consultants, he met with the Administrator, provided detailed information, and again asked whether the site on which he intended to construct the home was within the MOD. By letter dated July 6, 2004, the Administrator responded that it was not and that the Landowner did not need to obtain a site alteration permit before applying for or being issued a building permit. On November 10, 2004, the Landowner received a permit to construct an access road to the site on which he intended to construct his home. After receiving the permit, he spent $39,120 to build a driveway, building pad, and fire truck turn around. He also paid $14,000 to the County. On December 28, 2004, the Landowner's neighbor Brian Poster (Neighbor) sought to appeal the Administrator's interpretation in the July 6, 2004 letter to the Board of County Commissioners (Board). The Board dismissed the appeal because it was untimely under the County ordinance. The Neighbor then filed a petition for judicial review, a declaratory judgment, and an injunction. By letter dated January 25, 2005, the County's attorney notified the Landowner of the Neighbor's lawsuit and advised the Landowner that any further construction on the property would be at his own risk. On April 5, 2005, the Landowner obtained a permit to build a retaining wall on his property, and on April 21, 2005, he obtained a permit to construct a single family dwelling on his property. The Neighbor timely appealed the issuance of both permits to the Board. The appeals were consolidated for hearing. On June 23, 2005, the Board held that the Landowner's property was located within the MOD and that a site alteration permit was required before he could

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proceed with the construction of his home.

Because the Landowner had not made any

misrepresentations to the County and had obtained the necessary approvals before the appeal, the Board offered to refund the building permit fees paid by the Landowner, to expedite his site alteration permit, and to waive any fees associated with that permit, assuming the Landowner continued with his construction project.1 On July 15, 2005, the Landowner filed a petition for judicial review, and the Neighbor was permitted to intervene. On August 11, 2005, the Landowner filed a "Statement of Issues on Appeal." The issues listed were: whether the Board had committed various violations of due process; whether the Board was bound by the Administrator's determination in the July 6, 2004 letter; whether the Board had the authority to hear the appeals from the issuance of the building permits; whether the Board's decision reversing the Administrator's determination was made in excess of its authority, in violation of statutory provisions, upon unlawful procedure and without substantial competent evidence, and was arbitrary and capricious; whether the MOD ordinance is unconstitutionally vague or deprived the Landowner of equal protection of the law; whether the Board's decision violated the impairment of Contract or Commerce Clauses of the federal constitution; whether the Board's decision was barred by estoppel; and whether the Landowner was entitled to an award of attorney fees and costs under Idaho Code

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