Eacret v. Bonner County

• Court: Idaho Supreme Court
• Writing for the Court: BURDICK, Justice.
• Citation: Eacret v. Bonner County, 139 Idaho 780, 86 P.3d 494 (Idaho 2004)
• Decision Date: 27 February 2004
• Docket Number: No. 29137., No. 28092
• Parties: David EACRET and Barbara M. Eacret, husband and wife, William M. Berg and Melinda M. Cameron, husband and wife, Petitioners-Respondents, v. BONNER COUNTY, a political subdivision of the State of Idaho, acting through the Bonner County Board of Commissioners, Respondent, and Fred Harris and Ron Harris, Intervenors-Appellants. David Eacret and Barbara M. Eacret, husband and wife, William M. Berg and Melinda M. Cameron, husband and wife, Petitioners-Respondents, v. Bonner County, a political subdivision of the State of Idaho, acting through the Bonner County Board of Commissioners, in their official capacities, Respondent-Appellant, and Fred Harris and Ron Harris, Intervenors-Respondents.

86 P.3d 494

139 Idaho 780

David EACRET and Barbara M. Eacret, husband and wife, William M. Berg and Melinda M. Cameron, husband and wife, Petitioners-Respondents, v. BONNER COUNTY, a political subdivision of the State of Idaho, acting through the Bonner County Board of Commissioners, Respondent, and Fred Harris and Ron Harris, Intervenors-Appellants.

David Eacret and Barbara M. Eacret, husband and wife, William M. Berg and Melinda M. Cameron, husband and wife, Petitioners-Respondents, v. Bonner County, a political subdivision of the State of Idaho, acting through the Bonner County Board of Commissioners, in their official capacities, Respondent-Appellant, and Fred Harris and Ron Harris, Intervenors-Respondents.

Nos. 28092, 29137.

Supreme Court of Idaho, Coeur d'Alene, October 2003 Term.

February 27, 2004.

Ramsden & Lyons, Coeur d'Alene, for appellants Harris in # 28092 and respondents Harris in # 29137. Michael E. Ramsden argued.

Finney & Finney, Sandpoint, for appellants Bonner County, et al, in # 29137. Gary A. Finney argued.

Lukins & Annis, Coeur d'Alene, for respondents Eacrets, Berg & Cameron in # 28092 and # 29137. Mischelle R. Fulgham and William M. Berg argued.

BURDICK, Justice.

FACTUAL AND PROCEDURAL BACKGROUND

Fred and Ron Harris (Harris) first applied to Bonner County for a variance from the setback requirements after they had begun construction of a boathouse on the shore of Lake Pend Oreille. In February 2000, the denial of the variance by the Planning and Zoning Commission became final, after the County Commissioners dismissed the appeal for failure to state lawful grounds upon which the appeal could be based. Bonner County Revised Code (BCRC) § 12-451(d)(1).

Harris filed a second application for a variance regarding the boathouse in August of 2000. The Planning and Zoning Commission again denied the application and issued its findings and conclusions. Harris filed a notice setting forth grounds for appeal under BCRC § 12-451(c). Upon presentation of the appeal by the planning director, the Board of County Commissioners (the Board) accepted the appeal, determined to hear the appeal de novo, and set the hearing date for January 4, 2001, before a change in the Board was scheduled to take place. At the January 4, 2001, hearing, the Board granted the variance by a vote of two to one and thereafter issued its findings and conclusions. The Board reached exactly the opposite conclusion as the Planning and Zoning Commission on each of the five standards applicable for a variance under BCRC § 12-2010(d)(1) through (5).

David and Barbara Eacret, ("the Eacrets"), adjoining landowners to the Harris property and "affected persons" under I.C. § 67-6521, appealed the award by filing a petition for judicial review to the district court. In their petition, they described the actions of the County in the granting of the variance, which they claimed denied them their due process rights. They contended that the Commissioners encouraged Harris to reapply for a zoning variance that had been previously denied. Allegedly, the Commissioners improperly discussed the Harris variance application at their regular business meeting, without notice to interested parties or an opportunity to be heard; they decided in another business meeting to rehear the Harris variance application; they visited the site of the boathouse without notice; and they engaged in ex parte communications with Harris. The Eacrets also asserted that the Commissioners had expedited the rehearing date in order that the Harris variance application could be ruled on before the terms of Commissioners Mueller and Van-Stone expired and there were new members on the Board. The Eacrets claimed that the notice of hearing for the January 4, 2001, hearing contained an erroneous description of the parcel(s) in question and finally, that the granting of the variance by the Board was not supported by specific findings and conclusions.

By order dated November 20, 2001, the district court vacated the issuance of the variance and remanded the matter to the Board, which no longer included Commissioners Mueller and Van Stone. The district court found that a procedural error existed in the identification of the parcel(s) to which the variance would apply. Further, drawing inferences from a statement made by Commissioner Mueller at the Board's August 31, 2000, business meeting, the district court found that Commissioner Mueller had reached his decision on the variance prior to the hearing on the appeal and based upon evidence outside of the record.¹ Harris filed an appeal from the district court's memorandum decision.

Although the Eacrets had requested costs and attorney fees in their petition for judicial review, the district court reserved its decision on the same until after the remand. The Eacrets renewed their request for fees as against the County and Harris on April 8, 2002, and they filed a motion for entry of judgment subsequent to the Board's denial of the variance on remand. The district court considered the parties' arguments at a hearing and on June 14, 2002, issued an order finding the Eacrets to be the prevailing party and entitled to an award of fees and costs as against the County. The district court determined that the County had acted without a reasonable basis in fact or law in granting the variance to Harris, thus satisfying the criteria under I.C. § 12-117. Relying on the language of the statute, the district court authorized the award of attorney fees to include both the district court proceedings and the administrative proceedings that occurred after the offending statements of Commissioner Mueller at the August 31, 2000, Board meeting, if they were regarding the Harris variance. The Eacrets submitted their memorandum of costs and attorney fees to the district court on June 28, 2002.

On October 24, 2002, the district court entered judgment in favor of the Eacrets. The Court entered a separate order awarding fees and costs exclusively against the County, as provided by I.C. § 12-117. The County timely appealed from the order and judgment.

Harris's appeal from the district court's decision on review of the Board's decision granting the variance has been consolidated with the County's appeal from the district court's order awarding fees and costs against it, for argument before the Idaho Supreme Court.

Harris argues that the district court erred in finding that Commissioner Mueller's statements at the January 4, 2001, hearing evidenced a predetermination of issues surrounding the variance request as well as information beyond the record that was exclusively in Commissioner Mueller's possession. Harris requests attorney fees on appeal pursuant to I.C. § 12-117. The issues raised by the County relate to the district court's award of attorney fees, expert witness fees, and other costs to the Eacrets. The County contests the timeliness of the Eacrets' memorandum of costs, the district court's prevailing party determination and the extent of the award. The Eacrets request attorney fees on appeal.

I.

A. Standard of Review.

The provision of the Local Land Use Planning Act (LLUPA) governing variances provides in part that a variance "may be granted to an applicant only upon a showing of undue hardship because of characteristics of the site and that the variance is not in conflict with the public interest." I.C. § 67-6516. "An affected person aggrieved by a decision may within twenty-eight days after all remedies have been exhausted ... seek judicial review as provided by chapter 52, title 67, Idaho Code." I.C. § 67-6521(1)(d). Judicial review shall be conducted by the court without a jury, with the review of disputed issues of fact to be confined to the agency record. I.C. § 67-5277.

In a subsequent appeal from a district court's decision in which the district court was acting in its appellate capacity under the Administrative Procedure Act (APA), the Supreme Court reviews the agency record independently of the district court's decision. Payette River Prop. Owners Ass'n, v. Board of Comm'rs of Valley County, 132 Idaho 551, 554, 976 P.2d 477, 480 (1999); Ferguson v. Board of County Comm'rs for Ada County, 110 Idaho 785, 718 P.2d 1223 (1986). As to the weight of the evidence on questions of fact, this Court will not substitute its judgment for that of the zoning agency. I.C. § 67-5279(1); Lamar Corp. v. City of Twin Falls, 133 Idaho 36, 39, 981 P.2d 1146, 1149 (1999).

The Court shall affirm the zoning agency's action unless the Court finds that the agency's findings, inferences, conclusions or decisions are: "(a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; and (e) arbitrary, capricious, or an abuse of discretion." I.C. § 67-5279(3). The party attacking a zoning board's action must first illustrate that the board erred in a manner specified therein and must then show that a substantial right of the party has been prejudiced. Payette River Prop. Owners Ass'n, supra.

B. Bias of Decision maker.

The Due Process Clause entitles a person to an impartial and disinterested tribunal. Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). This requirement applies not only to courts, but also to state administrative agencies charged with applying eligibility criteria for licenses. Stivers v. Pierce, 71 F.3d 732 (9th Cir.1995). Decisions by a zoning board applying general rules or specific policies to specific individuals, interests or situations, are quasi-judicial in nature and subject to due process constraints. Cooper v. Board of County Comm'rs of Ada County, 101 Idaho 407, 411, 614 P.2d 947, 951 (1980). See also Comer v. County of Twin Falls, 130 Idaho 433, 942 P.2d 557 (1997) (due process requirements apply to proceedings of local land use boards,...