Gaige v. City of Boise

• Decision Date: 14 March 1967
• Docket Number: No. 9875,9875
• Citation: 425 P.2d 52,91 Idaho 481
• Parties: A. J. GAIGE and Donald K. Seltz, Plaintiffs-Respondents, v. CITY OF BOISE, State of Idaho and Harold T. Jones, Vernon E. Morris, Henry F. Koch, Edward W. Rice, Sherman A. Perry and Warren H. Bakes, Council Members of the City of Boise, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 52

425 P.2d 52

91 Idaho 481

A. J. GAIGE and Donald K. Seltz, Plaintiffs-Respondents, v. CITY OF BOISE, State of Idaho and Harold T. Jones, Vernon E. Morris, Henry F. Koch, Edward W. Rice, Sherman A. Perry and Warren H. Bakes, Council Members of the City of Boise, Defendants-Appellants.

No. 9875.

Supreme Court of Idaho.

March 14, 1967.

C. Stanley Skiles, Boise, for appellants.

Richards, Haga & Eberle, Boise, for respondents.

McQUADE, Justice.

During 1952, appellant city, Boise, reestablished a zoning plan which categorized properties into six basic classess: ¹ The 'A' (Residence) Zone was the most strictly circumscribed use zone; the 'F' (Unrestricted) Zone was the most permissive use zone. (Ordinance 1589). The zoning ordinance (1589) as re-enacted provided:

'The 'A' Residence Zone shall include all those parts of the City not specifically included within the limits of the other zones.' Boise City Code, § 11-3-1 (1965) (1952 Code, § 7-102).

Respondents own and occupy real property located on three lots in Block Three of the Orr Subdivision in Boise. They had been using the improved portion of this property for 'business and commercial' operations ² within a general business area when, during 1963, appellant city annexed territory containing respondents' property. As found by the district judge, and supported by the record, ³ 'no (affirmative) zoning has been undertaken' by appellant 'with reference to plaintiff's (respondents') property.'

Appellant city contends that respondents' land, although-or perhaps more precisely, because-never specifically zoned by the city's officials (its Council or Zoning Board) falls into the highest use 'A' Residence Zone due to § 11-3-1 of the code. Respondents argue that until positively zoned, their particular property must remain 'unzoned.' Before considering these opposing positions, however, an initial question must be determined: whether the judgment in a prior suit between the instant parties bars respondents from raising the zoning issue?

The earlier litigation developed when, on July 20, 1964, Boise City by Ordinance 2658 zoned certain areas into commercial and industrial zones but did not specifically include Gaige's and Seitz' (respondents herein) property, the subject of controversy in the present case, in any zone. On July 28, 1964, Gaige and Seitz Filed a complaint in district court (Third Judicial District, Civ.Cs. No. 35206) alleging that they were 'aggrieved' by Ordinance 2658 since, so they pleaded, it had ordered that their property could not be used for commercial purposes and that the city had 'threatened * * * to enforce * * * said ordinance (2658).' In their complaint they prayed that the court:

'declare that Ordinance #2658 * * * insofar as the same pertains to Plaintiffs' (Gaige's and Seitz') property * * *, constitutes an unreasonable exercise of power on the part of * * * the City of Boise * * * and that said ordinance is void.'

Respondents in their complaint also sought an order enjoining Boise City's agents from 'enforcing the provisions of said Ordinance 2658 with respect to Plaintiffs' (Gaige's and Seitz') property.'

On August 11, 1964, Boise City moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Affixed to the motion was a copy of the City's Code, § 11-3-1, set out above, which relegates all unzoned 'parts of the City' to the 'A' Zone. On October 26, 1964, the court granted the motion to dismiss with leave to file an amended complaint and it is this order which appellants argue is res judicata of the cause of action in the instant case. The dismissal order in the earlier case noted that the ordinance there attacked (2658) did not affirmatively regulate the uses of Gaige's and Seitz' property, but merely left in effect the general ordinance, Boise City Code, § 11-3-1. In its order, ⁴ the court found that the general ordinance was not challenged by the complaint in that action and so the complaint in no way questioned the validity of § 11-3-1 in respect to the property involved. As a further ground for dismissal the judge noted,

'There does not appear to be any justiciable issue existing because it does not appear that the City Code, Section 11-3-1, or that plaintiffs (Gaige and Seitz) have submitted plans for building, etc. to the City Building Inspector.'

Dismissal was with leave to amend within ten days 'if they (Gaige and Seitz) so desire.' Gaige and Seitz did not appeal this order. They instituted the present suit on June 24, 1965, alleging two causes of action: first, they repeat their attack against Ordinance 2658; secondly, they contend that § 11-3-1 of the City Code does not regulate the use of their property, that their property remains unzoned until affirmatively zoned, and that if § 11-3-1 does apply to their property it is invalid because it extends beyond the city's power and is unconstitutional. Two questions are presented for determination:

I. Whether the October 26, 1964 judgment in Third Judicial District Civil Case No. 35206 dismissing Gaige's and Seitz' carlier complaint, which had challenged the validity of Boise City Ordinance 2658 (of July 20, 1964) insofar as it affected their property, for failure to state a claim upon which relief could be granted, operates as res judicata and so prohibits consideration of the instant complaint against Boise City Code, § 11-3-1?

If question one is negatively answered,

II. Whether Boise City Code, § 11-3-1 (1965) which provides that 'The 'A' Residence Zone shall include all those parts of the city not specifically included within the limits of the other zones,' restricts the uses of real property annexed to the city after its (the ordinance's) enactment, before and unless the city positively otherwise zones such property, to the stated uses within the 'A' Zone? If so, is the ordinance validly within statutory and constitutional permission?

(I). In an effort to define the res judicata issue jprecisely it should be noted that respondents initially presented two causes of action in the instant case: a repitition of their earlier challenge (Third Judicial District Civ.Cs. No. 35206) to Ordinance 2658; and an attack on Boise City Code, § 11-3-1. Appellants' answer contended that the order in Civ.Cs. 35206 was res judicata of both causes of action. After a preliminary hearing, respondents conceded this defense regarding the first cause, and abandoned that claim; the court, upon stipulation considering the issue preliminary to trial, decided that the order did not bar the second cause of action. Although the judgment below does not contain the court's reasons, its determination as to the second cause of action was correct.

Res judicata, literally 'the matter having been judged,' is a principle which bars relitigation of an issue which has been once properly decided. However, where the cause of action in the later case is different from that presented in an earlier suit, and the issue raised in the later action was not determined in the earlier, ⁵ the judgment in the earlier suit will not bar the later cause of action. Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 383 P.2d 612 (1963). The present case, challenging Ordinance 1589, presents a distinct cause of action from the earlier case (Civ. 35206) which alleged that Ordinance 2658, enacted in 1964, affirmatively, but improperly, regulated the use of Gaige's and Seitz' property. The two ordinances constitute separate and, within the present context, unrelated governmental regulations upon the use of Gaige's and Seitz' property. Thus, if either ordinance illegally encroached upon a protected interest of respondents, a distinct cause of action would arise. Cf. Intermountain Food Equipment Co. v. Waller, supra; Mochel v. Cleveland, 51 Idaho 468, 478, 5 P.2d 549, 552 (1930).

The order dismissing the complaint in the earlier action states, 'there does not appear to be any justiciable issue existing because it does not appear that the City has attempted to enforce the City Code Section 11-3-1.' This suggests that the subject of controversy in the present case, the validity of § 11-3-1 with respect to respondents' property, was not then ripe for adjudication. Cf. Schmidt v. Village of Kimberly, 74 Idaho 48, 62-63, 256 P.2d 515, 524 (1953). This situation has changed, or so the trial judge here (who also decided the earlier case, Civ. 35206) implicitly found by determining the issue concerning the effect of § 11-3-1. Cf. National Ro-Tile Corp. v. Loomis, 82 Idaho 65, 350 P.2d 217 (1960).

The defense of res judicata, then, as found by the trial court, does not bar determination of the question whether Boise City Code, § 11-3-1 encompasses the zoning of respondents' property and, if so, validly regulates its use. Consideration of the zoning issue is thus in order.

(II). The trial judge found that § 11-3-1 'applies only to land which was in the City at the time of (its) enactment * * * 1952.' This court concludes that this determination is correct and so will not consider appellants' arguments that § 11-3-1 would be unconstitutional, under the Federal and Idaho Constitutions, if it did encompass and regulate the use of respondents' property.

By its terms, that the 'A' Zone 'shall include all those parts of the City not specifically included' in other zones, § 11-3-1 does not specifically purport to affect areas not 'parts of the City' at its enactment. Indeed, the phrase 'parts of the City' contains no hint that territory subsequently annexed, and so necessarily not among 'parts of the City' at the time of its adoption, comes within the scope of § 11-3-1. See McQuillan, Municipal Corporations, § 25.72 (3d ed. Ellard 1965):

'Certainly, zoning restrictions or regulations which limit the right to use private property so as to realize its highest utility should not be extended by implication to cases not clearly within their scope and purposes.'

See Village of Euclid, ...