Burns Holding, LLC (plaintiff) bought property to build a concrete plant in an area subject to the nearby City of Driggs’s zoning ordinances. A Driggs zoning ordinance limited the height of buildings to 45 feet “unless approved by conditional use permit” (CUP) (also called a special-use permit). Because Burns wanted to build a structure 75 feet high, it applied to the city for a CUP to exceed the 45-foot height limit. However, the Local Land Use Planning Act (LLUPA) did not allow waiver of a height restriction using a CUP. Instead, both the plan and Idaho state law required a variance to exceed a zoning ordinance height restriction. But the city initially approved the CUP and sent it to the Teton County Board of Commissioners (defendant) for approval. Confusion emerged at the county hearing, with the board’s chairman using the terms CUP and variance interchangeably. Ultimately the county denied the CUP, and Burns petitioned for judicial review. The court remanded the matter back to the county to prepare written findings and a statement of its reasons for denying the CUP. After it did so, Burns filed another petition for judicial review. Almost two and a half years after Burns originally applied for the CUP, the county asserted for the first time that it had to deny the application because LLUPA required a variance to waive the height restriction. The court found the county’s submission inadequate and remanded the issue once more to the county. The county submitted amended findings and reasoning denying the CUP application because Idaho law required a variance to obtain a height restriction waiver. Burns again petitioned for judicial review. The trial court rejected the argument that waiving the height limit required a variance but upheld the CUP’s denial on other grounds. Burns appealed.