CRAPSS v. Bonner County

• Decision Date: 02 April 2003
• Docket Number: No. 27765.,27765.
• Citation: 67 P.3d 64,138 Idaho 585
• Court: Idaho Supreme Court
• Parties: COUNTY RESIDENTS AGAINST POLLUTION FROM SEPTAGE SLUDGE (CRAPSS), an unincorporated non-profit association, Gary Pinch, Bill Murray, Bruce Vogel, Paul Cozort, Karen Olson, Mike Schissler, Rosemarie Trudeau, Shirley Nettleingham James, David Rafferty, Don Blaese, Joanne Schilke Vincent, Debbie Schilke, Ron Keenan, Judy Keenan, Mary Ouellette, Peggy Tucker, Harry Roberts, Kathy Brown, Rachel Schenk, Ann Nettleingham Schilke, Leroy Selberg, Leah Selberg, Keith Johnson, Naomi Landon, Plaintiffs-Respondents, v. BONNER COUNTY, a political subdivision of the State of Idaho acting through the County Board of Commissioners, Dale Van Stone, Commission Chair, Bud Mueller, Commissioner and Brian Orr, Commissioner, in their official capacities, Defendants-Appellants.

67 P.3d 64

138 Idaho 585

COUNTY RESIDENTS AGAINST POLLUTION FROM SEPTAGE SLUDGE (CRAPSS), an unincorporated non-profit association, Gary Pinch, Bill Murray, Bruce Vogel, Paul Cozort, Karen Olson, Mike Schissler, Rosemarie Trudeau, Shirley Nettleingham James, David Rafferty, Don Blaese, Joanne Schilke Vincent, Debbie Schilke, Ron Keenan, Judy Keenan, Mary Ouellette, Peggy Tucker, Harry Roberts, Kathy Brown, Rachel Schenk, Ann Nettleingham Schilke, Leroy Selberg, Leah Selberg, Keith Johnson, Naomi Landon, Plaintiffs-Respondents, v. BONNER COUNTY, a political subdivision of the State of Idaho acting through the County Board of Commissioners, Dale Van Stone, Commission Chair, Bud Mueller, Commissioner and Brian Orr, Commissioner, in their official capacities, Defendants-Appellants.

No. 27765.

Supreme Court of Idaho, Boise, March 2003 Term.

April 2, 2003.

John R. Topp, Sandpoint, for appellant.

Scott W. Reed, Coeur d'Alene, for respondent.

EISMANN, Justice.

This is an appeal from the summary dismissal by the Bonner County Board of Commissioners of an appeal from the Bonner County Planning Department. We vacate the order dismissing the appeal and remand this case for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

On July 25, 2000, Vern Caven, d/b/a Ace Septic, submitted a conditional use permit application to the Bonner County Planning and Zoning Commission. He sought to store and apply septic tank sludge on eighty acres of real property owned by Lois Jennen located approximately five miles north of the city of Sandpoint. Residents living in the vicinity of Jennen's real property formed a non-profit association called County Residents Against Pollution from Septage Sludge. After public hearings, the Planning and Zoning Commission approved the conditional use permit on October 25, 2000.

On November 9, 2000, the Plaintiffs filed a notice of appeal with the Bonner County Board of Commissioners ("County Commissioners"), and on December 7, 2000, the Commissioners summarily dismissed the appeal "for failure to state lawful grounds upon which the appeal can be based."

On January 3, 2001, the Plaintiffs filed a petition for judicial review. On April 18, 2001, they filed a motion for summary judgment seeking to have this case remanded to the County Commissioners on the ground that they unlawfully dismissed the appeal from the Planning and Zoning Commission. Bonner County objected on the ground that a motion for summary judgment was not appropriate in a petition for judicial review and that there was no showing that the Commissioners abused their discretion in dismissing the appeal.

The motion for summary judgment was heard on July 11, 2001. Eight days later, the district court entered its order granting the motion. The district court ordered that the case be remanded back to the County Commissioners for a public hearing as provided by county ordinance. The district court later awarded the Plaintiffs costs and attorney fees totaling $4,439.50. Bonner County timely filed this appeal.

II. ANALYSIS

A person aggrieved by a planning and zoning decision may seek judicial review of that decision under the Idaho Administrative Procedures Act (IAPA). Idaho Code § 67-6521(d) (2001). On an appeal from a decision of a district court acting in its appellate capacity under the IAPA, this Court reviews the agency record independently of the district court's decision. Sanders Orchard v. Gem County ex rel. Bd. of County Comm'rs, 137 Idaho 695, 52 P.3d 840 (2002). The Board's zoning decision may be overturned only where it: (a) violates statutory or constitutional provisions; (b) exceeds the agency's statutory authority; (c) was made upon unlawful procedure; (d) is not supported by substantial evidence in the record as a whole; or (e) is arbitrary, capricious, or an abuse of discretion. Id.; Idaho Code § 67-5279(3) (2001). In addition, the Board's zoning decision must be upheld if substantial rights of the appellant have not been prejudiced. Sanders Orchard v. Gem County ex rel. Bd. of County Comm'rs, 137 Idaho 695, 52 P.3d 840 (2002); Idaho Code § 67-5279(4) (2001).

Bonner County argues that the district court erred in considering the Plaintiffs' motion for summary judgment because it was not supported by affidavits or a sworn complaint and Bonner County did not have an opportunity to submit affidavits in opposition to the motion. Generally, summary judgment is not the appropriate procedure for resolving a petition for judicial review. The district court is not permitted to receive evidence on appeal except in two limited circumstances,¹ neither of which applies in this case. Plaintiffs' petition for judicial review should have been heard simply as an appellate proceeding, with oral argument, as provided in Rule 84 of the Idaho Rules of Civil Procedure. The district court's action in deciding this appeal upon Plaintiffs' motion for summary judgment, however, did not prejudice Bonner County. The issue upon which Plaintiffs' petition for judicial review was based was clearly presented in their motion for summary judgment, Bonner County filed a written response to the motion, and both parties presented oral argument to the district court regarding the issues raised by the motion.

Pursuant to the authority granted by the Local Land Use Planning Act, Idaho Code §§ 67-6501 et seq. (2001), the County Commissioners created the Bonner County Planning and Zoning Commission. The County Commissioners also adopted an ordinance providing for appeals to it from a final decision of the Planning and Zoning Commission. That ordinance gave the County Commissioners two options in considering an appeal.² The first option authorized them to summarily dismiss the appeal "for failure to state lawful grounds upon which the appeal can be based." The second option required them to "[c]onduct a public hearing on its own to gather additional information concerning the [appeal] request." If the County Commissioners did not select either option within thirty days of receipt of the request for appeal and notify the appellant in writing of its choice, then they were required to conduct the public hearing as required in the second option.

In this case, the County Commissioners conducted a facial review of the notice of appeal and concluded that it did not state lawful grounds upon which the appeal could be based. They therefore summarily dismissed the appeal. The written notice of the dismissal stated: "The County Commissioners at the December 7, 2000, Business Meeting dismissed the referenced presentation of appeal for failure to state lawful grounds upon which the appeal can be based. This was done by a facial review of the submitted appeal. (BCRC, Section 12-451[d])." The County Commissioners did not specify what was lacking in the notice of appeal in order for it to state grounds upon which the appeal could be based. Likewise, in response to questions from this Court during oral argument, Bonner County was unable to state what was lacking in the notice of appeal.

From our review of the notice of appeal, it clearly stated lawful grounds upon which an appeal could be based. The ordinance specifies the grounds for an appeal as follows:

The grounds for appeals and the standard of review to be exercised by the Board of County Commissioners shall be that the Planning and Zoning Commission findings, conclusions and decision were:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the Commission;

(3) Made upon unlawful procedure;

(4) Arbitrary, capricious, or an abuse of discretion; or

(5) Not supported by substantial evidence on the record as a whole.

The notice of appeal filed by the Plaintiffs stated, "The following grounds of appeal are invoked and it is alleged the Planning and Zoning Commission findings, conclusions and decisions were: 1. Arbitrary, capricious, or an abuse of discretion; and 2. Not...