Glengary-Gamlin Protective Ass'n, Inc. v. Bird

• Decision Date: 28 December 1983
• Docket Number: No. 13786,GLENGARY-GAMLIN,13786
• Citation: 675 P.2d 344,106 Idaho 84
• Parties: PROTECTIVE ASSOCIATION, INC., et al., Respondents, v. Forrest M. BIRD and Mary F. Bird, Applicants-Appellants, v. BONNER COUNTY BOARD OF COMMISSIONERS, Respondents.
• Court: Idaho Court of Appeals

Page 344

675 P.2d 344

106 Idaho 84

GLENGARY-GAMLIN PROTECTIVE ASSOCIATION, INC., et al., Respondents, v. Forrest M. BIRD and Mary F. Bird, Applicants-Appellants, v. BONNER COUNTY BOARD OF COMMISSIONERS, Respondents.

No. 13786.

Court of Appeals of Idaho.

Dec. 28, 1983.

Petition on Costs Denied Feb. 9, 1984.

Steven L. Herndon and Terrence Emory Harrison, Sandpoint, for applicants-appellants.

Scott W. Reed, Coeur d'Alene, for respondents Glengary-Gamlin Protective Ass'n, Inc. et al.

Gary H. Finney, Sandpoint, for respondents Bonner County Bd. of Com'rs.

BURNETT, Judge.

This case presents two issues. First, under what circumstances may an organization have standing as an "affected person" to seek judicial review of a local land use decision? Second, for what purposes may local authorities, when considering an application for a special or conditional use permit, determine the extent of the applicant's entitlement to conduct the activity in question as a prior nonconforming use?

These issues are framed by a conditional use application submitted by Forrest and Mary Bird to the Bonner County Board of Commissioners. The Birds sought a permit for "rotary and fixed wing aircraft services" at a site near Lake Pend Oreille and Gamlin Lake. The application was resisted by individuals who collectively formed an organization entitled the Glengary-Gamlin Protective Association, Inc. A county planning commission recommended that the application be denied. The Board of Commissioners ultimately granted the application in part, as to some of the proposed aircraft services, but denied it as to other services. The Birds and the Association both sued in district court for judicial review of the Board's determination. These cases were consolidated for a single decision. Upon grounds not germane to the instant appeal, the district court reversed the Board's determination and remanded the application for further consideration. The Birds appealed, and the Association cross-appealed, the district court's decision. However, the Association later stipulated to dismissal of its cross-appeal, leaving only the Bird's appeal to be decided.

The Birds have not challenged the reasons for the district court's reversal of the Board's action on their application. Rather, they have attacked the district court's rulings on two ancillary points. First, they argue that the court erred by refusing to dismiss, for lack of standing, the Association's complaint for judicial review. Second, they contend that the court erred by directing the Board upon remand to determine whether some of the proposed activities specified in the conditional use application already have "grandfather rights" as prior nonconforming uses. We affirm the district court's decision, with a modification explained below.

I

We first consider the question of organizational standing. Idaho Code § 67-6521, part of the Local Planning Act, provides that an "affected person" is entitled to be heard when an application for a permit is submitted to local land use authorities. An "affected person" is defined as "one having an interest in real property which may be adversely affected by the issuance or denial" of the permit. The statute further provides that after the land use authorities have made a final decision upon the application, an "affected person aggrieved" by the decision may "seek judicial review under the procedures provided by sections 67-5215(b) through (g) and 67-5216, Idaho Code." These latter sections comprise part of the Idaho Administrative Procedure Act, and they describe the process by which judicial review of administrative action is conducted.

In the present case, the Birds contend that the Association had no standing, as an "affected person aggrieved" by the Board's action, to seek judicial review of that action. As mentioned above, the Birds moved to dismiss the Association's complaint for review. ¹ The district court, in an order issued by the Honorable Dar Cogswell, denied the motion.

The question of the Association's standing does not directly affect the outcome of the instant appeal. As noted, the Association has dropped its cross-appeal from the district court's decision. However, because the Birds' application has been remanded for further consideration, another round of judicial review could ensue. The district court's ruling on the question of organizational standing would govern the Association's right to participate in any such further review proceedings. Consequently, we deem the standing question to be properly raised in this appeal.

The question invokes a two-tiered analysis. On a general level, we examine the court-made rules governing an organization's right to assert the interests of its members. On a more particular level, we focus upon the Association's standing under I.C. § 67-6521.

Our research has not disclosed a previously reported Idaho decision enumerating the elements of organizational standing. However, this task has been undertaken repeatedly during the past decade by the United States Supreme Court. Although some elements of standing in the federal system are colored by the peculiar requirements of a "case" or "controversy" under the federal constitution, nevertheless, the Supreme Court's analyses of organizational standing are instructive here.

In Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972), the Supreme Court said, "It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review." In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme Court again stated that, even in the absence of injury to itself, an association may have standing solely as the representative of its members. The Court noted that "to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured." Id. at 515, 95 S.Ct. at 2213. The Supreme Court summarized the rules of organizational standing in Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977):

[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.

In determining whether these tests have been satisfied, a court should examine the pleadings and any supplementary materials filed by the organization.

For purposes of ruling on a motion to dismiss [a complaint] for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. [Citation omitted.] At the same time, it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.

Warth v. Seldin, supra, 422 U.S. at 501-02, 95 S.Ct. at 2206-07.

In this case, the Association's complaint for judicial review, filed in the district court, alleged the following:

Glengary-Gamlin Protective Association, Inc., is a cooperative association of land owners and [sic] in the general area of Glengary Bay on Lake Pend Oreille and Gamlin Lake in Bonner County. The association was incorporated in September, 1978, for the purpose of protecting the interests of all persons who own property in the general vicinity of Glengary Bay and Gamlin Lake to insure that any development of property in the area is carried on in an orderly manner in compliance with all applicable county, state and federal laws and health and safety regulations for the protection of property owners and the general public in the unique contiguous area.

An affidavit submitted to the district court by the president of the Association further stated:

I own real property located adjacent and contiguous to the property of Forrest M. Bird which was the subject of the application for a special use permit....

I am the general agent and president of the Glengary-Gamlin Protective Association, Inc. This non-profit property owners [sic] association was created in September, 1978, principally out of concern to protect the property interests of the Glengary Gamlin property owners from what we feared might be the consequences of the granting of the special use permit....

At the present time there are more than 100 members of the Association who are property owners and taxpayers in the immediate vicinity of the Bird ownership.

These allegations concerning the Association's purpose and membership were not contested in the district court. Rather, the applicants simply argued then, as they continue to argue now, that the allegations were insufficient to establish organizational standing as a matter of law. We disagree.

The particular activities for which the Birds sought a permit were listed in their application as follows:

1) Recreational sight-seeing and transport, instruction, maintenance and charters; 2) Aerial spraying, fertilization and seeding, including weather modification; 3) Aerial lumbering and crane service; 4) Aerial medical transport; 5) Government contract services; 6) General research and development.

The district judge held, and we deem it clear, that landowners in the Glengary Bay vicinity would be "affected" within the meaning of I.C. § 67-6521 by the activities outlined in the Birds' application. The record discloses that the area had been zoned "recreational open space." The enjoyment and value of properties in the area could be...