Lindstrom v. District Bd. of Health Panhandle Dist. I

• Decision Date: 25 October 1985
• Docket Number: No. 15340,15340
• Citation: 712 P.2d 657,109 Idaho 956
• Parties: Peter T. LINDSTROM and Kristeen L. Lindstrom, husband and wife, Plaintiffs- Counterdefendants-Appellants-Cross Respondents, v. DISTRICT BOARD OF HEALTH PANHANDLE DISTRICT I, a public health district, Defendant-Counterclaimant-Respondent-Cross Appellant.
• Court: Idaho Court of Appeals

Page 657

712 P.2d 657

109 Idaho 956

Peter T. LINDSTROM and Kristeen L. Lindstrom, husband and wife, Plaintiffs- Counterdefendants-Appellants-Cross Respondents, v. DISTRICT BOARD OF HEALTH PANHANDLE DISTRICT I, a public health district, Defendant-Counterclaimant-Respondent-Cross Appellant.

No. 15340.

Court of Appeals of Idaho.

Oct. 25, 1985.

James H. Paulsen, Sandpoint, for plaintiffs-counterdefendants-appellants-cross respondents.

Edward J. Anson, Wallace, for defendant-counterclaimant-respondent-cross appellant.

SWANSTROM, Judge.

Peter and Kristeen Lindstrom applied to the District Board of Health, Panhandle District I (the Board), for a permit to replace their damaged sewage disposal system with another filtration system on their property. Relying upon state regulations the Board denied the permit, ruling that the Lindstroms could contract to connect their sewer to an adjacent privately owned system which discharged its effluent into the municipally owned system. The Lindstroms filed a complaint in the district court asking that the Board's regulation be declared unconstitutional on its face. Alternatively, the Lindstroms sought a writ of mandamus commanding the Board to issue a permit to the Lindstroms and declaring that the Board's regulations involving the issuance of permits to be without force and effect as applied to the Lindstroms. The district court, finding the relevant regulation to be constitutional, denied the Lindstroms' petition for writ of mandamus and enjoined the Lindstroms from using the existing septic tank-drainfield system on their property. The Board was awarded costs but not attorney fees at trial.

On appeal to this court, the Lindstroms contend that the Board's regulation providing authority to deny their permit is unconstitutional on its face and unconstitutional as applied to them. The Lindstroms further assert that the state, acting through the Board, does not have the authority to compel individuals to contract with the owners of a private sewage disposal system. The Board cross appeals contending that the district court erred in denying its request for attorney fees. We affirm the district court judgment.

The relevant facts show that the Lindstroms' home, outside of the municipal boundaries of Sandpoint, Idaho, uses a septic tank-drainfield system for sewage disposal. It is undisputed that the system has failed. The Lindstroms first applied for a permit to replace their failed system with another septic tank system. That request was acted upon and denied by Robert Camp, a specialist employed by the Board. Camp denied the permit application, giving two reasons. He stated that soil conditions were not conducive to this kind of sewage treatment. Camp also determined that the Lindstroms could connect to a privately owned sewer system adjacent to their property. The Lindstroms later applied again. This time they sought permission to install a "mound" type of filtration system. This request was also denied. The Lindstroms were notified that the mound system would be acceptable only if there were no other choices available. Camp noted again that the Lindstrom sewer could be hooked into the "Westwood Community Sewer." The sewer system serving the Westwood condominiums, located across the street from the Lindstroms' property, is joined to the city of Sandpoint municipal sewer system and treatment facility. In both instances the Lindstroms did not seek a hearing before the Board following the specialist's ruling, as is permitted by I.C. § 39-417 and by § 41.1.20 of the district's published rules and regulations. Likewise, they failed to seek judicial review of the denials pursuant to I.C. §§ 39-418 and 67-5215. Instead the Lindstroms chose to file the present declaratory judgment action in district court under I.C. § 67-5207 several months after their second request for a permit was denied.

The first question we must address in this appeal is whether the district court had jurisdiction to entertain the declaratory judgment action. When either of the Lindstroms' applications for a permit was rejected, the provisions of I.C. § 39-417 came into play. Under subsection (1) of that statute the Lindstroms might, "pursuant to the provisions of chapter 52, title 67, Idaho Code [Idaho Administrative Procedure Act], and the rules and regulations promulgated thereunder by the state board of health and welfare, seek a hearing before the district board and/or such other relief or remedy as is provided or available."

Section 39-418 provides:

(1) Judicial review of a final determination of the district board may be secured by any person adversely affected thereby by filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, in the district court of the county wherein he lives within thirty (30) days after receipt of notice of the district board's final determination. The petition for review shall be served upon the district health director and the director of the department of health and welfare of the state of Idaho. The director may appear in any such hearing as a matter of right. Such service shall be jurisdictional and the provisions of this section shall be the exclusive procedure for appeal or review.

(2) If no appeal or review is sought within the time prescribed in (1) above, the final determination of the district board shall be conclusive as to factual matters decided therein and not subject to collateral attack in any proceedings to enforce its provisions. [Emphasis added.]

Normally, the review contemplated in the foregoing section would be conducted under I.C. § 67-5215. In part this section provides:

(a) 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 other than the industrial commission or the public utilities commission is entitled to judicial review under this act. This section does not limit utilization of or the scope of judicial review available under other means of review, redress or relief provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

(b) Except when otherwise provided by law, proceedings for review are instituted by filing a petition in the district court of either the county in which the hearing was had or the county in which the final decision of the agency was made, within 30 days after the service of the final decision of the agency or, if a rehearing is requested within 30 days after the decision thereon.

....

(f) The review shall be conducted by the court without a jury and shall be confined to the record.

However, I.C. § 67-5207 provides:

The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the county in which the petitioner's attorney resides, if it is alleged that the rule, or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

Where applicable, requirements of I.C. § 39-418 for timely filing and service of a petition for review are jurisdictional. Absent compliance with this section a district court has no jurisdiction to review "a final determination of the district board." ¹ Here, however, no final determination of the Board was involved. As noted, I.C. § 39-417 permitted the Lindstroms to "seek a hearing before the district board and/or such other relief or remedy as is provided or available." In this instance, § 67-5207 provides the "other relief or remedy" which was pursued by the Lindstroms. ²

The Board did not raise the question before the district court whether the action for declaratory relief was timely filed. The parties essentially agreed upon the facts. Evidence was adduced in the district court for determination of one disputed factual issue, and neither party has challenged any of the court's findings. Therefore we are satisfied that the district court had jurisdiction under I.C. § 39-417 to engage in the review authorized by § 67-5207.

We now turn to the merits of the various constitutional issues the Lindstroms have raised. When a constitutional challenge is made, every presumption is in favor of the constitutionality of the regulation, and the burden of establishing unconstitutionality rests upon the challengers. Ford v. Bellingham-Whatcom County District Board of Health, 16 Wash.App. 709, 558 P.2d 821 (1977); see also Board of Dentistry v. Clark, 104 Idaho 87, 656 P.2d 148 (Ct.App.1982). The Lindstroms first contend that rule 1-3005.04(c) and (d) of the Idaho Department of Health and Welfare Rules and Regulations for Individual and Subsurface Sewage Disposal Systems is unconstitutionally vague and indefinite. Rule 1-3005.04 provides in relevant part:

A permit may be denied by the Director if in his/her judgment:

....

(c) The sewerage needs of the area should and can reasonably be provided by a public or community sewerage system;

(d) Public or community sewerage services are reasonably available.

Specifically, the Lindstroms argue that the terms "area," "reasonably" and "community sewer services" as used in the rule are too uncertain to provide sufficient standards to guide Board decisions.

A law that does not reach constitutionally protected conduct [such as right of free speech or of association] and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due process. To succeed, however, the complainant must demonstrate that the law is impermissibly vague in all of its applications.

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