Burns Holdings, LLC v. Madison County Board of County Commissioners

214 P.3d 646, 147 Idaho 660, 2009 Ida. LEXIS 106

• Court: Idaho Supreme Court
• Decided: July 9, 2009
• Docket: 33753
• Status: Published

Opinions

AMENDED OPINION, THE COURT’S PRIOR OPINION DATED MAY 1, 2009 IS HEREBY WITHDRAWN

HORTON, Justice.

Appellant Bums Holdings, LLC (Burns) filed applications for an amendment to the Madison County Comprehensive Plan and to rezone property it owns. The Madison County Board of Commissioners (Board) denied the application for amendment of the comprehensive plan and took no action on the rezone application. Bums petitioned for judicial review and the district court upheld the Board’s decision. Burns has appealed to this Court. Because there is no statute authorizing judicial review of the Board’s action, we are not at liberty to review it. We therefore vacate the decision of the district court and remand this case to the district court with directions to dismiss the petition for judicial review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Bums owns a 49-aere parcel in Madison County, Idaho (the County) and would like to build a concrete batch plant on the site. The property is located close to the North Rex-burg Interchange on Highway 20 in an area that is characterized as agricultural and residential. In November of 2004, Burns filed two applications with the County. The first sought to amend the County’s comprehensive plan and comprehensive plan map to allow commercial and light industrial activity in the area within which the subject land is located. The second application requested a zone change of the property from “Transitional Agriculture Two” to “Commercial” and “Light Industrial.” Specifically, Bums requested that 12 acres be rezoned for light industrial use where the concrete batch plant would be located and 37 acres be rezoned as a commercial buffer surrounding the property. In a 6-1 vote, the Madison County Planning and Zoning Commission recommended that the Board approve Burns’ applications.

The Board held a public hearing on February 28, 2005. At the same hearing, the Board heard another matter immediately before Burns’ — that of Walters Ready Mix, Inc. (Walters). Walters also filed applications seeking both an amendment to the comprehensive plan and a zone change to allow operation of a gravel pit of 80 acres surrounded by a commercial buffer on a 130-acre site. The Walters property is located close to South Rexburg and is proximal to other commercial/industrial sites. The Board tabled its decisions on both the Burns and Walters applications until a later date. The Board met again to discuss the Burns applications on March 7, 2005 and voted to deny the application to amend the comprehensive plan and map. The Board took no action on the Burns application for a zone change. Around the same time the Board denied the Burns application, the Board approved the Walters applications.

Following the Board’s decision, Burns filed its first petition for judicial review, alleging unlawful reasoning and decision-making by the Board. Burns highlighted numerous parallels between its applications and the Walters applications in an attempt to prove that the Board acted arbitrarily and capriciously in approving the Walters applications while denying the Burns application. With the agreement of the parties, the district court remanded the matter back to the Board because the court was concerned that, inter alia, the Board’s decision had erroneously relied on a County traffic count while ignoring Burns’ traffic expert.

The Board reexamined the traffic and safety issues but again denied Burns’ request for an amendment to the comprehensive plan. On June 1, 2006, the Board issued a fourteen-page decision articulating its basis for the denial. Based upon its decision to deny Burns’ request for amendment of the comprehensive plan, the Board did not address Burns’ zone change application.

Burns filed a second petition for judicial review, and the district court upheld the Board’s decision.

II. ANALYSIS

Burns asks us to reverse the Board’s decision because it claims the Board’s denial of its request was result-oriented when compared to the decision made regarding the Walters applications, the Board erroneously relied on lay opinion rather than certain expert testimony offered by Burns, and the Board’s action was arbitrary and capricious. We must begin our analysis, however, by deciding whether we are free to review the Board’s action at all.

A. The Board’s action is not reviewable.

We begin by considering the nature of a petition for judicial review. When a district court entertains a petition for judicial review, it does so in an appellate capacity. Lane Ranch P’ship v. City of Sun Valley, 144 Idaho 584, 588, 166 P.3d 374, 378 (2007); Ater v. Idaho Bureau of Occupational Licenses, 144 Idaho 281, 284, 160 P.3d 438, 441 (2007). A party’s right to “appeal” an administrative decision, i.e., to obtain judicial review, is governed by statute.¹ Cobbley v. City of Challis, 143 Idaho 130, 133, 139 P.3d 732, 735 (2006) (“Judicial review of an administrative decision is wholly statutory; there is no right of judicial review absent the statutory grant.”). Thus, I.R.C.P. Rule 84(a)(1), states in relevant part that “[a]ctions of state agencies or officers or actions of a local government, its officers or its units are not subject to judicial review unless expressly authorized by statute.”

Despite the parties’ arguments to the contrary, we conclude that there is no statute authorizing review of the Board’s action in this case.

A county board of commissioners does not fall within the definition of an “agency” for purposes of applying the Idaho Administrative Procedure Act (IAPA), I.C. §§ 67-5201 et seq., in its totality. Petersen v. Franklin County, 130 Idaho 176, 182, 938 P.2d 1214, 1220 (1997) (citing I.C. § 67-5201(2)). Thus, the Board’s actions are not subject to judicial review under the IAPA unless there is a statute invoking the judicial review provisions of the IAPA. Gibson v. Ada County Sheriff’s Dept., 139 Idaho 5, 7-8, 72 P.3d 845, (2003) (citing Idaho Historic Preserration Council, Inc. v. City Council of Boise, 134 Idaho 651, 653-54, 8 P.3d 646, 648-49 (2000)).

This Court recently addressed a specific question presented by this appeal: whether a party is entitled to judicial review of a county’s decision regarding amendment of a comprehensive plan. Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008). In Giltner Dairy, we determined that there is no statutory right of judicial review of a county’s decision to amend its comprehensive plan map.

Burns argues that the Local Land Use Planning Act (LLUPA), I.C. §§ 67-6501 et seq., permits judicial review of the Board’s decision under the IAPA. In support of this claim, Bums cites to this Court’s decisions in Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72, 156 P.3d 573 (2007) and Evans v. Teton County, 139 Idaho 71, 73 P.3d 84 (2003). Neither of these decisions supports the proposition that a county’s decision regarding amendment of a comprehensive plan is subject to judicial review.²

The Board also takes the position that this action is subject to judicial review, relying upon I.C. §§ 67-6519(4) and 67-6521(1)(d). As to the former, our holding in Giltner Dairy controls our decision today. We first noted that “Idaho Code § 67-6519 applies to applications for a permit required or authorized under Chapter 65 of Title 67, Idaho Code.” 145 Idaho at 633, 181 P.3d at 1241. We then recognized that “[a] request to change the comprehensive plan map is not an application for a permit.” Id. Thus, we concluded that “Idaho Code § 67-6519 does not provide any right to obtain judicial review.” Id.

As to the claim that I.C. § 67-6521 provides a basis for judicial review, we must consider the language of this statute. Idaho Code § 67-6521(d) provides: “An affected person aggrieved by a decision may within twenty-eight (28) days after all remedies have been exhausted under local ordinances seek judicial review as provided by chapter 52, title 67, Idaho Code.” An “affected person” is defined by I.C. § 67-6521(l)(a) as “one having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing the development.” (emphasis added). Idaho Code § 67-6521(b) clarifies that a permit under consideration in a decision subject to judicial review is “a permit required or authorized under this chapter.”³

As we held in Giltner Dairy, “[a] request to change the comprehensive plan map is not an application for a permit.” 145 Idaho at 633, 181 P.3d at 1241. Accordingly, we conclude that I.C. § 67 — 6521(1)(d) does not provide a basis for judicial review of the Board’s denial of the application for amendment to the comprehensive plan.

The Board took no action on Burns’ application for a rezone, but that failure to act equates to a denial of the application. Furthermore, the Board’s review of Bums’ application for an amendment to the comprehensive plan involved consideration of the same factors the Board would have been obliged to consider in evaluating Burns’ application for a rezone. Even so, there was no right of judicial review of the Board’s action with respect to the rezone application because, as with the application for an amendment to the comprehensive plan, there is no statute authorizing judicial review of a county’s action regarding a rezone application. An application for a zoning change, like a request for an amendment to a comprehensive plan, is not an application for a “permit,” and thus no review is authorized under the LLUPA There is no specific grant of authority to review the Board’s action with respect to the request for rezone, and we may not assume the role of the legislature and grant that authority to ourselves.

As we noted in Burt v. City of Idaho Falls, 105 Idaho 65, 66, 665 P.2d 1075, 1076 n. 2 (1983), “[d]irect judicial review ... means an appellate process by which land use decisions by local authorities are appealed to a judicial forum. While we hold that a legislative zoning decision is not subject to direct judicial review, it nonetheless may be scrutinized by means of collateral actions such as declaratory actions.”

For the foregoing reasons, the district court’s decision must be vacated and the petition for judicial review must be dismissed.

B. Neither party is entitled to attorney fees on appeal.

Both parties seek attorney fees under I.C. § 12-117 and I.C. § 12-121. Attorney fees can only be awarded under I.C. § 12-117 if: (1) this Court finds in favor of a party and (2) the other party acted without a reasonable basis in fact or law. Ada County Highway Dist. v. Total Success Investments, LLC, 145 Idaho 360, 372, 179 P.3d 323, 335 (2008). Because the Board’s action is not subject to judicial review, this Court does not have the power to affirm or reverse as requested by the parties. Because it cannot be said that either party is the prevailing party on appeal, neither party has met the criteria for an award of attorney fees under I.C. § 12-117. Additionally, neither party is entitled to attorney fees under I.C. § 12-121 because that statute does not provide the basis for a fee award in an administrative action initiated by petition. Allen v. Blaine County, 131 Idaho 138, 143, 953 P.2d 578, 583 (1998).

III. CONCLUSION

We vacate the district court’s decision upholding the Board’s denial of Burns’ application to amend the comprehensive plan and map because the Board’s action was not subject to judicial review by the district court. This matter is remanded with directions to the district court to dismiss the petition for judicial review. No costs or attorney fees are awarded.

Chief Justice EISMANN and Justice W. JONES concur.

1 . The Legislature’s authority to define the right of judicial review is found in article V, section 13 of the Idaho Constitution: "the legislature shall provide a proper system of appeals.... ”

2 . In Crown Point, the Court considered the city's denial of Crown Point’s preliminary plat review application and design review application, and in Evans, this Court considered a challenge to the county’s approval of an application for a Planned Unit Development (PUD).

3 . I.C. § 67-6517 refers to “permit as defined in this chapter,” reinforcing our view that LLUPA’s references to a "permit,” for purposes of the right to judicial review, relate to those permits identified within chapter 65, Title 67.