Petersen v. Franklin County

• Decision Date: 30 May 1997
• Docket Number: No. 21943,21943
• Citation: 938 P.2d 1214,130 Idaho 176
• Parties: Clark PETERSEN, Fred Olson, Marvin Packer, Nancy Higgs, Richard Owen, Terry Andrade and Debbie Andrade, Plaintiffs-Appellants-Cross Respondents, v. FRANKLIN COUNTY, A Political Subdivision of the State of Idaho, Acting Through the Franklin County Board of Commissioners, and Jeff Olson, Commissioner, Brad Smith, Commissioner, and Dale McKay, Commissioner, Defendants-Respondents-Cross Appellants. Pocatello, September 1996 Term
• Court: Idaho Supreme Court

Page 1214

938 P.2d 1214

130 Idaho 176

Clark PETERSEN, Fred Olson, Marvin Packer, Nancy Higgs, Richard Owen, Terry Andrade and Debbie Andrade, Plaintiffs-Appellants-Cross Respondents, v. FRANKLIN COUNTY, A Political Subdivision of the State of Idaho, Acting Through the Franklin County Board of Commissioners, and Jeff Olson, Commissioner, Brad Smith, Commissioner, and Dale McKay, Commissioner, Defendants-Respondents-Cross Appellants.

No. 21943.

Supreme Court of Idaho,

Pocatello, September 1996 Term.

May 30, 1997.

A. Bruce Larson, Soda Springs, for Plaintiffs-Appellants-Cross Respondents.

Anderson, Nelson & Hall, Idaho Falls, for Defendants-Respondents-Cross Appellants. Blake G. Hall argued.

SCHROEDER, Justice.

This is a combined appeal from a civil action brought pursuant to section 67-2347(4) of the Idaho Code, concerning the open meeting laws, and a petition for review of an agency action brought pursuant to the Idaho Administrative Procedure Act ("APA") as provided in section 39-7420(4) of the Idaho Code, concerning site selection of a solid waste landfill. The appellants are landowners ("Landowners") in Franklin County, Idaho, who own property bordering or near a proposed landfill site. The respondent is Franklin County, and its Board of County Commissioners, which is charged with the duty of selecting the landfill site.

I. BACKGROUND AND PRIOR PROCEEDINGS

In 1970 the legislature enacted chapter 44, title 31 of the Idaho Code which provides that the board of county commissioners in each county is authorized to acquire, establish, maintain and operate solid waste disposal systems. I.C. §§ 31-4401, -4402. In 1992 the State of Idaho adopted the Idaho Solid Waste Facilities Act ("ISWFA"), I.C. §§ 39-7401 to -7421 (1993 & Supp.1996), which corresponds to the provisions of the Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901 -6992K (West 1988).

On February 26, 1990, the Franklin County Commissioners ("Commissioners" or "Commission") were notified by the Idaho Department of Health and Welfare that under federal regulations the existing Franklin County landfill was subject to closure. 40 C.F.R. Parts 257 & 258 (1984). During the latter part of May 1992 the Commissioners toured Franklin County looking for potential sites to construct a new landfill. On one occasion the Commissioners were accompanied by the chairman of the geology department at Idaho State University. Five potential sites were identified as a result of these investigations including a site located approximately four miles northeast of Preston, Idaho. That site is referred to as the "Riverdale-Glendale" divide ("Riverdale-Glendale") and is the subject of this appeal.

The Commission discussed selecting a landfill site several times at regularly scheduled meetings, considered alternative site locations, formed a citizens' advisory group to help it evaluate waste disposal in the county, and entered into a contract with MSE, Inc. ("MSE"), an engineering firm, to have various hydrological and soil studies performed at the Riverdale-Glendale site.

On July 8, 1993, and July 12, 1993, the Commissioners and the advisory group made separate evaluations of the Riverdale-Glendale site and of four more sites previously identified as potential locations for a new landfill. The public was not given notice that either body would be evaluating potential sites.

No formal vote was taken nor resolution adopted by the Commission memorializing its intention to focus on the Riverdale-Glendale site, but by July of 1993 the Commissioners had made a "conditional" decision arrived at by "common agreement" to concentrate their efforts on acquiring land at that site. On September 27, 1993, and September 30, 1993, the Commission obtained options to purchase and conduct studies of land located at the Riverdale-Glendale site. The land-purchase options were recorded on September 27, 1993, and October 5, 1993.

At their October 25, 1993, regular meeting the Commissioners held a lengthy discussion concerning the Riverdale-Glendale site and decided to pursue development of a new landfill at that site. However, minutes of the meeting show the Commissioners still referred to the site as the "proposed site."

At their January 10, 1994, regular meeting the Commissioners scheduled a public hearing for January 26, 1994, to receive public comment and review site certification documentation and a groundwater monitoring plan for the "proposed site." On January 12, 1994, and January 19, 1994, notice of the hearing was published in the Preston Citizen, the local newspaper.

At the January 26, 1994, public hearing the chairman of the Commission presented various reasons for selecting the Riverdale-Glendale site as the proposed site for the new landfill. The chairman was followed by a hydrogeologist who presented findings about the site. Comments for submission to the Idaho Department of Health and Welfare, Division of Environmental Quality ("DEQ") were also solicited. Shortly after the public hearing the Commissioners filed a Certification Application dated January 26, 1994, with the DEQ proposing development of the landfill site at Riverdale-Glendale. The Commission did not publish legal notice of the application as required by section 39-7408(d) of the Idaho Code. The Commission stated in the Certification Application that it had not adopted a land use plan or zoning ordinance.

On March 17, 1994, the Commissioners met with at least four Landowners who opposed locating the landfill at Riverdale-Glendale. An environmental engineer and a hydrogeologist were also present during this meeting which was apparently private. One of the Landowners asked if they had exhausted their administrative remedies at that point and apparently received an affirmative answer. The Landowners were also given guaranties that if the landfill impaired their culinary water supply the County would provide them with an alternative water source.

Later on March 17, 1994, the Commissioners met with other residents of Franklin County. No legal notice was given prior to this meeting, but an article appeared in the Preston Citizen, apparently sometime before March 17th, stating that the Commissioners would hold an "informational" meeting. Various presentations were made and the Commissioners were informed that a petition bearing the signatures of over 300 people opposed to locating a landfill at Riverdale-Glendale would be presented to them at their next meeting.

On March 16, 1994, the DEQ responded to the County's application stating that because Franklin County had no land use plan, the factors outlined in section 67-6508 of the Local Land Use Planning Act would have to be addressed prior to issuance of a site certification. The Commission filed a revised Certification Application with the DEQ on May 11, 1994. The Commissioners also submitted to the DEQ an affidavit of the Franklin County Clerk dated April 29, 1994, attesting that Franklin County had developed a land use plan, that there were "no planning and zoning restrictions in Franklin County," and that no "public hearings or consent are required to qualify the subject site pursuant to planning and zoning laws."

The Landowners filed their Complaint/Petition for Review on April 1, 1994, seeking judicial review of the Commission's site selection. The Landowners alleged: (1) that the Commissioner's decision was arbitrary and capricious, in excess of authority, and an abuse of discretion; (2) that the Commissioners had violated sections 67-2340 through 67-2347 of the Idaho Code by failing to make site selection decisions in accordance with Idaho open meeting law; and (3) that the Commissioners had violated section 31-7107 of the Idaho Code by failing to provide for a method of initiative and/or referendum within the county.

The Commission moved to dismiss the Complaint/Petition for Review as time barred. The parties stipulated that the motion to dismiss would be treated by the district court as a motion for summary judgment. The district court determined that:

(1) no formal decision or roll-call vote was required for the County to make its site selection;

(2) although no formal decision was recorded regarding site selection, the Commissioners selected the site on October 25, 1993;

(3) the Landowner's petition for judicial review was not untimely due to the indeterminacy of when the Commissioners made their site selection;

(4) the Commissioners were not required to base their decision exclusively on the record;

(5) the County's failure to publish legal notice of its application with the DEQ was not a "fundamental error" in light of the Commissioners' compliance with numerous other statutory provisions concerning selection of the site;

(6) the site selection did not violate public meeting laws, nor was it based on unlawful procedure; and

(7) the Commission failed to provide a method for initiative and/or referendum in the County.

The district court entered summary judgment in favor of the Landowners on the issue of the County's failure to provide for initiative and/or referendum and awarded $4,500 in attorney fees. The district court entered summary judgment in favor of the Commission in all other respects.

The Landowners moved for reconsideration of the decision on the basis that the court failed to make a finding that the Commission complied with section 39-7407(2)(d) of the Idaho Code which restricts landfill site locations. The Landowners alleged that the County had no land use plan, or if it did the site was located at variance with that plan. The Commission responded with an affidavit of the Commissioners stating that they had misunderstood a question in the original application for certification and so erroneously answered that Franklin County had no land use plan. The affidavit stated that the County has a land use plan which contains an analysis of the factors set forth at section 67-6508 of the Idaho Code.

The district court issued...