Ada County v. Fuhrman

Decision Date21 May 2004
Docket NumberNo. 29480.,29480.
PartiesADA COUNTY, Plaintiff-Respondent, v. James A. FUHRMAN and Diane C. Fuhrman, Defendants-Appellants.
CourtIdaho Supreme Court

John B. Todd, Boise, for Appellants.

Greg H. Bower, Ada County Prosecuting Attorney, Boise, for Respondent. Alexander C. Yewer argued.

TROUT, Chief Justice.

I. FACTUAL AND PROCEDURAL BACKGROUND

James and Diane Fuhrman (Fuhrmans) own eight acres of bare ground near Garden City in Ada County, Idaho. In 1997, the Fuhrmans advertised for fill dirt for the property and allowed fill dirt to be placed on it. The property includes a sloping embankment with Settler's irrigation canal at the top. The fill dirt was placed on the embankment, which now exceeds a 15% slope.

On June 22, 2001, Thomas Scholtens (Scholtens) of Ada County Development Services, issued a stop work order to the Fuhrmans, instructing them that their project violated the Ada County Building Code and informing them they needed to apply for and obtain an Ada County grading and excavation permit. The Fuhrmans immediately stopped work on the property by not adding any additional fill, but left the existing fill in place.

Ada County had previously adopted as part of the Ada County Building Code, the Uniform Building Code (UBC), including UBC Appendix Chapter 33 (entitled "Grading and Excavation"). Under UBC Appendix Chapter 33 (Chapter 33), people desiring to do grading or excavation are required to obtain a permit unless one of the specific exemptions applies. Further, as part of the zoning regulations, Ada County adopted the "Hillside Overlay District" (HOD) provisions which require that no grading or excavation of any kind can begin on slopes exceeding 15% until the grading plan is approved and a grading permit obtained.

On July 24, 2001, Scholtens and Ada County assistant engineer Jeffery Patlovich (Patlovich), went to the property to determine whether the remaining fill was safe. Scholtens determined that no imminent danger existed necessitating any corrective action under Chapter 33. As Scholtens later stated in his affidavit, even though no imminent danger existed, it was clear to him that the "work being done by Mr. Fuhrman is subject to [Chapter 33]. Specifically, the engineered grading requirement that would require Mr. Fuhrman to retain the services of an engineer and to prepare and submit the appropriate plans with the required information under [Chapter 33]." Scholtens also stated the reason he decided a permit was necessary is that the slope on the Fuhrmans' property was steeper than 15% and he was concerned for the integrity of the canal embankment.

Ada County filed a complaint against the Fuhrmans October 2, 2001, alleging the Fuhrmans allowed fill dirt to be placed on property without obtaining the necessary grading and excavation permits and the use was a violation under Chapter 33. The Fuhrmans submitted an engineering plan with a grading permit application on October 18, 2001. The Fuhrmans' engineering plan did not comply with the HOD provisions and, more specifically, the engineering plan did not include a geotechnical report of how the fill would be engineered to support the final use of the property. Also missing from the plan was a description of the plants on the canal embankment, a description of a benching or terracing of the embankment to prevent sliding, and a description of the appropriate amount of compaction. As a result of these deficiencies, Scholtens rejected the Fuhrmans' engineering plan and grading application.

On January 2, 2002, Ada County amended its complaint, alleging that the requirements of the HOD applied to the Fuhrmans' property and further alleging the Fuhrmans continued to allow fill to be placed on their property. Ada County requested a permanent injunction requiring the Fuhrmans to: 1) stop violating Ada County Code by allowing fill to be placed on their property; 2) apply for proper permits; and 3) bring the existing fill into compliance.

The Fuhrmans' filed an answer to the amended complaint and denied that the code sections applied to their property and denied that they permitted fill dirt on the property without first obtaining permits from Ada County. The Fuhrmans also filed a counterclaim, alleging Ada County's actions constitute an improper taking of property in violation of the Fuhrmans' constitutional rights.

The Fuhrmans moved for partial summary judgment and included an affidavit of James Fuhrman and Ada County filed a cross-motion for partial summary judgment on the Fuhrmans' counterclaims and in support included affidavits of Scholtens and Patlovich.

On November 12, 2002, the district court issued its Findings of Fact and Conclusions of Law concerning the motions for partial summary judgment. The district court concluded that there were no genuine issues of material fact and that: 1) Ada County had not violated any of the Fuhrmans' asserted constitutional rights, 2) Ada County suffered irreparable harm by the Fuhrmans' activities and will continue to suffer irreparable harm until the Fuhrmans comply with the Ada County Code provisions, 3) Ada County is entitled to a permanent injunction ordering the Fuhrmans to comply, 4) the Fuhrmans' property is subject to Ada County Code, and 5) the provisions at issue are a reasonable application of Ada County's police powers. The district court then granted Ada County's motion for partial summary judgment.

After additional argument, the district court issued another decision denying the Fuhrmans any relief on their counterclaims. The district court then entered a judgment enjoining the Fuhrmans from further actions in violation of the Ada County Code and ordering the Fuhrmans to apply for the proper permits and submit engineered grading plans in compliance with the Ada County Code within ninety days. The Fuhrmans were also ordered to bring the fill into compliance. The Fuhrmans then filed a timely appeal.

II. STANDARD OF REVIEW

This Court's review of a trial court's ruling on a motion for summary judgment is the same as that required of the trial court when ruling on the motion. City of Sandpoint v. Sandpoint Independent Highway District, 139 Idaho 65, 72 P.3d 905, 907 (2003); Sun Valley v. Rosholt, Robertson & Tucker, 133 Idaho 1, 3, 981 P.2d 236, 238 (1999). The law is well established in Idaho that on a motion for summary judgment, the trial court must determine whether the pleadings, depositions, and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); 56(c); Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). On appeal, this Court exercises free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.App.1986).

III. DISCUSSION
A. The amended complaint

In this appeal, the Fuhrmans initially represented themselves pro se in submitting their briefs on appeal. While they stated issues in their initial brief, the argument which followed is not entirely clear. They argue the district court erred in granting summary judgment to Ada County and we will address that, as well as some sub-issues which appear to be encompassed in that issue.

Initially, the Fuhrmans argue that the district court improperly referenced in the Findings of Fact and Conclusions of Law a "danger to public health, safety and welfare," which the Fuhrmans argue was not properly pled in Ada County's amended complaint. In the initial complaint, Ada County alleged the Fuhrmans permitted fill dirt to be placed on property without obtaining permits in violation of Chapter 33 and in the amended complaint, Ada County further alleged the Fuhrmans violated the HOD provisions. Admittedly, Ada County did not allege that the fill on the Fuhrmans' property was a danger to public health, safety and welfare. In the Findings, the district court found that Chapter 33 and the HOD applied to the Fuhrmans' property and the Fuhrmans violated these provisions. The district court went on to find that "even without the authority of UBC 33 and HOD 8-3H-1, Ada County had the inherent power to enjoin the Fuhrmans' activities to protect the public health, safety and welfare of citizens and property."

In looking at the Findings and Conclusions, it appears the district court did not rest its findings on a danger to public health, safety, and welfare analysis. Instead, the district court specifically concluded Chapter 33 and the HOD applied to the Fuhrmans' property and the Fuhrmans did not comply with those provisions. The district court then merely commented that...

To continue reading

Request your trial
3 cases
  • State v. Rogers
    • United States
    • Idaho Supreme Court
    • May 21, 2004
    ... ... He further stated: ... I am writing concerning any possible detainers [or] outstanding warrants in or 91 P.3d 1130 around Bonner County, Sandpoint, Idaho ... Before I was able to go to court, Dallas, Tx. Came and picked me up on a Blue Warrant. So I was never sentenced! Can you tell ... ...
  • Andersen v. Professional Escrow Services
    • United States
    • Idaho Supreme Court
    • August 16, 2005
    ...genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ada County v. Fuhrman, 140 Idaho 230, 232, 91 P.3d 1134, 1136 (2004). We liberally construe the facts and draw reasonable inferences from the record in favor of the nonmoving party. A......
  • Roe v. Albertson's Inc.
    • United States
    • Idaho Supreme Court
    • May 4, 2005
    ...genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ada County v. Fuhrman, 140 Idaho 230, 232, 91 P.3d 1134, 1136 (2004). We liberally construe the facts and draw all reasonable inferences from the record in favor of the nonmoving part......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT