When the State of Idaho operates land or facilities inside a county, does the state agency have to comply with the county's zoning ordinances?
Plain-English summary
Owyhee County asked whether state agencies have to follow county zoning rules. The short answer is: yes, with exceptions.
The Local Planning Act of 1975 (Idaho Code §§ 67-6501 to 67-6537) lets cities and counties adopt comprehensive plans and zoning ordinances. § 67-6528 explicitly extends compliance to "[t]he state of Idaho, and all its agencies, boards, departments, institutions, and local special purpose districts," unless "otherwise provided by law." That last clause is what carries the weight.
There are two ways an agency can be exempt. First, a statute can expressly say so. The Local Planning Act itself exempts "transportation systems of statewide importance" and certain public utility projects. Second, exemption can be implied. If the constitution or a state statute creates a comprehensive scheme for a particular activity (the AG cites prior opinions on the State Board of Land Commissioners and the Lake Protection Act), that scheme can preempt local zoning of that activity even without saying so explicitly.
The opinion stresses that this analysis is case by case. The default is compliance with local zoning. The county can rebut that default by pointing to a specific statute or constitutional provision that gives the state agency authority that conflicts with the local ordinance. The same § 67-6528 also tells local governments to take state plans and needs into account when they adopt their own ordinances, suggesting cooperation more than confrontation.
Currency note
This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Idaho's local planning authority flows from the state to its political subdivisions, not the other way around. Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498 (1918), established that municipal corporations exercise only the powers the state has expressly or impliedly granted. The Local Planning Act of 1975 then granted broad planning and zoning authority to cities and counties (Worley Highway District v. Kootenai County, 104 Idaho 833 (Ct. App. 1983)).
Idaho Code § 67-6528 is the centerpiece. It does two things at once. It commands state agencies to comply with local zoning ("shall comply with all plans and ordinances adopted under this chapter unless otherwise provided by law") and it commands local governments to consider state plans and needs when they adopt their own ordinances ("the governing board or commission shall take into account the plans and needs of the state of Idaho and all agencies, boards, institutions, and local special purpose districts"). The reciprocal structure is the legislature's nod to the obvious: state and local governments often need the same land for incompatible uses.
The constitutional backdrop is Idaho Constitution, art. 12, § 2, which lets counties and cities make local police, sanitary, and other regulations "as are not in conflict with the general laws." The "not in conflict" clause is what gives implicit preemption its teeth. Caesar v. State, 101 Idaho 158 (1980), and Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687 (1987), both quoted in the opinion, explain that conflict can arise either from a direct collision between specific provisions or from a state statutory scheme so comprehensive that it implies an intent to fully occupy the field.
The opinion's specific examples of implied preemption come from prior AG opinions: AG Op. 91-3, on the State Board of Land Commissioners' constitutional and statutory authority over the best use of state lands, and AG Op. 83-6, on the Lake Protection Act's pervasive scheme for navigable-lake encroachments. In both, the AG concluded the state authority displaced the Local Planning Act for the activities those statutes governed.
Common questions
Does the answer change for a state university campus, a state highway project, or a state prison?
The opinion does not say yes or no across the board. The Local Planning Act expressly exempts "transportation systems of statewide importance," which would catch most state highway work. For other state activities, the analysis depends on whether the activity is governed by a comprehensive state regulatory scheme (implied preemption) or whether some other statute names the activity (express preemption). Each case turns on the facts and the statutes involved.
What does "take into account" mean for the county side of § 67-6528?
The opinion reads it as a substantive condition on the application of local zoning to state lands, not just a planning hortatory. If the county adopts a zoning ordinance without consulting state agencies whose lands or facilities are affected, that failure could be raised when the ordinance is later applied to a state agency.
If the state and the county disagree, who decides?
The opinion does not answer this directly. In practice, disputes go to court, and the court would walk the same express/implied preemption framework. The opinion encourages cooperation and notes that local governments "should work closely with state agencies when enacting zoning ordinances that apply to lands under state control."
Does federal land in the state come within this opinion?
No. The opinion is about Idaho state agencies. Federal land use is governed by federal supremacy, federal land management statutes, and federal regulations. Counties have very limited zoning authority over federal land in any case.
Citations
Idaho Constitution: art. 12, § 2 (local police, sanitary, and other regulations "not in conflict with the general laws").
Idaho statutes: Idaho Code §§ 67-6502 to 67-6528 (Local Planning Act, including comprehensive-plan requirement, state-agency compliance clause, and obligation of local governments to take state plans and needs into account).
Cases: Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918) (Idaho Supreme Court; municipal corporations exercise only delegated powers); Worley Highway District v. Kootenai County, 104 Idaho 833, 633 P.2d 1135 (Ct. App. 1983) (Local Planning Act as broad delegation); Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980) (Idaho Supreme Court; conflict-and-implied-preemption framework); Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687, 735 P.2d 998 (1987) (Idaho Supreme Court; intent to fully occupy field).
Other authorities: Idaho Attorney General Op. No. 83-6, Annual Report at 74 (1983) (Lake Protection Act preempting local regulation of navigable-lake encroachments); Idaho Attorney General Op. No. 91-3, Annual Report at 41 (1991) (State Board of Land Commissioners exempt from Local Planning Act).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP92-05.pdf
Original opinion text
ATTORNEY GENERAL OPINION NO. 92-5
TO:
Richard Bass
George Hyer
Chester Sellman
Board of Commissioners, Owyhee County
Courthouse, P.O. Box 128
Murphy, Idaho 83650
QUESTION PRESENTED
Are lands under the jurisdiction of the various executive agencies of the State of
Idaho subject to zoning laws enacted by a county?
CONCLUSION
A state agency must comply with valid county ordinances enacted pursuant to the
Local Planning Act, Idaho Code §§ 67-6501 to 67-6537, unless a statutory or
constitutional provision provides an express exemption for the agency or impliedly
preempts the application of the ordinance. Whether the activities of a particular state
agency are exempt from regulation or whether the application of a particular ordinance to
an agency is preempted by other provisions of law must be determined on a case-by-case
basis.
ANALYSIS
The Local Planning Act of 1975 allows cities and counties to enact planning and
zoning laws pursuant to the terms of the Act. These terms include the preparation by
each city or county of a comprehensive plan. Idaho Code § 67-6508. The purpose of
such plans is to "promote the health, safety, and general welfare of the people," by
protecting natural resources, promoting the best use of available lands and enhancing the
economy. See Idaho Code § 67-6502.
The Local Planning Act has been construed as a delegation of broad planning and
zoning powers to local governing boards. Worley Highway District v. Kootenai County,
104 Idaho 833, 633 P.2d 1135 (Ct. App. 1983). This delegation of authority to local
governments, however, must be carefully applied when a local government attempts to
regulate properties owned or controlled by the state. "[A] municipal corporation, as a
creature of the state, possesses and exercises only those powers either expressly or
impliedly granted to it." Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho
498, 503, 173 P. 972, 977 (1918). Since the authority of local governments is derived
from the state, it necessarily follows that local governments may not exercise control over
the activities of the state, absent a delegation of such authority in a statutory or
constitutional provision.
Such a delegation does occur in the Local Planning Act. "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." Idaho Code § 67-6528 (emphasis added). This section expresses a
legislative policy that state agencies should comply with local zoning ordinances, but
reserves the right to exempt state agencies from compliance where necessary to fulfill
state policies. Thus, if the constitution or statutes of the state of Idaho exempt a state
agency from compliance, local governments may not apply zoning ordinances to that
agency. In some cases, an exemption may be express on the face of a statute. An
example of express preemption is found in the Local Planning Act itself, which exempts
"transportation systems of statewide importance," and certain public utility projects, from
the Act's provisions. Idaho Code § 67-6528.
The legislature is not required, however, to expressly provide that a particular state
activity is exempt from the provisions of the Local Planning Act. Legislative intent to
preempt local zoning authority may be implied if there is a direct conflict between a
general statute or regulation and a local ordinance. See Caesar v. State, 101 Idaho 158,
161, 610 P.2d 515, 518 (1980). The doctrine of state preemption of conflicting local
ordinances is grounded in the Idaho Constitution:
Any county or incorporated city or town may make and enforce, within its
limits, all such local police, sanitary and other regulations as are not in
conflict with the general laws.
Idaho Constitution, art. 12, § 2 (emphasis added).
Preemption is also inferred if a statutory scheme indicates the legislature's intent to
completely regulate a particular subject matter:
Where it can be inferred from a state statute that the state has intended to
fully occupy or preempt a particular area, to the exclusion of [local
governmental entities], a [local] ordinance in that area will be held to be in
conflict with the state law, even if the state law does not so specifically
state.
Envirosafe Services of Idaho, Inc. v. County of Owyhee, 112 Idaho 687, 689, 735 P.2d
998, 1000 (1987), quoting Caesar v. State, 101 Idaho 158, 161, 610 P.2d 517, 520 (1980)
(alterations in original).
Several examples of implicit preemption of the Local Planning Act have been
addressed previously by this office. In Attorney General Opinion 91-3, we reviewed the
constitutional and statutory provisions vesting the State Board of Land Commissioners
("Land Board") with authority to decide the best use or uses of state lands. We
concluded that such provisions impliedly exempted the Land Board from compliance
with the Local Planning Act. Idaho Attorney General's Annual Report for 1991, at 41.
Similarly, in Attorney General Opinion 83-6, we addressed the preemptive effect of the
Lake Protection Act, which vests the Land Board with comprehensive authority to
control encroachments on navigable lakes. We concluded that the enactment of the Lake
Protection Act's pervasive and comprehensive regulatory scheme manifested the
legislature's intent that the Land Board's regulations would be exclusive. Idaho Attorney
General's Annual Report for 1983, at 74.
Additionally, it should be noted that in enacting the Local Planning Act, it was the
legislature's intent that local governments must take steps to minimize conflicts between
local zoning ordinances and the land use plans of state agencies, as shown by the
following provision:
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, institutions, and local special purpose
districts.
Idaho Code § 67-6528 (emphasis added). This provision, in conjunction with the
provision requiring state agencies to comply with local zoning ordinances, promotes
cooperation between state and local governments in determining the best uses of lands
owned or possessed by state agencies. In fact, the mandatory language of the above
provision suggests that it is a condition that must be fulfilled before local zoning
ordinances are applied to state lands. Thus, in order to ensure compliance with the
authorities delegated under the Local Planning Act, local governments should work
closely with state agencies when enacting zoning ordinances that apply to lands under
state control.
AUTHORITIES CONSIDERED
1.
Idaho Constitutional Provisions:
Idaho Constitution art. 12, § 2.
2.
Idaho Statutes:
Idaho Code §§ 67-6502 to 6528.
3.
Idaho Cases:
Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P.2d 972
(1918).
Caesar v. State, 101 Idaho 158, 610 P.2d 517 (1980).
Worley Highway District v. Kootenai County, 104 Idaho 833, 633 P.2d 1135 (Ct.
App. 1983).
Envirosafe v. County of Owyhee, 112 Idaho 687, 735 P.2d 998 (1987).
4.
Other Authorities:
Idaho Attorney General Op. No. 83-6, Annual Report, at 74 (1983).
Idaho Attorney General Op. No. 91-3, Annual Report, at 41 (1991).
Dated this 1st day of December, 1992.
LARRY ECHOHAWK
Attorney General
State of Idaho
Analysis by:
STEVEN W. STRACK
Deputy Attorney General
Natural Resources Division