Idaho Historic Preservation Council, Inc. v. City Council

• Decision Date: 30 June 2000
• Docket Number: No. 25049.,25049.
• Citation: 8 P.3d 646,134 Idaho 651
• Parties: IDAHO HISTORIC PRESERVATION COUNCIL, INC., an Idaho non-profit corporation; Jeff Urban; and Jim Rudolph, Petitioners-Respondents on Appeal, v. CITY COUNCIL OF the CITY OF BOISE, Respondent-Appellant on Appeal, and S-Sixteen Limited Partnership, an Idaho limited partnership, Respondent.
• Court: Idaho Supreme Court

8 P.3d 646

134 Idaho 651

IDAHO HISTORIC PRESERVATION COUNCIL, INC., an Idaho non-profit corporation; Jeff Urban; and Jim Rudolph, Petitioners-Respondents on Appeal, v. CITY COUNCIL OF the CITY OF BOISE, Respondent-Appellant on Appeal, and S-Sixteen Limited Partnership, an Idaho limited partnership, Respondent.

No. 25049.

Supreme Court of Idaho. Boise, January 2000 Term.

June 30, 2000.

Boise City Attorney's Office, Boise, for appellant. Margery W. Smith argued.

Jim Jones & Associates, Boise, for respondents. John C. McCreedy argued.

SILAK, Justice.

NATURE OF THE CASE

This is an appeal from judicial review of the appellant Boise City Council's (City Council) decision to grant a certificate of appropriateness to S-Sixteen Limited Partnership (S-Sixteen). The certificate would allow S-Sixteen to demolish the Foster Warehouse Building, which stands within the South Eighth Street Historic District (the District). The district court overturned the City Council's decision to grant the certificate. We affirm the district court's decision.

I. FACTS AND PROCEDURAL BACKGROUND

A. Facts

The Idaho Preservation of Historic Sites Act (IPHSA), Chapter 46, Title 67 of the Idaho Code, authorizes local governments to engage in programs of historic preservation. The IPHSA provides for the establishment of historic preservation commissions and the creation of preservation districts. See I.C. 67-4603; I.C. 67-4607. The IPHSA also prohibits the demolition of buildings located within preservation districts unless the local historic preservation commission approves a certificate of appropriateness. See I.C. 67-4608. On March 25, 1997, S-Sixteen Limited Partnership (S-Sixteen) filed an application with respondent Boise City Historic Preservation Commission (the Commission) for a certificate of appropriateness which would allow S-Sixteen to demolish the Foster Warehouse Building. The Commission denied the application, and S-Sixteen appealed to the City Council, pursuant to section 67-4610 of the Idaho Code and section 2-18-10(E) of the Boise City Code. At the beginning of the appellate hearing, certain members of the City Council stated that they had received numerous telephone calls concerning the issue. One City Council member stated that he had refused to accept any such calls. The hearing proceeded, and the City Council approved the certificate of appropriateness.

B. Procedural Background

On June 17, 1997, respondent Idaho Historic Preservation Council (IHPC) filed a petition for review of the City Council's decision in the district court. On August 3, 1998, the district court ruled that the City Council erred because it received and considered information outside of the appellate record in granting the certificate of appropriateness.

II. ISSUES ON APPEAL

The appellant presents the following issues on appeal:

A. Whether the standard of review in this appeal is governed by Idaho Rule of Civil Procedure 84 or the Idaho Administrative Procedure Act.

B. Whether the City Council's receipt of phone calls from interested parties and the general public violated the due process standards of a quasi-judicial proceeding.

C. Whether the City Council is held to a standard of judicial disinterestedness in a quasi-judicial proceeding.

III. ANALYSIS

A. Standard Of Review

The district court determined that the appropriate standard of review in this case was set forth by the Idaho Administrative Procedure Act (IAPA), Chapter 52, Title 67 of the Idaho Code. The district court cited two planning and zoning cases, Comer v. County of Twin Falls, 130 Idaho 433, 942 P.2d 557 (1997), and Von Jones v. Board of County Commissioners, 129 Idaho 683, 931 P.2d 1201 (1997), in support of its ruling. The City Council contends that the IAPA does not apply to judicial review of city council decisions concerning historic preservation districts.

The IAPA provides the following definition:

"Agency" means each state board, commission, department or officer authorized by law to make rules or to determine contested cases, but does not include the legislative or judicial branches, executive officers listed in section 1, article IV, of the constitution of the state of Idaho in the exercise of powers derived directly and exclusively from the constitution, the state militia or the state board of correction.

I.C. 67-5201 (emphasis added). The language of the IAPA indicates that it is intended to govern the judicial review of decisions made by state administrative agencies, and not local governing bodies. There are a few statutory exceptions to this general rule, however. For example, the Local Land Use Planning Act, Chapter 65, Title 67 of the Idaho Code, provides that a person aggrieved by a planning and zoning decision "may within twenty-eight (28) days after all remedies have been exhausted under local ordinances seek judicial review as provided by chapter 52, title 67, Idaho Code." I.C. 67-6521. See also I.C. 23-1016(4) (stating that a city council is an "agency" for the purposes of applying the judicial review provisions of the IAPA to a city council decision to deny an application for or the transfer or renewal of a license to sell beer).

Since the legislature has on occasion expressly provided for the application of the IAPA to certain decisions of local governments, we hesitate to apply the IAPA in judicial review situations where the legislature expressed no such intent. While the IPHSA does provide for judicial review of a city council's decision to grant or deny a certificate of appropriateness, it does not provide for the application of the IAPA to such appeals. We therefore hold that the IAPA does not apply to the present case.

Idaho Rule of Civil Procedure 84, which governs judicial review of administrative and local governing bodies, does not provide a specific standard of review. See Comer, 130 Idaho at 437,

942 P.2d at 561. We therefore apply the general standard of review for cases in which the district court acts in an appellate capacity. In such cases, this Court reviews the record independently of the district court's decision. See Chambers v. Kootenai County Bd. of Comm'rs, 125 Idaho 115, 116, 867 P.2d 989, 990 (1994). Due process issues are generally questions of law. See, e.g., State v. Garcia, 132 Idaho 505, 509, 975 P.2d 793, 797 (1999); In Interest of Baby Doe, 130 Idaho 47, 51, 936 P.2d 690, 694 (Ct.App.1997); State v. Bruno, 119 Idaho 199, 804 P.2d 928 (1990). This Court exercises free review over questions of law. Mutual of Enumclaw v. Box, 127 Idaho 851, 852, 908 P.2d 153, 154 (1995).

B. Whether The City Council's Consideration of Ex Parte Information Violated The Due Process Standards Of A Quasi-Judicial Proceeding.

The district court ruled that the City Council's decision should be overturned because the City Council's receipt of phone calls from concerned citizens violated procedural due process. The City Council argues that there was no due process violation because the subsequent hearing cured any improper influence from the ex parte communications.

The test for determining whether a local governing body sits in a quasi-judicial capacity was expressed in Cooper v. Board of County Commissioners of Ada County, 101 Idaho 407, 614 P.2d 947 (1980). In that case, this Court stated:

Basically, this test involves the determination of whether action produces a general rule or policy which is applicable to an open class of individuals, interest (sic), or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.

Id. at 410, 614 P.2d at 950 (quoting Fasano v. Board of County Comm'rs, 264 Or. 574, 507 P.2d 23, 27 (1973)). Since S-Sixteen's appeal of the Commission's decision to deny the certificate of appropriateness required the City Council to apply a general rule to specific parties and interests, the City Council was sitting in a quasi-judicial capacity.

This Court has held that when a governing body sits in a quasi-judicial capacity, it must confine its decision to the record produced at the public hearing, and that failing to do so violates procedural due process of law. See Chambers, 125 Idaho at 118,

867 P.2d at 992 (citing Cooper, 101 Idaho at 411,

614 P.2d at 951; Gay v. County Comm'rs of Bonneville County, 103 Idaho 626, 629, 651 P.2d 560, 563 (Ct.App. 1982)). This Court has also observed that when a governing body deviates from the public record, it essentially conducts a second fact-gathering session without proper notice, a clear violation of due process. See Chambers, 125 Idaho at 118,

867 P.2d at 992. Since the substance of the telephone calls received by the members of the City Council was not recorded or disclosed at the public hearing, the Commission had no opportunity to rebut any evidence or arguments the City Council may have received from the callers. The Court of Appeals has held that prior notice of fact-finding sessions, maintenance of a transcribable record, and the opportunity to present and rebut evidence are elements of "a common core" of procedural due process requirements. See Gay, 103 Idaho at 629,

651 P.2d at 563.

The City Council also argues that in Comer and Chambers, the agency record had been completed when the county commissions in those cases considered the appeal, whereas in the current case, the City Council added to the record that had been produced by the Commission by holding an additional public hearing. The City Council argues that since the agency record was not yet complete, the City Council was not required to limit its decision on the agency record as required by Chambers and Comer. This argument is unpersuasive, however, because under the Idaho cases, due process would require that the City Council base its decision not only on the record of the agency from...