Agenda - Planning Commission - 05/03/2012

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March 10, 2012 1 Volume 61 No. 5 Zoning Bulletin near the City of Driggs (the "City"). The Property was located in an un- incorporated part of the County that was within the City's area of im- pact. Pursuant to an agreement between the County and the City, the City's zoning laws applied to that area of impact, and thus the Property. Burns sought to construct a concrete batch plant on the Property. Burns' plans included erection of a structure that was 75 feet high. The City's zoning ordinance provided that "[a]ny building or structure ... erected shall not exceed forty-five (45) feet in height unless approved by [CUP]." Accordingly, Burns applied for a CUP. The City planning and zoning department approved the CUP to in- crease the height limitation on Burns' Property to 75 feet. The matter was sent to the Courity for its approval. The County denied the CUP. Burns appealed to court. For the first time, the County argued that Burns' application for a CUP had to be denied because Idaho Code § 67-6516 of the Local Land Use Planning Act ("LLUPA") required a variance in order to obtain a waiver of a zoning provision limiting the height of buildings. The court rejected the County's argument that Burns should have ap- plied for a variance rather than a CUP because: the ordinance allowed for a CUP; and the County's argument came too late. Nevertheless, the court upheld the denial of the CUP on other grounds. Burns appealed. DECISION: Affirmed. The Supreme Court of Idaho did not address the issues raised by Burns on appeal. Instead, it held that a CUP could not be used to waive a provision of a zoning ordinance limiting the maximum height of build- ings and structures. Height restrictions can be waived only by a variance, not a CUP, said the court. It concluded that Burns was required to seek a variance in order to obtain a waiver of the maximum height limitation in the zoning ordinance. In so holding, the court explained that "[a] variance is a means of ob- taining a waiver of certain requirements of a zoning ordinance." Idaho Code S 67-6516 of LLUPA defined a variance as: "a modification of the bulk and placement requirements of the ordinance as to lot size, lot coverage, width, depth, front yard, side yard, rear yard, setbacks, parking space, height of buildings, or other ordinance provision affecting the size or shape of a structure of the placement of the structure upon lots, or the size of lots. 10 © 2012 Thomson Reuters