Ada County v. Henry, 14032

Decision Date02 June 1983
Docket NumberNo. 14032,14032
Citation668 P.2d 994,105 Idaho 263
PartiesCOUNTY OF ADA, a political subdivision of the State of Idaho, Plaintiff- Respondent, v. Claude J. HENRY and Ann L. Henry, husband and wife, Defendants-Appellants.
CourtIdaho Supreme Court

Richard H. Greener, Clemons, Cosho & Humphrey, Boise, for defendants-appellants.

Greg H. Bower, Pros. Atty., Ada County, Mary S. Hobson, Boise, for plaintiff-respondent.

SHEPARD, Justice.

This is an appeal from the issuance of a permanent injunction. The action here involved was brought against defendants-appellants who, despite repeated warnings and restraining orders, persisted in the continued construction of a dwelling on their property, in violation of ordinances relating to zoning and building permits. We affirm.

In August of 1979, Ada County ordinances prohibited the subdivision of property within Ada County without prior approval of the county zoning commission. One Loveland owned a 40-acre tract of unplatted and undeveloped land fronting on Amity county road within Ada County. Without the requisite commission approval, he divided the 40-acre parcel and sold a 10-acre piece thereof to the defendants-appellants herein, Claude and Ann Henry. Another ordinance regulated the minimum lot size within the zone where the property was located and prohibited construction of single family dwellings unless lot size was at least 80 acres. Loveland allegedly represented to the defendants-appellants that they would be able to obtain a building permit for a house on the property.

Evidently, Loveland attempted unsuccessfully to obtain a building permit for the Henrys and the Henrys themselves submitted a building permit application. The Henrys' application was denied by the zoning staff on the bases that Loveland's property had been subdivided without prior approval and that the property did not meet the 80-acre minimum lot size. That denial of the building permit application was appealed to the Ada County Zoning Commission, which affirmed the denial.

Meanwhile, the Henrys, although lacking the requisite building permits, began excavation and the laying of a foundation for a house on the property. Suit was filed to enjoin that continued construction and a temporary restraining order was issued, prohibiting any further construction. A hearing was scheduled for November 28, 1979 to determine if a preliminary injunction should be issued. Since they had been advised by legal counsel that any effort to protest the injunction would be useless, the Henrys did not appear at that hearing and a preliminary injunction (not part of the record here) was entered on December 4, 1979.

In March 1980, the Henrys again applied for a zoning certificate and building permit. The staff of the zoning commission again denied the application, and again appeal was taken to the Ada County Zoning Commission. The zoning commission granted the relief sought by the Henrys and ordered the issuance of the zoning certificate. However, a member of the zoning staff filed an "appeal" from the decision of the zoning commission to the next level of administrative authority, i.e., the Ada County Board of County Commissioners. The county commissioners reversed the decision of the zoning commission and reinstated the decision of the zoning staff, thereby leaving the Henrys without any authority to construct the house. We emphasize that no appeal from that decision of the county commission was taken by any party.

In July 1980, Ada County ascertained that the Henrys were still proceeding in the construction of the house, and the county moved for an order to show cause why the Henrys should not be found in contempt for violation of the December 1979 preliminary injunction. A hearing was held on September 3, 1980, at which Mr. Henry testified that he had been building continually from the fall of 1979 to the date of the hearing but promised the court that he would discontinue further construction. The court granted the county an additional restraining order and took the remainder of the matter under advisement to allow the county time to show proof of service of the preliminary injunction.

On September 4, 1980, the day following the hearing, the Henrys filed their answer and counterclaim, alleging a cause of action under 42 U.S.C. § 1983, praying for an injunction against the enforcement of the Ada County subdivision and zoning ordinances, and demanding a jury trial. On December 11, 1980, summary judgment was entered against the Henrys on their counterclaim and they were permanently enjoined from further construction and/or occupation of the dwelling.

The Henrys assert that the Ada County subdivision and zoning ordinances constitute an unconstitutional taking of their property without just compensation and that the ordinances thereby contravene the fifth amendment to the United States Constitution and Idaho Const. art. 1, § 14. It is clear that the fifth amendment's prohibition applies as against the individual states through the application of the fourteenth amendment. San Diego Gas & Elec. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). We view the recent United States Supreme Court decision in Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), as dispositive of the Henrys' assertions as they relate to the fifth amendment to the United States Constitution. In Agins, appellants had acquired five acres of unimproved prime suburban view property overlooking San Francisco Bay. Some time thereafter the city of Tiburon enacted zoning ordinances, which placed the property into a category "devoted to one-family dwellings, accessory buildings, and open-space uses." Density restrictions within the ordinance limited construction to five single family residences on the five-acre tract. Shortly thereafter, the city of Tiburon initiated a condemnation action to acquire the land, but later the city abandoned those proceedings and the action was dismissed. Action was brought seeking two million dollars in damages for inverse condemnation or for a declaration that the zoning ordinances were unconstitutional as violative of the fifth and fourteenth amendments to the United States Constitution. It was contended that the city had completely destroyed the value of the property for any purpose or use whatsoever. The city of Tiburon demurred, asserting that the complaint failed to state a cause of action. The trial court and the California Supreme Court agreed, 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), and dismissed the action.

On appeal, the United States Supreme Court cited Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), affirmed the decision of the California courts, and held that the zoning ordinances did not, on their face, constitute a taking of the appellants' property without compensation. The Court stated, 447 U.S. at 261-262, 100 S.Ct. at 2141-2142:

"In this case, the zoning ordinances substantially advance legitimate governmental goals. The State of California has determined that the development of local open-space plans will discourage the 'premature and unnecessary conversion of open-space land to urban uses.' ... The specific zoning regulations at issue are exercises of the city's police power to protect the residents of Tiburon from the ill effects of urbanization. Such governmental purposes long have been recognized as legitimate. See Penn Central Transp. Co. v. New York City, supra, [438 U.S. 104] at 129 [98 S.Ct. 2646 at 2661, 57 L.Ed.2d 631]; Village of Belle Terre v. Boraas, 416 U.S. 1, 9 [94 S.Ct. 1536, 1541, 39 L.Ed.2d 797] (1974); Euclid v. Ambler Co., supra, [272 U.S. 365] at 394-395 [47 S.Ct. 114, 120-121, 71 L.Ed. 303].

"The ordinances place appellants' land in a zone limited to single-family dwellings, accessory buildings, and open-space uses. Construction is not permitted until the builder submits a plan compatible with 'adjoining patterns of development and open space.' ... The zoning ordinances benefit the appellants as well as the public by serving the city's interest in assuring careful and orderly development of residential property with provision for open-space areas. There is no indication that the appellants' 5-acre tract is the only property affected by the ordinances. Appellants therefore will share with other owners the benefits and burdens of the city's exercise of its police power. In assessing the fairness of the zoning ordinances, these benefits must be considered along with any diminution in market value that the appellants might suffer."

Although we deem the brief opinion in Agins, albeit unanimous, as murky and unresponsive to many of the broad issues inherent in the factual pattern, it appears clear that a zoning ordinance which downgrades the economic value of property does not constitute a taking of property without compensation in violation of the United States Constitution, at least where, as in Agins, some residual value remains in the property.

The facts of Agins present a much more compelling scenario for the finding of a United States Constitution violation than is present here. In Agins, the landowners had acquired the subject property prior to the enactment of the zoning ordinance in question and had, of course, reasonable expectations of realizing great profit. They clearly were deprived of at least that profit and perhaps of the entire value of their lands. In the instant case, the Henrys could and should have ascertained, and are charged with knowledge of, the zoning and building restrictions which were applicable to the land at the time they acquired it. Indeed, we note that the seller discussed with the Henrys potential problems of obtaining a building permit.

We hold that, under the facts presented in the instant case, the Ada County...

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6 cases
  • Cottonwood Farms v. Board of County Com'rs of County of Jefferson, 86SC218
    • United States
    • Colorado Supreme Court
    • October 31, 1988
    ...not "taken" the property, but has merely created an obstacle to the possibility of obtaining windfall profits. See County of Ada v. Henry, 105 Idaho 263, 668 P.2d 994 (1983). Moreover, the fact that the plaintiff may have paid more than the land was worth under existing zoning in the hope o......
  • McCuskey v. Canyon County Com'rs, 21602
    • United States
    • Idaho Supreme Court
    • February 20, 1996
    ...a taking by the government, especially if some residual value remains after the enactment of the ordinance, County of Ada v. Henry, 105 Idaho 263, 266, 668 P.2d 994, 997 (1983), the issue of whether the County's actions here can properly be construed as a taking at all was not decided by th......
  • Covington v. Jefferson County
    • United States
    • Idaho Supreme Court
    • August 16, 2002
    ...of the ordinance." McCuskey v. Canyon County Comm'rs, 128 Idaho 213, 216, 912 P.2d 100, 103 (1996) (citing County of Ada v. Henry, 105 Idaho 263, 266, 668 P.2d 994, 997 (1983)); Sprenger Grubb & Assoc. v. Hailey, 127 Idaho 576, 581, 903 P.2d 741, 746 (1995); Intermountain West, Inc. v. Bois......
  • Sprenger, Grubb & Associates, Inc. v. City of Hailey
    • United States
    • Idaho Supreme Court
    • September 29, 1995
    ...P.2d 234, 237 (1985); Intermountain West, Inc. v. Boise City, 111 Idaho 878, 880, 728 P.2d 767, 769 (1986); County of Ada v. Henry, 105 Idaho 263, 266, 668 P.2d 994, 997 (1983). " '... In considering this point the distinction must be made between zoning regulations which merely restrict th......
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