Taylor v. Canyon County Bd. of Com'Rs

• Decision Date: 09 June 2009
• Docket Number: No. 34809.,34809.
• Citation: Taylor v. Canyon County Bd. of Com'Rs, 210 P.3d 532, 147 Idaho 424 (Idaho 2009)
• Parties: Nancy TAYLOR, Doug Houston, Petitioners, and Kirby Vickers and Cheryl Vickers, husband and wife, Petitioners-Appellants, v. CANYON COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Idaho, Defendant-Respondent. Edward Savala, Intervenor/Respondent.
• Court: Idaho Supreme Court

210 P.3d 532

147 Idaho 424

Nancy TAYLOR, Doug Houston, Petitioners, and Kirby Vickers and Cheryl Vickers, husband and wife, Petitioners-Appellants, v.CANYON COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Idaho, Defendant-RespondentEdward Savala, Intervenor/Respondent.

No. 34809.

Supreme Court of Idaho, Boise, January 2009 Term.

June 9, 2009.

White Peterson, P.A., Nampa, for appellants Vickers.Matthew Ace Johnson argued.

Canyon County Prosecutor's Office, Caldwell, for respondents.Samuel Bedell Laugheed argued.

Rose Law Group, Boise, for intervenor Savala.Todd Michael Lakey argued.

BURDICK, Justice.

This case requires the Court to consider whether we can review the following county-level land use decisions after our recent holdings in Giltner Dairy, LLC v. Jerome County,145 Idaho 630, 181 P.3d 1238(2008), andHighlands Development Corp. v. City of Boise,145 Idaho 958, 188 P.3d 900(2008): (1)amendment to a repealed county comprehensive plan map, (2)sua sponteamendment to a county comprehensive plan map through "judicial notice," and/or (3) approval of a conditional rezone and corresponding development agreement.Appellants Kirby and Cheryl Vickers, husband and wife (collectively the Vickers), appeal from the district court's order affirming various land use decisions rendered by Respondent Canyon County Board of Commissioners(Board) in response to Intervenor/RespondentEdward Savala's application for a comprehensive plan map change, a conditional rezone, and a development agreement for his property.We vacate that part of the district court's order affirming the Board's amendments to the 1995 Comprehensive Plan Map and the 2010 Comprehensive Plan Map, holding that the Vickers failed to provide a statutory basis for judicial review of either amendment.We affirm that part of the district court's order affirming the Board's order for a conditional rezone of Savala's property, holding that the Board's approval of the conditional rezone and corresponding Development Agreement was not arbitrary, capricious, or an abuse of discretion.

I.FACTUAL AND PROCEDURAL BACKGROUND

Savala is the owner of a parcel of property approximately 8.09 acres in size located in Canyon County in an "A"(Agricultural) zone.Savala seeks to locate a medical and dental clinic on his property, as well as to promote other commercial uses such as building a service station/convenience store, a restaurant and a wine store/wine tasting room.In April of 2005, Savala submitted an application with the P & Z Commission requesting: (1) a comprehensive plan map change, (2) a conditional rezone of his property from an "A"(Agricultural) zone to a "C-2"(Community Commercial) zone, and (3) approval of a development agreement.A public hearing was held on the application on May 19, 2005.On June 8, 2005, the P & Z Commission recommended that the Board deny Savala's application in all respects.

Savala then requested the Board to review his application.The Board scheduled public hearings on the application for October 25 and October 27, 2005.The October 27 hearing was scheduled in anticipation of the Board's approval of Savala's request to amend the comprehensive plan map.The approval would constitute a "material change" from the P & Z Commission's recommendation, and, therefore require a second hearing on the amendment under Idaho Code § 67-6509.The Board sent notice of the hearings to property owners within three-fourths of a mile of the Savala property and provided notice to the rest of the public through posting and publication.The notice provided in pertinent part:

NOTICE IS HEREBY GIVEN, that the Canyon County Board of Commissioners is scheduled to hold a public hearing on a request by Edward Savala for a Comprehensive Plan Map Change from an Agricultural designation to a Community Commercial designation and a Conditional Rezone of approximately 8.09 acres from "A"(Agricultural) zone to a "C-2"(Community Commercial) zone.Also requested is approval of a Development Agreement.

On October 20, 2005, in a separate action, the Commissioners adopted ResolutionNo. 05-229.The resolution repealed all prior comprehensive plans, including the 1995Canyon County Comprehensive Plan(1995 Plan) that was in place at the time Savala filed his application, and adopted the 2010Canyon County Comprehensive Plan(2010 Plan).The resolution contained no savings clause.

The first public hearing on Savala's application was held on October 25, 2005.During this hearing, questions were raised by both Savala's counsel and the Vickers' counsel as to whether the 1995 Plan or the 2010 Plan applied to the application.The Board ultimately decided that the 1995 Plan was the plan to be applied since it was the plan in place at the time Savala filed his application.

Due to the volume of public comment, the first public hearing was continued to October 27, 2005, which was the date previously scheduled for the second public hearing on the amendment.At the close of the October 27 hearing, the Board, by a 2-1 vote, granted Savala's request to amend the 1995 Plan.Commissioner Robert Vasquez, the no vote in the split decision, chose to recuse himself from any further deliberations on Savala's application, explaining he could not impose something that he disagreed with.Because the Board's decision to amend the 1995 Plan constituted a material change from the P & Z Commission's recommendation, the Board was required to hold a second public hearing on the amendment pursuant to I.C. § 67-6509.Hearings were scheduled for March 14 and March 31, 2006, and notice was provided.

The second public hearing on Savala's application was commenced on March 14, 2006.Again, due to the volume of public comments, the hearing was continued to March 31, 2006.At the close of the second hearing, the two remaining commissioners approved a motion to amend the repealed 1995 Plan.The two commissioners also approved Savala's request for a conditional rezone of his property.Because the commissioners' approval of the conditional rezone once again overturned a recommendation of the P & Z Commission, thus constituting a material change, a second public hearing on the conditional rezone was required under I.C. § 67-6509.

The third and final public hearing on Savala's application was commenced immediately following the continuation of the second on March 31, 2006.At the close of the third hearing, the two commissioners approved the conditional rezone, along with a corresponding Development Agreement as required by section 07-06-07(2) of Canyon County OrdinanceNo. 05-002.¹On May 4, 2006, the Board issued its findings of fact and conclusions of law, signed the zoning ordinance, and executed the Development Agreement.Although Savala did not request an amendment to the 2010 Plan, the Board took "judicial notice" that one was necessary and amended the 2010 Plan without providing notice or a public hearing as required by I.C. § 67-6509.

On June 1, 2006, the Vickers, who are neighboring landowners to Savala's property,² filed a petition for judicial review of the Board's orders.The district court issued an order affirming the Board's decisions in all respects.The Vickers then appealed to this Court.In response, the Board filed a motion to dismiss based on this Court's holdings in Giltner Dairy, LLC v. Jerome County (Giltner Dairy),145 Idaho 630, 181 P.3d 1238(2008), andHighlands Development Corp. v. City of Boise (Highlands),145 Idaho 958, 188 P.3d 900(2008), which were released after the district court issued it's decision.In Giltner Dairywe held that there is no statutory right to judicial review of a county board of commissioners' decision whether or not to amend a comprehensive plan map, 145 Idaho at 633, 181 P.3d at 1241; and in Highlands we held that there is not statutory right to judicial review of a county board of commissioners' decision whether or not to approve a request for an annexation/initial zoning of land.145 Idaho at 962, 188 P.3d at 904.The Board argued that Giltner Dairy is dispositive of the issue regarding the Court's jurisdiction to review the Board's amendments to the 1995 Plan and the 2010 Plan.The Board also argued that the Court has no jurisdiction to review the Board's approval of the conditional rezone under Highlands since a conditional rezone is not a "permit authorizing the development," which is a prerequisite for judicial review under the statute.Savala also filed a motion for fees and costs should the appeal be dismissed, arguing the Vickers had pursued the appeal without a reasonable basis in fact or law based on this Court's holdings in Giltner Dairy and Highlands.The Vickers filed a response brief, arguing that this case is distinguishable from the actions disposed of in Giltner Dairy and Highlands since Savala was seeking affirmative approval of a course of development in the form of a conditional rezone and development agreement that would allow him to begin development on his project immediately upon approval.On September 3, 2008, this Court issued an order denying the Board's motion to dismiss and Savala's motion for attorney fees and costs.

II.STANDARD OF REVIEW

This appeal involves land use decisions rendered by a county board of commissioners, which are local government actions.Rule 84(a)(1) of the Idaho Rules of Civil Procedure sets forth that the "actions of a local government, its officers or its units are not subject to judicial review unless expressly authorized by statute."Although the Idaho Administrative Procedures Act (IAPA) provides for judicial review of agency actions, this Court has held that a county board of commissioners does not fall within the definition of "agency" for purposes of applying IAPA. Petersen v. Franklin County, 130 Idaho 176, 182, 938 P.2d 1214, 1220(1997)."Absent a statute invoking the IAPA's judicial review provisions, [the Board's] actions may not...