Fox v. Board of County Com'rs, Boundary County

• Decision Date: 12 October 1988
• Docket Number: No. 16713,16713
• Citation: Fox v. Board of County Com'rs, Boundary County, 763 P.2d 313, 114 Idaho 940 (Idaho App. 1988)
• Parties: Wayne A. FOX, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, BOUNDARY COUNTY, State of Idaho, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 313

763 P.2d 313

114 Idaho 940

Wayne A. FOX, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, BOUNDARY COUNTY, State of Idaho, Defendants-Respondents.

No. 16713.

Court of Appeals of Idaho.

Oct. 12, 1988.

Petition for Review Denied Nov. 18, 1988.

[114 Idaho 941] William H. McAdam, Jr., Sandpoint, for plaintiff-appellant.

Virginia Moore, Boundary County Pros. Atty's. Office, Bonners Ferry, for defendants-respondents.

SUBSTITUTE OPINION

The Court's prior opinion, dated April 4, 1988, is hereby withdrawn.

PER CURIAM.

Wayne Fox petitioned for judicial review of the Boundary County Board of County Commissioners' decision to renew beer licenses for two taverns. The district court dismissed the petition as untimely. Fox has appealed. We are presented with an issue of procedure. We must determine whether Fox had to file the action in district court within twenty days of the commissioners' decision under I.C. § 31-1509, or within sixty days under I.C. § 23-1015(3) pursuant to the Administrative Procedure Act. For reasons explained below, we affirm the order of dismissal.

In December 1985 the Board of County Commissioners met in regular session, open to the public, during which they considered whether to grant beer license renewals to several taverns. Wayne Fox attended the meeting and voiced objections to the license renewals of the Last Chance Saloon and the Top Idaho Bar. Fox complained of the noise and litter generated by these two taverns located near his farm. He asserted that the taverns were not in compliance with county zoning laws; therefore, he argued, they were not eligible for beer licenses. By an order dated December 30, 1985, the commissioners granted license renewals for several taverns, including the Last Chance Saloon and the Top Idaho Bar. This order was published on January 16, 1986, in the Bonners Ferry Herald, the local newspaper. On February 10, twenty-five days following publication, Fox petitioned the district court for judicial review of the commissioners' decision.

During the first court hearing on this matter, there was some discussion concerning whether the action was to be handled as a trial de novo or as a petition for judicial review under the Administrative Procedure Act (APA). Counsel for both sides agreed to conduct the matter pursuant to the APA. The district judge stated that the action would be treated as an "appeal" under the APA, though he expressed some reservations about treating the matter as such. Particularly, the judge was concerned with Fox's standing to bring the action. Later, the judge issued a conditional order dismissing Fox's "appeal." The judge determined that the APA did not apply to this action, but that I.C. § 31-1509 did. As noted by the judge, I.C. § 31-1509, allows a taxpayer to appeal "any act, order or proceeding of the board" when the taxpayer deems such "act, order or proceeding illegal or prejudicial to the public interests." The appeal, however, must be brought within twenty days after publication of the commissioners' decision. The judge's focus on I.C. § 31-1509 was debated in briefs submitted by both sides in response to the conditional order. The judge then entered a final order dismissing Fox's appeal as untimely under I.C. § 31-1509. Fox brought the instant appeal.

We first address the question whether Fox was entitled to judicial review of the county's action under the APA. The county acted under its beer licensing ordinance, Boundary County Ordinance No. 83-17, which is practically identical to the statute governing county licensing procedures, I.C. § 23-1015. Fox notes that both the ordinance and the statute provide for judicial review under the APA. However, they accord such review only to the "applicants" for licenses. The statutory language, subpart (3) of I.C. § 23-1015, is as follows:

An applicant denied a license, transfer or renewal thereof or aggrieved by a decision of the board of county commissioners pursuant to this section may, within sixty (60) days, after all remedies have been exhausted under county ordinances or procedures, seek judicial review under the procedures provided in sections 67-5215 and 67-5216, Idaho Code. For the purposes of sections 67-5215 and 67-5216, Idaho Code, and of this section, a county shall be construed to mean an agency. [Emphasis added.]

Fox argues first that this language by itself gives not only an "applicant" but also someone who is "aggrieved by a decision of the board" the right to seek judicial review under the APA. The problem with this argument is that although the APA recognizes that any "aggrieved" person may seek review, such recognition does not exist in the ordinance or the statute which provide the right of review, and which are the only gateways to the APA, in this case. We think the ordinance and statute clearly limit such a right to an "applicant [who has been] denied a license, ... or renewal thereof or aggrieved by a decision of the board...."

Fox argues, however, that I.C. § 23-1015(3) makes the county an "agency" for the purposes of sections 67-5215 and 67-5216 of the APA. He then points to the language of I.C. § 67-5215(a) which says: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case of an agency ... is entitled to judicial review under this act [APA]."

Idaho Code § 67-5215 does not provide Fox with his own key for gaining access to judicial review under the APA. The "key" is provided--if at all--by various statutes outside the APA describing the agencies and their functions that are subject to judicial review under the APA. In this case, as we have noted, I.C. § 23-1015 defines a county as an agency for the purposes of county beer licensing procedures. However, the same statute explicitly limits the right of judicial review under the APA to "an applicant [who is] denied a license ... renewal." Fox urges that Hubbard v. Canyon County Commissioners, 106 Idaho 436, 680 P.2d 537 (1984), is authority for his position. Hubbard, however, involved the use of the APA by an applicant who was denied a beer license. Fox is a taxpayer and a property owner who is presenting his views in a public forum. He professes to be "aggrieved" by the granting of the license renewals. That may be, but he has not been given access to the APA. His judicial remedies lie elsewhere. Rather than simply dismissing Fox's petition, the district court elected to treat it as a notice of appeal from the board's decision under I.C. § 31-1509.

We now determine whether the district court was correct in applying the provisions of I.C. § 31-1509 to this action. That statute provides a limited right of appeal from any act, order or proceeding of the Board of County Commissioners. As noted, such an appeal must be brought within twenty days after the first...