White v. Bannock County Commissioners

• Decision Date: 12 November 2003
• Docket Number: No. 28675, No. 28699.
• Citation: 80 P.3d 332,139 Idaho 396
• Court: Idaho Supreme Court
• Parties: Boyd B. WHITE, II, individually, Plaintiff-Respondent, v. BANNOCK COUNTY COMMISSIONERS, and the Bannock County P & Z Commission, Defendants-Appellants, and Castle Concrete, an Idaho Corporation, Defendant. Boyd B. White, II, individually, Plaintiff-Respondent-Cross Appellant, v. Bannock County Commissioners, and the Bannock County P & Z Commission, Defendants, and Castle Concrete, an Idaho Corporation, Defendant-Appellant-Cross Respondent.

80 P.3d 332

139 Idaho 396

Boyd B. WHITE, II, individually, Plaintiff-Respondent, v. BANNOCK COUNTY COMMISSIONERS, and the Bannock County P & Z Commission, Defendants-Appellants, and Castle Concrete, an Idaho Corporation, Defendant.

Boyd B. White, II, individually, Plaintiff-Respondent-Cross Appellant, v. Bannock County Commissioners, and the Bannock County P & Z Commission, Defendants, and Castle Concrete, an Idaho Corporation, Defendant-Appellant-Cross Respondent.

Nos. 28675, 28699.

Supreme Court of Idaho, Pocatello, September 2003 Term.

November 12, 2003.

Mark L. Hiedeman, Bannock County Prosecuting Attorney, Pocatello, for appellants Bannock County Commissioners and Bannock County P & Z Commission. Guy R. Price argued.

Jones, Chartered, Pocatello, for appellant Castle Concrete. Jack H. Robison argued.

Boyd B. White II, Pocatello, pro se respondent.

BURDICK, Justice.

This is an appeal from a summary judgment and order voiding the approval of a conditional use permit (CUP), with directions to remand the matter to the County Planning and Development Council (the Council). Because this case reached the district court other than through the statutorily prescribed procedure for an appeal from an adverse decision of the Council, we reverse the district court's decision. We remand the matter to the Council but provide no remedy as the administrative appeal has been dismissed for lack of action, and no appeal was taken therefrom.

FACTS AND PROCEDURAL BACKGROUND

Monroc, Inc. applied for a conditional use permit in February of 2000, seeking to develop and operate a gravel mine, concrete batch plant, asphalt plant and rock crushing operation on Syphon Road in northwest Bannock County. Boyd B. White, an adjacent landowner, was an outspoken opponent of the proposal that he claimed would devalue his property and would diminish his quality of life and enjoyment of his property.

The Council held a public hearing on Monroc's application on March 15, 2000. White attended and participated in the hearing. At the conclusion of the hearing, the public was informed that only additional written testimony from the public would be accepted by the Council until March 31, 2000. The Council then conducted two work sessions on the application, which were open to the public, where Monroc provided additional information requested by the Council. At its next regular meeting on April 19, 2000, the Council considered the staff report on the Monroc application. According to the minutes of the meeting, the Council granted the permit with specified conditions.

White filed a notice of appeal to the Bannock County Commissioners on May 8, 2000, pursuant to Zoning Ordinance 1998-1 § 550 (17.56.590).¹ In his notice of appeal, White identified violations of law that he claimed infected the Council's procedures in considering and granting the CUP. He asserted that he was denied due process because procedures before the County Commissioners did not allow for argument or comment from the public. He argued that the grant of the CUP is a contested case under the Administrative Procedures Act(APA), whose procedures were not followed by the Council. He argued that the Council failed to make written findings as of the date he filed his appeal. The Council accepted further testimony from the applicant but refused further comment from the public; allowed the application to be modified without comment from the public; accepted incomplete information from the applicant who bore the burden to show compliance with the conditions of use; and failed to comply with the standards of the Local Land Use and Planning Act (LLUPA). White indicated that he was not requesting a verbatim transcript of the proceedings before the Council.

On May 19, 2000, White filed a complaint in the district court alleging that the Council had neither issued its findings nor specified the conditions applicable to the Monroc permit. Three months after the hearing when the Council granted the CUP, the Council finally issued its written findings, conclusions, and order. White stated in his complaint that an administrative appeal had been filed with the Bannock County Commissioners and that "this appeal to the district court" was being filed for the same reason. White submitted nothing further to the Commissioners and never paid the estimated cost of the transcript in pursuit of the appeal. The Commissioners dismissed the administrative appeal on August 20, 2001, for lack of action.

The prayer for relief in White's complaint requested that the district court declare void not only the grant of the CUP but also a prior, unrelated rezoning of Monroc's property. The complaint sought a sweeping review of council procedures, which White asserted denied due process in their current application and needed to be revised. The complaint further advocated the adoption of new zoning standards, an injunction barring any more hearings regarding Monroc while the standards were being modified, and the appointment of "a properly designated Planning and Development Committee." In the complaint, White also demanded that the County purchase audio microphones for use in future proceedings, to comply with the Americans with Disabilities Act (ADA), and for such other relief as the court deems just and necessary.

White filed an amended complaint with the district court in January 2001. Monroc answered the amended complaint and asserted an affirmative defense seeking dismissal of the complaint. White filed a second amended complaint adding Castle Concrete as a party defendant, while stipulating to the dismissal of Monroc from the action.

On July 3, 2001, White filed a motion for summary judgment regarding the Council's failure to follow state statutes and the state and federal constitutions in granting the CUP. Castle Concrete filed a motion for judgment on the pleadings and for summary judgment and a motion to dismiss, alleging that White's appeal did not conform to the procedures set out for appeals from an adverse decision of the Council. The County joined in the motion to dismiss and filed a separate motion asking the district court to strike all of the references to and testimony from the proceedings before the Council. White then filed a motion to augment, seeking to supplement his summary judgment motion with answers to his interrogatories and his affidavit "to show the circumstances in which the material facts are not disputed." In the alternative, White filed a motion requesting that the court order under Rule 84 that all parties listen to the tapes of the meetings, which the County was suggesting were so critical to review.

On October 18, 2001, the district court issued its opinion dismissing plaintiff's appeal because (1) it was not timely, (2) he failed to exhaust administrative remedies, and (3) he failed to request an agency transcript and record. The district court entered its order dismissing the appeal on October 29, 2001.

Following White's motion to reconsider, the district court withdrew its prior opinion. The district court issued a substitute opinion, dated February 19, 2002, addressing in particular White's summary judgment motion with respect to the CUP procedures. For purposes of the appeal, the district court ruled that no transcript of the Council's proceedings would be necessary. Without ruling on the exhaustion question, the district court remanded the matter to the County to correct and amend its procedures. By order dated May 17, 2002, the district court issued an order and addendum to its substitute opinion, granting partial summary judgment to White, voiding the CUP, and remanding the matter to the Council.

On appeal, the County and Castle Concrete dispute that the district court had jurisdiction to proceed on White's complaint, which they argue was filed in an attempt to circumvent the procedure mandated by statute for an appeal from a decision of the Planning and Development Council. They maintain that the district court should have dismissed the complaint and not taken evidence in the form of affidavits to decide White's summary judgment motion, which asserted procedural errors on the part of the Council. White cross-appealed, asserting that he was denied fundamental fairness in the administrative appeal process.

STANDARD OF REVIEW

A motion for summary judgment should only be granted when all of the facts contained in the applicable pleadings, depositions, admissions, and affidavits have been construed most favorably to the nonmoving party, and it is clear that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Gardner v. Evans, 110 Idaho 925, 719 P.2d 1185 (1986). If the evidence reveals no disputed issues of material fact, what remains is a question of law, over which this court exercises free review. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

DISCUSSION

Bannock County Ordinance 17.56.590(A) provides that a decision by the Council "may be appealed to the board of county commissioners by the applicant or any other aggrieved person within ten days after the date on which the decision is made." Although the Council announced its approval of Monroc's CUP at its regular meeting on April 19, 2000, it only issued its findings and conclusions on July 27, 2000. Under LLUPA,

The approval or denial of any application provided for in this chapter shall be in writing and accompanied by a reasoned statement that explains the criteria and standards considered relevant, states the relevant contested facts relied upon, and explains the rationale for the decision based on the applicable provisions of the comprehensive plan, relevant ordinance and statutory provisions, pertinent constitutional principles and factual information contained in the record.

I.C. § 67-6535(b). Therefore, the date "on which the decision is made" corresponds to the date of the written findings, conclusions and

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