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Burns Concrete height variance for a 75-foot batch plant tower.

Decision Makers: Driggs Planning & Zoning Commission

Topic: Burns Concrete height variance for a 75-foot batch plant tower.

Dear Driggs Planning & Zoning Commission:

On behalf of Valley Advocates for Responsible Development, I am submitting comments regarding the Burns Holdings application for a height variance to build a 75-foot batch plant tower in the M1 zone. Idaho Code § 67-6516 allows for the granting of variances by Cities and Counties, but such variances cannot be granted unless specific statutory criteria are satisfied:  

A variance shall not be considered a right or special privilege, but may be granted to an applicant only upon a showing of undue hardship because of the characteristics of the site and that the variance is not in conflict with the public interest.

Burns has requested a 30-foot variance from the existing regulations to construct a 75-foot tower. This is a 66% increase over the current height limit for the M1 zone.  Such a substantial variance request in a highly visible location to Driggs should be carefully scrutinized by both the City and County.

The issue here seems to be whether there are any physical characteristics of the site that warrant building a 75-foot tower.  Any adjustment to the zoning regulations of this site must be due to physical characteristics of the subject property.  (See Gay v. County Commissioners of Bonneville County, 103 Idaho, 626, 651 P.2d 560 (1982); A variance is limited to adjustment of certain regulations concerning the physical characteristics of the subject property.)  

As a general rule, the burden is on the applicant to prove the statutory criteria for a variance has been met.  Here, the applicant’s 2-page narrative does not elaborate on any physical characteristics which make this 30-foot height exception warranted.  The property is flat, with minimal vegetation, or any other remarkable physical features.  While it might be economically beneficial for Burns to construct a 75-foot tower, the feasibility of an economic investment cannot be used as a basis to grant a variance.  (See City of Burley v. McCaslin Lumber Co., 107 Idaho 906, 693 P.2d 1108 (1984);  In the McCaslin case, a variance for a triplex was approved instead of a duplex because it would make the project more economically feasible. This was reversed by the Idaho Supreme Court because the correlation between land use and the scope of feasible investments is not “peculiar” to the property at issue and thus does not satisfy the showing of undue hardship ‘because of the characteristics of the site’.)

For these reasons, I agree with the recommendation by City Planner Doug Self that the statutory criteria for a variance has not, and cannot be satisfied here.

Thank you for the opportunity to comment.

Anna Trentadue

Valley Advocates for Responsible Development

Program Director / Staff Attorney

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