Conditional Uses, Variances, PUDs and Development Agreements

Zoning draws lines with a ruler. Real land is lumpy. Idaho law gives cities and counties four main tools for fitting the rules to a particular project, and each one changes something different. Mixing them up is the most common error people make when they talk about a local land use case.

Special and conditional use permits

Idaho Code 67-6512 uses the term special use permit and lets ordinances say conditional use permit instead. Most do, and most people say CUP. The statute allows a permit when the use is conditionally permitted in the zone, subject to conditions in the ordinance, subject to the ability of political subdivisions including school districts to serve it, and when it does not conflict with the plan.

Before a permit is granted there must be at least one public hearing where interested persons can be heard. Notice runs in the official newspaper at least 15 days before, gets posted on the property at least a week before, and goes by mail to owners within the land and within 300 feet, plus any wider area the commission finds substantially impacted. Local governments are encouraged to post the notice on their websites. The Water, Land and Agriculture lesson walks through a CUP hearing calendar, so this lesson focuses on what the board can do once it decides to say yes.

Conditions

Section 67-6512(d) lists conditions a board can attach, "including, but not limited to," those:

1. Minimizing adverse impact on other development
2. Controlling the sequence and timing of development
3. Controlling the duration of development
4. Assuring that development is maintained properly
5. Designating the exact location and nature of development
6. Requiring on-site or off-site public facilities or services
7. Requiring more restrictive standards than the ordinance generally requires
8. Requiring mitigation of effects on service delivery by any political subdivision, including school districts

The board can also require studies of social, economic, fiscal and environmental effects, and of aviation hazards, before granting a permit. Section 67-6512(e) also has rules that trip people up: a special use permit is not a binding precedent for other permits, and it cannot be transferred to another parcel.

Conditions have a constitutional limit. The Idaho Attorney General's Regulatory Takings Act Guidelines (January 2023) explain that a demand for land, an easement or money as a condition of approval needs an "essential nexus and rough proportionality" to the project's impacts. Those words come from the U.S. Supreme Court's Nollan, Dolan and Koontz decisions. A condition requiring a gravel pit to pave the haul road it will wear out fits. A condition requiring the same pit to build a park across town probably does not.

Height and expanded notice

When a special use permit is requested because of height, 67-6512(b) widens the mailing list. For structures over 100 feet, notice goes to owners within at least three times the allowed height. In an unincorporated area, when the peak height is 400 feet or more, the radius is at least one mile, and the notice must state the structure's location and height.

Variances

A variance changes size and placement, never use. Idaho Code 67-6516 defines it as a modification of bulk and placement requirements: lot size, lot coverage, width, depth, front, side and rear yards, setbacks, parking spaces, building height, and other rules about the size or shape of a structure or where it sits on a lot. The statute says a variance "shall not be considered a right or special privilege." It can be granted only on a showing of undue hardship because of characteristics of the site, and only if it does not conflict with the public interest.

Notice and an opportunity to be heard go to owners of adjoining parcels, and to the local airport manager if the variance could create an aviation hazard. Many local codes add newspaper notice or a wider radius.

Site characteristics are about the land. The owner's wishes do not count. A lot cut into a wedge by a canal easement has a site hardship. An owner who wants a bigger garage than the setbacks allow on an ordinary rectangular lot has a preference. Section 67-6512(f) also lets ordinances grant exceptions or waivers of standards other than use through a special use permit or an administrative process, which is why some counties offer "administrative adjustments" for small setback fixes.

Neighbors who challenge a variance carry a burden of their own. In Hawkins v. Bonneville County (2011), a neighbor objected to variances that let the people next door replace aging homes. The Supreme Court held he had to show actual or potential prejudice to a substantial right, such as reduced land value or interference with his own use, and his concerns about traffic, escaped cattle and fire access fell short.

Planned unit developments

Idaho Code 67-6515 lets a local ordinance define a PUD as an area under single ownership or control with a variety of residential, commercial, industrial and other uses. PUD ordinances can set minimum area, permitted uses, ownership, common open space, utilities, density and site layout. PUDs can be processed like special use permits, with the same notice and hearing. The trade usually runs like this: the developer gets flexibility on lot sizes or mixed uses, and the community gets open space, better design or infrastructure it could not demand lot by lot.

Development agreements

A development agreement turns a rezone into a deal with teeth. Under Idaho Code 67-6511A, a governing board may, by ordinance, require or permit an owner to make a written commitment about the use or development of the parcel as a condition of rezoning. The commitment is recorded with the county recorder and takes effect when the rezone is adopted.

• Who it binds. The owner, each later owner, and anyone else who acquires an interest. An unrecorded commitment binds a later owner only if that person had actual notice.
• Changing it. Only with the board's permission after the full 67-6509 notice and hearing process.
• Breaking it. If the requirements are not met in a reasonable time, or an owner fails to comply, the board can terminate the commitment and reverse the zoning after notice and hearing. The written commitment counts as written consent to rezone back.
• No promise from the board. Allowing commitments does not obligate the board to approve the rezone.