Bopp v. City of Sandpoint

716 P.2d 1260, 110 Idaho 488, 1986 Ida. LEXIS 417
CourtIdaho Supreme Court
DecidedFebruary 19, 1986
Docket15496
StatusPublished
Cited by20 cases

This text of 716 P.2d 1260 (Bopp v. City of Sandpoint) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bopp v. City of Sandpoint, 716 P.2d 1260, 110 Idaho 488, 1986 Ida. LEXIS 417 (Idaho 1986).

Opinions

BAKES, Justice.

In this the second of two lawsuits arising from the construction of a shopping mall on the Cedar Street Bridge in Sandpoint, Idaho, Jack L. Bopp sues the City of Sand-point (city), contending that the city’s ordinance vacating the public right-of-way in the Cedar Street Bridge and subsequent lease of the underlying property to the [489]*489Cedar Street Bridge Company (company) are void. The company, joined by the city, moved for and was granted summary judgment. The district court held, in sum, that Bopp had failed to state a cause of action both with regard to the vacation ordinance and the subsequent lease. We affirm the district court.

The dispute in this case centers around certain real property deeded to the city in fee simple in 1908. The property is an 80-foot wide strip of land which commences at the intersection of Cedar Street and Sand Creek in Sandpoint, Idaho, and then crosses to the east side of Sand Creek. In 1908-09, the city constructed a wood bridge known as the Cedar Street Bridge on the property. The bridge connected Cedar Street in the downtown business district of Sandpoint to the Burlington Northern Railroad depot and other property on the east side of Sand Creek. In 1969 the bridge was closed to vehicular traffic due to its deteriorating condition. Over the passage of time the bridge deteriorated even further. In 1978 the city council initially voted to demolish the bridge and a few days later voted to repair it instead. Repairs were never made due to lack of money. On April 28, 1980, for public safety reasons, the mayor ordered the bridge barricaded, even to pedestrian traffic.

In June, 1980, the city council adopted resolution No. 19-80, authorizing the execution of an option to lease the bridge property to Scott Glickenhaus. (Glicken-haus is the general partner in the respondent company.) The following October the city entered into a formal lease (first lease) of the property with the company. Bopp challenged this lease in his first lawsuit against the city in district court and prevailed on his motion for summary judgment. The district court held the first lease void because, among other reasons, no formal action had been taken by the city to vacate the property as public right-of-way, and that the resolution authorizing the lease did not contain a determination that the property was not needed for city purposes. The district court’s judgment in this first lawsuit was entered on September 23, 1982. It was not appealed. Shortly thereafter the city sought to remedy the faults found by the district court.

On October 12,1982, at a special meeting of the Sandpoint City Council, a motion was adopted to commence proceedings to vacate the bridge right-of-way. A public hearing on the proposed vacation was held two weeks later, on October 28, 1982, after notice of the hearing was published twice in each of the local newspapers. On November 8, the Sandpoint City Council and the mayor approved Ordinance No. 767 declaring the bridge unnecessary for city purposes and vacating the public right-of-way portion of the bridge. (The ordinance claimed that the public’s right-of-way was only a 32-foot wide strip inside the city’s 80-foot ownership strip spanning Sand Creek.) Eight days later, on November 16, 1982, the city council adopted resolution No. 52-82 which declared that the real property in question (the entire 80 feet), owned in fee simple by the city, was not needed for public purposes and authorized a lease of that portion of the property to respondent Cedar Street Bridge Company. The resolution also found that the terms of the lease were just and equitable.1 The lease (second lease) was executed that same day.

Bopp commenced the present action in the district court on December 20, 1982, seeking both declaratory judgment and equitable relief from the city’s actions in vacating the bridge and thereafter leasing it to the company. In essence, Bopp again seeks to have the lease declared void on grounds that: (1) the vacation ordinance is invalid; and (2) the terms of the lease are neither just nor equitable as required by I.C. § 50-1409.

I

We first address the issue of whether Bopp, who does not own any property adja[490]*490cent to the right-of-way being vacated, may nevertheless contest the validity of the vacation ordinance. This Court early on, in Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911), held that “a property owner has no cause of action against a municipality for damages to his or her property by the vacation of a public highway, where no part of his property abuts upon the portion of the highway vacated ...” (with two exceptions, neither of which are applicable here). Canady v. Coeur d’Alene Lumber Co., 21 Idaho at 91, 120 P. at 834. The Court in Canady relied on the earlier case of Stricker v. Hillis, 17 Idaho 646, 106 P. 1128 (1910), in which the Court held that in order to have a claim a property owner must suffer a loss not common to the public.

In this case if the appellant Bopp can be said to have suffered some injury, it is one which is not special or peculiar to him; rather, it is one generally shared by all residents of the City of Sandpoint alike. The district court correctly applied the general rule “that only those who sustain some special or peculiar injury, differing in kind and not merely in degree from that sustained by the general public, are entitled to complain of a street vacation.”

Appellant alleges that even if his injury is one which is shared generally by all residents of the city, he may nevertheless state a cause of action against the city under our mandamus and prohibition statutes. The district court held that appellant’s failure to specifically pray for the issuance of such writs constitute a basis for denying any relief under said statutes. However, we affirm the trial court because writs of mandate (and their counterpart, prohibition) will not issue to compel the performance of a purely discretionary function, Dalton v. Idaho Dairy Products Com’n, 107 Idaho 6, 684 P.2d 983 (1984); Lisher v. City and/or Village of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980); Saviers v. Richey, 96 Idaho 413, 529 P.2d 1285 (1974), vacation of streets under I.C. § 50-311 being such a discretionary function. Appellant’s arguments regarding mandamus and prohibition, therefore, are without merit.

Appellant also argues that the Ca-nady decision should be held inapplicable to his proceeding for relief under our declaratory judgment statute because Cana-dy was decided prior to the enactment of the declaratory judgment statute. Appellant argues that the declaratory judgment provision is much broader in its scope as to those interests cognizable in courts of justice. Again, appellant argues that in a proceeding for declaratory judgment he need not allege some injury special or peculiar to himself. We disagree. In Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959), we specifically held that a taxpayer suit challenging the validity of a statute or municipal ordinance must allege an interest other than “such as is common to all other like-situated taxpayers.... ” Greer v.

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Cite This Page — Counsel Stack

Bluebook (online)
716 P.2d 1260, 110 Idaho 488, 1986 Ida. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bopp-v-city-of-sandpoint-idaho-1986.