Clow v. Board of County Com'rs of Payette County
Decision Date | 05 October 1983 |
Docket Number | No. 13962,13962 |
Citation | 105 Idaho 714,672 P.2d 1044 |
Parties | Richard CLOW and Nickie Clow, husband and wife, Plaintiffs-Respondents, v. BOARD OF COUNTY COMMISSIONERS OF PAYETTE COUNTY, Defendant-Appellant. |
Court | Idaho Supreme Court |
Bert L. Osborn, Deputy Pros. Atty., Payette, for defendant-appellant.
Richard H. Greener of Clemons, Cosho & Humphrey, Boise, for plaintiffs-respondents.
Richard Clow, the respondent, purchased 10.98 acres of land in Payette County located about 7/8ths of a mile west of New Plymouth. On December 14, 1978, Mr. Clow met with the Payette County Planning and Zoning Commission and requested that they approve his plan to subdivide the property into one-acre parcels. No action was taken at this time. On December 18, 1978, he filed a document entitled "Preliminary Subdivision Map" with the Court Clerk. Earlier that day the Commission adopted an emergency zoning ordinance and moratorium rezoning the land from residential to agricultural.
On February 26, 1979, the Payette County Commissioners declined to review the application on the basis that it first had to be submitted to the city of New Plymouth because the proposed subdivision was within the city's impact area. Mr. Clow then met with the New Plymouth Mayor and the Planning and Zoning Commission and they issued a letter of approval, but on March 19, 1979, the Payette County Commissioners informed Mr. Clow that the city of New Plymouth had revoked its letter of approval, and therefore, the Board could not go ahead and approve the preliminary plat. In a written denial of the request the Commission stated that The Board then went on to refuse the request because Mr. Clow did not have the approval of New Plymouth and after the moratorium it was also necessary to file an application to rezone the property from agricultural to residential.
Mr. Clow then filed suit in the district court, seeking a declaratory judgment. The parties later agreed that it would be heard as an appeal from an administrative agency and an order by the district court was entered accordingly. The parties also stipulated that the issues would be:
The district judge stated at the beginning of the hearing that "the case was to continue as an administrative appeal from the county agency" and reiterated the issues that the parties would be confined to on appeal. The judge then admitted into evidence exhibits and testimony, and then set forth findings of fact and concluded that "Ordinances 19 and 20 of Payette County[,] Idaho, were from their inception and now null and void and are now of no force and effect." The Board of County Commissioners appealed this decision.
A review of the record indicates that the district judge apparently relied on I.C. § 67-5215(f) for authority to hear additional evidence. I.C. § 67-5215(f) states:
Generally, as seen by the language set forth in I.C. § 67-5215(f), a review is confined to the record unless there are alleged procedural irregularities before the agency and under those circumstances the statute states that proof may be taken in the court. In this case, however, the issues were limited and no procedural irregularities before the agency were alleged by the parties before or during the appeal hearing. Because of this, the trial court erred in relying on I.C. § 67-5215(f) to admit additional evidence, and enter findings of fact and conclusions of law. 1 In situations where no procedural irregularities before the agency are alleged and the case is heard as an administrative appeal, the hearing must be confined to the record. See Hill v. Board of County Commissioners, 101 Idaho 850, 623 P.2d 462 (1981); Walker-Schmidt Ranch v. Blaine County, 101 Idaho 420, 614 P.2d 960 (1980); Cooper v. Board of County Commissioners, 101 Idaho 407, 614 P.2d 947 (1980). Admitting additional evidence when procedural irregularities are not alleged in essence results in a trial de novo and this Court has stated that on an appeal from an administrative agency "a trial de novo is not a possible course of action." Hill v. Board of County Commissioners, 101 Idaho 850, 852, 623 P.2d 462, 464 (1981). Therefore, we reverse the judgment of the district court and remand with directions for further proceedings in accordance with I.C. § 67-5215(b) through (g). Hill, supra; Walker-Schmidt Ranch, supra; Cooper, supra.
Costs to appellant.
No attorney fees on appeal.
If I were an editor employed to write headnotes for West Publishing Company, I would synopsize the holding of the Court's opinion thusly:
"On appeal to the district court from an administrative decision in a contested case, the district court's review, pursuant to I.C. § 67-5215, is limited to the record before the agency except in cases in which procedural irregularities before the agency are alleged."
And if I were an Associate Justice on the Idaho Supreme Court and read the Court's opinion without having read the briefs of the parties I would concur in that holding. However, having reviewed the briefs of counsel it seems to me that the opinion hinges on a procedural matter not raised by either party on appeal, and that the issues raised on appeal have not been addressed. Appellant designated these as the issues:
Respondents' statement of the issues was basically the same.
If I am in error in believing that the Court has disposed of the appeal without addressing the issues which the parties thought were controlling, I concur in the Court's opinion. If I am not in error, then I dissent, remaining of the conviction that, other than on jurisdictional grounds, a party is not entitled to prevail on appeal on an issue which was not assigned as error. The Court often does otherwise, but it is an improper practice, and was not always so in Idaho.
Plaintiffs-respondents filed a Petition for Rehearing contending that this Court's opinion failed to take into consideration a stipulation entered into by the parties. Respondents argue that the parties had agreed that additional evidence would be introduced at the district court level, and therefore the decision of this Court, holding that the district court erred in admitting additional evidence and entering findings of fact and conclusions of law, should be reconsidered.
As stated in the Court's opinion, according to I.C. § 67-5215(f), "a review [of the type involved here] is confined to the record unless there are alleged procedural irregularities before the agency." Clow v. Board of County Commissioners, 105 Idaho 714, 672 P.2d 1044 (1983). In any case in which no procedural irregularities are alleged, a party may, pursuant to I.C. § 67-5215(e), request a leave of the district court to present additional evidence. However, if the district court grants such a request, the additional evidence must "be taken before the agency." I.C. § 67-5215(e) (emphasis added).
Apparently, it is respondents' contention that these procedural statutes may be circumvented by an agreement of the parties. We disagree. The general rule is that parties may not, by agreement, "waive or abrogate the requirements of statutes or rules of trial or appellate courts adopted to promote the expeditious and orderly hearing of causes; nor can the parties by stipulation require the court to do something which is not within its power." 83 C.J.S. Stipulations § 10 a. (1953). See also Smithart v. Sportsman, 614 S.W.2d 320 (Mo.Ct.App.1981) ( ); Stone v. Briggs, 112 Vt. 410, 26 A.2d 828 (1942) ( ). Therefore, the Petition for Rehearing is denied.
BISTLINE, Justice, dissenting from opinion of October 5, 1983, and dissenting from denial of petition for rehearing.
The petition for rehearing should be granted. As forecast in my opinion of October 5, 1983, and as made abundantly clear by the petition for rehearing, the majority opinion of October 5 did duck the issues decided by the trial court and raised on the appeal.
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