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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35641

DRY CREEK PARTNERS, LLC, an Idaho 

Limited Liability Company 

 

 Plaintiff-Appellants, 

 

v. 

 

ADA COUNTY COMMISSIONERS, ex rel. 

STATE OF IDAHO, and JOHN DOES I 

through X, 

 

 Defendants-Respondents. 

 

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Boise, August 2009 Term

2009 Opinion No. 120

Filed: October 2, 2009

Stephen W. Kenyon, Clerk

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

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

The district court‘s order is affirmed.

Mimura Law Offices, PLLC, Meridian, for appellants. Susan L. Mimura

argued.

Greg H. Bower, Ada County Prosecutor, Boise, for respondents. Lorna K. 

Jorgensen argued.

_____________________

J. JONES, Justice. 

Dry Creek Partners, LLC, appeals a decision of the district court, affirming the 

denial by Ada County of a request for a second extension of time to obtain approval of a 

final subdivision plat. We affirm. 

I.

Factual and Procedural Summary

In 2000, Harold and Patricia Brush, the owners of property that was to become 

Red Hawk Estates Subdivision, began generating a plan to develop their property. 

Twenty acres of their property was excluded from the development and conveyed to 
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HiYield, Inc. In addition to the property conveyed, the Brushes granted HiYield an air, 

light, and view easement over a portion of the Red Hawk Estates property. HiYield 

subsequently sold the property and easement to Rockwood Distinctive Homes, L.L.C., 

Dale Frazell, and Kathleen Keys.

In 2002, the Ada County Board of Commissioners (Board) approved a planned 

unit development for Red Hawk Estates, which was to be completed in three phases. 

Later that same year, the Brushes entered into a development agreement with Dry Creek

Partners, LLC. Dry Creek was eventually able to obtain the County‘s approval of both the 

preliminary and final plats for Phase I of the subdivision. It encountered greater 

difficulties, however, in moving forward with the development of Phase II.

Dry Creek was required to obtain final plat approval for Phase II of the 

subdivision on or before July 27, 2006, in order to pursue its development. After 

encountering difficulties completing the final plat for Phase II, Dry Creek filed a request 

for a time extension with Ada County Development Services (ACDS). On August 7, 

2006, ACDS granted Dry Creek‘s request, giving it until July 27, 2007, to obtain final 

plat approval. By June 2007, Dry Creek still had not completed the final plat so it filed a 

second request for a time extension with ACDS on June 21, 2007. According to Dry 

Creek, it needed additional time to complete the final plat because the air, light, and view 

easement holders had convinced the Ada County Highway District (ACHD) to withhold 

its approval of the final plat.1 

ACDS denied Dry Creek‘s request for a second extension on June 25, 2007. It 

reasoned that, while Dry Creek had filed a timely request for an extension, Dry Creek 

was ineligible for a second extension based on ―current information contained in the 

public record and interpretation of the Ada County Zoning Ordinance.‖2 More 

specifically, because Dry Creek had previously received a time extension for filing the 

 

1 Dry Creek also relied on the fact that one of its partners had recently passed away and substantial time 

was spent probating his estate.

2 Dry Creek contends the determination was invalid because the director of ACDS was required to issue 

findings of fact and conclusions of law pursuant to Ada County Code section 8-7-6-C, but the findings 

were issued by Richard Beck, a planner at ACDS. Dry Creek‘s argument is unpersuasive because the Ada 

County Code defines the director as ―[t]he director of the Ada County development services department or 

an authorized representative.‖ Ada County Code § 8-1A-1 (emphasis added).
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final plat for Phase II, a second extension was not permissible under Ada County Code 

section 8-7-6-B-2,3 which only permits one time extension per applicant. 

Dry Creek appealed ACDS‘s decision denying its request for a second time 

extension to the Board. In the appeal, Dry Creek argued a second time extension should 

have been granted based on equitable considerations. According to Dry Creek, an 

extension was justified because: (1) neighboring property owners were delaying the 

construction of the project; (2) ACHD refused to approve the final plat until a dispute 

regarding the air, light, and view easement was resolved in district court; and (3) it ―made 

every effort to . . . comply with all regulatory and administrative legal requirements.‖ In 

Dry Creek‘s view, these ―extraordinary and extreme circumstances‖ were sufficient to 

warrant a second extension. 

The same day Dry Creek filed its appeal, it filed a request that the Board order 

mediation pursuant to Idaho Code section 67-6510. Dry Creek wished to engage in 

mediation with Dale Frazell and Philip Dater regarding the dispute over the air, light, and 

view easement. It maintained that Frazell and Dater disputed the construction of a 

roadway on Red Hawk Estates, thereby clouding title to a right-of-way Dry Creek had 

dedicated to ACHD, causing ACHD to withhold its approval of the final plat. Because 

the dispute with Frazell and Dater needed to be resolved before the final plat could be 

approved, Dry Creek maintained mediation was necessary.

The Board scheduled Dry Creek‘s appeal to be heard at a public hearing on July 

25, 2007. After receiving public comment from Dry Creek, neighboring property owners, 

owners of property in the subdivision, and other interested persons, the Board tabled 

consideration of the appeal, opting to address the issue at its next meeting on September 

12. The Board did, however, order mediation between Dry Creek, Frazell, and Dater.

According to the Board, mediation would ―allow the parties to clear up issues 

surrounding the road serving the project.‖ It would also toll the time on Dry Creek‘s 

 

3 That provision provides that ―[t]he applicant or owner for an approved final plat may apply for one (and 

only 1) time extension for each phase of the final plat. The time extension shall be for a period not to 

exceed one year.‖ (emphasis added). 
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application,4thereby giving Dry Creek the opportunity to ―submit, process, and [obtain] 

Board signature on the final plat prior to the hearing.‖

Shortly before the next meeting Dry Creek informed ACDS that a mediation 

session had not been held. By that point, however, ACDS was unwilling to coordinate a 

mediation session because it had received letters from Frazell and Dater indicating they 

were not opposed to Dry Creek‘s development nor interested in engaging in mediation. 

Based on these letters, ACDS concluded mediation would serve no purpose and, thus, 

abandoned its efforts to schedule mediation. 

At its meeting on September 12, 2007, the Board affirmed the denial of Dry 

Creek‘s request for a second time extension. The Board reached its decision without 

receiving any additional public comment because the public hearing on the matter had 

been closed. In its findings of fact and conclusions of law, the Board reasoned that ACDS 

properly denied the extension request because the ―request exceeded the number of 

permissible time extensions for filing the second phase.‖ The Board did not address the 

status of its order for mediation. 

On September 14, 2007, Dry Creek sent a letter to the Board requesting that it 

reconsider its decision and take action to facilitate mediation. The Board considered Dry 

Creek‘s requests during its October 9, 2007, business meeting. At the meeting, the Board 

reopened the record to permit Dry Creek to submit argument, but ultimately denied both 

of Dry Creek‘s requests. In its subsequently issued findings of fact and conclusions of 

law, the Board concluded it did not have the authority to reopen the record and, therefore, 

could not reconsider Dry Creek‘s appeal. It also concluded mediation would serve no 

purpose and rescinded its prior order of mediation. 

Dry Creek sought review of the Board‘s decisions by the district court, arguing 

that the Board erred in denying the request for a second time extension and in rescinding 

the mediation order. In addition, it contended the procedures employed by the Board in 

considering Dry Creek‘s requests violated its due process rights. The district court 

rejected Dry Creek‘s arguments and affirmed both of the Board‘s decisions. The court 

concluded the Board properly denied the extension request because the County‘s 

 

4 On the date of the hearing, Dry Creek still had two days to obtain approval of the final plat under the 

original extension.
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ordinance only authorized one time extension per applicant. It also determined the 

Board‘s decision to rescind the mediation order was also justified as there was no dispute 

to mediate. Further, the district court ruled that the Board did not violate Dry Creek‘s due 

process rights in rescinding the order because mediation was an ―executive process‖ and 

not part of the ―adjudicating process.‖

Dry Creek now appeals the district court‘s decision to this Court. On appeal, Dry 

Creek argues the district court erred in concluding the Board acted in accordance with 

Idaho law because the Board failed to comply with Idaho Code section 67-6510, violated 

Dry Creek‘s due process rights, and caused Dry Creek actual harm. It also argues that 

Ada County Code section 8-7-6-B-2, which only permits one time extension per 

applicant, is arbitrary, capricious, and an abuse of discretion. Dry Creek asks this Court to 

reverse the district court‘s judgment, remand the case for mediation pursuant to Idaho 

Code section 67-6510, and order the Board to provide it with due process. The Board 

argues its decisions were proper and requests an award of attorney fees on appeal.

II.

Issues on Appeal

The following issues are presented to this Court on appeal: (1) whether this Court 

has jurisdiction to review the Board‘s decision; (2) whether the district court erred in 

determining that the Board did not violate Idaho law or Dry Creek‘s due process rights; 

(3) whether Ada County Code section 8-7-6-B-2 is arbitrary, capricious, and an abuse of 

discretion; and (4) whether the Board is entitled to attorney fees on appeal. 

A.

Standard of Review

Because a county is not an ―agency‖ for the purposes of the Idaho Administrative 

Procedure Act (IDAPA), another statute must provide for judicial review of a county‘s 

actions. Gibson v. Ada County Sheriff’s Dept., 139 Idaho 5, 7-8, 72 P.3d 845, 847-48 

(2003). Idaho‘s Local Land Use Planning Act (LLUPA) provides for judicial review of 

certain land use decisions made by local government entities. I.C. §§ 67-6521(1)(d) & 

67-6519(4); Neighbors for a Healthy Gold Fork v. Valley County, 145 Idaho 121, 126, 

176 P.3d 126, 131 (2007). Under the LLUPA, an affected person may seek judicial 

review of a decision involving a permit authorizing development pursuant to the 
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standards of IDAPA. Taylor v. Canyon County Bd. of Comm’rs, 147 Idaho 424, 433, 210

P.3d 532, 541 (2009); see also I.C. §§ 67-6519(4) & 67-6521(1)(d). IDAPA authorizes 

appeals of agency actions to the district court upon the exhaustion of administrative 

remedies. I.C. § 67-5271.

On appeal from a decision rendered by the district court while acting in its 

appellate capacity under IDAPA, this Court directly reviews the district court‘s decision. 

Taylor, 147 Idaho at 430–31, 210 P.3d at 538–39. In reviewing factual issues, however, 

this Court still conducts an independent review of the agency record. Wohrle v. Kootenai 

County, 147 Idaho 267, 273, 207 P.3d 998, 1004 (2009); Neighbors for a Healthy Gold 

Fork, 145 Idaho at 126, 176 P.3d at 131. The Court will affirm a district court‘s decision 

upholding an agency action unless the agency‘s findings, inferences, conclusions, or 

decisions are:

(a) in violation of constitutional or statutory provisions; (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); see also Petersen v. Franklin County, 130 Idaho 176, 182, 938 P.2d 

1214, 1220 (1997). When reviewing a zoning board‘s decision, this Court ―consider[s] 

the proceedings as a whole and . . . evaluate[s] the adequacy of procedures and resultant 

decisions in light of practical considerations with an emphasis on fundamental fairness 

and the essentials of reasoned decision-making.‖ I.C. § 67-6535(c); see also Neighbors 

for a Healthy Gold Fork, 145 Idaho at 127, 176 P.3d at 132. 

The party contesting a zoning board‘s decision must demonstrate that two 

requirements are met before the decision will be overturned. See Neighbors for a Healthy 

Gold Fork, 145 Idaho at 126, 176 P.3d at 131. First, it must demonstrate that the board 

erred in a manner specified in Idaho Code section 67-5279(3). Id. Second, it must show 

that the board‘s action prejudiced its substantial rights. I.C. § 67-5279(4); Neighbors for a 

Healthy Gold Fork, 145 Idaho at 126, 176 P.3d at 131. Absent either of these two 

conditions, the district court must affirm the board‘s action. Taylor, 147 Idaho at 431, 210

P.3d at 539. ―If the [b]oard‘s action is not affirmed,  ̳it shall be set aside . . . and 

remanded for further proceedings as necessary.‘‖ Urrutia v. Blaine County, 134 Idaho 

353, 357, 2 P.3d 738, 742 (2000) (quoting I.C. § 67-5279(3)). 
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Determining the meaning of a statute, its application, and whether the statute was 

violated are matters of law subject to plenary review. Evans v. Teton County, 139 Idaho 

71, 75, 73 P.3d 84, 88 (2003); D & M Country Estates Homeowners Ass’n v. Romriell, 

138 Idaho 160, 165, 59 P.3d 965, 970 (2002). However, ―[t]here is a strong presumption 

that the actions of the Board of Commissioners, where it has interpreted and applied its 

own zoning ordinances, are valid.‖ Evans, 139 Idaho at 74, 73 P.3d at 87. 

B.

This Court has jurisdiction to hear Dry Creek‘s appeal regarding the denial of its 

request for a second extension. Although neither party raised the issue of jurisdiction on 

appeal, this Court must consider the issue sua sponte. Highlands Development v. City of 

Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008).

Judicial review under LLUPA has been constrained to decisions regarding permits 

required or authorized by the statute. See Burns Holdings, L.L.C. v. Madison County Bd. 

of County Comm’rs, 147 Idaho ____, ____, 214 P.3d 646, 648–49 (2009); see also I.C. § 

67-6521(1)(b). Review is only permitted in cases involving affected persons who have 

―applied for a permit . . . and were denied the permit or aggrieved by the decision on the 

application for the permit‖ or those who have ―an interest in real property which may be 

adversely affected by the issuance or denial of a permit authorizing development.‖ 

Highlands, 145 Idaho at 961, 188 P.3d at 903; see also Giltner Dairy, L.L.C. v. Jerome 

County, 145 Idaho 630, 633, 181 P.3d 1238, 1241 (2008). ―The granting of a permit 

authorizes . . . development . . . if it  ̳places a developer in a position to take immediate 

steps to permanently alter the land‘‖ without further action of the governing board.

Johnson v. Blaine County, 146 Idaho 916, 920, 204 P.3d 1127, 1131 (2009) (quoting 

Payette River Prop. Owners Ass’n v. Bd. of Comm’rs of Valley County, 132 Idaho 551, 

555, 976 P.2d 477, 481 (1999)). Decisions involving applications for planned unit 

developments, conditional use permits, and the development of subdivisions ―all 

constitute decisions granting permits.‖ Id.; see also I.C. §§ 67-6512, 67-6513, & 67-6515. 

Dry Creek is an affected person under LLUPA because it has an interest in real 

property, namely Red Hawk Estates. That interest was adversely affected by the Board‘s 

decision because it effectively denied authorization to develop the property. Pursuant to 

the Ada County Code, the Board must approve a final plat before the ―plat or any 
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instrument passing title to any portion of [the] plat‖ may be offered for recording. Ada 

County Code § 8-6-2-B-2. In addition, ―[n]o building permit shall be issued on any 

property being considered in the subdivision process until,‖ among other things, ―the 

final plat has been recorded.‖ Id. § 8-6-2-B-3. It is unlawful for an applicant to subdivide 

property without complying with these provisions. Id. § 8-6-2-B-1. As such, the Board‘s 

decision not to grant Dry Creek additional time to obtain approval of the final plat—

which was necessary to obtain a subdivision permit—denied Dry Creek‘s application for 

a permit authorizing development and prevented Dry Creek from developing its property. 

See I.C. § 67-6513. Because the Board‘s decision involved the denial of a permit 

authorizing development, it is subject to judicial review. See Taylor, 147 Idaho at 430, 

210 P.3d at 538 (stating that judicial review under LLUPA ―is limited to situations in 

which a permit authorizing the development is at issue‖ and allowing review of a 

conditional use permit on the petition of an adjacent property owner because that party 

was found to be ―affected‖ within the meaning of Idaho Code sections 67-6519(4) & 67-

6521(1)(d)); Highlands, 145 Idaho at 961, 188 P.3d at 903 (holding judicial review of 

board‘s land use decision was not permitted because the decision did ―not involve the 

granting or denial of a permit authorizing development‖).

On the other hand, jurisdiction to review Dry Creek‘s appeal regarding the 

Board‘s actions on its request for mediation is lacking in this case. The Legislature 

specifically provided that mediation was not part of the official record on an application,

thus indicating that LLUPA‘s provisions for judicial review were not intended to apply to 

mediation decisions. See I.C. § 67-6510(5) (―The mediation process shall not be part of 

the official record regarding the application.‖).

5 Moreover, unlike the submission of a 

final plat, participation in mediation is not a prerequisite to obtaining a permit authorizing 

development. Although Dry Creek‘s ability to complete the final plat may have been 

greater had mediation been successful, mediation is not a necessary step in the 

application process. Further, a decision by the Board to deny an applicant‘s request for 

mediation does not foreclose the issuance of a permit and, thus, does not necessarily 

 

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Furthermore, the statement of purpose of House Bill number 601, which adopted Idaho Code section 67-

6510, notes that the process of mediation is strictly voluntary. See Statement of Purpose, H.B. 601, 55th

Leg., 2d Reg. Sess. (Idaho 2000) (―This proposal allows greater flexibility for finding solutions on difficult 

land use planning issues. Pre- and post-decision mediation is voluntary for governing boards caught 

between permit applicants and neighboring property owners.‖ (emphasis added)). 
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preclude an applicant from developing its property. Similarly, a successful mediation 

outcome does not guarantee development will be authorized. For these reasons, 

jurisdiction to review the Board‘s actions regarding mediation is lacking. Because this 

Court lacks jurisdiction to review the Board‘s decisions concerning mediation, Dry 

Creek‘s claims that the Board‘s mediation decision violated Idaho Code section 65-6710 

and deprived Dry Creek of procedural due process will not be addressed. 

C.

Dry Creek argues that Ada County Code section 8-7-6-B-2 is arbitrary, 

capricious, and an abuse of discretion because it provides for only one time extension. It 

contends that, by allowing only one time extension per applicant, the section arbitrarily 

and capriciously provides affected persons ―a tool at the final plat stage to defeat a 

subdivision plat rather than filing a timely appeal after approval of the preliminary plat.‖ 

According to Dry Creek, the section is also invalid because it does not give the Board 

discretion.

The Board argues that section 8-7-6-B-2 is not arbitrary, capricious, or an abuse 

of discretion. It contends that the provision is necessary because ―[t]imelines are 

extremely important to both the applicant and the County.‖ According to the Board, the 

limitation period is important to applicants because it ensures the Board will make 

decisions in a timely manner, thereby enabling applicants to plan their costs and

construction timetables, while at the same time protecting their existing interests against 

changes in zoning laws. The County benefits from the limitation because it ensures 

applicants carry out subdivision plans and complete construction within a specified time, 

preventing development sites from being ―torn up‖ indefinitely. The Board points out that 

similar time extension provisions exist nationwide. 

The interpretation of a county‘s zoning ordinance is a question of law over which 

this Court exercises free review. Terrazas v. Blaine County ex rel. Bd. of Comm’rs, 147 

Idaho 193, 203, 207 P.3d 169, 179 (2009). When asked to interpret a local ordinance, this 

Court employs the same standards used when interpreting a statute. Evans, 139 Idaho at

77, 73 P.3d at 90. 

Pursuant to the state‘s police power, the Idaho Legislature has the authority to 

―enact laws concerning the health, safety and welfare of the people so long as the 
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regulations are not arbitrary or unreasonable.‖ Van Orden v. Dep’t of Health & Welfare,

102 Idaho 663, 667, 637 P.2d 1159, 1163 (1981). The Legislature, as a function of the 

police power, has delegated authority to city and county governments to exercise land use 

planning powers under the LLUPA.6See I.C. § 67-6503. Included in this authority is the 

power to adopt ordinances for the processing of subdivision permits. I.C. § 67-6513. 

Such ordinances are ―presumed valid until the contrary is shown.‖ State v. Clark, 88 

Idaho 365, 377, 399 P.2d 955, 962 (1965); see also Sweet v. Rechel, 159 U.S. 380, 392-

93 (1895). 

For a zoning ordinance to be deemed invalid, it must be unreasonable. Nelson, 10 

Idaho at 528, 79 P. at 81; 101A C.J.S. Zoning & Land Planning § 25 (2009). A zoning 

ordinance is only unreasonable when it is arbitrary, capricious, or discriminatory. ReadyTo-Pour, Inc. v. McCoy, 95 Idaho 510, 514, 511 P.2d 792, 796 (1973). Such 

circumstances exist when the ordinance bears ―no substantial relationship to the public 

health, safety, morals, and general welfare.‖ 101A C.J.S. Zoning & Land Planning § 25 

(2009); see also Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). 

Because ―[t]he concept of the public welfare is broad and inclusive,‖ Berman v. Parker,

348 U.S. 26, 33 (1954), so long as the reasonableness of a zoning ordinance is fairly 

debatable, the ordinance will be upheld. Village of Euclid, 272 U.S. at 388; 101A C.J.S. 

Zoning & Land Planning § 25 (2009). The party challenging the validity of an ordinance 

carries the burden of proving its illegality. Clark, 88 Idaho at 377, 399 P.2d at 962. 

Once it is determined that an ordinance serves the general welfare, this Court will 

not second-guess the wisdom of the enactment. Clark, 88 Idaho at 375–76, 399 P.2d at 

961. When a legislative judgment is called into question, it will be upheld if there is ―any 

 

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In addition, the Idaho Constitution grants limited police power to county and city governments. Article 

XII, section 2 of the Idaho Constitution provides:

Any county or incorporated city or town may make and enforce, within its limits, all such 

local police, sanitary and other regulations as are not in conflict with its charter or with 

the general laws.

Idaho Const. art. XII, § 2. This Court has interpreted article XII as containing three restrictions on local 

ordinances: that they (1) ―be confined to the limits of the governmental body enacting the [ordinance]‖; (2) 

―not be in conflict with other general laws of the state‖; and (3) ―not be an unreasonable or arbitrary 

enactment.‖ State v. Clark, 88 Idaho 365, 374, 399 P.2d 955, 960 (1965). 
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state of facts either known or which could reasonably be assumed affords support for it.‖ 

U.S. v. Carolene Prods. Co., 304 U.S. 144, 154 (1938). As this Court stated in Clark:

Where a statute, ordinance or regulation presents a proper field for 

the exercise of the police power, the extent of its invocation and 

application is a matter which lies very largely in the legislative discretion, 

and every presumption is to be indulged in favor of the exercise of that 

discretion, unless arbitrary action is clearly disclosed. The subject matter 

of the ordinance being within the police power, and properly belonging to 

the legislative department of government, the courts will not interfere with 

the discretion, nor inquire into the motive or wisdom of the legislature. If 

the act is not clearly unreasonable, capricious, arbitrary or discriminatory, 

it will be upheld as a proper exercise of the police power. 

The courts may differ with the legislature as to the wisdom and 

propriety of a particular enactment as a means of accomplishing a 

particular end, but as long as there are considerations of public health, 

safety, morals, or general welfare which the legislative body may have had 

in mind, which have justified the regulation, it must be assumed by the 

court that the legislative body had those considerations in mind and that 

those considerations did justify the regulation. When the necessity or 

propriety of an enactment is a question upon which reasonable minds 

might differ, the propriety and necessity of such enactment is a matter of 

legislative determination. 

Clark, 88 Idaho at 375–76, 399 P.2d at 961 (citations omitted). The adoption of similar 

ordinances by other local governments may be evidence of whether reasonable minds 

might differ over the propriety of an enactment. Id. at 376, 399 P.2d at 961.

Ada County Code section 8-7-6 requires the director of ACDS, meaning the 

director or his authorized representative, to review applications for time extensions. Ada 

County Code §§ 8-1A-1 & 8-7-6. The director or representative may only grant a request 

for a time extension when the application complies with subsections B and C of that 

section. Id. § 8-7-6-A-3. The relevant provisions of those subsections provide:

B. Standards:

. . . .

2. The applicant or owner for an approved final plat may apply for one 

(and only 1) time extension for each phase of the final plat. The time 

extension shall be for a period not to exceed one year.

C. Required Findings: In order to grant a time extension, the director shall 

make the following findings:
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1. The time extension meets the standards listed in subsection B of this 

section; and

2. The applicant and/or owner have adequately justified the need for a time 

extension. 

Id. § 8-7-6. 

Ada County Code section 8-7-6-B-2 is not arbitrary, capricious, or discriminatory. 

As noted above, it is well-settled that establishing standards for the processing of 

subdivision applications is within the police power. This necessarily includes instituting a 

timeline for the development of subdivisions. See 101A C.J.S. Zoning & Land Planning § 

287 (2009) (―The time within which work under a zoning or building permit must start, 

or be completed, or a portion thereof be completed, may be limited, in which case the 

permit expires by limitation where the work is not commenced or completed within the 

required time.‖). It is completely reasonable for the Board to desire to prevent prolonged 

development projects. Doing so serves several zoning purposes including preventing 

visual blight, stabilizing neighborhoods, maintaining neighborhood property values, and 

preserving the character of the community.7See 101A C.J.S. Zoning & Land Planning § 

3 (2009). 

Several other local governments have also found such time extension limitations 

warranted. See, e.g., Boise City Code § 9-20-05-D-2-b; Meridian City Code § 11-6B-7-C. 

Allowing for one extension provides a safety valve for applicants that incur unexpected 

problems in submitting the final plat, while at the same time serving the County‘s interest 

in ensuring timely development. Although precluding subsequent extensions may impose 

burdens on applicants who have legitimate reasons for failing to submit a final plat, the 

decision to do so is a legislative judgment that does not appear in this case to be 

unreasonable. See Village of Euclid, 272 U.S. at 388–89 (stating a general ordinance will 

not be held invalid simply because it prohibits some innocent activity); Benewah County 

Cattlemen’s Ass’n, Inc. v. Bd. of County Comm’rs, 105 Idaho 209, 215, 668 P.2d 85, 

91 (1983) (holding that so long as an ordinance is designed to benefit the general welfare, 

 

7 Dry Creek‘s application is an excellent example of such a prolonged development. Dry Creek had over 

four years to submit the final plat for Phase II but failed to do so. The Board utilized every mechanism at its 

disposal to accommodate Dry Creek in submitting the final plat. Absent limitations on the time in which 

Dry Creek had to submit its final plat, its application for a permit might have been prolonged indefinitely. 
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―the mere fact of casting financial burdens upon some who must comply does not 

necessarily render such ordinances unreasonable or arbitrary‖). This is especially true 

because the Board was not even required to provide for a first time extension. See Ada 

County Code § 8-7-6-C (―In order to grant a time extension, the director shall make the 

following findings:‖ (1) ―The time extension meets the standards listed in subsection B of 

this section;‖ and (2) ―The applicant and/or owner have adequately justified the need for 

a time extension.‖ (emphasis added)). In the absence of an extension, applicants are still 

given two years to obtain approval of a final plat. For these reasons, Ada County Code 

section 8-7-6-B-2 is not arbitrary, capricious, or unreasonable. 

In this case, Dry Creek asked the Board to grant a second extension, 

characterizing the request as an equitable variance from the provisions of Ada County 

Code section 8-7-6-B. However, because there is express language in section 8-7-6-B that 

allows for only one time extension, granting a second extension would have been a direct 

violation of the Ada County Code. Thus, because Dry Creek has not shown that the 

Board erred, the district court did not err in affirming the Board‘s decisions.

D.

The Board argues it is entitled to an award of attorney fees and costs pursuant to 

Idaho Code section 12-117. It contends that Dry Creek‘s appeal lacked a reasonable basis 

in fact or law because ―[t]here is nothing in the record to support the assertions that the 

Board violated the statute and/or failed to provide Dry Creek with due process.‖ Further, 

it maintains Dry Creek‘s contention that the Board was required to force the parties to 

mediate when there was no dispute is frivolous. Dry Creek has not submitted argument in 

opposition to the Board‘s request for fees.

Idaho Code section 12-117 provides:

in any administrative or civil judicial proceeding involving as adverse 

parties a . . . county . . . and a person, the court shall award the prevailing 

party reasonable attorney‘s fees, witness fees and reasonable expenses, if 

the court finds that the party against whom the judgment is rendered acted 

without a reasonable basis in fact or law.

I.C. § 12-117(1). The Board is entitled to fees under section 12-117. The Board is the 

prevailing party on appeal in a proceeding between a county and a person and the appeal 

was pursued without a reasonable basis in fact or law. The County‘s ordinance clearly 
14

indicated Dry Creek was not entitled to a second time extension and there was no basis on 

which the Board could have granted an extension. Thus, there was no legal or factual basis 

for Dry Creek‘s appeal and the county is entitled to an award of fees and costs. Giltner 

Dairy, 145 Idaho at 633–34, 181 P.3d 1241–42. 

III.

Conclusion

We affirm the district court‘s order affirming the Board‘s denial of the second 

extension request. We award the Board its attorney fees and costs on appeal. 

Chief Justice EISMANN, and Justices BURDICK, W. JONES, and HORTON 

CONCUR.