Tovar v. Billmeyer
| Decision Date | 28 February 1978 |
| Docket Number | No. 12556,12556 |
| Citation | 575 P.2d 489,98 Idaho 891 |
| Parties | Joseph TOVAR and Deborah Ann Moore, Plaintiffs-Appellants, v. C. G. BILLMEYER, Melvin Morgan, F. W. "Bill" Roskelley, John Evans, Les Purce, Donna Boe, Earl Pond, Grant Anderson, Robert Meline, Wayne Ellis, and the City of Pocatello, an Idaho Municipal Corporation, Defendants-Respondents. |
| Court | Idaho Supreme Court |
David W. Cantrill, of Green & Cantrill, Boise, for plaintiffs-appellants.
L. Charles Johnson, of Johnson & Olson, Pocatello, for defendants-respondents.
Plaintiffs-appellants, Joseph Tovar and Deborah Ann Moore (hereinafter collectively referred to as "Tovar" unless otherwise indicated), are the owners of property located at 250 North Main Street, Pocatello, Idaho. The defendants-respondents in this action are the City of Pocatello, the Department of Buildings Inspector, Wayne Ellis, the City Council Members of the defendant City holding office in 1975, and two present City Council members who took office in 1976 (hereinafter collectively referred to as "City" unless otherwise indicated). The dispute in this appeal centers around the construction and operation of an "adult book store and theater" in downtown Pocatello, Idaho. The legal dispute between the parties commenced in the fall of 1975 and has resulted in the filing of two actions in state court as well as an action in federal district court. The federal suit has no bearing on this appeal however. This appeal is from the district court's decision in the second of the state court cases wherein the City's motion for summary judgment was granted. The events and surrounding legal actions are summarized below.
From September 1, 1972 through August 31, 1975 Tovar rented property and operated an "adult book store and theater" at 135 South Main Street in Pocatello, Idaho. On September 1, 1975 Tovar was evicted from these premises and subsequently purchased a building and property at 250 North Main Street in Pocatello. Tovar planned to remodel the building on the property and operate an "adult book store and theater." Both these locations were zoned "commercial central" under the Zoning Code of the City of Pocatello (hereinafter "Zoning Code"). Subsequent to September 2, 1975, the respondent Wayne Ellis, the Pocatello Building Inspector, informed Tovar that a bookstore was a permissible use on this property but the property was not zoned for a "theater." Ellis informed Tovar that the property was zoned "commercial central" a zone not including "theaters" as a permitted use. Ellis further informed Tovar that a conditional use permit had to be secured from the Zoning Board of Adjusters before the building permit could issue.
An explanation of the Zoning Code is warranted. The Zoning Code divides the City of Pocatello into various zones, allowing certain specific uses in each zone. The property purchased by Tovar and that where Tovar previously operated the "adult bookstore and theater" is zoned "commercial central." 1 "Theaters" are not included in the list of permitted uses in this zone and through the incorporation of the permitted uses in categories b. through v. of the "commercial local" zone it would appear that some "theaters" are specifically excluded. 2 None of the zones in the Zoning Code specifically list indoor motion picture theaters as a permitted use. Several zones specifically list outdoor drive-in theaters as permitted uses 3 and several zones allow "amusement enterprises" as a permitted use. 4
The City Council of Pocatello has construed the Zoning Code to provide that indoor motion picture theaters are "amusement enterprises" and are allowed only in zones permitting this use. 5
On September 17, 1975, after Tovar was informed by Ellis that a conditional use permit was needed, Tovar made application to the Board of Adjusters for the permit. On October 9, 1975 the Board of Adjusters granted the conditional use permit. This decision of the Board of Adjusters was appealed by the "Downtown Merchants' Association" to the City Council. Tovar was informed that this appeal would be limited to a review of the Board of Adjusters' decision. On October 23, 1975 the City Council held a meeting and reversed the decision of the Board of Adjusters. At this meeting Council members Pond and Purce voted in favor of Tovar.
On December 9, 1975, Tovar filed 6 suit in district court after this reversal of the Board of Adjusters' decision. This suit was entitled a "Petition to Review Denial of Variance" and was filed pursuant to the Idaho Local Planning Act. 7 The petition charged that the City Council had not acted as a review board, but rather had conducted the October 23 meeting like a public meeting. The petition also charged that the City Council's decision denying the conditional use permit was arbitrary and capricious and motivated by political considerations. The prayer of the petition asked the district court to review and reverse the City Council's decision and reinstate the Board of Adjusters' decision or alternatively order the City Council to issue the conditional use permit.
The Honorable George W. Hargraves, District Judge, heard this case and issued a memorandum decision on February 11, 1976. The district court determined that Tovar's petition had raised five issues generally, three of which are involved in this appeal: (1) Whether the appellant was deprived of due process of law by reason of the City Council's meeting on October 23, 1975; (2) whether the City Council had acted arbitrarily, capriciously, and in abuse of its discretion; and (3) whether classification of "theaters" as "amusement enterprises" under the zoning ordinance was unreasonable and arbitrary. The district court reversed the October 23 decision of the City Council and remanded the case to the City Council. The district court held that the procedures followed at the October 23 meeting had been improper in that the meeting had been conducted as a public hearing where new evidence was considered rather than as a review hearing upon the evidence before the Zoning Board of Adjusters. The district court ordered the City Council to conduct another meeting following the guidelines set forth in the court's decision. The district court also addressed the remaining two issues, finding that as a matter of law the City Council had not acted arbitrarily, capriciously or in abuse of its discretion by denying the conditional use permit, and also that the classification of "theaters" as "amusement enterprises," was not unreasonable and arbitrary.
Pursuant to the district court's decision, the City Council held another meeting on March 18, 1976 to again review the October 9, 1975 decision of the Board of Adjusters. Again the City Council reversed the Board of Adjusters' decision thus denying the conditional use permit. Tovar took no appeal from the March 18 meeting. On January 24, 1977, this suit was dismissed by order of Judge Hargraves pursuant to a motion filed by the City.
The suit which gave rise to this appeal was filed on August 5, 1976 by Tovar. This was after the second meeting of the City Council on March 18, 1976, but before the final dismissal of the first suit on January 24, 1977. Tovar's complaint sought injunctive relief, declaratory relief and damages. Tovar's prayer for relief asked the court to declare the zoning ordinances of the City of Pocatello unconstitutional and invalid, or in the alternative, to declare the ordinances inapplicable to indoor motion picture theaters, or in the alternative to declare that an indoor motion picture theater was a permitted use in the areas zoned "commercial central." The complaint also asked the court to declare the City Council's action of October 23, 1975 invalid and to reinstate the October 9, 1975 decision of the Board of Adjusters, to enjoin the City from initiating any action contesting that Tovar's proposed use was not in accordance or contrary to the zoning ordinance, a judgment for lost profits, attorney fees, and punitive damages. The City filed its motion for summary judgment on September 20, 1976. On January 3, 1977, the Honorable Arthur P. Oliver, sitting as district judge, entered judgment granting the City's motion for summary judgment and dismissed Tovar's complaint with prejudice.
The following is a summary of Judge Oliver's memorandum decision dismissing Tovar's complaint in the second suit. The prayer in the complaint sought no relief against the defendants-respondents Pond, Purce, and Ellis and peremptory dismissal as to them was appropriate. Counts I, III, and IV of Tovar's complaint, which alleged a cause of action in tort because the City Council had acted arbitrarily and capriciously in denying Tovar's conditional use permit involved the same issues as the first suit before Judge Hargraves. Judge Oliver's memorandum decision was issued on December 16, 1976. At this time, the first suit before Judge Hargraves had not been dismissed. Judge Oliver would not consider issues in the second suit which duplicated issues in the first suit. Judge Oliver held that Tovar would have to "process to a conclusion" the first suit. The tort claims could not be maintained because no notice was given to the City as required by I.C. § 6-906. Lastly, it was held that Tovar was premature and had no standing to question the constitutionality of the zoning ordinance because they had not applied for a permit in any zone except the "commercial central" zone and under the ordinance a "theater" is clearly not allowed in a "commercial central" zone. Tovar appeals from this judgment. Presumably Tovar is claiming on appeal that the trial court erred in ruling as he did on each of these points.
This appeal can be disposed of by discussing three issues:
(1) Filing of notice of tort claims pursuant to I.C. § 6-906;
(2) Peremptory dismissal of defendants Pond, Purce, and Ellis; and
(3) The effect of the first suit on this appeal.
Tovar is...
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McQuillen v. City of Ammon
...to bringing suit, McQuillen's claim of negligent permit issuance is barred for failure to file timely notice. Cf. Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d 489 (1978) (in suit seeking monetary damages brought by property owner challenging the denial of a conditional use permit, this Court ......
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Tovar v. Billmeyer
...in the first state court case, which was still pending at the time. The Idaho Supreme Court affirmed this dismissal. Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d 489 (1978). When the first state court case was finally concluded, 3 the federal district court dismissed plaintiffs' present actio......
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