Canal/Norcrest/Columbus Action Committee v. City of Boise

• Decision Date: 28 December 2001
• Docket Number: No. 25962.,25962.
• Citation: 39 P.3d 606,136 Idaho 666
• Parties: CANAL/NORCREST/COLUMBUS ACTION COMMITTEE, an unincorporated group of affected persons, Petitioner-Appellant, v. CITY OF BOISE, an Idaho municipal corporation, acting through the Boise City Council, Respondent.
• Court: Idaho Supreme Court

39 P.3d 606

136 Idaho 666

CANAL/NORCREST/COLUMBUS ACTION COMMITTEE, an unincorporated group of affected persons, Petitioner-Appellant, v. CITY OF BOISE, an Idaho municipal corporation, acting through the Boise City Council, Respondent.

No. 25962.

Supreme Court of Idaho, Boise, February 2001 Term.

December 28, 2001.

Matt J. Howard, Boise, argued for appellant.

Randall S. Grove, Boise, argued for respondent.

WALTERS, Justice.

This appeal requires that we determine whether the City of Boise's conditional use approval of a planned unit development in a mandatory design review zone is a final decision by the City that is ripe for review. We hold that it is, and we therefore reverse the district court's dismissal of the petition for judicial review of the conditional use approval as premature.

FACTS AND PROCEDURAL HISTORY

The developer, Neighborhood Housing Services, Inc. (NHS) filed an application with the City seeking conditional use approval of a proposed mobile home park consisting of sixty-five units to be constructed on land between Canal and Victory Streets east of Vista Avenue in Boise. Residents living in the area near the proposed mobile home park formed the Canal/Norcrest/Columbus Action Committee (CNC) to oppose the development.

The application was approved by the Boise City Planning and Zoning Commission in November of 1998 as a conditional use permit, and the approval decision was then appealed to the City Council. The City held a hearing on the conditional use application on February 2, 1999, where CNC argued that the application should have been presented as a planned unit development. In consideration of CNC's argument, the City decided to terminate the hearing and direct the Boise City Planning and Development Services to review the application as a planned unit development. CNC interpreted the City's decision to remand the application for further study as a denial of the conditional use permit but also as a decision in violation of a code restriction against resubmission of a denied application.¹ Accordingly, CNC filed a petition for judicial review. On February 16, 1999, at the direction of the City, the developer submitted a substantially identical application seeking conditional use approval of a planned unit development. The new application was approved by the City on March 8, 1999. The City Council adopted the findings of fact, conclusions of law, and conditions of approval from the Boise City Planning and Zoning Commission. CNC then filed a petition with the district court for judicial review of the City's decision approving the planned unit development, following a hearing on April 20, 1999. The City moved to dismiss the appeals and refused to consolidate the cases until the design review on remand was completed. The City's action resulted ultimately in the dismissal of the first appeal for lack of finality.

CNC requested that the district court consolidate the petitions for judicial review of the City's initial denial of the conditional use permit application and the later approval of the planned unit development application, which the court granted. On the day the consolidation order was signed, the district court also ruled on the City's motions to have both appeals dismissed. The district court denied the motion to dismiss the initial petition for review of the City's February 2, 1999, action, but it granted the City's motion with regard to the petition for review of the approval of the planned unit development. The district court found that CNC had not exhausted all administrative remedies, specifically the design review process mandated by Boise City Code § 11-04-10.03,² which therefore did not render the approval final for purposes of review.

CNC appeals from the district court's dismissal order and raises two issues on appeal: (1) whether the approval of the conditional use permit on April 20, 1999, was a final action by the City and therefore appealable; and (2) whether CNC is entitled to an award of attorney fees under I.C. § 12-117 on the ground that the City acted without a reasonable basis in fact or law.

STANDARD OF REVIEW

The Local Land Use Planning Act provides that a person affected and aggrieved by a decision of a land use commission or governing board may within twenty-eight days after all remedies have been exhausted under local ordinances seek judicial review as provided by chapter 52, title 67, Idaho Code. I.C. § 67-6521(1)(d). A person is not entitled to judicial review of an agency action until that person has exhausted all administrative remedies. I.C. § 67-5271(1). Until the full gamut of administrative proceedings has been conducted and all available administrative remedies been exhausted, judicial review should not be considered. See Grever v. Idaho Telephone Co., 94 Idaho 900, 903, 499 P.2d 1256, 1259 (1972).

ANALYSIS

I.

The issue before the Court is whether the approval of the conditional use permit of the planned unit development is a final action by the City, and thus ripe for review. The district court held that until the design review process was completed, the approval could not be deemed final because of a failure by CNC to exhaust all administrative remedies.

CNC asserts on appeal that the Boise City Code provides separate processes to challenge decisions regarding the approval of the conditional use permit and of the design review permit respectively. CNC further asserts that the design review decision is limited in scope and not otherwise relevant to whether or not the proposed use of the property as a mobile home park would cause any damage, hazard, nuisance or other detriment. See Boise City Code § 11-06-04.01. Thus, CNC argues that it was required to file a petition for review of the April 20, 1999, approval in order to preserve all of the contested issues related to the planned development conditional use permit. In support of its argument, CNC submits that the city ordinances do not provide that a subsequent appeal from the design review decision will necessarily encompass issues related to the conditional use permit approval.

An analysis of the finality and appealability of a decision made on a zoning application must necessarily begin with an examination of the relevant zoning ordinances. See Rural Kootenai Organization, Inc. v. Board of Comm'rs, 133 Idaho 833, 993 P.2d 596 (1999) (examining the requirements of the Kootenai County Subdivision Ordinance preliminary to a developer obtaining final plat approval from the Board); South Fork Coalition v. Board of Comm'rs of Bonneville County, 112 Idaho 89, 730 P.2d 1009 (1986) (referring to the specific language of the county zoning ordinance as to the effect of "an approval in principle"). An applicant's rights are determined by the ordinance in existence at the time of filing of the application for the permit. Payette River Property Owners Ass'n v. Board of Comm'rs of Valley County, 132 Idaho 551, 555, 976 P.2d 477, 481 (1999) (citations omitted).

The provisions of the Boise City Code at issue are as follows:

11-06-05 PLANNED DEVELOPMENTS

11-06-05.04 APPLICATION PROCEDURE

...

Submittal requirements for detailed conditional use applications are the same as for standard conditional use applications that are processed and reviewed in one step.

11-06-04.04 COMMISSION ACTION

Following the hearing, the Commission shall approve, deny or modify the application for a conditional use permit, imposing any conditions needed to establish the findings of Section 11-06-04.11.

11-03-07 APPEALS

Any administrative or Commission level decision may be appealed to the appropriate Commission, Committee or Council in accordance with the procedures established herein....

11-03-07.2 APPEALS OF PLANNING COMMISSION AND HISTORIC PRESERVATION COMMISSION DECISIONS Any decision of the Planning and Zoning Commission or the Historic Preservation Commission may be appealed to the Boise City Council by the applicant, any aggrieved person or the Planning Director.... The Council may sustain, deny, amend or modify the appeal.

The filing of an appeal of a Commission level decision stays further approvals (Design Review, Subdivision, Building Permit, etc.) on the project provided the appeal is received at least 24 hours prior to any public hearing regarding the project.

11-02-05 DESIGN REVIEW COMMITTEE

11-02-05.3 Duties, Jurisdiction and Authority

It shall be the responsibility of the Design Review Committee to protect property rights and values, enhance important environmental features of the City and to ensure that the general appearance of buildings and structures along with development of the land shall not impair or preclude the orderly and harmonious development of the community. The Design Review Committee, or its assigned staff, shall review all development proposals within the "D" overlay zoning districts as hereinafter provided. Within these districts, the Committee, with input from other jurisdictions shall regulate landscaping, review building design, site planning, signs, grading, development and beautification, including but not limited to the regulation and restriction of the type, number of stories, size, construction, reconstruction, alteration, repair or use of buildings and structures to ensure compliance with the requirements of the respective overlay district.

11-03-07.3 APPEALS OF DESIGN REVIEW COMMITTEE DECISIONS

Any decision of the Design Review Committee may be appealed to the Boise City Planning and Zoning Commission by the applicant, any aggrieved person or the Planning Director.... The Commission may sustain, deny, amend or modify the appeal.

The parties agree that the planned unit development is in a design review district, that is an overlay zoning district, which "adds a requirement to the standards of the underlying district." Boise City Code § 11-01-03.1. The City Council...