Bopp v. City of Sandpoint, 15496

• Decision Date: 19 February 1986
• Docket Number: No. 15496,15496
• Citation: 110 Idaho 488,716 P.2d 1260
• Parties: Jack L. BOPP, Plaintiff-Appellant, v. CITY OF SANDPOINT and Cedar Street Bridge Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1260

716 P.2d 1260

110 Idaho 488

Jack L. BOPP, Plaintiff-Appellant, v. CITY OF SANDPOINT and Cedar Street Bridge Company, Defendants-Respondents.

No. 15496.

Supreme Court of Idaho.

Feb. 19, 1986.

Rehearing Denied April 22, 1986.

Bruce H. Greene, of Greene & Greene, Sandpoint, for plaintiff-appellant.

Michael C. Moore, Spokane, Wash., and Charlton Mills, Sandpoint, for defendant-respondent Cedar Street Bridge Co.

Philip H. Robinson, of Robinson, Vogel & Hunt, Sandpoint, for defendant-respondent City of Sandpoint.

BAKES, Justice.

In this the second of two lawsuits arising from the construction of a shopping mall on the Cedar Street Bridge in Sandpoint, Idaho, Jack L. Bopp sues the City of Sandpoint (city), contending that the city's ordinance vacating the public right-of-way in the Cedar Street Bridge and subsequent lease of the underlying property to the The dispute in this case centers around certain real property deeded to the city in fee simple in 1908. The property is an 80-foot wide strip of land which commences at the intersection of Cedar Street and Sand Creek in Sandpoint, Idaho, and then crosses to the east side of Sand Creek. In 1908-09, the city constructed a wood bridge known as the Cedar Street Bridge on the property. The bridge connected Cedar Street in the downtown business district of Sandpoint to the Burlington Northern Railroad depot and other property on the east side of Sand Creek. In 1969 the bridge was closed to vehicular traffic due to its deteriorating condition. Over the passage of time the bridge deteriorated even further. In 1978 the city council initially voted to demolish the bridge and a few days later voted to repair it instead. Repairs were never made due to lack of money. On April 28, 1980, for public safety reasons, the mayor ordered the bridge barricaded, even to pedestrian traffic.

[110 Idaho 489] Cedar Street Bridge Company (company) are void. The company, joined by the city, moved for and was granted summary judgment. The district court held, in sum, that Bopp had failed to state a cause of action both with regard to the vacation ordinance and the subsequent lease. We affirm the district court.

In June, 1980, the city council adopted resolution No. 19-80, authorizing the execution of an option to lease the bridge property to Scott Glickenhaus. (Glickenhaus is the general partner in the respondent company.) The following October the city entered into a formal lease (first lease) of the property with the company. Bopp challenged this lease in his first lawsuit against the city in district court and prevailed on his motion for summary judgment. The district court held the first lease void because, among other reasons, no formal action had been taken by the city to vacate the property as public right-of-way, and that the resolution authorizing the lease did not contain a determination that the property was not needed for city purposes. The district court's judgment in this first lawsuit was entered on September 23, 1982. It was not appealed. Shortly thereafter the city sought to remedy the faults found by the district court.

On October 12, 1982, at a special meeting of the Sandpoint City Council, a motion was adopted to commence proceedings to vacate the bridge right-of-way. A public hearing on the proposed vacation was held two weeks later, on October 28, 1982, after notice of the hearing was published twice in each of the local newspapers. On November 8, the Sandpoint City Council and the mayor approved Ordinance No. 767 declaring the bridge unnecessary for city purposes and vacating the public right-of-way portion of the bridge. (The ordinance claimed that the public's right-of-way was only a 32-foot wide strip inside the city's 80-foot ownership strip spanning Sand Creek.) Eight days later, on November 16, 1982, the city council adopted resolution No. 52-82 which declared that the real property in question (the entire 80 feet), owned in fee simple by the city, was not needed for public purposes and authorized a lease of that portion of the property to respondent Cedar Street Bridge Company. The resolution also found that the terms of the lease were just and equitable. ¹ The lease (second lease) was executed that same day.

Bopp commenced the present action in the district court on December 20, 1982, seeking both declaratory judgment and equitable relief from the city's actions in vacating the bridge and thereafter leasing it to the company. In essence, Bopp again seeks to have the lease declared void on grounds that: (1) the vacation ordinance is invalid; and (2) the terms of the lease are neither just nor equitable as required by I.C. § 50-1409.

I

We first address the issue of whether Bopp, who does not own any property adjacent In this case if the appellant Bopp can be said to have suffered some injury, it is one which is not special or peculiar to him; rather, it is one generally shared by all residents of the City of Sandpoint alike. The district court correctly applied the general rule "that only those who sustain some special or peculiar injury, differing in kind and not merely in degree from that sustained by the general public, are entitled to complain of a street vacation."

                [110 Idaho 490]  to the right-of-way being vacated, may nevertheless contest the validity of the vacation ordinance.  This Court early on, in Canady v. Coeur d'Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911), held that "a property owner has no cause of action against a municipality for damages to his or her property by the vacation of a public highway, where no part of his property abuts upon the portion of the highway vacated ..." (with two exceptions, neither of which are applicable here).  Canady v. Coeur d'Alene Lumber Co., 21 Idaho at 91, 120 P. at 834.   The Court in Canady relied on the earlier case of Stricker v. Hillis, 17 Idaho 646, 106 P. 1128 (1910), in which the Court held that in order to have a claim a property owner must suffer a loss not common to the public
                

Appellant alleges that even if his injury is one which is shared generally by all residents of the city, he may nevertheless state a cause of action against the city under our mandamus and prohibition statutes. The district court held that appellant's failure to specifically pray for the issuance of such writs constitute a basis for denying any relief under said statutes. However, we affirm the trial court because writs of mandate (and their counterpart, prohibition) will not issue to compel the performance of a purely discretionary function, Dalton v. Idaho Dairy Products Com'n, 107 Idaho 6, 684 P.2d 983 (1984); Lisher v. City and/or Village of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980); Saviers v. Richey, 96 Idaho 413, 529 P.2d 1285 (1974), vacation of streets under I.C. § 50-311 being such a discretionary function. Appellant's arguments regarding mandamus and prohibition, therefore, are without merit.

Appellant also argues that the Canady decision should be held inapplicable to his proceeding for relief under our declaratory judgment statute because Canady was decided prior to the enactment of the declaratory judgment statute. Appellant argues that the declaratory judgment provision is much broader in its scope as to those interests cognizable in courts of justice. Again, appellant argues that in a proceeding for declaratory judgment he need not allege some injury special or peculiar to himself. We disagree. In Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959), we specifically held that a taxpayer suit challenging the validity of a statute or municipal ordinance must allege an interest other than "such as is common to all other like-situated taxpayers...." Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho at 397, 342 P.2d at 722.

Accordingly, the district court did not err in dismissing Bopp's claim challenging the validity of the vacation ordinance. Likewise, the district court correctly concluded that Bopp may not challenge the ordinance indirectly via a challenge of the lease. Thus, to the extent appellant challenges the lease based on the validity of the vacation ordinance, he likewise fails to establish a cause of action. ²

II

The only other grounds advanced by appellant regarding the validity of the The decision of the district court is affirmed. Costs to respondents. No attorney fees.

                [110 Idaho 491] lease concern the adequacy of the terms.  I.C. § 50-1409 permits a municipality to lease city property "not needed for city purposes, upon such terms as may be just and equitable."   This power to lease is a purely discretionary function entrusted to the elected officials of the municipality and, absent a clear abuse of that discretion, any decision made thereunder will not be overturned on appeal.  Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964);  Moore v. Village of Ashton, 36 Idaho 485, 211 P. 1082 (1922) (courts may not inquire into motives behind legislative enactments or resolutions except as to acts which are purely ministerial).  Thus, absent allegation by appellant of any "glaring informality or illegality in the proceedings," Canady, 21 Idaho at 88, 120 P. at 833, relating to the resolution approving the lease, we will not disturb the city's determination that the terms of the lease are just and equitable.  Our review of the record fails to disclose any such allegations by appellant.  As a result, we conclude that appellant has likewise failed to state a cause of action relating to the validity of the lease
                

DONALDSON, C.J., and SHEPARD, J., concur.

HUNTLEY, J., concurs in result.

BISTLINE, Justice, dissenting.

I

If counsel for the parties and the district judge on reading the majority opinion recognize that it is the same case with which they wrestled, it will be a welcome surprise. The court below did not rule that the plaintiffs had failed to plead a cause of action, but rather ruled that the plaintiff was...