                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                          Docket No. 41214

917 LUSK, LLC, an Idaho limited liability              )
company,                                               )
                                                       )     Boise, June 2014 Term
               Petitioner-Appellant,                   )
                                                       )     2015 Opinion No. 16
         v.                                            )
                                                       )     Filed: February 10, 2015
CITY OF BOISE, a political subdivision in              )
the State of Idaho,                                    )     Stephen Kenyon, Clerk
                                                       )
               Respondent,                             )
                                                       )
         and                                           )
                                                       )
ROYAL BOULEVARD ASSOCIATES, LP,                        )
an Idaho limited partnership,                          )
                                                       )
    Intervenor-Respondent.                             )

         Appeal from the District Court of the Fourth Judicial District of the State of
         Idaho, Ada County. Hon. Kathryn A. Sticklen, Senior District Judge.

         The decision of the district court is reversed.

         Spink Butler, LLP, Boise, for appellant. JoAnn Butler argued.

         Givens Pursley, LLP, Boise, for respondent Royal Boulevard Associates, LP.
         Gary Allen argued.

         Boise City Attorney’s Office, Boise, for respondent City of Boise. Mary Watson
         argued.

HORTON, Justice.
         This case arises from 917 Lusk, LLC’s (Lusk) petition for judicial review of the Boise
City Council’s (City Council) decision granting a conditional use permit for Royal Boulevard
Associates, LP (Royal) to build an apartment complex. The Ada County district court affirmed
the City Council’s decision and Lusk timely appealed. We reverse the decision of the district
court.




                                                   1
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       In the fall of 2011, Royal’s predecessor in interest applied for permission to build a
352,000 square foot, five-story, multi-family apartment complex called River Edge Apartments
(River Edge) at 1004 West Royal Boulevard in Boise. The site of the proposed construction is
near Boise State University, adjacent to the Boise River, east of Ann Morrison Park, and west of
property owned by Lusk. The site is zoned Residential Office with a Design Review Overlay (R-
OD). Multi-family housing is an allowed use for this location. However, the Boise City Code
(BCC) requires a conditional use permit (CUP) in order to construct a building more than 35 feet
tall in an R-OD zone. If constructed as planned, River Edge will be between 59 and 63 feet tall.
       Lusk was entitled to notice of the application for a CUP due to the proximity of its
property to the proposed project. Lusk owns the Keynetics, Inc., building located immediately
east and south of River Edge’s proposed building site.
       On March 5, 2012, the Boise Planning and Zoning Commission (Commission) held a
hearing on the River Edge application, receiving testimony from City staff, the applicant team,
and members of the public. The Commission unanimously approved granting the River Edge
application for a CUP and variance allowing the height exception. The following day, the
Commission provided a written explanation for its decision as to the variance and the CUP. This
document set forth the conditions of approval, including twelve site-specific conditions.
       Lusk appealed the Commission’s decision to the City Council, contending that the
Commission’s decision failed to address the requirements for a CUP. In a 15-page letter, Lusk
outlined its claims of error. Lusk asserted multiple errors in the Commission’s approval,
including claims that the proposed building was incompatible with buildings in the immediate
vicinity due to its height and design aesthetics. Of particular importance to this appeal is the
focus that Lusk placed on the impact of constructing a 622-bedroom apartment complex with
280 automobile parking spaces, given that River Edge’s plans were to lease the bedrooms on an
individual basis to students. Lusk asserted that “the proposed project will place an undue
burden on transportation and other public facilities in the vicinity” and “the proposed
project will adversely affect other property in the vicinity.”




                                                2
         On April 17, 2012, the City Council upheld the Commission’s approval of the River Edge
CUP and denied Lusk’s appeal. 1 In addition to adopting the Commission’s reasons for its
decision, the City Council directly addressed Lusk’s concern regarding parking: “The Council
also found that the public record from the Planning and Zoning Commission meeting revealed a
robust discussion regarding parking. The Commission determined that the project was correctly
designated as multi-family and that the level of provided automobile parking was sufficient.”
         Lusk appealed to the district court, which affirmed the City Council’s decision. Lusk
timely appealed to this Court.
                                       II. STANDARD OF REVIEW
         The Local Land Use Planning Act (LLUPA) allows an affected person to seek judicial
review of an approval or denial of a land use application, as provided for in the Idaho
Administrative Procedure Act (IDAPA). I.C. § 67-6521(1)(d); Dry Creek Partners, LLC v. Ada
Cnty. Comm’rs, ex rel. State, 148 Idaho 11, 16, 217 P.3d 1282, 1287 (2009).
         When a district court acts in its appellate capacity pursuant to IDAPA, “we review the
district court’s decision as a matter of procedure.” Williams v. Idaho State Bd. of Real Estate
Appraisers, 157 Idaho 496, 502, 337 P.3d 655, 661 (2014) (quoting Jasso v. Camas Cnty., 151
Idaho 790, 793, 264 P.3d 897, 900 (2011)). When doing so, we conduct an independent review
of the agency record. Dry Creek Partners, 148 Idaho at 16, 217 P.3d at 1287 (2009). This Court
will affirm a district court’s decision upholding a zoning board’s action unless the party

1
  The BCC characterizes the role of the City Council in deciding appeals as “quasi-judicial.” BCC § 11-03-07.05.F.
The BCC specifies the limited role to be played by the City Council which, in many aspects, is similar to that of a
court reviewing an agency action. BCC § 11-03-07.05.F.5 provides, in pertinent part:
          a.        The City Council may not consider any new facts or evidence on appeal. The City
          Council’s review of appeals is limited to the record prepared by the review body, including the
          transcript of the hearing, the written appeal, memoranda submitted and oral arguments presented
          in accordance with the requirements of this section.
          b.        No new evidence may be presented during oral argument.
   Subsection G governs the City Council’s decision. BCC § 11-03-07.05.G.2 provides: “If the City Council finds
error on a factual finding, the City Council shall modify one or more of the findings as warranted by the evidence or
substitute its own findings, citing the evidence that supports the substitute findings.”
   BCC § 11-03-07.05.G.5 further provides:
          If the original decision is not fully supported by the findings, the City Council may:
                    (a) examine the evidence to determine whether additional findings could be supported,
          make those additional findings and then review the original decision;
                    (b) make such decision as is supported by the findings; or
                    (c) uphold the review body, putting additional conditions on the application as warranted
          by the facts.
Apparently relying on the authority conferred by BCC § 11-03-07.05.G.5(c), the City Council required, as a
condition of its approval, that Royal increase the number of bicycle parking spaces from 48 to 112 due to River
Edge’s proximity to Boise State University.


                                                         3
contesting the zoning board’s decision demonstrates that (1) the board erred in a manner
specified in Idaho Code section 67-5279(3), and (2) the board’s action prejudiced its substantial
rights. Id. Idaho Code section 67-5279(3) provides that a board’s decision will only be
overturned where its 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).
          This Court applies its well-established standard of review to evaluate whether there has
been an abuse of discretion. The decision-maker must have “ ‘perceived the issue in question as
discretionary, acted within the outer limits of its discretion and consistently with the legal
standards applicable to the available choices, and reached its own decision through an exercise of
reason.’ ” Krempasky v. Nez Perce Cnty. Planning & Zoning, 150 Idaho 231, 237, 245 P.3d 983,
989 (2010) (quoting Haw v. Idaho State Bd. of Med., 143 Idaho 51, 54, 137 P.3d 438, 441
(2006)).
          The interpretation of a city’s zoning ordinance is a question of law over which this Court
exercises free review. Dry Creek Partners, 148 Idaho at 18, 217 P.3d at 1289 . However, there is
a strong presumption that the actions of the City Council are valid when it has interpreted and
applied its own zoning ordinances. Evans v. Teton Cnty., 139 Idaho 71, 74, 73 P.3d 84, 87
(2003).
                                               III. ANALYSIS
          Lusk appeals the City Council’s decision affirming the Commission’s grant of a CUP
allowing Royal, the intervenor in this appeal, to construct a building taller than the applicable
zoning height limitation. Lusk does not appeal the variance granted to Royal also allowing the
height exception. 2 Lusk argues that because the Commission did not follow the correct procedure


2
  At the time Royal sought a height exception in the fall of 2011, the BCC provided that height exceptions in an R-
OD district “require a commission-level conditional use permit in accordance with the provisions of Section 11-06-
06.13.” BCC § 11-04-05.06(D). This Court released its opinion in Burns Holdings, LLC v. Teton Cnty. Bd. of
Comm’rs, 152 Idaho 440, 272 P.3d 412 (2012), on January 25, 2012, wherein we held that under Idaho Code
sections 67-6516 and 67-6512(a), a “height restriction can be waived only by a variance, not by a conditional use
permit.” Id. at 444, 272 P.3d at 416. Accordingly, following a public hearing, the Commission granted Royal a
variance along with the CUP required by the BCC. Following the Commission’s decision, but before the City
Council heard Lusk’s appeal of the Commission’s decision, the Legislature amended Idaho Code section 67-6512 as
follows:


                                                        4
for granting a CUP, the City Council erred in affirming the Commission’s decision. Lusk
contends that the City Council’s decision violated its substantial rights, and asks this Court to
remand this case back to the Commission for a new public hearing to fully consider all of the
criteria required for conditional use approval under the BCC.
         A. The City Council erred by affirming the Commission’s decision.
         Lusk argues that the district court erred by affirming the City Council’s decision because
the Commission’s approval was made upon unlawful procedure, not supported by substantial
evidence in the record, and arbitrary, capricious and an abuse of discretion. Because we agree
with the final claim, we do not address Lusk’s other claims of error.
         Lusk argues that the BCC “clearly and unambiguously” requires any request for a height
increase to only be granted when all of the BBC’s criteria governing a CUP application are
considered and met. Lusk argues that BCC sections 11-06-04.13 and 11-06-04.14 require the
Commission to make a thorough review to determine whether parking will be adequate for the
proposed project before granting a CUP. Royal responds that the plain language of these
ordinances does not require consideration of parking requirements beyond those in the Parking
Chapter of the BCC and that the City Council’s interpretation of them was reasonable.
         The BCC provides that height exceptions in an R-OD district “require a commission-
level conditional use permit in accordance with the provisions of [BCC] section 11-06-
06.13.” 3 BCC § 11-04-05.06(D). BCC section 11-06-06.13 requires the Commission to consider
the criteria set forth in BCC section 11-06-04.13 before approving a height exception. BCC § 11-
06-06.13. However, this section says nothing about considering BCC section 11-06-04.14 when


         In addition to other processes permitted by this chapter, exceptions or waivers of standards, other
         than use, inclusive of the subject matter addressed by section 67-6516, Idaho Code, in a zoning
         ordinance may be permitted through issuance of a special use permit or by administrative process
         specified by ordinance, subject to such conditions as may be imposed pursuant to a local
         ordinance drafted to implement subsection (d) of this section.
I.C. § 67-6512(f); 2012 Idaho Sess. L. ch. 334, § 2, p. 929 (eff. April 5, 2012). The legislature also amended this
section to include specific notice requirements when a CUP is requested for a height allowance. I.C. § 67-6512(b);
2012 Idaho Sess. L. ch. 334, § 1, p. 927 (eff. April 5, 2012). Therefore, effective April 5, 2012, a variance is no
longer the exclusive means to seek a height exception under LLUPA when a local ordinance specifies that a height
exception may be allowed by way of a CUP or other administrative process.
3
  Section 11-06-06.13 is entitled “Public Services, Height Exception” and applies to “[p]ublic service poles, towers
or similar installations” over seventy feet tall, while the preceding section entitled “General Height Exceptions”
applies to “height exceptions set forth in this ordinance.” The parties agree that Section 11-04-05.06(D) intended to
cite to Section 11-06-06.12 rather than Section 11-06-06.13. Because both Sections require consideration of Section
11-06-04.13, but not consideration of Section 11-06-04.14, it is irrelevant whether Section 11-04-05.06(D)
erroneously refers to Section 11-06-06.13.


                                                         5
granting a height exception. Accordingly, we will only consider Lusk’s arguments regarding
whether BCC section 11-06-04.13 required the Commission to consider additional parking
requirements beyond those contained in the Parking Chapter of the BCC. BCC section 11-06-
04.13 states in relevant part:
        The Commission, following the procedures outlined below, may approve a
        conditional use permit when the evidence presented at the hearing is such as to
        establish:
                                             …
                 C. That the site is large enough to accommodate the proposed use and all
                 yards, open spaces, pathways, walls and fences, parking, loading,
                 landscaping and other features as are required by this title; and
                 D. That the proposed use, if it complies with all conditions imposed, will
                 not adversely affect other property of the vicinity; . . . .
BCC § 11-06-04.13.
        Lusk argues that Section 11-06-04.13 requires the Commission to make a thorough
review to determine whether planned parking is adequate for the proposed project before
granting a conditional use permit. Lusk argues that the parking standards laid out in BCC section
11-10-01.01 apply to “allowed uses” and that compliance with the parking standards does not
automatically satisfy the parking requirements for a conditional use.
        The plain language of BCC section 11-06-04.13.C does not compel consideration of
parking requirements beyond those contained within the Parking Chapter of the BCC. This
section states that the Commission must find that “the site is large enough to accommodate the
proposed use and all ... parking, loading, landscaping and other features as are required by this
title.” BCC § 11-06-04.13.C. This section simply requires the Commission to determine whether
the proposed site is of sufficient size to satisfy BCC minimum standards for parking, as well as
the other items identified in this subsection. The plain meaning of the ordinance’s reference to
“this title” is BCC Title Eleven, entitled “Boise City Zoning Ordinance.” 4 Chapter 11-10 of the
BCC (the Parking Chapter), establishes minimum automobile parking standards for different
categories of development and states that the “number of required parking spaces is based on the
primary use of the site.” BCC § 11-10-01.01(C). BCC section 11-06-04.13.C is satisfied if a site



4
 BCC section 11-01-01.01 provides: “This Ordinance shall be cited as the ‘Boise City Zoning Ordinance,” and shall
also be known as Title Eleven (XI), Boise City Code, Boise, Idaho.” Each chapter of Title Eleven is then referred to
as Chapter 11-01, Chapter 11-02, etc.


                                                         6
is large enough to accommodate the proposed use along with the parking required by Chapter
11-10.
         This conclusion does not end our analysis. BCC section 11-06-04.13.D requires that the
Commission find that “the evidence presented at the hearing is such as to establish… [t]hat the
proposed use … will not adversely affect other property of the vicinity.” BCC § 11-06-04.13.D.
Idaho Code section 67-6512(d)(7) provides that “conditions may be attached” to a CUP
“[r]equiring more restrictive standards than those generally required in an ordinance.” The
critical inquiry is not whether there was “robust discussion” of parking issues before the
Commission, as the City Council found to have occurred. 5 Rather, the appropriate inquiry is
whether the Commission recognized that it possessed the discretionary authority to impose
parking requirements beyond the minimum established by the Parking Chapter. The record
unambiguously demonstrates that the Commission failed to perceive that it had discretion to
require additional parking as a condition of approval of the CUP.
         On March 5, 2012, Joshua Johnson, a staff member of Boise City Planning and
Development Services, provided a staff report to the Commission. In that report, he stated:
                Finally, the landowner who testified in opposition to the height also
         brought up a perceived shortage of parking as a further point of opposition. The
         project meets City parking standards for multi-family units and this issue is not
         before the Commission. The only two items that should be considered are the
         Variance for a height exception and the Boise River System Permit.
         At the March 5, 2012, hearing before the Commission, Johnson advised the Commission
that Royal’s project “meets our Parking Code. This issue is not before the Commission tonight.
The application tonight only concerns the additional height requested by the applicant.” 6
Following substantial testimony relating to parking concerns, Commissioner Stevens informed
the Commission that it lacked authority to impose additional requirements for parking beyond
those found in the Parking Chapter:



5
  The City Council’s decision stated: “The Council also found that the public record from the Planning and Zoning
Commission meeting revealed a robust discussion regarding parking. The Commission determined that the project
was correctly designated as multi-family and that the level of provided automobile parking was sufficient.” There
was indeed robust discussion of parking issues before the Commission; however, as will be shown, the Commission
made no finding as to the sufficiency of automobile parking beyond its determination that the application satisfied
the minimum parking requirements imposed by the Parking Chapter.
6
  We note that an individual, whom Johnson identified as “my attorney,” remained silent when Johnson provided the
Commission with this erroneous legal advice. We infer that Johnson had not personally retained counsel in view of
his earlier statement that the application had been reviewed by the Boise City Attorney’s office.


                                                        7
               I want to remind the Commissioners that the parking issue tonight is not
       actually before us. This Commission is not in position to make findings that
       require our applicant to be held to standards above that which is in our code.
       That would be arbitrary and would make the City be in some serious hot water, so
       I want to make sure that when we have our discussion tonight, that we keep the
       parking out of it. It is not before us. They have met code and to require that is
       above and beyond what we are allowed to do.
       Commissioner Story then echoed this view, stating: “Like you said parking is off the
table. This complies. I can’t say our code is correct on parking and the way it should be handled,
but I think the rubber meets the road where we’re talking about height and that’s really the only
thing we have before us.” Thereafter, the Commission unanimously approved the CUP.
       Following Lusk’s appeal to the City Council, Hal Simmons, Planning Director with Boise
City Planning and Development Services, sent a memorandum to the City Council, outlining
staff recommendations regarding the appeal. In that memorandum, he reiterated the erroneous
legal premise advanced in the staff report and accepted by the Commission: “While parking was
discussed, the Commission correctly observed that the project meets established zoning
ordinance standards and that it was not in their purview to require additional parking.”
       He later stated:
       The appellant states that parking problems associated with the high density
       project will overburden public facilities. This sentence highlights two
       fundamental flaws in the appeal: As proposed, the project meets density and
       parking requirements of Boise City Code. These standards are outlined in detail
       within the staff report and are discussed in the minutes from the March 5, 2012
       hearing. Commissioner Stevens stated at the beginning of the deliberation, “I
       want to remind the Commissioners that the parking issue tonight is not actually
       before us. This Commission is not in position to make findings that require our
       applicant to be held to standards above that which is in our code. That would be
       arbitrary and would make the City be in some serious hot water.”
(emphasis in original). Although the record reflects the City Council’s unanimous denial of
Lusk’s appeal, it is silent as to any discussion as to whether the Commission had the right to
require additional parking as a condition for approving the CUP.
       As previously noted, Idaho Code section 67-6512(d)(7) provides that “conditions may be
attached” to a CUP “[r]equiring more restrictive standards than those generally required in an
ordinance.” BCC section 11-06-04.13.D requires that the Commission determine “[t]hat the
proposed use … will not adversely affect other property of the vicinity.” BCC § 11-06-04.13.D.
The testimony before the Commission related the potential for adverse effects to the vicinity due



                                                8
to automobile parking needs that would result from the project. The Commission failed to
recognize that Idaho law and the BCC provided it with discretion to require the project to
provide on-site automobile parking beyond the minimum required by the Parking Chapter. As a
result of this failure to apply governing legal standards, the Commission refused to consider the
adverse effects on property in the vicinity. Thus, we find that the decision reflected an abuse of
discretion. Dunagan v. Dunagan, 147 Idaho 599, 603, 213 P.3d 384, 388 (2009) (error found
when trial court failed to recognize grounds for exercise of discretion).
        On judicial review, the district court found no abuse of discretion, which was likewise
error. The district court noted that “[a]lthough some questioned the adequacy of the code itself, it
is not within this Court’s purview in this case to tell the City what the codes should contain.”
Although the district court was correct in its determination as to the scope of its authority, it
failed to recognize that Idaho Code section 67-6512(d)(7) and BCC section 11-06-04.13.D
authorized the Commission to impose parking requirements as a condition of approval beyond
the minimum established by the Parking Chapter.
        B. Lusk has demonstrated prejudice to substantial rights.
        Our determination that the Commission abused its discretion requires us to consider
whether Lusk identified prejudice to its substantial rights, as required by Idaho Code section 67-
5279(4). Immediately following its conclusion that there was no abuse of discretion, the district
court stated:
                Finally, the Court concludes that Lusk has failed to demonstrate that any
        other of its claimed substantial rights have been violated. There is an allegation
        that the public parking situation may be adversely impacted by the project, but
        there are no allegations that Lusk’s property, the use of the property, or its
        business could be. Rather, Lusk appears to assert that parking by tenants of the
        project could impact the entire area, including Ann Morrison Park, but makes no
        specific argument on its own substantial rights.
        Although the district court was correct in stating that Lusk identified adverse
consequences to the entire area, it was incorrect in its statement that Lusk had failed to allege an
impact on “its own substantial rights.” Lusk’s opening brief before the district court explained
the factual basis for its contention that approval of the CUP would have a negative impact on
Lusk:
        The Project would contain 622 bedrooms and house at least 622 student tenants,
        but only provide 280 parking spaces.



                                                 9
               Parking around the Project is already strained. Ann Morrison Park hosts a
       variety of high traffic events throughout the year. During the summer river
       floating season, soccer season, and other sports seasons, parking in Ann Morrison
       Park and along Royal Boulevard becomes heavily congested. The inadequate
       parking will make the proposed Project an undesirable place to live, adversely
       affect the businesses in the area, and harm the public’s ability to enjoy Ann
       Morrison Park and the Boise River Greenbelt. Students that cannot find parking
       within the housing Project will park at adjacent properties, including Petitioner’s
       property. As a result, Petitioner and other property owners will be forced to
       expend considerable time and resources policing the parking on their properties.
       Congested parking will drive customers away from businesses in the area.
(citations to the administrative record omitted). Lusk reiterated the impact of the decision:
               The most immediate, real, significant, and anticipated adverse
       consequence to Petitioner and other property owners in the neighborhood
       (including the public who travel to and use Ann Morrison Park) is the parking
       crisis created by the City’s approval of an additional two stories of habitable
       apartments over and above the allowed height of thirty-five feet in the R-OD zone
       – all without appropriate conditions being placed on the conditional use request to
       ensure that adverse impacts are mitigated. In fact, there was no discussion, no
       analysis, and no deliberation by the City to review the potential adverse parking
       impacts caused by this additional habitable apartments that are not allowed by
       right under the Zoning Ordinance.
               The lack of deliberation by the City, and the failure of the City to attach
       appropriate conditions to this conditional use approval (assuming, solely for
       arguments sake, that the conditional use could even be appropriately conditioned
       so as to mitigate adverse impacts), will devalue Petitioner’s property, require time
       and expense for Petitioner to police parking on its own property, inconvenience
       employees and visitors to Petitioner’s building, cause similar deleterious
       consequences to the neighborhood around the Project, potentially drive business
       from the neighborhood, and cause adverse consequences for patrons of Ann
       Morrison Park.
       In our view, Lusk has satisfied the requirement of our decision in Hawkins v. Bonneville
Cnty. Bd. of Comm’rs, 151 Idaho 228, 254 P.3d 1224 (2011). There, we stated:
       [W]hen a petitioner opposes a governing board’s decision to grant a permit
       authorizing development, . . . the petitioner must still show, not merely allege,
       real or potential prejudice to his or her substantial rights. I.C. § 67–5279(4). Since
       a party opposing a landowner’s request for a development permit has no
       substantial right in seeing someone else’s application adjudicated correctly, he or
       she must therefore show something more. The petitioner opposing a permit must
       be in jeopardy of suffering substantial harm if the project goes forward, such as a
       reduction in the opponent’s land value or interference with his or her use or
       ownership of the land. See Price v. Payette Cnty. Bd. of Cnty. Comm’rs, 131
       Idaho 426, 431, 958 P.2d 583, 588 (1998) (vacating a board decision because it
       could impact property value or the petitioners’ use and enjoyment of their land).


                                                 10
Id. at 233, 254 P.3d at 1229. The record before the Commission sets forth substantial evidence
supporting Lusk’s claim of potential prejudice to its substantial rights. The project calls for 622
bedrooms to house students at Boise State University. The Parking Chapter requires only 280
parking spaces for the project. Without even attempting to evaluate the impact of guests who
arrive by automobile, if only half of the River Edge tenants have an automobile, there will be
significant numbers of residents looking for parking in the vicinity. We conclude that there is
sufficient evidence that Lusk is in jeopardy of economic harm from the project to satisfy the
requirements set forth in Hawkins.
         C. No attorney fees are awarded on appeal.
         Lusk, the City, and Royal all claim entitlement to attorney fees under Idaho Code section
12-117. That statute provides, in relevant part, that:
                Unless otherwise provided by statute, in any proceeding involving as
         adverse parties a state agency or a political subdivision and a person, the state
         agency, political subdivision or the court hearing the proceeding, including on
         appeal, shall award the prevailing party reasonable attorney’s fees, witness fees
         and other reasonable expenses, if it finds that the nonprevailing party acted
         without a reasonable basis in fact or law.
I.C. § 12-117(1). “An award of attorney fees pursuant to the section may only be made when the
court is left with the abiding belief that the appeal was brought, pursued or defended frivolously,
unreasonably and without foundation.” City of Boise v. Ada Cnty., 147 Idaho 794, 812, 215 P.3d
514, 532 (2009) (internal quotation and citations omitted).
         The City and Royal are not entitled to attorney fees because they did not prevail in this
appeal. Rowley v. Ada Cnty. Highway Dist., 156 Idaho 275, 282, 322 P.3d 1008, 1015 (2014). 7
Although Lusk has prevailed in this appeal and is therefore entitled to recover its costs on appeal,
we are unable to conclude that the defense of this appeal was frivolous. We therefore decline to
award attorney fees to Lusk.




7
  Even if it had prevailed, Royal would not have been entitled to recover attorney fees under Idaho Code section 12-
117. The City is defined as a political subdivision for purposes of the statute. I.C. § 12-117(5)(b) (“ ‘Political
subdivision’ means a city, a county, any taxing district or a health district. . . .”). However, the statute addresses
situations “involving as adverse parties ... a political subdivision ... and a person.” Thus, in order for a party to
receive an award under Idaho Code section 12-117, it must be adverse to the political subdivision. Neighbors for
Responsible Growth v. Kootenai Cnty., 147 Idaho 173, 177, 207 P.3d 149, 153 (2009) (noting that the party seeking
attorney fees were “intervenors on the side of the county—perhaps the most obvious indicator that the two are not
adverse.”).


                                                         11
                                     IV. CONCLUSION
       We reverse the decision of the district court affirming the City Council’s approval of the
Commission’s decision to grant the CUP to Royal. We award costs on appeal, but not attorney
fees, to Lusk.

       Justices EISMANN, J. JONES and Justice Pro Tem WALTERS CONCUR.

       Chief Justice BURDICK Dissents without opinion.




                                              12
