Reconsideration, Judicial Review and Takings

Land use appeals are won and lost on calendars. Miss a 14-day window and the best argument in the county never reaches a judge. This lesson lays out the clock, then what a court actually does when a case arrives, then the separate track Idaho gives property owners who think a decision took their property.

Step one: reconsideration

Idaho Code 67-6535(2)(b) says anyone seeking judicial review of whether a decision meets the written-decision requirements must first ask for reconsideration within 14 days of the final decision. The request must be in writing and identify specific deficiencies. The decision maker can affirm, reverse or modify. It must issue a written decision within 60 days of receiving the request, or the request is deemed denied. Until this process is followed, the decision is not final for judicial review.

Then the 28-day clock for judicial review starts, from the written reconsideration decision or the end of the 60 days, whichever comes first. The appeal is from the final decision itself and is not limited to the issues raised in the reconsideration request. Local ordinances often add an internal appeal step, such as from a commission to the governing board, and 67-6521 requires all local remedies to be exhausted first.

Who can go to court

Under 67-6521(1)(a), an affected person is someone with a bona fide interest in real property that may be adversely affected by one of three kinds of decisions: the approval, denial or failure to act on a subdivision, variance, special use permit or similar application; an ordinance first zoning land upon annexation or a decision on a site-specific rezone; or a decision on a conditional rezone under 67-6511A. Applicants who are denied can also seek review. The procedure is the Idaho Administrative Procedure Act, Chapter 52 of Title 67.

Being an affected person gets you in the door. Winning takes more. Idaho Code 67-6535(3) tells courts to look at the proceedings as a whole, emphasize fundamental fairness and the essentials of reasoned decision making, and grant a remedy only to those who show "actual harm or violation of fundamental rights, not the mere possibility thereof." In Hawkins v. Bonneville County (2011), the Supreme Court held that a neighbor challenging variances had to show prejudice to a substantial right, such as lower land value or interference with his own use. A misapplied ordinance alone was not enough.

What the court can do

Judicial review is not a new hearing. The district court reads the record. Idaho Code 67-5279 sets the limits:

The court will set aside a decision that is	The court will not
In violation of constitutional or statutory provisions	Reweigh the evidence on questions of fact
In excess of the agency's statutory authority	Decide whether the project is wise policy
Made upon unlawful procedure	Reverse if no substantial right of the appellant was prejudiced
Not supported by substantial evidence on the record as a whole
Arbitrary, capricious, or an abuse of discretion

When a court does set a decision aside, the usual result is a remand to the local board to try again, according to Idaho Association of Counties training materials. Idaho courts have described a "strong presumption" that a zoning board's actions are valid and that it has correctly read its own ordinances, a line from Hawkins repeated in the 2015 Payette County case.

One open question for 2026: in 2024 the Legislature added subsection (5) to 67-5279. It tells courts not to defer to an agency's interpretation of a statute or rule, to interpret it fresh, and to resolve remaining doubt in favor of a reading that limits agency power and maximizes individual liberty. How that change interacts with the older presumption that local boards correctly read their own ordinances is a question this course could not find settled by the Idaho Supreme Court as of October 2026. Watch for it in appeals.

Legislative decisions, such as a plan amendment alone or a countywide text rewrite, are not on the 67-6521 list, and the Supreme Court has said legislative zoning decisions are not subject to direct judicial review. Area of impact boundaries are legislative by statute, with only narrow petitions available to cities. City-initiated annexations have their own 28-day appeal from publication of the ordinance.

The Regulatory Takings Act

The U.S. Constitution's Fifth Amendment and Article I, section 14 of the Idaho Constitution require just compensation when government takes private property. Regulation can go far enough to count as a taking. Idaho's Regulatory Takings Act, Chapter 80 of Title 67, adopted in 1994, sets up a process for checking before that happens. Section 67-8001 says the purpose is an orderly, consistent review, and that the chapter does not expand or shrink constitutional protections.

Here is how it works under 67-8003:

• The Attorney General must maintain a process and checklist, reviewed at least annually, and every state agency and local government must follow it.
• An owner whose property is the subject of an action can file a written request with the clerk. The local government must prepare a written taking analysis not more than 28 days after the final decision and provide it to the owner no later than 42 days after the request was filed.
• The analysis is public information and becomes part of the official record. Deadlines on the underlying action pause while it is prepared.
• If a requested analysis is not prepared, the action is voidable, and the owner can seek a declaratory judgment in district court in the county where the property sits.
• An owner does not have to request an analysis. Skipping it does not waive any claim for just compensation, a point the Legislature clarified in 2016.

Every final decision on a site-specific application must tell the applicant about this right (67-6519, 67-6535). Denials of rezones, special use permits, subdivisions, PUDs and variances, and approvals with conditions the owner finds unacceptable, can all trigger a request.

The Attorney General's checklist

The current Idaho Regulatory Takings Act Guidelines were issued in January 2023. The checklist in Appendix C asks six questions:

Question	Leading case the guidelines cite
1. Does the action result in a permanent or temporary physical occupation of private property?	Loretto v. Teleprompter (1982)
2. Does it require dedicating property or granting an easement, and if so, is there a nexus and rough proportionality to the impacts?	Nollan (1987), Dolan (1994)
3. Does it require spending money on items lacking rough proportionality to the social costs of the use?	Koontz (2013)
4. Does it deprive the owner of all economically viable use?	Lucas (1992)
5. Does it have a significant impact on the owner's economic interest?	Tahoe-Sierra (2002) and value-comparison cases
6. Does it deny a fundamental attribute of ownership, such as the right to possess, exclude or dispose?	Dolan, Hodel v. Irving (1987), Horne (2015)

The guidelines are careful to say a "yes" does not mean a taking occurred. It means a constitutional issue may exist and the action should be reviewed closely. They also address moratoriums, which Idaho allows for up to 182 days on an emergency basis (67-6523) and up to one year on an interim basis (67-6524), each with written findings.

Property rights view of the Act	Planning view of the Act
Forces government to think about owners before acting, and gives owners a paper trail	Adds cost and delay, and most analyses conclude no taking occurred
The voidable remedy gives the requirement real teeth	Fear of a takings claim can chill reasonable conditions that protect neighbors
Component (a) of every comprehensive plan reinforces it	Constitutional limits apply regardless; the Act does not expand them, by its own terms