Regan v. Kootenai County

• Decision Date: 20 October 2004
• Docket Number: No. 29737.,29737.
• Citation: 140 Idaho 721,100 P.3d 615
• Parties: Brent REGAN and Moura Regan, his wife, Plaintiffs-Appellants, v. KOOTENAI COUNTY, a political subdivision of the State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

100 P.3d 615

140 Idaho 721

Brent REGAN and Moura Regan, his wife, Plaintiffs-Appellants, v. KOOTENAI COUNTY, a political subdivision of the State of Idaho, Defendant-Respondent.

No. 29737.

Supreme Court of Idaho, Boise, April 2004 Term.

October 20, 2004.

Harvey Richman, Coeur d'Alene, for appellant.

John A. Cafferty, Coeur d'Alene, for respondent.

SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED JULY 1, 2004 IS HEREBY WITHDRAWN.

SCHROEDER, Chief Justice.

Mike and Moura Regan (the Regans) filed a declaratory judgment action to obtain an interpretation of Kootenai County Ordinance No. 309 Article VII regarding the use of a private noncommercial airstrip within the Agricultural Suburban zone. The district court granted summary judgment in favor of Kootenai County and issued a permanent injunction prohibiting the Regans from taking off or landing aircrafts on their property in violation of the ordinance. The Regans appeal.

I. FACTUAL AND PROCEDURAL HISTORY

The Regans have owned a parcel of land since 1999 consisting of approximately 175 acres located in the Agricultural Suburban zone¹ of Kootenai County, Idaho. On July 15, 1999, they applied for and received a site disturbance permit from Kootenai County allowing for the grading of a then existing road. The Regans resurfaced the road and converted portions of it for use as a private airstrip for themselves and their invitees on a noncommercial basis.

Prior to the Regans' purchase of the property, Kootenai County Zoning Ordinance No. 271 amended an existing zoning ordinance to remove the "[c]ontinued operation of airports or airstrips which were in existence at the time of adoption of Kootenai County Zoning Ordinance No. 11, January 3, 1973, and which have been used continuously (at least once every 6 months) since that date," as a permitted use within the Agricultural Suburban zone. When the Regans purchased the Kootenai County property, the use of a private noncommercial airfield was neither a permitted nor conditional use specified under the applicable zoning ordinance.

In a letter dated July 20, 1999, a Planning Director with the Kootenai County Planning Department informed the Regans that their airstrip was considered a prohibited use because it was "not specifically listed as a permitted or conditional use in the Agricultural Suburban zone of Kootenai County Zoning Ordinance...." The letter threatened legal action if the Regans proceeded to use their property in violation of the ordinance and provided the Regans with the following options for seeking redress of the Planning Director's interpretation of the ordinance: (1) finish the re-vegetation and site stabilization work and use the improvements as an access road, without using it as a landing field; (2) appeal the Planning Director's interpretation of the ordinance to the Hearing Examiner; and/or (3) apply for a text amendment to the ordinance, or zone change and conditional use permit to try to properly permit the use.

On December 10, 2001, Kootenai County Zoning Ordinance No. 309 was adopted. Among other things, Ordinance No. 309 restored the "[c]ontinued operation of airports or airstrips which were in existence at the time of adoption of Kootenai County Zoning Ordinance No. 11, January 3, 1973, and which have been used continuously (at least once every 6 months) since that date" as a permitted use for lots located in the Agricultural Suburban zone that are a minimum of 8,250 square feet.

The Regans filed for declaratory relief in district court against Kootenai County. They acknowledged that portions of their property had been converted into a landing field for their private use and for the use of their invitees on a noncommercial basis. They claimed that the county's threatened legal action placed them in jeopardy and requested that the district court "determine whether or not their private landing field and hangar are permissible or are an impermissible use under the Kootenai County Zoning Ordinance." According to the Regans, no other adequate remedy existed to redress this matter.

The parties filed cross-motions for summary judgment. The Regans claimed that Ordinance No. 309 did not restrict the use of their property for the take off and landing of their airplane and the airplanes of their noncommercial invitees because the ordinance does not address noncommercial private airstrips. Kootenai County asserted that the Regans' use would be permitted only if it was a continuous use existing prior to January 3, 1973, which it was not.

The district court issued its memorandum decision regarding the parties' motions for summary judgment, concluding that the section of Ordinance No. 309 identifying permitted uses within the Agricultural Suburban zone "specifically addresses airstrips and expressly excludes an airstrip in an agricultural zone unless the airstrip existed in 1973." The district court held that since the Regans' airstrip was constructed after 1973 it was prohibited regardless of whether it was considered public or private. The district court entered a permanent injunction enjoining the Regans from taking off or landing aircraft on their property in violation of the ordinance. The Regans appealed to this Court which requested briefing on the question of whether the case had been properly filed in district court prior to the exhaustion of administrative remedies.

II. THE REGANS DID NOT EXHAUST ADMINISTRATIVE REMEDIES

A. Standard of Review

The Local Land Use Planning Act provides that a person affected and aggrieved by a decision of a land use commission or governing board may within twenty-eight 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(1)(d). A person is not entitled to judicial review of an agency action until that person has exhausted all administrative remedies. I.C. § 67-5271(1). Until the full gamut of administrative proceedings has been conducted and all available administrative remedies been exhausted, judicial review should not be considered. See Grever v. Idaho Telephone Co., 94 Idaho 900, 903, 499 P.2d 1256, 1259 (1972).

B. The Regans failed to exhaust administrative remedies.

On July 15, 1999, the Regans applied for and received a site disturbance permit from Kootenai County allowing for the grading of a then existing road. On July 20, 1999, a Planning Director with the Kootenai County Planning Department sent the Regans a letter stating the following:

I have reviewed the available information regarding your grading and construction activity on your properties.... It is my interpretation that you have constructed a landing field and hanger for your personal use. Because this is not specifically listed as permitted or conditional use in the Agricultural Suburban zone of Kootenai County Zoning Ordinance, it is considered a prohibited use.

The Planning Director's letter notified the Regans that further use in violation of the ordinance would lead to legal action and suggested the following three options: (1) finish the re-vegetation and site stabilization work and use the improvements as an access road, without using it as a landing field; (2) appeal the interpretation of the zoning ordinance to the Hearing Examiner; and/or (3) apply for a text amendment to the zoning ordinance or zone change and conditional use permit to try to properly permit the use. The Regans did not, however, take the advice of the Planning Director and instead filed a complaint for declaratory relief in district court.

In their complaint for declaratory relief, the Regans sought a "determination of whether or not their private landing field and hangar are permissible or are an impermissible use under the Kootenai County Ordinance." Kootenai County Ordinance No. 309 (KCZO) § 28.08 describes the process for obtaining an administrative appeal concerning the interpretation of its provisions, and provides:

Appeals concerning interpretation or administration of this Ordinance may be taken by any person aggrieved. Such appeals shall be filed within a reasonable time, not to exceed twenty-eight (28) days, by filing with the Administrator a notice of appeal specifying the grounds thereof. The Administrator shall forthwith transmit to the Hearing Examiner all papers constituting the record upon which the action appealed was taken.

The Administrator shall fix a reasonable time, not to exceed sixty-five (65) days, for the hearing of the appeal and give legal public notice thereof, as well as due notice to the parties in interest. The Hearing Examiner shall decide the same within a reasonable time, which shall not exceed thirty (30) days following the hearing. At the hearing, any affected party may appear in person or by agent or attorney.

The Idaho Administrative Procedure Act provides that "[a] person is not entitled to judicial review of an agency action until that person has exhausted all administrative remedies required in this chapter." I.C. § 67-5271. The doctrine of exhaustion requires that where an administrative remedy is provided by statute, relief must first be sought by exhausting such remedies before the courts will act. McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63 23 L.Ed.2d 194, 202-204 (1969); Pounds v. Denison, 115 Idaho 381, 383, 766 P.2d 1262, 1264 (Ct.App.1988). No one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638, 644-45 (1938). Furthermore, the doctrine of exhaustion generally requires that the case run the full gamut of administrative proceedings before an application for judicial relief may be considered. Palmer v. Board of County Comm'rs of Blaine County, 117 Idaho 562, 565, 790 P.2d 343, 346 (1990) (citing Grever v. Idaho Telephone Co., 94 Idaho 900, 903, 499...