Rural Kootenai Org. v. BOARD OF COM'RS

• Decision Date: 09 December 1999
• Docket Number: No. 22271.,22271.
• Citation: 133 Idaho 833,993 P.2d 596
• Parties: RURAL KOOTENAI ORGANIZATION, INC., an Idaho nonprofit corporation, and Linda Erickson, Plaintiffs-Cross-Appellants, v. BOARD OF COMMISSIONERS, Kootenai County, State of Idaho, Defendant-Cross-Respondent, and McCormack Properties of Idaho, an Idaho corporation, Intervenor-Cross-Respondent.
• Court: Idaho Supreme Court

993 P.2d 596

133 Idaho 833

RURAL KOOTENAI ORGANIZATION, INC., an Idaho nonprofit corporation, and Linda Erickson, Plaintiffs-Cross-Appellants, v. BOARD OF COMMISSIONERS, Kootenai County, State of Idaho, Defendant-Cross-Respondent, and McCormack Properties of Idaho, an Idaho corporation, Intervenor-Cross-Respondent.

No. 22271.

Supreme Court of Idaho, Lewiston, April 1999 Term.

December 9, 1999.

Rehearing Denied February 23, 2000.

Sheroke & McGregor, Coeur d'Alene, for cross-appellants. Charles Sheroke argued.

Scott L. Wayman, Coeur d'Alene, for cross-respondents, Board of Commissioners.

Wetzel & Wetzel, Coeur d'Alene, for cross-respondents, McCormack Properties. Dana Wetzel argued.

SCHROEDER, Justice.

This is an appeal of a land use decision made by the Kootenai County Board of Commissioners (Board or County) in favor of McCormack Properties of Idaho, Inc. (McCormack). The Board granted McCormack's application for preliminary approval of a planned unit development (PUD) and approval of a preliminary plat of a ninety-two lot subdivision located within the PUD. Rural Kootenai Organization (RKO), an organization which participated in the public hearings before the Board and which opposed McCormack's application, appealed the Board's decision to the district court which vacated and remanded a portion of the Board's findings and affirmed the remainder of the Board's decision. RKO challenges aspects of the Board's decision which were affirmed by the district court. This Court vacates and remands that portion of the district court's decision concerning whether the Board properly determined ownership of all the lands contained within the PUD. The remainder of the district court decision is affirmed.

I. BACKGROUND AND PRIOR PROCEEDINGS

In August 1993, McCormack submitted an application for preliminary approval of a PUD and approval of a preliminary plat of a ninety-two lot subdivision (the subdivision) located within the PUD. The entire PUD consisted of 220 acres and was divided into two parts. One part consisted of 102 acres located within a bay of Lake Coeur d'Alene known as Cougar Bay. This area was designated as public open space within the PUD and was to be used as a wildlife sanctuary. McCormack agreed to sell and donate the 102 acres for a wildlife sanctuary to the Nature Conservancy for use as a public open space to protect water fowl habitat and wildlife if and when the PUD was approved by the County. The other part of the PUD consisted of approximately 118 acres which included the subdivision.

McCormack's application consisted of a fifty-six page narrative explaining the components of the PUD and setting forth engineering designs from J-U-B Engineers for all infrastructure including storm water and wastewater. The application also included letters from the fourteen affected agencies identified by the Kootenai County Planning and Zoning Staff. All of the submittals in the application were in response to the Kootenai County Subdivision Ordinance of 1978.

The Planning Administrator deemed the application complete, and the Kootenai County Planning and Zoning Commission (P & Z Commission) held public hearings on October 20, 1993, and November 3, 1993. The P & Z Commission placed conditions on the application and approved the application. The P & Z Commission forwarded the application to the Board with a unanimous recommendation to approve the preliminary application for the PUD and the preliminary subdivision plat.

The Board held public hearings on the application on December 7 and December 21, 1993. The Board granted both preliminary approval of the PUD and approval of the preliminary subdivision plat, subject to a number of conditions. On January 5, 1994, the Board adopted and approved an Order of Decision which is the focus of this appeal.

The procedural history of this matter is long and complex. RKO filed a petition for judicial review of the Board's January 5, 1994, decision with the district court (Judge Craig C. Kosonen presiding). The district court vacated and remanded to the Board certain findings made by the Board. The Board had found that the PUD and subdivision conformed with all of the goals and policies of the Kootenai County Comprehensive Plan (Comprehensive Plan). The Board had also found that the preliminary designs for wastewater treatment and storm water treatment met the requirements of review for approval of a preliminary plat. The district court, however, concluded that the language of Goals # 8 and # 9 of the Comprehensive Plan were contradictory, and directed the Board to confirm on remand that the Board's interpretation of this language and the application of its interpretation of this language to the facts in the case resulted in findings that the PUD and subdivision conformed with the Comprehensive Plan. The district court also concluded that there was insufficient evidence in the record to support the Board's findings that the preliminary designs for wastewater treatment and storm water treatment were adequate for preliminary approval.

McCormack appealed the district court's June 2, 1995, order. The County and RKO cross appealed. Before oral argument in the present appeal, the Board held a hearing to address the issues on remand from Judge Kosonen and entered an order reaffirming its approval of the preliminary plat. Less than a month later, the P & Z Commission held a public hearing to consider McCormack's application for final plat approval for Phase I of the subdivision. On January 5, 1996, the Board entered an order granting final plat approval of Phase I of the subdivision.

RKO appealed the Board's final plat approval to the district court (Judge James R. Michaud presiding). McCormack moved to dismiss its appeal that was pending before this Court on the basis that the Board's final plat approval and RKO's appeal of the final plat approval rendered this Court's review of the preliminary plat approval moot. This Court dismissed McCormack's appeal and conditionally dismissed RKO and the County's respective cross appeals. RKO responded with a request that its cross appeal remain. Ultimately, the parties stipulated to dismissal of the County's cross appeal. The Court ordered the appeal to proceed solely on the issues raised in RKO's cross appeal.

Thereafter, in August 1997, McCormack submitted a request to the Board for an extension and stay of the subdivision development schedule set forth in the Board's preliminary plat approval order of January 5, 1994. The Board granted McCormack's request for extension and stay on March 11, 1998. RKO petitioned the district court for judicial review of the Board's stay order (Judge James F. Judd presiding), Case No. CV 98-01492. Six days after RKO filed its petition for judicial review of the stay order, Judge Michaud rendered his opinion affirming the Board's final plat approval of Phase I of the subdivision. RKO did not file an appeal from this decision.

In addition to filing a petition for judicial review of the stay order which was still pending before the district court, RKO also filed a motion before this Court to augment the appellate record with the Board's March 11, 1998, stay order. This Court granted the motion and ordered the parties to submit supplemental briefing with regard to the issues surrounding the stay order. Less than a month later, however, a hearing was held in the district court (Case No. CV 98-01492), at which time the district court denied McCormack's motion to dismiss RKO's petition for review of the stay order. The district court concluded that it had jurisdiction to hear the issues surrounding the stay order and refused RKO's request to stay the district court proceedings pending review of the issues by this Court. The district court affirmed the Board's stay order on April 27, 1999. No appeal has been filed from this decision.

II. ISSUES ON APPEAL

A threshold issue on appeal is whether the Board's January 5, 1994, order granting preliminary plat approval is an appealable order. This issue was raised in McCormack's appeal and addressed by the County in its cross appeal, but RKO argues the issue is no longer before this Court because the respective appeals filed by McCormack and the County were dismissed. Even so, the question of whether the order granting preliminary plat approval is appealable raises the question of whether this Court has subject matter jurisdiction. The question of subject matter jurisdiction can be raised by the Court sua sponte. State, Dep't of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 152 n. 1, 595 P.2d 299, 301 n. 1 (1979)

.

Assuming the Board's order granting preliminary plat approval is an appealable order, the following issues raised by RKO in its initial cross appeal remain:

(1) Whether the Kootenai County Subdivision Ordinance requires a showing of feasibility of a proposed water system prior to approval of a preliminary subdivision plat and, if so, whether the record supports a finding of feasibility with respect to McCormack's proposed water system.

(2) Whether the Board violated RKO's fundamental due process rights by failing to provide notice of the April 6, 1994, and April 20, 1994, meetings.

(3) Whether the Board's decision not to address ownership of all the lands contained within the PUD violated applicable provisions of the Kootenai County Zoning Ordinance.

(4) Whether the district court erred in upholding the adequacy of the transcripts.

(5) Whether the Board's findings of fact are adequate to support a decision that the ordinance requirements for preliminary approval of a subdivision and PUD were met.

(6) Whether RKO is entitled to an award of attorney fees under the Private Attorney General Doctrine and section 12-117 of the Idaho Code (I.C.).

RKO also raised issues in its supplemental brief concerning the validity of the Board's March 11, 1998, stay order. The same issues were pending before the district court at the time of oral...