NATURE OF CASE
This appeal arises out of a failed condominium tower project that Boise Tower Associates (BTA) intended to build in downtown Boise, Idaho. BTA filed a lawsuit against Timothy Hogland (Hogland) and the City of Boise, alleging constitutional violations and other causes of action stemming from the *777 mistaken miscalculation of BTA’s building permit expiration date. The district court granted summary judgment in favor of Hog-land and the City of Boise. BTA brought this appeal. We affirm in part and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
The facts of this case are largely undisputed by the parties. On November 27, 1998, BTA submitted an application to the Boise Planning and Development Services Department (PDS) for a building pеrmit to construct the Boise Tower Project (the Project). Hogland, Director of PDS, approved BTA’s application and issued the permit on May 3, 2000.
Under the applicable building regulations found in the 1994 Uniform Building Code (UBC), the permit would expire if work authorized by such permit was suspended or abandoned for a period of 180 days. For two years minimal work was performed on the Project. The last date that work was performed was on May 15, 2002, when concrete was poured for the foundation. Accordingly, BTA’s permit was set to expire on November 11, 2002, which would have been 180 days after the last day work was performed on the Project. However, PDS’s records incorreсtly indicated that May 3, 2002 was the last date that BTA had performed work on the Project. According to PDS, the permit was therefore set to expire on November 3, 2002.
On November 7, 2002, Hogland received a letter from M.A. Mortenson, BTA’s construction contractor, notifying PDS that work would commence that day. Under the mistaken notion that the permit expired on November 3, 2002, an inspector for the City of Boise issued a stop-work order to BTA and notified it that the site was to remain as-is until Hogland could meet with BTA and agree on a course of action.
On November 13, 2002, Hogland met with representatives from BTA and Mortensen to discuss a course of action. Rick Peterson (Peterson), the managing member of BTA, tried to convince Hogland that the permit had not yet expired, but Peterson did not provide Hogland with any supporting evidence that BTA had worked on the Project on May 15, 2002. At that meeting, Hogland told BTA that to move forward and continue work under the permit BTA would have to enter into a written stipulation agreement. One condition of the stipulation agreement required BTA to provide a letter from a lending institution indicating a commitment of full financing within 60 days from the date of the agreement or the permit would be deemed expired.
BTA alleges that Hogland told Peterson if BTA did not sign the stipulation agreement that day, Hogland would tell the Boise City Council at their meeting that night that BTA’s permit had expired. Peterson protested, arguing that his attorney advised him not to sign the stipulation agreement. However, BTA believed that if Hogland publicly announced that the permit was expired, it would jeopardize financing and lead to the demise of the Project. On November 15, 2002, Hogland received a letter from BTA stating that Peterson had signed the stipulation agreement. Thereafter, Peterson and his attorney suggested revisions to the agreement. The agreement was revised and signed again by Peterson and Hogland on November 19, 2002.
BTA did not satisfy the stipulation agreement condition requiring it to provide a commitment letter within the agreed-upon 60 day timе period. Hogland agreed to grant an extension to BTA. On January 22, 2003, the parties entered into an addendum to the stipulation agreement, which extended the time by which BTA was required to provide a commitment letter to February 4, 2003. BTA failed to provide a commitment letter to Hogland by that date.
On February 11, 2003, Hogland notified BTA that its permit had expired because BTA failed to meet its obligations under the stipulation agreement and addendum. BTA requested a hearing on the matter and Hog-land allegedly denied the request.
On February 19, 2003, BTA sent a letter to Hogland and the City of Boise, requesting an appeal to the Board of Appeals pursuant to Boise Municipal Code § 4-02-05 and UBC § 105.1. Thе letter stated that in the event *778 the Board of Appeals did not have jurisdiction to hear the matter, the letter was to be considered notice that BTA was appealing to the City Council. The record reflects that the Board of Appeals did not hear the matter, although it is unclear why that procedure was not followed. Rather, a hearing on the matter was conducted before the City Council on April 1, 2003. At that hearing, BTA was represented by counsel and was allowed to present testimony and offer evidence. After the City Council heard BTA’s evidence, it found that Hogland mistakenly calculated BTA’s permit expiration date. The City Council reinstated BTA’s permit оn April 9, 2003.
BTA filed a complaint against Hogland and the City of Boise on November 2, 2004, claiming that negative publicity from the miscalculation of the expiration date of the building permit led to cancellation of a number of pre-sale condominium purchase agreements and caused the withdrawal of financing commitments, ultimately leading to the Project’s failure. BTA brought various causes of action, including in relevant part: (1) intentional interference with contract and intentional interference with prospective economic gain, (2) vicarious liability of the City of Boise for Hogland’s tortious actions, (3) violation of 42 U.S.C. § 1983 by Hogland and the City of Boise, (4) a regulatory taking without just compensation by the City of Boise in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 13 and 14 of the Idaho Constitution, and (5) violation of BTA’s procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Idaho Constitution.
Hogland and the City of Boise filed an answer, raising various affirmative defenses, including that “some or all [state law] claims are either barred or limited by the Idaho Tort Claims Act.” The record is unclear whether BTA complied with the notice provisions of the Idaho Tort Claims Act.
During the course of preparing for litigation, Hogland stated in an affidavit that he wаs “concerned about the safety of the BTA construction site because it was an open pit in the middle of downtown Boise.” He stated that he issued the stop-work order because he believed BTA’s permit had expired and his actions “were intended to address what [he] believed to be the significant risk to the public and adjacent buildings of the site, given the width and depth of the excavated pit and exposed reinforcing bar, foundation, and concrete columns.”
The parties filed cross-motions for summary judgment. The district court granted summary judgment on BTA’s § 1983 claim in favor of the City of Boise, finding that it was immune from suit, and Hogland, finding that he was entitled to qualified immunity. The court did not address the tаkings or tort claims in its summary judgment order. The court denied Hogland and the City of Boise’s request for attorney fees and granted their motion for costs.
BTA filed a timely appeal raising the following issues: (1) whether Hogland acted ultra vires in entering into the stipulation agreement and whether it is void for lack of consideration, (2) whether Hogland and the City of Boise violated BTA’s procedural due process rights and are liable under 42 U.S.C. § 1983, (3) whether questions of fact preclude summary judgment on BTA’s takings claims, and (4) whether questions of fact preclude summary judgment on BTA’s tort claims against Hogland.
Hogland and the City of Boise filed a timely cross-appeal on the issue of attorney fees below and request costs and fees on appeal.
ISSUES ON APPEAL
Appellant raises the following issues on appeal:
1. Whether Hogland acted ultra vires in entering into the stipulation agreement and whether it is void for lack of consideration?
2. Whether Hogland and the City of Boise violated BTA’s procedural due process rights and are liable under 42 U.S.C. § 1983?
3. Whether the district court properly granted summary judgment on BTA’s takings claims?
*779 4. Whether the district court properly-granted summary judgment on BTA’s tort claims against Hogland?
Respondents raise the issue of whether the district court abused its discretion in denying Respondents’ motion for attorney fees below. Respondents request attorney fees on appeal.
STANDARD OF REVIEW
On appeal from the grant of a motion for summary judgment, this Court’s standard of review is the same as the standard used by the district court originally ruling on the motion.
P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust,
The burden of establishing the absence of a genuine issue of material fact is on the moving party.
Porter v. Bassett,
ANALYSIS
Hogland did not act ultra vires when he entered into the stipulation agreement, nor is the agreement void for lack of consideration.
BTA argues the condition in the stipulation agreement requiring Hogland to approve financing for the Project exceeded the authority granted to Hogland under the UBC and Hogland was therefore acting
ultra vires
when he entered into the agreement with BTA’s representatives. To succeed on an
ultra vires
argument, BTA must show that Hogland exceeded the broad discretion and authority granted to him to direct and enforce all provisions of the UBC. See
Black v. Young,
Hogland derived his authority to enter into the stipulation agreement from the powers granted to him in the UBC to “render interpretations of [the] code and to adopt and enforce rules and supplemental regulations in order to clarify the application of its provisions,” UBC § 104.2.1, and to “institute any other appropriate action to prevent, restrain, correct or abate” a safety violation. UBC § 102. Hogland described in an affidavit that he was concerned about the hazard of the open construction site, as well as BTA’s demonstrated continuous failure to meet the conditions of its permit and proceed with work in a timely manner. Hogland could have declared the Project an unsafe structure and required BTA to repair, demolish, or remove the structure. See UBC § 102. Rather than do so, Hogland attempted to cure BTA’s violations by entering into a stipulation agreement whereby the City of Boise would receive assurances that the structure was safe and work on the Project could progress in a timely fashion. Hogland was acting well within his authority when he and BTA *780 agreed to certain conditions that permitted BTA extra time to obtain financing while ensuring that BTA wоuld not continue to unreasonably delay the Project and create hazardous conditions at the job site. Accordingly, we hold that Hogland was not acting ultra vires.
BTA also argues the stipulation agreement is void for lack of consideration. While this Court will not inquire as to the adequacy of consideration as bargained for by parties to an agreement, some consideration is a necessary element to a contract.
Vance v. Connell,
Hogland and the City of Boise did not violate BTA’s procedural due process rights, so they are not liable under 42 U.S.C. § 1983.
BTA argues its procedural due process rights were violated because it was not afforded a pre-deprivation hearing prior to Hogland (1) issuing the stop-work order, or (2) mistakenly deeming the building permit expired. 1 Specifically, BTA claims Hog-land and the City of Boise violated its constitutional right to due process and are liable under 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunitiеs secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...
To invoke § 1983, a plaintiff must show a violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.
Aberdeen-Springfield Canal Co. v. Peiper,
[D]ue process ... is not a technical conception with a fixed content unrelated to time, place and circumstances ... [D]ue process is flexible and calls for such procedural protections as the particular situation demands ... [[Identification of the specific dictates of due process generally requires consideration of three distinct factors: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, includ *781 ing the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge,
Hogland’s decision to issue the stop-work order was merely a temporary suspension of BTA’s right to perform work on the Project. There was sufficient factual basis for the suspension because PDS’s records reflected that work had not been performed in the 180-day period. Prompt review was available to BTA in the forms of á meeting with Hogland and a hearing before the Board of Appeals, although in this ease the City Council conductеd the hearing. Under Parratt and Barry, Hogland’s decision to issue the temporary stop-work order did not invoke the right to a pre-deprivation hearing.
BTA’s argument that it was entitled to a pre-deprivation hearing before the stop-work order was issued also fails under the Mathews balancing test. First, the private interest that was affected by the official action was minor because the decision to issue the stop-work order was merely intermittent until a course of action could be agreed upon by the parties. Second, the risk of erroneous deprivation was minimal because of the temporary nature of the action. The value of additional procedural safеguards would also have been minimal because the benefits would have been lost if additional processes were put in place to stall the use of the stop-work order, which is a measure used to swiftly abate unsafe work from being performed. Third, the additional financial and administrative burdens placed on the government would be arduous if additional procedural requirements were imposed before stop-work orders could be issued, particularly due to the temporary nature of stop-work orders. Under the Mathews balancing test, BTA was not entitled to notice and a hearing prior to Hogland issuing the stop-work order.
The thornier question is whether BTA was affordеd adequate procedural due process under Mathews when Hogland and the City of Boise mistakenly deemed BTA’s building permit expired. In its summary judgment order, the district court incorrectly stated, “Neither the Boise City Code nor the UBC provided for an immediate appeal following an expiration of a permit.” The court then noted that “a builder who disagreed with the actions of Hogland had remedial options by seeking an appeal through the Boise City Council, which BTA did. Of course this was not specifically spelled out but it was a viable option for BTA.”
Despite what the district court stated, the UBC clearly provides for an appeals process from any final decision made by the building official, in this ease Hogland, to a Board of Appeals. The relevant section states:
In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals consisting of members who are qualified by experience and training to pass on matters pertaining to building construction ... The board of appeals shall be appointed by the governing body and shall hold office at its pleasure. The board shall adopt rules of procedure for сonducting its business, and shall render all decisions and findings in writing to the appellant with a duplicate copy to the building official.
UBC § 105.1. The record shows that BTA requested an appeal before the Board of Appeals under UBC § 105.1, but BTA did not receive such a hearing. Rather, BTA’s appeal went directly to the Boise City Council. During the hearing before the City Council, BTA was represented by counsel *782 and allowed to present evidence. The record does not explain why BTA’s appeal was heard by the City Council rather than the Board of Appeals. Regardless of who heard BTA’s appeal, the question before us is whether the process afforded to BTA was constitutionally adequate.
Under the Mathews balancing test, BTA received constitutionally adequate procedural due process in the form of notice and a hearing when it appealed to the City Council. First, assuming arguendo that BTA had a constitutionally protected property right in its building permit, we recognize that it is imperative that we protect parties from suffering constitutional violations pertaining to such a right. Second, although there was a risk of erroneous deprivation of BTA’s property interest, as shown by Hogland’s mistaken miscalculation of the permit expiration date, any deprivation was cured by the City Council’s decision to reinstate the permit. There would have been minimal value in additional or substitute safeguards because the City Council did exactly what BTA had hoped for in appealing Hogland’s decision— they reinstated BTA’s permit. Third, creating additional or substitute procedural requirements would have resulted in onerous fiscal and administrative burdens where there was already an appeals process in place. In this case, to create a more complex process would have been overly burdensome and superfluous when the procedure in place was clearly adequate. Thus, we hold that BTA was afforded adequate procedural due process with regard to any property rights it may hаve had in its building permit.
We note that the district court below found that there was an issue of fact as to whether there was a procedural due process violation, but it held that if there was a violation, the right at issue was not clearly established and Hogland was therefore entitled to qualified immunity. See
Pearson v. Callahan,
— U.S. -,
The district court erred in failing to address BTA’s takings claims, so we remand for further proceedings.
BTA alleges that it was deprived of two pieces of property — the building permit itself and BTA’s right to develop the Project pursuant to the permit — resulting in constitutionally impermissible takings under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 13 and 14 of the Idaho Constitution. Although BTA asserted its takings claims in its complaint, the district court failed to address the claims in its Decision and Order on Cross Motions for Summary Judgment.
The Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, pro *783 vides that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Article I, Section 13 of the Idaho Constitution guarantees that “[n]o person shall be ... deprived of life, liberty or property without due process of law.” Article I, Section 14 of the Idaho Constitution provides: “Private property may be taken for public use, but not until a just сompensation, to be ascertained in the manner prescribed by law, shall be paid therefor.”
The Just Compensation Clause, sometimes referred to as the Takings Clause, has developed into a complicated and multifaceted area of constitutional law. Until the United States Supreme Court’s watershed decision in
Pennsylvania Coal Co. v. Mahon,
In
Tahoe-Sierra,
the United States Supreme Court held that the
Penn Central
factors are applicable when an alleged taking is temporary in nature.
Assuming arguendo that BTA had a constitutionally protected property interest in its building permit or in its right to build pursuant to the building permit, whether a taking occurred was a matter not decided by the district court and for that reason, we decline to address the issue. Accordingly, we vacate the judgment in favor of Hogland and the City of Boise on this issue and remand to the district court for its determination of the issue, keeping in mind that there was at most a temporary taking due to the mistaken miscalculation of the permit expiration date. It is difficult to perceive what loss of value there could have been to the permit itself and a substantial question remains as to what “temporary taking” gives rise to a compensable claim for damages as BTA is asserting here. Because the district court failed to analyze BTA’s takings claims or reach any decision on the issue, we remand for further proceedings.
The district court erred in failing to address BTA’s state tort claims, so we remand for further proceedings.
BTA also asserted claims for intentional interference with contract and prospective economic advantage. In granting summary judgment, the district court failed to address these claims in its decision and we, therefore, decline to address those claims here.
BTA argued below and on appeal that material questions of fact exist on the issues of whether Hogland acted with criminal intent, malice or reckless, willful and wanton conduct in miscalculating the permit expiration date. Specifically, BTA alleges that Hogland intentionally directed BTA to stop work on the Project, Hogland used an invalid excuse that BTA’s building permit had expired as a pretext to coerce BTA into signing the stipulation agreement, and Hogland had no lawful authority to impose the conditions of the stipulation agreement on BTA. Since BTA’s claim is based on thе mistaken miscalculation of a building permit expiration date, the relevant statutory scheme precludes any claim without a showing that Hogland and the City of Boise acted with “malice or criminal intent” or with “gross negligence or reckless, willful and wanton conduct.” I.C. § 6-904B(3). The burden is particularly high for BTA, as I.C. § 6-903(e) provides a rebuttable presumption that any act of an employee within the time and place of his employment is without malice or criminal intent. The record does not appear to support BTA’s claim, but this is a matter that must be addressed in the first instance by the district court, rather than by this Court. Moreover, the record is unclear whether BTA complied with the Idahо Tort Claims Act notice provisions, which must be resolved by the district court.
For the reasons stated above, we vacate the judgment in favor of Hogland and the City of Boise on this issue and remand this matter, together with BTA’s takings claims, to the district court for its determination.
Respondents are not entitled to attorney fees below or on appeal.
Respondents argue the district court erred by denying their request for attorney fees m below on the theory that BTA did not suffer the harm it claims because it had financing options available to it that would have allowed the Project to move forward. Following the court’s grant of summary judgment, Respondents moved for costs and fees under I.R.C.P. 54(E)(1), 42 U.S.C. § 1983, and I.C. §§ 6-918A and 12-117. The statutory schemes for an award of attorney fees to a defendant under each statute are similar, each essentially requiring a showing that plaintiffs claims are frivolous, unreasonable, groundless, or in bad faith.
“The calculation of reasonable attorney fees is within the discretion of the trial court.”
Lettunich v. Lettunich,
Respondents also request attorney fees and costs on appeal on the basis that the appeal was brought and maintained frivolously, unreasonably, and without foundation or merit. See I.C. § 12-117. On account of the district court’s failure to address BTA’s takings and tort claims below, we cannot say that BTA brought this appeal frivolously, unreasonably, or without merit. Thus, we deny Respondents’ request for attorney fees on appeal. Costs are awarded to Respondents on appeal.
CONCLUSION
We affirm in part the district court’s decision to grant summary judgment in favor of Hogland and the City of Boise because 1) Hogland did not act ultra vires in entering into the stipulation agreement and the agreement is not void for lack of consideration, and 2) Hogland and the City of Boise did not violate BTA’s procedural due process rights and are not liable under 42 U.S.C. § 1983. Because the district court failed to address BTA’s takings and state tort claims, we vacаte the judgment in favor of Hogland and the City of Boise on those issues and remand those issues for further proceedings consistent with this Opinion. Accordingly, the district court must determine attorney fees after it determines which party prevailed. We deny Hogland and the City of Boise’s request for attorney fees on appeal. Costs on appeal are awarded to Hogland and the City of Boise.
Notes
. We do not need to decide whether BTA had a constitutionally protected property right in its building permit because, assuming arguendo that the permit was a protected property interest, we hold BTA was afforded adequate procedural due process.
. BTA's takings claim is alleged in its complaint as a direct governmental appropriation of property without just compensation. According to BTA, "[t]he patently erroneous revocation and/or cancellation of BTA’s building permit constituted a taking of BTA’s property, without just compensation ...On appeal, however, while still complaining that it was deprived of its property by virtue of a permit revocation, BTA primarily argues its case as a regulatory talcing. The offending regulation that would have impinged on BTA’s property interest is not specifically identified, although reading between the lines it may be that the stop work order was the offending regulation. Our review assumes that BTA’s claim is the regulatory taking type, as its brief devotes the greater part of the takings section to that theory.