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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 36619

Appeal from the District Court of the Fourth Judicial District of the State

of Idaho, Ada County. Hon. D. Duff McKee, District Judge.

The district court’s decision is affirmed. The award of attorney fees in the district 

court is vacated. No fees are allowed on appeal. Costs are awarded to Respondents.

Capital Law Group, Boise, for appellant. Tom Arkoosh argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents. 

Chris Kronberg argued.

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W. JONES, Justice

I. NATURE OF THE CASE

Kirby Vickers challenges the Idaho Transportation Department’s (ITD) decision to 

grant his neighbor, Dr. Edward Savala, a permit to expand an encroachment onto Highway 

55. This permit is conditioned on Dr. Savala implementing certain additional safety 

features. Vickers claims that the ITD is not authorized to issue conditional-encroachment 

permits and that the new approach would impermissibly degrade highway safety. We affirm 

the conditional permit because it complies with the ITD’s safety regulations.

II. FACTUAL AND PROCEDURAL BACKGROUND

KIRBY VICKERS,

 Petitioner-Appellant,

v.

PAMELA K. LOWE, P.E., in her capacity 

as director of the Idaho Transportation 

Department, and THE IDAHO 

DEPARTMENT OF TRANSPORTATION,

 Respondents.

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Boise, December 2010 Term

2011 Opinion No. 20

Filed: February 8, 2011

Stephen W. Kenyon

 
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Dr. Edward Savala owns just over eight acres of land abutting the south side of an 

east-west stretch of Highway 55 in rural Canyon County. Although the highway runs 

straight for a considerable distance to the east of the parcel, it immediately begins a gradual 

curve to the south on the western edge of the property. In May of 2006, the Canyon County 

Board of Commissioners rezoned the land to permit Savala to build a commercial 

development containing a medical clinic, small restaurant, and a gas station. This Court 

upheld the conditional rezoning in Taylor v. Canyon County Board of Commissioners, 147 

Idaho 424, 210 P.3d 532 (2009).

On December 21, 2005, Savala applied to the ITD for a right-of-way encroachment 

permit to upgrade his existing residential approach to a light commercial approach. Because 

a preexisting ditch-rider approach was too close to Savala’s proposed encroachment, he had 

to seek a variance to the spacing rules.1

Shortly after Savala filed his original encroachment application, Kirby Vickers, who 

owns three parcels of land adjacent to Savala’s property, was permitted to intervene and 

participate fully as an interested party before the ITD. Vickers opposed granting the permit, 

contending that a commercial approach would be unsafe for a number of reasons, including 

that drivers coming east around the curve would not have enough sight distance to safely 

avoid the traffic moving through the entrance to Savala’s development.

After a series of denials, Savala’s engineers submitted a proposal in September of 

2007 (the “approved proposal”) that included left and right turning lanes on Highway 55 for 

cars entering the encroachment. It also extended through the approach a passing lane for 

traffic coming around the curve and heading east on the highway, allowing vehicles turning 

right out of the development to gradually merge into traffic. On November 2, 2007, District 

3 of the ITD (the “District”) finally granted Savala a conditional permit for the 

encroachment. Before he could begin building the encroachment, however, the conditional

permit required Savala to submit final plans to the ITD for approval as well as to obtain 

from a neighbor and transfer to the ITD an as-yet unknown amount of additional right-ofway to expand the highway. It also mandated that these final plans include the turning and 

passing lanes that appeared in the approved proposal.

 1 A ditch-rider approach allows irrigation personnel to access irrigation ditches, laterals, and canals.
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Vickers petitioned the ITD to deny Savala’s variance and conditional permit. After a 

two-day hearing, the hearing officer issued his Recommended Findings of Fact, Conclusions 

of Law, and Recommended Order (“Recommended Order”), concluding that Savala’s 

encroachment would not degrade safety and traffic flow on Highway 55 and that the District 

was justified in granting the variance. The ITD Director then issued a Final Order adopting 

the Recommended Order. Vickers sought judicial review of this Final Order, but the district 

court affirmed the ITD and awarded fees and costs.

On appeal, Vickers contends that the ITD has no authority to issue conditionalencroachment permits. He also argues that the new approach will compromise highway 

safety because there will not be enough time to see the approach for motorists approaching 

from the west. The ITD responds that it properly followed its design standards and variance 

policy.

III. ISSUES ON APPEAL

1. Whether the ITD could, within its statutory authority, grant a conditional permit to 

Savala without reviewing final construction plans.

2. Whether the ITD’s decision to grant Savala a conditional permit and variance was 

based on substantial evidence.

3. Whether the district court properly awarded attorney fees and costs to the ITD 

below.

4. Whether the ITD is entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

The Idaho Administrative Procedure Act (IAPA) governs contested cases before 

state agencies, which includes the ITD. I.C. § 67-5240; Westway Constr., Inc. v. Idaho 

Transp. Dep’t, 139 Idaho 107, 111, 73 P.3d 721, 725 (2003). Under the IAPA, this Court 

reviews the agency’s action independently of the district court. Dupont v. State Bd. of Land 

Comm’rs, 134 Idaho 618, 621, 7 P.3d 1095, 1098 (2000). This Court freely reviews 

questions of law, Rahas v. Ver Mett, 141 Idaho 412, 414, 111 P.3d 97, 99 (2005), but cannot 

reweigh the evidence on questions of fact, Lane Ranch Partnership v. City of Sun Valley, 

145 Idaho 87, 89, 175 P.3d 776, 778 (2007) (citing I.C. § 67-5279). The IAPA provides the 

standard of review as follows:

[T]he court shall affirm the agency action unless the court finds that the 

agency’s findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;
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(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) not supported by substantial evidence on the record as a whole; or

(e) arbitrary, capricious, or an abuse of discretion.

I.C. § 67-5279(3). Even if one of these conditions is met, this Court will still affirm the

agency action “unless substantial rights of the appellant have been prejudiced.” Id. § 67-

5279(4).

V. ANALYSIS

A. The ITD Is Empowered to Issue Conditional Permits for Right-of-Way 

Encroachments

Vickers contends that the ITD lacks express authority to issue a conditional permit 

because, to do so, it makes a final decision before it has reviewed the final construction 

plans and made conclusive findings about the new encroachment’s safety. Further, no 

statute specifically provides authority to issue conditional permits. 

Since the Legislature cannot possibly foresee all the practical difficulties that state 

agencies will encounter while carrying out their statutory functions, “administrative agencies 

have the implied or incidental powers that are reasonably necessary in order to carry out the 

powers expressly granted.” 2 Am. Jur. 2d Administrative Law § 57 (2004). The Legislature 

“has empowered ITD and its Board to make rules and regulations controlling rights of 

access to and the safe use of state highways.” Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 

238, 207 P.3d 963, 969 (2009). The Idaho Code confers to the ITD the power to “[e]stablish 

standards for the location, design, construction, reconstruction, alteration, extension, repair 

and maintenance of state highways.” I.C. § 40-310(5); accord id. § 40-312(1). 

The power to determine when and how a developer may build an encroachment is 

implied from the ITD’s authority to regulate the design of public highways. A conditional 

permit allows the ITD to reserve the right to review construction plans to guarantee that 

applicants comply with the approved encroachment designs. The ITD’s regional 

departments therefore use conditional permits to enforce highway-safety standards while 

assuring the applicant that he or she can develop detailed construction plans, obtain the 

necessary rights-of-way from other landowners, and undertake other final expenses. Vickers 

does not articulate any practical reasons to disallow such a practice, nor does he explain why 

such a power could not naturally be implied from the ITD’s statutory authority. The ITD 

therefore possesses the implied power to conditionally approve encroachment applications.
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B. The ITD Correctly Granted a Conditional Permit and Variance to Savala

Vickers conflates his challenge to Savala’s variance with a challenge to the permit 

itself. In opposing both, Vickers contends: (1) the encroachment as a whole will hamper

highway safety and functionality because there is insufficient sight distance for drivers 

approaching from around the curve; and (2) Savala could instead have reached Highway 55 

by building an access to Pride Lane, a road east of the property that intersects with Highway 

55. A more orderly way to address Vickers’s arguments is to review the two separate 

decisions the ITD made below: granting Savala’s encroachment permit and granting a 

variance to the spacing requirements.

1. The Plan Calls for a Sufficient Stopping Sight Distance to Merit an 

Encroachment Permit

Vickers primarily objects to Savala’s permit on the grounds that the ITD did not 

require Savala to provide the minimum sight distance necessary under a set of industry 

standards known as the “Green Book.”

Idaho Transportation Department, Access Management: Standards and Procedures 

for Highway Right-of-Way Encroachments (2002) [hereinafter “Access Manual”] requires 

that the new approach be designed so that the “operational efficiency and safety of the State 

highway are not compromised.” Access Manual § 3.13. Among the many things the Access 

Manual requires is that there be an adequate distance for motorists to see the roadway ahead 

and stop to avoid potential collisions at a highway approach. Id. § 4.5.6. The posted speed 

limit for the relevant stretch of Highway 55 is 55 miles per hour. The Access Manual

specifically mandates 450 to 550 feet of sight distance to an approach when the posted speed 

limit is 55 miles per hour. Id. § 4.5.6 tbl.4.5.6.1. 

The Access Manual, however, also states that when determining sight-distance 

requirements, engineers should consult American Association of State Highway and 

Transportation Officials, A Policy on Geometric Design of Highways and Streets (5th ed. 

2004) [hereinafter “AASHTO Green Book”], which is commonly known as the “Green 

Book.” Access Manual § 4.5.6. Even though it is mentioned in the Access Manual, the 

AASHTO Green Book is not a legal standard. The ITD, not AASHTO, prescribes the 

standards applicable to highway approaches in Idaho. IDAPA 39.03.42.300.06, 400.01. 

The Access Manual states that it “provides standards and procedures necessary to regulate 

and control access to and encroachments within State highway rights-of-way.” Access 
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Manual § 1.1.2

 It frequently mentions the Green Book but does not anywhere adopt its 

specifications as binding rules. 

Unlike the Access Manual, which sets stopping-sight distances according to the 

posted speed limit, the Green Book provides that stopping-sight distances should ideally be 

computed based on the roadway’s design speed. AASHTO Green Book, supra, at 112. 

Design speed is based primarily on how fast traffic actually travels on the roadway. Id. at 

67–72. The Green Book recommends setting the speed at the 85th percentile of observed 

driver speeds rounded to the nearest 5 miles per hour, which here was 65 miles per hour, id.

at 72, according to a study conducted by the ITD. At this speed, the Green Book requires 

645 feet of stopping sight distance on the stretch of highway along Savala’s approach. Id. at 

112. 

Even if the AASHTO Green Book controlled in this case, the existing sight distance 

is sufficient for drivers approaching Savala’s proposed approach from around the curve to 

the west. Savala’s engineers conducted a topographical survey and measured the sight 

distance at 700 feet. Another engineering firm found the distance to be 690 feet, a number

also confirmed by the ITD District’s own traffic review. Further, a condition of Savala’s 

permit requires him to grade the ground next to the road, which could increase the sight 

distance even further. Since the sight distance exceeds specifications in both the ITD’s 

Access Manual and the AASHTO Green Book, there was ample evidence to support

granting the conditional permit.

According to Vickers, Savala’s and the ITD’s engineers are wrong because the actual 

sight distance is between 645 and 648 feet. He complains that Savala and the ITD 

incorrectly rely on measurements taken before Savala changed the designs in his final 

proposal, moving south by 6.5 feet the stop line for vehicles exiting the approach and 

entering the highway from the south. Although Vickers correctly observes that cars 

traveling around the curve might not be able to see cars at the new stop line as early as in 

previous designs, he obtained his measurement simply by using a ruler on a scale drawing of 

the highway. He does not explain how much effect moving the stop line had on the overall 

sight distance. The measurements taken by Savala and the ITD, obtained through more 

 2 All of the engineers who testified at the hearing except Vickers agreed that, since engineers usually rely on 

their professional judgment when designing roadways, the Green Book simply provides guidance rather than 

hard design rules.
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reliable topographical surveys and field measurements, provided the ITD with substantial 

evidence on which to conclude that sufficient sight distance is available. Moreover, even if 

the ITD accepted Vickers’s figures, they would still meet the Access Manual’s 450- to 550-

foot requirement. Access Manual § 3.13 tbl.4.5.6.1.

The stretch of Highway 55 immediately west of the Savala approach has a downward 

grade of about two percent. Vickers argues that since the AASHTO standards are designed 

only for perfectly level roads, there needs to be more stopping-sight distance. Even if the 

Green Book were binding, and even if the downgrade were three percent, the Green Book 

would still only mandate a 682-foot stopping-sight distance. AASHTO Green Book, supra, 

at 115. Because the ITD and Savala both measured the stopping sight distance to be 

between 690 and 700 feet, the ITD had substantial evidence to determine that the sight 

distance for Savala’s approach was sufficient.

Vickers last contends that since vehicles will be making slow and exposed left-hand 

turns out of Savala’s upgraded approach, the ITD should require Savala to meet a different 

number the AASHTO Green Book calls an “intersection-sight distance,” which would be 

720 feet if applied to his encroachment. Id. at 661. The intersection-sight distance is similar 

to the stopping sight distance, but calls for more road length to allow additional time for 

stopped drivers to decide whether it is safe to turn into an intersection. Id. at 650–51.

First, the ITD, as a matter of law, does not have to impose the Green Book’s 

intersection-sight distance on Savala’s encroachment. Again, the Green Book is not a 

binding legal standard. Even if the Green Book carried any force, it defines an intersection 

“as the general area where two or more highways join or cross,” a definition that does not 

apply to Savala’s private commercial approach. Id. at 555.

Second, the ITD correctly determined, as a factual matter, that the new approach as 

designed would be safe enough with its preexisting stopping-sight distance and that applying 

an intersection-sight distance is unnecessary. The Green Book states that stopping-sight

distance alone is generally sufficient and that longer intersection-sight distances are merely 

“desirable.” Id. at 651. Both Savala’s engineer and one of the ITD’s engineers testified that 

the intersection sight distance is merely intended to prevent drivers on a busier highway 

from ever having to slow down for vehicles entering the highway, but that it is sufficient that 

the stopping-sight distance provides traffic with enough time to come to a complete stop to 
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avoid a collision. Savala’s design combines two preexisting adjacent approaches into a 

single upgraded encroachment that will include a new left-turn bay, a right-hand 

deceleration lane, and a merging lane to allow eastbound traffic to drive straight past the

approach—all of which are features that will mitigate concerns about drivers on Highway 55 

having to slow down or swerve to avoid traffic entering the highway from Savala’s 

approach. Also, regardless of whether the approach sight distance meets the intersection 

sight distance requirement, the final plans might reveal that Savala will grade the area to 

meet the intersection sight distance anyway. Savala has the obligation to comply with the 

conditional permit and the ITD retains the authority to review construction plans to ensure 

that they do comply with the approved encroachment design and the other conditions set 

forth in the permit. In summary, there was substantial evidence that the new approach will 

not compromise highway safety.

2. There Is Substantial Evidence That the Variance Will Not Degrade Highway 

Safety or Functionality

Under the ITD’s rules, Highway 55 is a Type III highway, which may only contain 

one approach every 1000 feet.3

 IDAPA 39.03.42.011.03, 39.03.42.400.03.c. Any time a 

proposal does not meet the ITD’s access management policies, the applicant must obtain a 

variance. Access Manual § 3.16. The ITD required Savala to apply for a variance because 

the proposed encroachment would be near a preexisting ditch-rider approach on the west 

side of Savala’s property near the end of the curve. 

In weighing whether a variance should be granted, the Access Manual imposes a 

higher standard on applicants seeking a variance versus an ordinary permit by requiring that 

the variance must not negatively impact highway safety or functionality. It provides:

A request for a variance may receive favorable consideration under 

the following conditions:

. . . .

• If the variance offers an opportunity to accommodate a joint-use 

access serving two or more properties abutting the State highway.

• If the variance would improve traffic safety or operations.

 3 The ITD rules identify five types of different public highways, but characterize both Type III and Type IV 

state highways as “principal arterials.” They primarily differ in that Type IV highways “have four (4) or more 

lanes with a median or continuous center turn lane,” while Type III highways do not. IDAPA 39.03.42.011. 

Although the parties have occasionally referred to Highway 55 as a Type IV highway, it is actually Type III 

because it has two traffic lanes as it passes by the Savala approach and has no continuous turning lane or 

median.
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. . . .

A request for a variance may not receive favorable consideration 

under the following conditions:

. . . .

• If the variance would negatively impact safety.

• If the variance would degrade traffic operations of the system.

Access Manual § 3.16 (emphases in original). 

Vickers argues that upgrading the encroachment would automatically degrade 

highway operations by adding traffic and increasing the number of decisions drivers must 

make while in or near the approach. Vickers misunderstands the ITD’s variance policy. Of 

course, almost any improvement to a highway approach that attracts more traffic will in 

some way worsen highway conditions. The ITD would almost never be able to permit 

anyone to modify a state-highway approach if every design had to have absolutely no impact 

on highway operations. The only question here is whether Savala’s variance, which merely 

allows two adjacent approaches to coexist within 1000 feet, will worsen highway safety or 

functionality. See § 3.16 (stating that a variance request may not be approved if the 

variance would degrade traffic operations or safety). 

There was substantial evidence on which the ITD could conclude that building the 

encroachment near the ditch-rider approach would not violate the variance policy. “[T]he 

agency’s factual determinations are binding on the reviewing court, even when there is 

conflicting evidence before the agency, so long as the determinations are supported by 

evidence in the record.” Neighbors for a Healthy Gold Fork v. Valley Cnty., 145 Idaho 121, 

126, 176 P.3d 126, 131 (2007). The ditch-rider approach here cuts across the western corner 

of Savala’s land to access an irrigation canal and a vacant lot. The ITD’s Highway 

Operations and Safety Engineer testified that, in the Department’s experience, ditch-rider 

approaches are quite common in southwest Idaho and generate exceptionally low volumes 

of traffic. The new encroachment would also combine two existing access points into one, 

improving safety on the highway and providing a favorable basis on which to grant the 

variance. See Access Manual § 3.16 (providing that variances can be granted where two 

approaches are being merged). The ITD was therefore justified in concluding that the 

variance would not degrade highway safety or operations.

C. Neither Party Is Entitled to Attorney Fees Either in the District Court or on 

Appeal
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Pursuant to I.C. § 12-117, the district court found that Vickers was simply 

questioning the ITD’s factual findings and awarded fees to the ITD, a ruling that Vickers 

challenges on appeal. The ITD responds that it should receive fees both in the district court 

and on appeal under § 12-117.

Neither party can receive fees either in the district court or on appeal to this Court. 

The Legislature recently amended I.C. § 12-117, and as this Court held in Smith v. 

Washington County, courts are no longer permitted to award fees in administrative judicial 

proceedings. No. 35851, 2010 WL 5093625, at *3–4 (Idaho Dec. 15, 2010). Thus, I.C. § 

12-117 does not provide a statutory basis for any attorney fees in this case.

VI. CONCLUSION

The ITD’s decision to grant Dr. Savala’s encroachment permit and variance was 

based on substantial evidence and is affirmed. Neither party is entitled to attorney fees 

under I.C. § 12-117 either in the district court or on appeal because this is an appeal of an 

administrative decision. The district court’s award of attorney fees is reversed. Costs are 

awarded to Respondents.

Chief Justice EISMANN, Justices BURDICK, J. JONES and HORTON CONCUR.