Harrell v. City of Lewiston

• Decision Date: 14 February 1973
• Docket Number: No. 11031,11031
• Citation: 95 Idaho 243,506 P.2d 470
• Parties: James R. HARRELL et al., Plaintiffs-Respondents, v. CITY OF LEWISTON, a municipal corp. et al., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 470

506 P.2d 470

95 Idaho 243

James R. HARRELL et al., Plaintiffs-Respondents, v. CITY OF LEWISTON, a municipal corp. et al., Defendants-Appellants.

No. 11031.

Supreme Court of Idaho.

Feb. 14, 1973.

Michael C. Moore, D. K. Worden, Lewiston, for defendants-appellants.

William v. McCann, Jr., Merlyn W. Clark, Lewiston, for plaintiffs-respondents.

McFADDEN, Justice.

This action for writ of mandate was instituted by James R. Harrell and Loretta M. Harrell, husband and wife, and Albert A. Broughton and Connie L. Broughton, husband and wife (referred to herein as respondents). By their complaint, the respondents sought to compel the City of Lewiston, its mayor, councilmen and building inspector, the appellants herein, to issue the respondents a building permit to authorize construction of a building on premises owned by them which fronted on 17th Street (a north-south street of the City). The proposed structure was designed to be used as a pizza parlor with parking areas around the building. The pizza parlor site was a part of a larger area previously annexed by the City in 1969. At the time of the annexation, the property was zoned by Nez Perce County as agricultural land.

The appellants answered the respondents' complaint raising some factual issues and by way of affirmative defenses alleged that: the land was zoned 'F' as farm land; traffic hazards on 17th Street necessitated the construction of a frontage road; an agreed condition to passage of any ordinance changing the zoning of the property from an argicultural zone to a commercial zone was the deeding to the City a right of way for a frontage road along 17th Street running between 21st Avenue and 26th Avenue; and as a final affirmative defense, an unusual traffic hazard existed by reason of the steepness of 17th Street grade. The appellants further alleged the City had insufficient time to study the traffic problem and to arrive at a reasonable solution to the problem.

After the trial, the district court, which heard the case without a jury, entered its memorandum opinion, findings of fact, conclusions of law and judgment ordering the appellants to issue the building permit sought by respondents. The City and its officials appealed the trial court's decision.

The trial court found the following facts. The City of Lewiston adopted on January 3, 1966, the 1964 edition of the Uniform Building Code. William V. McCann and his wife, the respondents' predecessors in interest in the property, had owned the land which was about one acre in size. This land was situated east of 17th Street and south of the Lewiston Shopping Center. Prior to December 16, 1969, the land was outside the limits of the City. Under the Nez Perce County zoning ordinance the parcel was zoned as farm land (F).

On December 16, 1969, the City, by ordinance, annexed this property as a part of a larger area and adopted by reference the Nez Perce County zoning ordinance for the annexed area. Prior to adoption of this ordinance the city council did not conduct any hearings. However, the City of Lewiston Zoning Commission held public hearings on the zoning for the proposed annexation.

The McCanns applied to the planning and zoning commission for a zone change of the particular tract from Zone F (farming) to Zone C-3 (commercial). The commission conducted a hearing on this proposed change and continued the hearing to study the traffic problem inherent to 17th Street. On April 7, the commission recommended the McCann's requested zone change to the city council, subject to review by the City Traffic Committee. The council considered the change and continued the question for another week. On April 19, 1971, the council by motion approved the zone change from 'F' to 'C-3.'

Subsequent to the city council's motion on April 19, 1971, the mayor advised the owners of the property (the McCanns) that the City desired property for a 30 foot frontage road on the east side of 17th Street from 21st Avenue to 26th Avenue and that the City would provide plans for development of the road. Although the McCanns owned other adjacent property, they delivered to the City on July 2, 1971, a deed to a 30 foot right of way bordering only the one acre parcel. The council, by vote, accepted the deed July 6, 1971. The next week, on July 12, the council withdrew its acceptance of the deed.

The same day the McCanns executed the deed to the City for the street right of way they also conveyed the property by deed to the respondents. On July 2, 1971, the respondents applied for a building permit and submitted all necessary supporting papers, i.e., plot plan, construction plans and the fee. In the meantime all city departments except the city council approved the application for a building permit. On July 26, 1961, the council denied the respondents' application for a building permit.

In its conclusions of law, the trial court held that the City misled the respondents to their detriment by its motion of April 19, 1971, approving the zone change from Farm to C-3, and that the City is estopped to deny the validity of the zone change. The court entered other conclusions of law, but the rationale for the conclusions of law and the subsequent judgment and decree rested on the theory of estoppel.

Although the trial court based its decision on the theory of estoppel, the appellant raised several issues which require discussion first. We must consider whether the motion of the city council on April 19, 1971, changed the zoning from 'Farm' to 'Commercial' and whether the land was properly zoned 'F' (farm) at its annexation.

On April 19, 1971, Mr. McCann requested a zoning change in the Lewiston city council for the property bordering 17th Street. The council granted this request by passing a motion which appellants contend did not effect a proper change of zoning. The respondents claim, by this action, that the one acre parcel of land on the corner of 17th Street and 21st Avenue was zoned commercial. The appellants contend, however, that zoning changes may be effected in the City of Lewiston only by ordinance. Uncontroverted is the fact that the City of Lewiston has regulated zoning in the past by ordinance only. Both parties agree that the City of Lewiston failed to adopt an ordinance on April 19, 1971, pursuant to I.C. § 40-902 et seq. The respondents, however, question whether the formal adoption of zoning regulations by ordinance is required under I.C. § 50-1204 which provides:

'The city council shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, enforced, and from time to time amended, supplemented or changed. However, no such regulations, restriction or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest shall have an opportunity to be heard. At least fifteen (15) days' notice of the time and place of such hearing shall be published in the official newspaper of such city.' (Emphasis supplied.)

A careful reading of I.C. § 50-1204 suggests that the legislature requires a formal, legislative act by a municipality to enact and change zoning laws. Appearing nowhere in the statute are the words 'resolution' or 'motion.' The power vested in the municipalities by this statute clearly comprehends a legislative, regulatory act. See, 8 McQuillin, Municipal Corporations, § 25.52, p. 130 (3d ed. 1965).

Although the respondents have presented a vexing and novel argument asserting that a motion or resolution is sufficient to establish zoning regulations under I.C. § 50-1204, the City of Lewiston enacts zoning regulations by ordinance. Moreover, respondents admit that a municipality is empowered to 'provide for the manner in which such regulations or amendments * * * shall be determined.' Because the City of Lewiston elected to establish and amend its zoning regulations by ordinance, any legislative act by the Lewiston City Council effecting a zoning change must in substance be accomplished by an ordinance. See, City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970); Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918); Parr v. Fulton, 9 Mich.App. 719, 158 N.W.2d 35 (1968); City of Sausalito v. County of Marin, 12 Cal.App.3d 550, 90 Cal.Rptr. 843 (1970); G. W. Mart & Son v. City of Grinnell, 194 Iowa 499, 187 N.W. 471 (1922); 8A McQuillin, Municipal Corporations, § 25.245, p. 165 (3d ed. 1965); 8 McQuillin, Municipal Corporations, § 25.52, p. 131 (3d ed. 1965); 5 McQuillin, Municipal Corporations, § 15.02, p. 47 (3d ed. 1965).

Next, appellants assert that the land was properly zoned 'F' or farm land from the date of its annexation. The respondents question whether the land was validly zoned upon annexation by the City of Lewiston. On December 15, 1969, the City adopted ordinance No. 2881 which annexed the respondents' property. The annexation ordinance also adopted by reference the Nez Perce County Zoning Ordinance as the official zoning ordinance for the City of Lewiston. Prior to the adoption of the annexation ordinance the Lewiston Zoning Commission held a public hearing on the zoning for the proposed annexation and reported its findings to the city council. The city council decided, without holding a further public hearing, to retain the zoning classification of 'F' or farm for the land on which respondents propose to build a pizza parlor. The respondents contend that the Lewiston City Council, by omitting a public hearing before the council, failed to zone the respondents' property upon annexation.

Although the appellants concede that the city council failed to hold a public hearing before adoption of the Nez Perce County zoning ordinance, they contend a public hearing before the city council is not required whn zoning ordinances are adopted in annexation proceedings. I.C. § 50-1206 provides:

'Prior to any ordinance or resolution which commences annexation proceedings, the...