Brewster v. City of Pocatello, s. 17074

• Citation: 768 P.2d 765,115 Idaho 502
• Decision Date: 29 December 1988
• Docket Number: 17096,Nos. 17074,s. 17074
• Parties: E. (Al) BREWSTER, Logan D. Robinson, Glen S. Marshall, Isaac McDougall, and Ann McDougall, husband and wife, Peter D. Behrendt, Guy Anderst and Trevor Henderson, Plaintiffs-Respondents, v. CITY OF POCATELLO, a municipal corporation of Idaho, Richard S. Finlayson, Mayor of the City of Pocatello and the City Council of the City of Pocatello, Idaho, Defendants-Appellants, and People for a Progressive Pocatello, Inc., a non-profit corporation, Intervenor.
• Court: United States State Supreme Court of Idaho

Page 765

768 P.2d 765

115 Idaho 502

E. (Al) BREWSTER, Logan D. Robinson, Glen S. Marshall, Isaac McDougall, and Ann McDougall, husband and wife, Peter D. Behrendt, Guy Anderst and Trevor Henderson, Plaintiffs-Respondents, v. CITY OF POCATELLO, a municipal corporation of Idaho, Richard S. Finlayson, Mayor of the City of Pocatello and the City Council of the City of Pocatello, Idaho, Defendants-Appellants and People for a Progressive Pocatello, Inc., a non-profit corporation, Intervenor.

Nos. 17074, 17096.

Supreme Court of Idaho.

Dec. 29, 1988.

Rehearing Denied March 2, 1989.

J. Ivan Legler, Pocatello, for defendant-appellant City of pocatello.

Stephen G. Larsen, Pocatello, for plaintiffs-respondents.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for intervenor People for a Progressive Pocatello. John R. Goodell argued.

Lindsay, Hart, Neil & Weigler, Boise, for amicus Ass'n of Idaho Cities. Michael C. Moore argued.

SHEPARD, Chief Justice.

This is an appeal from a summary judgment granted by the district court against the city of Pocatello, holding invalid and prohibiting the enforcement of an ordinance which purported to impose a street restoration and maintenance fee upon all owners or occupants of property in the city of Pocatello pursuant to a formula reflecting the traffic which is estimated to be generated by that particular property. We affirm the summary judgment and the well-reasoned opinion of the district judge.

The district judge noted the deterioration of Pocatello city streets through the passage of time and severe winter conditions. The district court noted that the last successful bond election in Pocatello for street maintenance was in 1974. The Pocatello City Council since that time has considered street maintenance fees, and in 1982 a levy override election for street improvements failed. Thereafter the City Council considered various methods of street maintenance financing, and various advisory elections were held which essentially failed. Following a 1986 levy override election which failed, the City Council enacted the present Ordinance 2210 imposing a street restoration and maintenance fee which is the subject of the instant action.

Prior to the enactment of the instant ordinance, ad valorem tax revenues were utilized for the purposes of street repair and maintenance. The ordinance in question empowers the city to seek judgment against any who refuse to pay the street maintenance and restoration fee, and empowers the city to enforce any such judgment through a lien upon the real property of the delinquent party. As of the date of this appeal the city apparently has not attempted enforcement or collection of the fees authorized by the ordinance.

Plaintiffs-respondents brought the instant action to prohibit the enforcement of the collection terms of the ordinance. Joining in the appeal of the city of Pocatello are an intervenor, People For a Progressive Pocatello, Inc., and the Association of Idaho Cities as amicus.

At the district court level the city of Pocatello did not raise any issue as to the standing of these plaintiffs-respondents to maintain the action. However, at the lower court the intervenors asserted that plaintiffs-respondents lacked standing to challenge the street fee ordinance since it is argued they lack any special interest or injury peculiar to them. Such assertion would appear to find support in Bopp v. City of Sandpoint, 110 Idaho 488, 716 P.2d 1260 (1986); Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959). However, in the instant case it is clear that the issue of standing sought to be raised by the intervenor would equally deprive litigant status to the intervenors. We further note that the intervenors' argument of standing, if adopted, would prevent any judicial review unless and until an occupier or owner of property would refuse to pay the "fee" and collection was sought to be enforced by the city in a collection action. In any event, we view the decision of the district court on the standing issue as meritorious. Under the peculiar factual circumstances of the instant case it is in the interest of both the city and the plaintiffs-respondents that the question be resolved. Otherwise judicial review of a vexing question to both the city and the plaintiffs-respondents will be avoided with the only likely resolution being in the form of collection actions which will eventually require the resolution of the same question presented in the case at bar. Hence, we hold that in the instant case, and its unusual circumstances, justice is best served by resolution of the question.

We view all issues in this case as being subsumed in the question as to whether the street maintenance fee imposed by the Pocatello ordinance is a fee specifically authorized by I.C. § 63-2201A, or as contended by respondents it is a disguised tax and hence invalid as not having received voter approval.

We note initially that the need for the improvement of the streets in Pocatello is not contested. Hence, the issue is not the need for funding, and in essence that need is conceded. However, as noted by the district court, "The city council action is innovative if not revolutionary in local government funding." The sole issue appears to be whether absent legislative authority a municipality may impose a fee on the owners or occupants of property which abut public streets and which streets are open to public passage by the public in general.

In Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 427, 708 P.2d 147, 150 (1985), this Court held that art. 7, § 6 of the Idaho Constitution, "allows the legislature to 'invest in the corporate authorities ... the power to assess and collect taxes for all purposes of such corporation.' " Thus the grant of taxing power to cities is not self-executing or unlimited. It is limited by what taxing power the legislature authorizes in its implementing legislation.

There is no argument here that our legislature has authorized the imposition of such a tax if indeed it is denominated a tax. The city of Pocatello, however, contends that its street maintenance fee is specifically authorized by I.C. § 63-2201A. We disagree. That statute provides: "Notwithstanding any other provision of law, the governing board of any taxing district may impose and cause to be collected fees for those services provided by that district which would otherwise be funded by ad valorem tax revenues." We hold that while such statute provides for the imposition of certain fees, nowhere does it authorize a municipality to impose a tax upon users or abutters of public streets. While art. 7, § 6 of the Idaho Constitution permits municipal corporations to impose their own taxes, such power is limited by the taxing power authorized by the legislature. Sun Valley Co. v. City of Sun Valley, supra.

...