Neighbors for Resp. Growth v. Kootenai County

Decision Date06 April 2009
Docket NumberNo. 34591.,No. 34592.,34591.,34592.
Citation147 Idaho 173,207 P.3d 149
CourtIdaho Supreme Court
PartiesNEIGHBORS FOR RESPONSIBLE GROWTH, a non-profit unincorporated association; Preserve Our Rural Communities, a non-profit unincorporated association; Kootenai Environmental Alliance, Inc., a non-profit corporation; Norbert and Beverly Twillman; Greg and Janet Torline; Susan Melka; Merlyn and Jean Nelson, Plaintiffs, v. KOOTENAI COUNTY, a political subdivision of the State of Idaho acting through the Kootenai County Board of Commissioners; S.J. "Gus" Johnson, Chairman; Elmer R. "Rick" Currie and Katie Brodie, Commissioners, in their official capacities; and Katie Brodie, personally and individually, Defendants, and Powderhorn Communities LLC and Heartland LLC, Intervenors, Coeur d'Alene Land Company and H.F. Magnuson, Intervenors-Appellants. Neighbors for Responsible Growth, a non-profit unincorporated association; Preserve Our Rural Communities, a non-profit unincorporated association; Kootenai Environmental Alliance, Inc., a non-profit corporation; Norbert and Beverly Twillman; Greg and Janet Torline; Susan Melka; Merlyn and Jean Nelson, Plaintiffs-Respondents, v. Kootenai County, a political subdivision of the State of Idaho acting through the Kootenai County Board of Commissioners; S.J. "Gus" Johnson, Chairman; Elmer R. "rick" Currie and Katie Brodie, Commissioners, in their official capacities; and Katie Brodie, personally and individually, Defendants, and Powderhorn Communities LLC, and Heartland LLC, Intervenors-Appellants, and Coeur d'Alene Land Company and H.F. Magnuson, Intervenors.

John F. Magnuson, Coeur d'Alene, for appellants, Coeur d'Alene Land Company and H.F. Magnuson.

Lukins & Annis, P.S., Coeur d'Alene, for appellants, Powderhorn Communities, LLC and Heartland LLC. Mischelle Fulgham argued.

Scott W. Reed, Coeur d'Alene, for respondents.

HORTON, Justice.

This is an appeal from the district court's judgment vacating and remanding a decision by the Kootenai County Board of Commissioners (the Board) to amend the Kootenai County Comprehensive Plan (the Plan). Heartland, LLC, acting on behalf of Powderhorn Communities, LLC, (collectively referred to as Powderhorn), filed an application requesting that the Board amend the Plan, which the Board approved. Respondent Neighbors for Responsible Growth (Neighbors) filed a petition seeking judicial review of the Board's decision. The district court granted review, vacated the Board's decision, and remanded the matter for further proceedings. Powderhorn, along with Coeur d'Alene Land Company and H.F. Magnuson (Magnuson), (collectively referred to as Appellants) intervened below and now appeal the district court's decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 2005, Powderhorn filed an application on behalf of all landowners in the geographic area known as the Powderhorn Peninsula requesting that the Plan be amended to designate the peninsula as a rural residential area. The Kootenai County Planning Commission (the Commission) prepared a staff report and held a public hearing on the matter on April 27, 2006. The Commission recommended denial of the application. Powderhorn subsequently amended its application and requested that the peninsula be designated as rural, rather than rural residential. On September 14, 2006, the Board conducted a public hearing on the application, and on September 25, 2006, the Board visited the peninsula. Neighbors alleged that a member of the Board had improper contact with a Powderhorn representative during the visit, and as a result the Board re-opened public testimony and held another public hearing on the matter on October 4, 2006. On November 9, 2006, the Board entered an initial order granting the request for an amendment to the Plan, which it subsequently revised into a final order approving the amendment. The Board's final order was issued November 16, 2006.

On November 15, 2006—subsequent to the Board's initial order but prior to its final order—Neighbors filed a petition for review of the Board's decision with the district court. Neighbors later filed a motion to stay proceedings related to requests for zoning changes made by the peninsula landowners, and the district court set a hearing on the motion for December 18, 2006. Powderhorn intervened in the proceedings and opposed the motion to stay; however, the motion was granted by the district court without imposition of terms or a bond. Powderhorn then filed a motion to dismiss Neighbors' petition for judicial review, based in part on the fact that Neighbors had not timely appealed the Board's final order. Neighbors subsequently filed an amended petition seeking review of the Board's final order.

The amended petition also added a claim for declaratory relief based upon alleged improper ex parte communications and conflicts of interest during the proceedings before the Board. The district court denied Powderhorn's motion to dismiss the initial petition, and Powderhorn then moved to strike the amended petition on the basis of alleged improper procedure. At this point, Magnuson intervened and joined Powderhorn in objecting to Neighbors' amended petition. In response, Neighbors filed an alternative motion to amend its petition. At a hearing on May 31, 2007, the district court indicated that it would allow Neighbors to go forward with its petition for review of the Board's final order and would not dismiss Neighbors' claim for declaratory relief, but that it would not hear argument on the claim for declaratory relief at a hearing on the merits of the Board's decision scheduled for June 5, 2007.

At the June 5 hearing, the district court sua sponte raised the issue of the applicability of I.C. § 67-6509(b) and Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 958 P.2d 583 (1998), to the facts of this case. The district court postponed a decision in order to allow the parties to submit briefing on the issue of whether the Board complied with public hearing requirements, as set out in I.C. § 67-6509(b) and explained in Price. Finally, on July 25, 2007, the district court vacated and remanded the Board's decision, based on the fact that the Board failed to hold a public hearing in violation of I.C. § 67-6509(b) after announcing that it would amend the Plan despite the recommendation of the Commission that the Plan should not be amended. The district court awarded costs to Neighbors. Appellants timely appealed to this Court.

On March 27, 2008, we published Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008), holding that Giltner was not entitled to judicial review of Jerome County's decision to amend its comprehensive plan map and that Giltner must pay the attorney fees of both the county and a third-party intervenor in the case. Upon reading Giltner, counsel for Neighbors decided that the decision is "totally dispositive" of the instant case and therefore, on April 22, 2008, asked this Court to suspend this appeal, pursuant to I.A.R. 13.2, and remand the matter to the district court, under I.A.R 13.3, with instructions to the district court to dismiss Neighbors' petition for review with prejudice. Neighbors asserted that no costs or attorney fees should be awarded to any party in this case.

Initially, we ordered that Neighbors be dismissed from the case and that Appellants alone be allowed to proceed on the sole issue of attorney fees. After Neighbors moved for reconsideration and requested oral argument, we withdrew our initial order and allowed all parties to present oral argument on the issue of attorney fees.

II. STANDARD OF REVIEW

"The Supreme Court in its decision on appeal shall include its determination of a claimed right to attorney fees...." I.A.R. Rule 41(c). When an award of attorney fees depends on the interpretation of a statute, the standard of review for statutory interpretation applies. BECO Const. Co., Inc. v. J-U-B Engr's, Inc., 145 Idaho 719, 726, 184 P.3d 844, 851 (2008). The interpretation of a statute is a question of law over which this Court exercises free review. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001).

III. ANALYSIS
A. The district court's judgment must be vacated and this matter remanded with instructions to dismiss the petition for review.

Neighbors has conceded that it has no right to petition for review of the Board's decision in light of this Court's recent decision in Giltner Dairy v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008). Appellants agree that Giltner, which was released after Appellants brought this appeal, is "totally dispositive" of the substantive issues in this matter.

In Giltner, Giltner Dairy sought judicial review of the county commission's decision to amend its comprehensive plan map to reflect that the land belonging to Giltner's neighbor, Golf Ranch, is an area transitioning from agricultural to urban use, rather than an area of strictly agricultural use. Id. at 631, 181 P.3d at 1239. Giltner argued that the district court had jurisdiction to review the commission's decision under I.C. § 67-6521, which grants the right to judicial review in accordance with the Idaho Administrative Procedure Act to "[a]n affected person aggrieved by a decision." Id. at 632, 181 P.3d at 1240. This Court noted that I.C. § 67-6521(1)(a) defines "affected person" as "one having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development." Id. We held that because the county's amendment to its comprehensive plan map was not a permit authorizing development, Giltner was not an "affected person" and was therefore not authorized by I.C. § 67-6521 to file a petition for review of the amendment. Id. at 634, 181 P.3d at 1241.

Neighbors, like Giltner, petitioned for review pursuant to I.C. § 67-6521. The Board's amendment to the Plan designating the peninsula as a rural area, like the...

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