AGO 1991-O-0003.

• Case Date: March 07, 1991
• Court: Idaho

Idaho Attorney General Opinions 1991. AGO 1991-O-0003. March 7, 1991OPINION NO. 1991-O-0003ATTORNEY GENERAL OPINION NO. 91-3TO: Stanley F. Hamilton Director, Department of Lands Statehouse Mail Boise, Idaho 83720 QUESTION PRESENTED If the State Land Board acquires the Lindstrom Peak property which was the subject of Benewah County Ordinance No. 69, must the board abide by the terms of the county ordinance in its management activities, or should the department consider the constitutional endowment mandate as having precedence and manage accordingly without the restrictions of the ordinance?(Fn1) CONCLUSION The Idaho State Land Board need not abide by the Benewah County zoning ordinance in managing state lands for school trust purposes. The board, in its discretion, may look to the land use restrictions specified by the Benewah County ordinance for advice and recommendation in determining the future use and administration of these lands. ANALYSIS Before addressing the substance of your question, a short review of the facts may be helpful. As we understand it, the property in question involves several sections and portions of sections of land in Benewah County. This land was acquired by the Idaho Department of Fish and Game approximately 48 years ago, and has been managed since that time as a wildlife and recreation area. Recently, the Department of Fish and Game transferred the Lindstrom Peak lands to a private owner. The Department of Lands is now negotiating with the private owner to acquire the Lindstrom Peak lands. The department has determined that if such lands are acquired by the state, the best use of the lands is for timber production. At present, the Lindstrom Peak lands are not subject to a county wide zoning ordinance, and Benewah County has not completed the comprehensive planning process required by Idaho Code § 67-6508. Prior to completion of the transfer of the Lindstrom Peak lands to the Department of Lands, however, the Benewah County Board of County Commissioners adopted Ordinance No. 69. This ordinance stated that it was enacted in accordance with Idaho Code § 67-6523, which authorizes counties to adopt emergency zoning ordinances if a governing board finds that there is an imminent peril to the public health, safety or welfare. Ordinance No. 69 prohibits use of the Lindstrom Peak lands for any use other than wildlife management or recreation "pending a review of the area in context with a County Wide Zoning Ordinance to be developed by a newly appointed Zoning Commission." Ordinance No. 69 has since expired and been replaced with an interim ordinance including the same terms, in accordance with Idaho Code § 67-6524. Other than the interim ordinance, there is no comprehensive plan or permanent zoning ordinance affecting the Lindstrom Peak lands. The Local Planning Act The Local Planning Act, Idaho Code §§ 67-6501 to 67-6537, addresses the extent to which state agencies must abide by local zoning ordinances: The state of Idaho, and all its agencies, boards, departments, institutions, and local special purpose districts, shall comply with all plans and ordinances adopted under this chapter unless otherwise provided by law. In adoption and implementation of the plan and ordinances, the governing board or commission shall take into account the plans and needs of the state of Idaho and all agencies, boards, departments, institutions, and local special purpose districts. Idaho Code § 67-6528 (emphasis added). The section requires state agencies to comply with local zoning ordinances, but exempts state agencies from compliance if "otherwise provided by law." Such an exemption clearly exists for the state board of land commissioners (land board) by virtue of art. 9, §§ 7 and 8 of the Idaho Constitution (governing management of endowment lands), and title 58, chapter 1 of the Idaho Code (governing management of the...