Lowery v. Board of County Com'rs for Ada County
| Decision Date | 06 July 1988 |
| Docket Number | No. 16924,16924 |
| Citation | 764 P.2d 431,115 Idaho 64 |
| Parties | Duane LOWERY and Joanne Lowery, husband and wife, Appellants-Respondents on Appeal, v. The BOARD OF COUNTY COMMISSIONERS FOR ADA COUNTY, Ed Riddle, Doyle Miner and Michael L. Johnson, Commissioners, Respondents-Appellants on Appeal, and David C.P. Hayes and Robin L. Hayes, husband and wife, Respondents. |
| Court | Idaho Court of Appeals |
Greg H. Bower, Pros. Atty., Susan D. McColl, Deputy Pros. Atty., Boise, for respondents-appellants on appeal.
John P. Connolly, Connolly & Smyser, Boise, for appellants-respondents on appeal.
A district judge reversed the approval of a conditional use permit and zoning certificate by the Ada County Board of Commissioners. The court awarded court costs and attorney fees to the appellants below. This appeal by the county and the companion appeal by the original applicants present us with an opportunity to examine a district judge's authority to finally resolve zoning-related matters and to review the limits of the district court's discretion when awarding costs and attorney fees to the prevailing party. For the reasons set forth below, we uphold the court's order reversing the county's decision to issue the permit and certificate, but we set aside the order awarding attorney fees against the county.
We begin by summarizing the facts and procedural history that frame the issues on appeal. In 1906, Wayne and Nellie Frost owned a large parcel of land in Ada County. This parcel was bordered on the west by what is now Pollard Lane and on the north by the Phyllis Canal. In that year, the Frosts deeded the eastern portion of their property to Willard Thompson. That document also conveyed a thirty-foot easement across the remainder of the Frost property from Pollard Lane to the Thompson parcel. In 1971, the subsequent owner of the Frost property subdivided it into tracts of approximately ten acres each. In 1982 Duane and Joanne Lowery came into possession of one of these tracts, which is adjacent to Pollard Lane and immediately south of the Phyllis Canal. In 1983, David and Robin Hayes acquired the tract directly to the east between the Lowery's property and the former Willard Thompson parcel.
David Hayes began to operate a veterinary clinic out of that site, but soon learned that Ada County's zoning ordinance required a conditional use permit for such nonagricultural uses. On July 26, 1984, and over the objections of the Lowerys, the Ada County Planning and Zoning Commission (the Commission) granted a conditional use permit to the Hayes. The Lowery's subsequent appeal was denied by the Board of Ada County Commissioners (the Board). The Lowerys then sought review by the district court. While that appeal was pending, the Hayes sought and obtained a zoning certificate for the veterinary clinic. The Lowerys appealed that decision to the Commission and then to the Board. These appeals were denied. As a result, the Lowerys also challenged the zoning certificate in district court.
The conditional use permit and zoning certificate appeals were consolidated. The Board of County Commissioners of Ada County and the Hayes were both named as respondents. Following briefing by all parties, oral argument, and a review of the record, the district court ruled that, as a matter of law, the Hayes' property did not comply with a county ordinance provision requiring an "easement of record." Therefore, the court reversed the Board's decisions upholding issuance of the conditional use permit and the zoning certificate. The court's order "denied" the permit and the certificate.
The Lowerys moved for an award of costs and attorney fees pursuant to I.A.R. 40 and 41, I.R.C.P. 54, and I.C. §§ 12-120 and -121. Following oral argument, the court concluded that "[t]he position asserted by the respondents on the critical issue before the Court was frivolous and without foundation in law and fact." Accordingly, the court awarded costs and $3,961.00 in appellate attorney fees to the Lowerys against both the Hayes and the Board pursuant to I.R.C.P. 54(d)(1) and I.C. § 12-121. 1
The Hayes and the Board have made no challenge to the district court's substantive holding that issuance of the permit and certificate controverted county standards. Therefore, that conclusion stands unquestioned. But the Board contends that the district court erred procedurally by outright reversing the county's decision, and by denying the permit and certificate instead of remanding the case to the Board with appropriate directions. The Hayes and the Board have separately appealed from the award of attorney fees. In this opinion, we consider the issues and arguments raised by the Board. In the companion appeal we address those raised by the Hayes. We turn first to the Board's challenge to the form of the district court's decision.
When appealing to the district court, the Lowerys sought a remand with instructions to the Board. Instead, the district court's memorandum decision and order concludes:
The Board of Ada County Commissioners' decision to grant a conditional use permit and zoning certificate is therefore reversed and the conditional use permit and zoning certificate are hereby denied.
The Board contends that the court erred by denying the permit and the certificate and, instead, should have remanded the case for entry of an appropriate decision. The Board asserts that the form of the court's decision is unduly rigid, ignoring the possibility that the relevant ordinance could be amended or that new proof of a recorded easement may be discovered. The Board interprets the district court decision as failing to "preserve" even those findings of fact and conclusions of law which the district court did not hold to be erroneous, and to nullify the prior record for purposes of any new application by the Hayes.
The district court's role in an action such as this one is well established. An appeal to the district court from a decision of a governmental board, not involving a trial de novo, is governed by the standards set forth in the applicable statutes of this state. I.R.C.P. 83(u)(3). Judicial review of permits issued pursuant to the authority granted by Idaho's Local Planning Act is conducted under the procedures outlined in I.C. §§ 67-5215(b) through (g) and § 67-5216. I.C. § 67-6519. In particular, section 67-5215(g) provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
The Board refers us to instances where our Supreme Court has held that a remand to a governmental board was required. For example, in Workman Family Partnership v. City of Twin Falls, 104 Idaho 32, 655 P.2d 926 (1982), the Court held that judicial review was impossible and a remand necessary where no findings of fact or conclusions of law were in the record. See also, e.g., Love v. Board of County Commissioners of Bingham County, 105 Idaho 558, 671 P.2d 471 (1983). In contrast, in City of Burley v. McCaslin Lumber Co., 107 Idaho 906, 693 P.2d 1108 (Ct.App.1984), we found it unnecessary to remand a case where both the Burley Zoning Appeals Board and the district court incorrectly concluded, as a matter of law, that a variance from housing density limitations could be granted in order to make a remodeling project economically feasible.
The instant record reveals that each party had extensive opportunities to present evidence to the Commission and the Board on the critical issue, which was access to the Hayes' property by an "easement of record" as required by a county ordinance. The district court accepted the facts found by the Board; however, the court found no evidence of an "easement of record." Therefore, the court concluded that the decision to grant the zoning certificate was tainted by an error of law. Condition number seven of the conditional use permit required that the Hayes "[p]rovide evidence of easement for use of private road to property." The court apparently concluded that, lacking an easement of record, condition number seven could not be satisfied. 2
Our review of the full text of the court's decision reveals nothing in support of the Board's speculation that if there were a change in circumstances, or in the ordinance, the county would be precluded from relying upon any part of its record or decision that has not been set aside in this case. Nevertheless, the county is right insofar as it contends that the district court's role was to determine the propriety of the county's motion, but not to displace the county by "denying" the certificate and permit directly. See generally 2 AM.JUR.2d Administrative Law § 765. Therefore, we uphold the court's decision on the merits but we modify the decision to provide that the case is remanded to the county for action consistent with the court's ruling on the question of law presented in the appeal.
We begin our examination of the district court's award of attorney fees by addressing an issue raised by the Lowerys concerning the timeliness of the Board's objection to Lowery's request for costs and fees asserted in the proceeding below. The Lowery's motion for allowance of costs and attorney fees was filed on December 11, 1986. The Board's objection to that claim...
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