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S Bar Ranch v. Elmore County
Citation: Not availableDocket: 47652
Court: Idaho Supreme Court; June 14, 2022; Idaho; State Supreme Court
Original Court Document: View Document
The Supreme Court of Idaho, in Docket No. 47652, addressed an appeal by S Bar Ranch against Elmore County concerning the approval and amendment of five conditional use permits (CUPs) for an alternative energy project proposed by Cat Creek Energy, LLC. The district court's decision to deny S Bar Ranch's petition for judicial review of Elmore County's actions was affirmed. S Bar Ranch owns approximately 3,000 acres in rural Elmore County, which it purchased in 2015. The property is largely undeveloped and primarily used for recreational purposes by its principal, Chris Stephens. Cat Creek Energy, managed by John Faulkner, sought to develop a large-scale alternative energy project on approximately 23,000 leased acres near Anderson Ranch Reservoir, proposing a combination of hydroelectric, wind, and solar energy components. The process for obtaining the CUPs began in late 2014, with Cat Creek submitting applications after holding neighborhood meetings. Initially, the Elmore County Planning and Zoning Commission (P&Z Commission) requested additional information before accepting the applications and scheduling a public hearing for June 15, 2016. A notice for the hearing was published, but S Bar Ranch did not receive the notice due to an outdated mailing list that still referenced the previous owner, Half Moon Ranch, LLC. Consequently, no representatives from S Bar attended the hearing. Ultimately, the P&Z Commission denied the CUP applications on July 13, 2016, citing non-compliance with the local comprehensive plan and ordinances. Cat Creek appealed the P&Z Commission’s order to the Elmore County Board of County Commissioners on August 26, 2016. A hearing was scheduled for November 16 and 17, 2016, with notice provided through local media, signage near the project site, and mail to nearby landowners. The notice mentioned that wind turbines would occupy "portions" of forty-five sections but did not specify their exact location or height. S Bar received notice but did not attend the hearings. During these hearings, Cat Creek presented a revised master site plan and assured the Board of its commitment to supply over 30,000 acre-feet of water to Elmore County through its project’s hydroelectric infrastructure. The Board deliberated on the appeal on January 13, February 3, and February 10, 2017, focusing on the project’s potential to address Elmore County's water needs. On February 10, 2017, the Board approved five Conditional Use Permits (CUPs), contingent on Cat Creek meeting forty-two conditions, including the requirement to negotiate a development agreement with the Faulkner entities and Elmore County. This agreement was to address water delivery terms and necessary construction projects for water transfer in the county. The Board mandated that the development agreement be approved in a public hearing according to local planning laws and set a deadline of November 15, 2017, for compliance, with an option for a six-month extension. S Bar did not seek reconsideration of the CUP order. Cat Creek engaged in drafting and negotiating the development agreement with county representatives. On October 4, 2017, the Board announced a public hearing for the agreement on October 20, but the notice again omitted details about the wind turbines' location and height. During the October 20 hearing, Cat Creek requested an extension to modify the agreement due to financier requirements, which the Board granted. Subsequently, on December 6, 2017, the Board scheduled another hearing for December 22 to consider the development agreement, which also lacked specific turbine details. Cat Creek submitted a revised draft of the agreement on December 4, 2017, which was made available to the public prior to the December 22 hearing. On December 22, the County’s attorney requested to continue the hearing on Cat Creek's development agreement due to approximately 1,000 redlined changes and the need to review a new site plan not yet examined by the County. The contract term concerning water delivery to Elmore County was highlighted as a significant concern. Consequently, the Board decided to continue the hearing and appointed Commissioner Hofer to negotiate between the County and Cat Creek, forming a working group. A notice for resuming the public hearing on January 26, 2018, was published, lacking details on the wind turbines' height and location. S Bar requested the draft agreement and provided feedback on January 25. At the January 26 hearing, potential conflicts of interest among the Commissioners were disclosed. Commissioner Hofer recused himself from voting due to extensive involvement with the working group, while Commissioner Wooten acknowledged a brief social meeting with John Faulkner but did not recuse himself. The Board discussed the development agreement and voted to continue the hearing to February 9 for further negotiations. Although no notice for the February 9 hearing was published, S Bar’s counsel attended, and S Bar had received a revised draft prior to the meeting. During the February 9 hearing, the Board agreed to most terms of the revised development agreement but struggled with water delivery provisions. Cat Creek proposed deferring water delivery discussions to a later date, which the Board accepted, allowing until December 31, 2018, to secure a water delivery agreement. The Board approved the development agreement through a resolution and ordinance, recorded the next day. Despite the resolution and ordinance indicating Commissioner Hofer's recusal, the hearing transcript shows he verbally voted in favor of the agreement. On February 16, 2018, S Bar submitted its first request for reconsideration of the 2017 CUP Order and the development agreement. The Board announced it would review this request on March 23, 2018, and subsequently issued findings on March 16, incorporating changes from the development agreement into the CUPs (2018 CUP Amendment). The Board determined that the development agreement's approval met the conditions set forth in the 2017 CUP Order, adding a condition requiring Cat Creek to finalize a water delivery agreement with the County by December 31, 2018. During the March 23 hearing, S Bar contended that its due process rights were violated due to errors in public notice and argued that its challenge to the 2017 CUP Order was timely because it was contingent upon the approval of the development agreement. The County countered, asserting that S Bar's challenge was untimely as it did not request reconsideration or pursue judicial review within the required timeframes. On April 6, 2018, the Board denied S Bar’s first request for reconsideration by a 2–0 vote, with one commissioner recusing. The Board found S Bar’s challenge to the 2017 CUP Order untimely and ruled that the 2018 CUP Amendment did not violate S Bar’s due process rights. Following this, S Bar filed a second request for reconsideration on March 26, 2018, challenging both the 2018 CUP Amendment and the 2017 CUP Order, with a hearing scheduled for May 11. Before this hearing, S Bar filed a petition for judicial review in district court on May 1, 2018. During the hearing on May 11, S Bar and public members expressed concerns about the project, while the County maintained that the 2017 CUP Order was final and that S Bar’s due process rights were not infringed. The County recommended an additional public hearing on the 2018 CUP Amendment. On May 18, the Board deliberated on S Bar’s second request but remained unconvinced and upheld its previous findings. However, it deemed a rehearing on the 2018 CUP Amendment necessary, outlining twenty issues for consideration and scheduling the rehearing for July 26, 2018. Notices for this hearing were published, including details about the wind turbines' height and location. S Bar filed objections regarding the legality of the 2018 CUP Amendment, the scope of the July 26 hearing, and the adequacy of the previous notices. At the July 26 hearing, representatives from Cat Creek, S Bar, and the public provided testimony regarding the 2018 CUP Amendment, which modified the 2017 CUP Order. Cat Creek explained that the development agreement removed thirty proposed wind turbines due to wildlife concerns and indicated that the specific height and placement of the turbines would be determined after a wind feasibility study. Cat Creek committed to notifying the public about the turbines' height and location following the study and before obtaining building permits. S Bar contested the project's location, claiming it was misrepresented by the Board, and raised concerns about potential conflicts of interest regarding the project's requirement to deliver water to Elmore County. S Bar argued that the Board was improperly separating CUPs for different project components, contrary to the 2017 CUP Order, and stated that it had not participated in prior hearings due to inadequate notice about the wind turbines. On September 7, 2018, the Board issued findings affirming that the public hearing and notice requirements had been met, the development agreement was not subject to certain Idaho Code sections, and the modifications to the 2017 CUP Order were approved. Commissioners Wooten and Corbus were found to have no conflicts of interest. S Bar filed a third request for reconsideration on September 12, 2018, reiterating objections about prior notices, due process violations, the applicability of Idaho Code to the development agreement, conformity to the Comprehensive Plan, and alleged conflicts of interest. The Board denied this request without a hearing on September 21, 2018. Subsequently, on December 14, 2018, the Board held a hearing regarding amendments to the development agreement related to water delivery to Elmore County. Meanwhile, on May 1, 2018, while awaiting the outcome of its second reconsideration request, S Bar initiated a judicial review petition challenging the Board’s 2017 CUP Order and 2018 CUP Amendment, raising thirty-one issues and seeking declaratory relief, unlawful takings, and a violation of 42 U.S.C. section 1983. An amended petition was filed on June 13, 2018, following the Board’s order for a rehearing on the 2018 CUP Amendment. The Amended Petition/Complaint presented thirty-five challenges to the 2017 CUP Order and 2018 CUP Amendment, along with claims for declaratory relief, unlawful takings, and section 1983 violations. On May 23, 2019, the district court stayed proceedings at Cat Creek’s request and allowed Cat Creek to intervene. Cat Creek filed a motion to dismiss S Bar’s petition for judicial review, asserting that S Bar was time-barred and lacked standing to contest anything other than the wind power component of the project. The court partially granted the motion, dismissing the challenge to the 2017 CUP Order as untimely, while allowing S Bar's reconsideration request regarding the development agreement and 2018 CUP Amendment to proceed. S Bar filed a second amended petition on October 10, 2018, which was opposed by the Board and Cat Creek. Before a hearing, S Bar voluntarily withdrew its claims for declaratory relief and damages. The district court granted S Bar leave to file the second amended petition, and after a hearing on May 16, 2019, requested additional documentation regarding public hearing notices from the Board. The Board provided the requested information, and the district court later sought further details on the working group's meetings and materials. On November 8, 2019, the district court affirmed the Board’s decisions, confirming that S Bar had standing only for challenges related to wind turbines, electric transmission lines, and the substation. It reiterated that the 2017 CUP Order was a final agency action, making S Bar’s petition for judicial review untimely. For the development agreement and 2018 CUP Amendment, the court found no errors by the Board under Idaho Code section 67-5279 and determined S Bar's substantial rights were not prejudiced. The court addressed four sub-issues, concluding that the development agreement did not violate Idaho Code section 67-6511A, and that there was no conflict of interest for the Board or Commissioners regarding water delivery concerns to Elmore County water users. The district court found that S Bar's procedural due process rights were not violated during the Board's proceedings, emphasizing that procedural due process is flexible and does not necessitate perfection. Although errors occurred, such as lack of notice regarding a February 9, 2018 hearing and insufficient details in public notices about wind turbine specifications, these were deemed harmless due to S Bar's actual notice and participation prior to the hearing. The court asserted that a rehearing on July 26, 2018, remedied any notice deficiencies. The district court confirmed the Board's jurisdiction over the project despite S Bar's petition for judicial review, labeling S Bar's initial petition as premature since it was filed before the 2018 CUP Amendment was issued. The court pointed out that S Bar could not argue against the Board’s actions while simultaneously pursuing a second request for reconsideration. It clarified that filing a petition for judicial review does not suspend agency proceedings. Further, the court ruled that there was no violation of the Idaho Open Meetings Law regarding Commissioner Hofer's involvement in working group meetings, as those meetings were not covered by the law. The findings that the project adhered to the Comprehensive Plan were supported by substantial evidence, and S Bar's rights were not compromised given its meaningful notice and opportunities for input. The district court declined to award attorney fees, stating no party acted frivolously or unreasonably. It issued a final judgment on November 8, 2019, denying S Bar’s petition for judicial review. S Bar filed a timely appeal, while the Board and Cat Creek cross-appealed the denial of attorney fees. The Board subsequently sought a remand for further proceedings, which was granted, but the motion to remand was later denied on July 23, 2020. S Bar filed an amended notice of appeal on September 16, 2020. The issues on appeal include the district court's jurisdiction regarding S Bar's challenge to the 2017 CUP Order, any errors by the Board under Idaho law, the denial of attorney fees requested by Cat Creek, and entitlement to attorney fees on appeal. The Local Land Use Planning Act (LLUPA) allows aggrieved individuals to challenge specific land-use decisions, including the approval of special use permits, within 28 days after exhausting local remedies. Judicial review of these decisions adheres to the procedures outlined in the Idaho Administrative Procedure Act (APA), treating county commissioners’ decisions as agency actions. A district court, acting in an appellate capacity, performs an independent review of the agency record and affirms decisions unless the petitioner demonstrates that the board erred in specific ways outlined in Idaho Code section 67-5279(3) and that such error prejudiced their substantial rights. This code mandates affirmation of agency actions unless found in violation of statutory provisions, beyond authority, made unlawfully, or deemed arbitrary or capricious. While the court freely interprets zoning ordinances, land-use decisions are given a strong presumption of validity under the governing body's interpretation. Questions of constitutional due process are also subject to independent review. In the analysis section, S Bar did not dispute the district court’s finding that it lacked standing to challenge specific conditional use permits (CUPs) for solar and hydroelectric projects, thus limiting the appeal to the wind CUP, transmission line CUP, and substation CUP. S Bar raised three issues, with the second issue containing numerous sub-issues. The district court's determination that the 2017 CUP Order constituted a final agency action and was not timely challenged by S Bar is pivotal. Specifically, S Bar failed to exhaust administrative remedies by not requesting a Board reconsideration and delayed filing a judicial review petition by over a year. S Bar argued that the 2017 CUP Order was not final as it required further Board action, namely approving a development agreement, before construction could commence. Cat Creek asserts that it timely filed its petition for judicial review following the Board's 2018 CUP Amendment. The Board maintains that the 2017 CUP Order is a final agency action based on three points: (1) zoning ordinances permitted immediate project initiation post-CUP approval, (2) the CUP issuance is deemed final despite the need for additional approvals, and (3) the Board’s assertion of finality should be respected. Cat Creek supports this by noting that the 2017 CUP Order allowed immediate project actions, even though a development agreement was required for further Board approval. Jurisdiction for judicial review hinges on compliance with statutory filing requirements. A court lacks jurisdiction if a petition for judicial review is not physically filed within the statutory timeframe, which results in automatic dismissal. Under LLUPA, an affected party must first seek reconsideration of the final decision within 14 days, followed by a judicial review within 28 days after exhausting local remedies. These timelines apply to conditional use permit approvals. The governing board has the authority to declare when a decision is final and appealable, but this must align with LLUPA. While LLUPA sets the appeal timeframe, the board retains discretion in determining the conclusion of public testimony and deliberation. The board is required to notify the public of final decision dates to facilitate timely appeals. The discretion of a governing board regarding finality is not absolute; it must adhere to zoning ordinances to ascertain the true finality of a decision. The evaluation of the finality and appealability of zoning decisions involves examining whether the ordinance allows immediate actions by the applicant or necessitates further board intervention. The inquiry focuses on the Board's determination of the 2017 CUP Order's finality and whether the existing zoning ordinances permitted Cat Creek to proceed immediately with land alterations. The language of the 2017 CUP Order suggests that the Board regarded the decision as final, initiating the judicial review timeline. The 2017 CUP Order indicated that the Board's decision could be reconsidered if a party submitted a reconsideration application within the specified time under the ECO. It also referenced LLUPA, allowing aggrieved individuals to seek judicial review within twenty-eight days after exhausting local remedies. The Board determined the 2017 CUP Order was final and provided adequate public notice regarding the timeline for judicial review. Under the applicable zoning ordinance, the ECO mandated that conditional permit holders acquire construction permits and begin establishing permanent structures. Following the CUP approval, Cat Creek was authorized to start altering the land immediately without further Board action. S Bar did not challenge the CUP Order in a timely manner, as it failed to request reconsideration or file for judicial review within the required twenty-eight days. S Bar argued that two conditions in the CUP Order prevented immediate land alterations, claiming that a required development agreement to be approved at a public hearing undermined the Order's finality and that a condition requiring an updated Wildlife Mitigation Plan/Environmental Impact Statement delayed the process. However, S Bar's arguments misinterpret relevant ordinances and statutes. The imposition of conditions does not render a conditional use permit “conceptual” or “delayed”; such permits inherently involve conditions that must be met. The ECO specifies that conceptual approvals require a separate final approval application, which was not applicable in this case as the CUP Order did not necessitate such a submission, merely outlining conditions whose non-compliance would revoke the CUPs. Thus, the finality of the 2017 CUP Order stands affirmed. The 2017 CUP Order was determined to be a definitive approval, not a conceptual one. S Bar's claim that it represented a "delayed decision" under section 67-6521(1)(c) was dismissed, as the order explicitly granted Cat Creek’s CUP applications. The conditions set within the CUP Order did not negate its finality; instead, the order approved the applications contingent upon these conditions. The court's evaluation of finality centers on whether a developer can immediately begin land alterations, independent of additional approvals. The precedent from Canal/Norcrest/Columbus Action Committee established that conditions do not hinder the finality of a CUP if the governing ordinance does not stipulate further actions are necessary for approval. Hence, the Board's decision was final, allowing Cat Creek to proceed without further action from the Board. S Bar's argument suggesting that conditions should dictate the finality of the order contradicts established case law, which maintains that appealability hinges on whether the order permits immediate land alteration. An order is not appealable unless certain conditions are met, as established in Johnson, 146 Idaho at 925, 204 P.3d at 1136. Adopting S Bar's interpretation would create significant uncertainty regarding the finality of land-use decisions, particularly for complex projects, complicating the judicial review process under LLUPA. The current interpretation maintains clarity for governing bodies, developers, and affected persons on when decisions are considered final, particularly regarding compliance with conditions for project commencement. The 2017 CUP Order was deemed a final action, and S Bar failed to exhaust administrative remedies or timely file a petition for judicial review, leading to affirmation of the district court's lack of jurisdiction over the challenge to this order. S Bar alleged that the district court erred by not reversing the Board’s decisions based on five grounds: 1) conflicts with the Comprehensive Plan and violations of Idaho Code section 67-6512(a); 2) conflicts of interest among Board and Commissioners, violating the Open Meetings Law and due process; 3) failure to maintain a verbatim record per Idaho Code section 67-6536; 4) inadequate public notice regarding wind turbine specifics under Idaho Code section 67-6512(b) and (5); and 5) non-compliance with other statutory provisions and sections of the ECO. Furthermore, S Bar argued that all Board decisions following their first amended petition for judicial review were invalid due to jurisdictional issues. However, it was noted that S Bar could not challenge findings from the 2017 CUP Order, and the 2018 CUP Amendment did not need to address compliance with the Comprehensive Plan, as S Bar contended. The Board asserts that S Bar is barred from contesting the 2017 CUP Order due to timeliness issues, the Comprehensive Plan does not govern zoning law, and the Board's findings align with the Comprehensive Plan based on substantial evidence. Additionally, it argues that the P&Z Commission's conclusions do not impact the Board's de novo review of the CUP applications. The district court ruled that S Bar failed to timely challenge the 2017 CUP Order, thus lacking jurisdiction to assess the Board's compliance with the Comprehensive Plan. The court also found that the 2018 CUP Amendment did not require further review of the Comprehensive Plan since it did not alter previous findings. Consequently, the court upheld that S Bar did not prove the 2018 CUP Amendment violated relevant statutes. Regarding alleged conflicts of interest, the Board maintained that neither it nor its members had conflicts related to the project's water delivery to Elmore County. S Bar claimed that the Board had vested interests due to the economic implications of the project, citing specific Board members with property interests in the affected irrigation district. However, the County countered that S Bar failed to demonstrate any direct personal stakes in the proceedings that would compromise the Board’s neutrality. Cat Creek argues that there is no evidence demonstrating that providing an increased water supply to the Mountain Home Irrigation District would financially benefit any of the Commissioners. Both Cat Creek and the County assert that S Bar's claims are unreasonable, as they would effectively bar county commissioners from addressing issues beneficial to the entire county, such as roadwork and water supply, due to residency requirements. Cat Creek also contends that the conflict of interest provision under LLUPA applies to individual board members, not the board as a whole. The district court dismissed S Bar’s conflict of interest claims, stating that the interest in adequate water supply is common to all Elmore County residents, including the Commissioners. It expressed concern that S Bar's argument could exclude all citizens from participating in discussions that affect the county. The court emphasized the Commissioners' duty to ensure necessary water supply and concluded that ignoring the impact on county water supplies would be a dereliction of duty. LLUPA prohibits board members from participating in actions where they have an economic interest, and the court clarified that this statute specifically targets individual members, not the governing board itself. S Bar failed to provide evidence of any Commissioner having an “immediate or direct” economic interest in the water project, as their interest aligns with the broader community’s needs. The executive authority of Elmore County, represented by the Board of County Commissioners, is primarily concerned with the impact of proposed projects on the County's water supply, especially given the area’s arid conditions. The Commissioners fulfilled their statutory responsibilities by prioritizing public interest and ensuring project benefits to the County, which did not create a conflict of interest. S Bar challenged the validity of the 2018 CUP Amendment, claiming improper ex parte communications by Commissioners Hofer and Wooten with Cat Creek representatives. S Bar cited Commissioner Wooten’s brief conversation with John Faulkner and expressed concern over Commissioner Hofer’s involvement in negotiations for the development agreement, alleging this compromised the Board’s impartiality. However, the Board contended that both Commissioners disclosed their communications and that Commissioner Hofer lawfully recused himself from the vote on the development agreement. The Board further argued that the decisions were valid due to majority approval from non-interested members, regardless of Hofer’s participation. The district court supported the Board's position, affirming that Commissioner Hofer properly disclosed and recused himself. It ruled that the Board’s approval of the development agreement and CUP amendments was valid, as these actions were authorized by a majority of the elected commissioners. Additionally, the court found no conflicts of interest with Commissioners Corbus and Wooten under section 67-6506. In quasi-judicial capacities, governing bodies must limit their decisions to the public hearing record to ensure procedural due process. Governing boards are allowed to engage with concerned citizens prior to proceedings, but must disclose the identities of the callers and summarize their communications to uphold due process. Commissioner Wooten complied with this requirement by properly disclosing his communications. During the January 26, 2018, hearing on the development agreement, Commissioner Wooten stated that he had a conversation with John Faulkner about procedural issues related to the project, clarifying that the discussion did not involve substantive matters. He complied with legal requirements by disclosing this ex parte contact and maintaining that his impartiality was not compromised. Commissioner Hofer, who participated in about twenty hours of negotiations with a working group, disclosed his involvement and the group's purpose during the December 22, 2017, public hearing. At the January 26 hearing, he reiterated his participation and announced his intention to recuse himself due to having access to non-public information. S Bar's claim that Commissioner Hofer voted on the development agreement is countered by the context of his statements, where he expressed his agreement with the County attorney’s recommendation to recuse himself, highlighting the unfairness of his prior involvement compared to public engagement. Although S Bar referenced a transcript suggesting otherwise, the Board argued that a subsequent transcript from February 9, 2018, inaccurately recorded Commissioner Hofer as voting in favor of the agreement. They maintained that audio recordings, which have not been submitted in the appeal, would confirm that he did not vote. The official documents indicate the agreement passed with a 2-0 vote, with Commissioner Hofer properly recused. Commissioner Hofer's potential vote was not decisive, as the other two Board members voted in favor of the development agreement. Despite Hofer's admission of bias and involvement in negotiating the agreement, there is no clear financial benefit to him that would necessitate reversing the Board’s decision. Regarding S Bar's claims of Open Meetings Law violations, the court determined that these allegations were not timely filed and thus not properly before it. The Idaho Open Meetings Law requires that individuals affected by violations file a civil action within thirty days, which S Bar failed to do. Additionally, a petition for judicial review cannot be combined with a civil action seeking relief under the Open Meetings Law. Therefore, the court declined to consider S Bar's allegations on their merits. Lastly, S Bar's argument about the Board not providing a verbatim transcribable record for the 2018 CUP Amendment was noted but not addressed in detail. S Bar argues that the transcripts from various hearings inadequately identify speakers, labeling them merely as “male voice” or “female voice.” The Board asserts that the transcripts sufficiently convey the basis for its decision, and any failure to identify speakers does not detract from this. Cat Creek adds that (1) public hearing rules do not mandate speaker identification, (2) any transcript defects can be resolved by reviewing the Board’s meeting minutes, and (3) the verbatim transcript requirement under the Local Land Use Planning Act (LLUPA) is not applicable since more than six months have passed since the final decision. The district court found the transcripts met necessary requirements, attributing any deficiencies to the transcriptionist's unfamiliarity with the speakers. LLUPA mandates a “verbatim transcribable record” of public hearings for at least six months post-decision, and the lack of such a record could violate procedural due process rights as established in past case law. However, the court does not strictly enforce the verbatim requirement due to the informal nature of these proceedings. It concluded that as long as the transcripts, in conjunction with the overall record, demonstrate that parties were notified and had opportunities to present or rebut evidence, no due process violation occurs. Additionally, a petitioner must show how errors in the record harmed them to claim a due process violation. The Board did not breach section 67-6536, as the transcripts adequately reflected the decision's basis and confirmed that S Bar was aware of and participated in the proceedings. S Bar's main concern with the transcripts is the lack of specific speaker identification, yet it remains unclear how this omission caused harm. S Bar argues that the Board's failure to disclose the identity of a speaker during proceedings could have revealed potential bias, but the Board counters that S Bar has not demonstrated the importance of this information nor claimed that the speaker's statements were absent from transcripts. Consequently, the Board did not violate S Bar’s due process rights. S Bar also claims that the Board failed to provide adequate notice regarding the height and location of proposed wind turbines for the 2018 CUP Amendment, as mandated by Idaho law. S Bar contends this lack of notice hindered its ability to challenge the wind power component of the project. However, the Board asserts that a subsequent rehearing in July 2018 rectified any notice deficiencies by including the necessary details about the turbines. The district court found no violation of S Bar’s procedural due process rights, noting that due process is a flexible standard that does not require perfect procedures. It rejected S Bar's argument that the development agreement's lack of specific turbine locations impeded its ability to address the issue, indicating that S Bar would have further opportunities to object in future hearings where final locations would be approved. The court emphasized that due process requires meaningful notice and an opportunity to be heard, but the specifics can vary by situation. It further stated that the evaluation of zoning agency procedures should focus on overall fairness and reasoned decision-making rather than strict adherence to statutory requirements. S Bar's claims are framed as constitutional violations, not merely statutory ones. The notices regarding the 2018 Conditional Use Permit (CUP) Amendment did not infringe on S Bar’s procedural due process rights, as S Bar had actual notice of the wind turbines' proposed site and height prior to the public hearing on February 9, 2018. S Bar requested the development agreement on January 9, 2018, which included a master site plan and a map outlining the wind development area, as well as details on the maximum construction of thirty-nine turbines at heights up to 500 feet. S Bar provided written feedback on the development agreement on January 25 and submitted additional comments on February 8, prior to the hearing where the Board approved the agreement. Despite the Board's notices not fully meeting the requirements of Idaho Code section 67-6512(b), this shortcoming was not of a constitutional nature, given S Bar's comprehensive knowledge and involvement in the process. The district court's ruling that the notice for the 2018 CUP Amendment hearings did not violate S Bar’s due process rights was affirmed. S Bar raised eight additional concerns, including the alleged harmlessness of missing mailed notice for hearings, the Board's imposition of conditions on CUPs that allegedly altered them materially, and other procedural due process violations. Some of these issues, particularly those related to the 2017 CUP Order, were not considered due to untimeliness. The Board’s conditions on the CUPs were upheld as compliant with Idaho Code section 67-6512(d), despite S Bar's claims that they required substantial amendments to the CUPs. Overall, S Bar's arguments primarily contested the conditions established in the 2017 CUP Order rather than the 2018 CUP Amendment itself. S Bar's petition for judicial review of the 2017 CUP Order was deemed untimely and thus not considered. In its opening brief, S Bar claimed that the 2018 CUP Amendment violated ECO section 6-27-3(G) but failed to specify unmet conditions or provide record support for this assertion. The court emphasized that the burden of proof lies with the alleging party and error is not presumed; it will not search the record for supporting evidence. S Bar’s due process arguments regarding the notice for the 2018 CUP Amendment proceedings were also rejected. S Bar argued that the notices were defective for not indicating amendments to the 2017 CUP Order and for inaccuracies regarding project location. However, the Board and Cat Creek contended that S Bar's due process rights were not violated, as it actively participated in hearings and utilized the reconsideration process, with any notice defects remedied by a rehearing. The district court noted S Bar's awareness of proposed changes and participation in discussions, concluding that the notice provided met procedural due process standards. The court ruled that S Bar was adequately informed and involved throughout the process, rejecting the notion that the Board was required to provide exhaustive notice of potential actions for compliance with due process. The project location information in the hearing notices was found to comply with procedural due process. Notices indicated the property's location, specifying that the center of the project is approximately 3.2 miles north on Wood Creek Road, accessible by traveling US 20 north for 25.4 miles. Despite the challenges of pinpointing a center on 23,000 acres of non-contiguous land, S Bar received actual notice through the site plan attached to development agreements it reviewed multiple times. S Bar's claim of not having a meaningful opportunity to be heard regarding the Board's decision to phase the project was countered by its participation in a February 9, 2018 hearing, where the board discussed deferring an agreement on water delivery. The district court affirmed that the Board’s hearing notices did not violate S Bar's procedural due process rights. Additionally, the development agreement in question was determined not to be governed by the ECO provisions cited by S Bar, as those provisions apply only to development agreements tied to a rezoning request. The Board clarified that the agreement was created as a condition of the 2017 CUP Order, not related to a rezoning application. The agreement explicitly states it is not governed by Idaho Code section 67-6511A. The district court's conclusion that the development agreement fell outside the scope of ECO title 6, chapter 29, was upheld, with S Bar failing to demonstrate any error in this determination. Furthermore, the Board had made the record publicly available before the hearings, countering S Bar's claims regarding procedural due process violations. S Bar claims it was denied a meaningful chance to participate in hearings regarding a development agreement because drafts were only made available to the public during hearings on December 22, 2017, January 26, 2018, and February 9, 2018. S Bar argues that revisions made to the agreement during the February 9 hearing were not shared with the public. It cites Johnson v. City of Homedale and Fischer v. City of Ketchum, asserting that failure to provide necessary application materials prior to hearings constitutes reversible error. However, the cases cited are distinguishable; in those instances, applications lacked required materials that were only submitted during the hearings. The record indicates that S Bar was not deprived of access to drafts of the development agreement prior to the hearings. Public notices indicated that the record was available for review at the Land Use and Building Department and Elmore County Clerk’s Office before the hearings. Multiple drafts were already part of the record before December 22, and S Bar received copies before the January 26 and February 9 hearings, providing detailed written commentary on both occasions. The County attorney acknowledged S Bar’s input during the January 26 hearing and suggested continuing the discussions to address the comments. Thus, S Bar had the opportunity to review and comment on the drafts before the hearings, and the introduction of an amended agreement during the February 9 hearing did not impede its ability to participate. The development agreement was amended to remove specific language regarding water delivery to Elmore County, allowing for the deferral of Water Diversion and Delivery Agreements until after public notice and hearing, but before December 31, 2018, to prevent lapse of the Conditional Use Permit (CUP). S Bar claims this change materially altered the 2017 CUP approval by removing the hydro project from the agreement. However, the Board clarified that the hydroelectric component remained intact, as the agreement still detailed its construction aspects. Additionally, the provision for public notice and hearings ensures S Bar's opportunity for input on water delivery agreements. Regarding jurisdiction, S Bar argued that the Board lost authority to act after it filed an amended petition for judicial review. The Board countered that existing rules permit continued action unless a stay is granted. The district court upheld the Board's jurisdiction, stating that actions taken post-petition are valid but may be reversed upon judicial review. The court noted that the filing of a petition does not automatically stay agency actions, and further agency proceedings can continue unless specifically stayed by the court or agency. Idaho Rule of Civil Procedure 84 outlines the procedures for judicial review of local government actions when no specific statutory guidelines exist. It establishes that filing a petition does not automatically stay agency actions, though stays can be granted by the agency or court as permitted. If procedural details are not specified, they must align with Idaho Appellate Rules, except where contradicted by Rule 84. Both the Idaho Administrative Procedure Act (APA) and Rule 84 indicate that agency actions remain effective during the judicial review process; therefore, the Board could continue to address S Bar’s requests even after the review petition was filed. S Bar’s late motion for a preliminary injunction was rendered moot as the relevant hearing had already occurred. The court concluded that S Bar’s petition did not strip the Board of jurisdiction over reconsideration requests. The district court also denied Cat Creek’s request for attorney fees, finding that S Bar's actions were not frivolous. Cat Creek, which cross-appealed, argued that the court abused its discretion by not awarding fees under Idaho Code section 12-117(1), asserting S Bar's petition was obstructive. The standard for reviewing such fee awards is to determine if the trial court acted within its discretion, understood the issue as discretionary, and based its decision on reasonable grounds. Section 12-117 mandates the awarding of attorney fees to the prevailing party in cases involving a state agency or political subdivision if the nonprevailing party acted without a reasonable basis in fact or law, but it does not permit fee recovery between non-governmental parties based solely on the presence of a governmental entity. In the case referenced, the court upheld the district court's decision to deny attorney fees to Cat Creek from S Bar under Idaho Code section 12-117, clarifying that this statute does not permit recovery of fees from a private party merely because a governmental entity is involved in the litigation. The court affirmed that no party, including S Bar and Cat Creek, is entitled to attorney fees on appeal. S Bar sought fees against both the Board and Cat Creek, while Cat Creek sought fees against S Bar. The Board also requested fees from S Bar. The court determined that S Bar is not a prevailing party and therefore not entitled to fees under section 12-117. Although the Board is a prevailing party, the court declined to award it fees, reasoning that S Bar's appeal raised legitimate and non-frivolous issues. Additionally, the Board's requests for fees under sections 12-120(3) and 12-121 were denied, as these sections apply only to civil actions. The overall conclusion affirms the district court’s order and denies all fee requests. A case may be deemed frivolous, unreasonable, or lacking foundation if the judge determines it was improperly brought, pursued, or defended. A petition for judicial review is not classified as a civil action since it does not begin with a complaint. Consequently, sections 12-120(3) and 12-121 are not applicable for awarding attorney fees in judicial review petitions, leading to the decision not to grant the Board attorney fees under these sections. However, Cat Creek and the Board are entitled to costs on appeal as prevailing parties, as stipulated by Idaho Appellate Rule 40(a), which allows for cost awards in land-use decision appeals regardless of attorney fee availability under section 12-117. The district court's decision affirming the Board's actions regarding the 2017 CUP Order and 2018 CUP Amendment is upheld, with no attorney fees awarded on appeal but costs granted to both the Board and Cat Creek. Chief Justice Bevan and Justices Brody, Stegner, and Moeller concur.