Hill v. Board of County Commissioners, 623 P.2d 462

Hill v. Board of County Commissioners

623 P.2d 462

Idaho

1981

Check Treatment

Angus HILL and Clementina Hill, Husband and Wife; William D. Nielsen and Anna M. Nielsen, Husband and Wife; and Raymond D. Inglin and Senia Inglin, Husband and Wife, Plaintiffs-Respondents, v. BOARD OF COUNTY COMMISSIONERS of Ada County, State of Idaho, and Ada County, Idaho, Defendants-Appellants.

No. 13091.

Supreme Court of Idaho.

April 20, 1981.

623 P.2d 462

Jim C. Harris, Ada County Pros. Atty., John P. Connolly, Chief Civil Deputy Pros. Atty., J. Kelly Wiltbank, Boise, for defendants-appellants. William C. Roden, Boise, for plaintiffs-respondents.

Of course, the Sears’ priority date to the water under such a forfeiture would necessarily date from the end of the 5 year forfeiture period, while under a theory of equitable estoppel the original priority date would apply.

I also feel constrained to observe that the majority makes an entirely unwarranted assumption in stating that “the doctrine of forfeiture is inconsistent with appellant‘s argument that they enjoy the right to the disputed waters while retaining the original priority dates established in the Jobe Adams decree,” and that “the cause was tried on the theory that the Sears had established a right to the disputed water with the original priority dates of 1872, 1873 and 1879, and not that they had established this right with the priority date of 1944.” The assumption is that the Sears are claiming a right with “priority dates established by the Jobe Adams decree.” In fact, neither their original complaint nor their amended complaint claimed a specific priority date at all, and they claim no specific priority date on appeal. References to priority dates are given only to describe the particular water claimed. There is no separate assertion of a right to particular priority dates.² The Sears do claim, repeatedly and insistently, that they began appropriating the 51 inches in question in 1939, and that they have applied such water to a beneficial use since that time. The evidence produced at trial was directed at establishing this fact. If the Sears were arguing that they had, through forfeiture, obtained rights to the water with a priority date established by the Jobe Adams decree, I would have to concur with the statement by the majority. Such a claim would be internally contradictory and subject to being stricken. However, no such claim is made and it should be made clear that, on remand, the court is free to consider the effects of a forfeiture. Hence my separate concurrence.

DONALDSON, Justice.

Respondents Hills own certain real property in Ada County. On August 26, 1976, they made application for a rezone of this property from D-2 to parcels bearing C-1 and R-5 designations as prescribed by the Ada County Zoning Ordinance. This application progressed through the proper administrative channels and ultimately came before the appellant Ada County Board of Commissioners for determination. Follow-ing a public hearing on the matter, the board voted to deny the rezone request and formally advised respondents of their decision by letter. Following this notice, respondents filed a complaint in district court.

The district court, following a pretrial conference and a denial of appellant‘s motion to dismiss, issued a pretrial order which stated in part: “This case will be heard as an appeal by means of a trial de novo because the record of the hearing before the Board of County Commissioners is inadequate for an appeal on the record as contemplated by Sections 67-6519 and 67-5215(f), Idaho Code.” A memorandum decision subsequently issued which reversed the decision of the board. The board appeals the reversal.

We find that the district court did not err in treating respondents’ complaint as an appeal and in citing to I.C. § 67-6519¹ as controlling statutory authority for its review of the board‘s zoning decision. As this Court has recently stated in the cases of Walker-Schmidt Ranch v. Blaine County, 101 Idaho 420, 614 P.2d 960 (1980) and Cooper v. Board of County Commissioners, 101 Idaho 407, 614 P.2d 947 (1980):

“Pursuant to I.C. §§ 67-6519 through 67-6521 of the Local Planning Act of 1975, which is now in effect, judicial review shall be sought and conducted in accordance with the provisions of I.C. §§ 67-5215(b) through (g) and 67-5216.”²

Walker-Schmidt, supra 101 Idaho at 422, 614 P.2d at 962; Cooper, supra 101 Idaho at 411, n. 1, 614 P.2d at 951, n. 1.

However, in looking to I.C. § 67-5215(b) through (g), we find that there is no provision made for a trial de novo. The district court may stay the board decision and admit additional evidence before the board for good cause shown but subsection (g), ultimately limits the court to either affirming the board decision, remanding for further proceedings, or reversing and modifying if substantial rights of the appellant have been prejudiced. I.C. § 67-5215(a), which would permit other means of review, is specifically excluded in I.C. § 67-6519, see footnotes 1 and 2, supra. Thus, a trial de novo is not a possible course of action.

Accordingly, we reverse the judgment of the district court and remand with directions for further proceedings in accordance with I.C. § 67-5215(b) through (g).

BAKES, Chief Justice, concurring specially:

I concur with the action of the majority, which necessarily follows given the fact that the Court‘s dictal footnote in Cooper v. Board of County Comm‘rs of Ada County, 101 Idaho 407, 411, 614 P.2d 947, 951 (1980), was elevated to law, with little discussion, in Walker-Schmidt Ranch v. Blaine County, 101 Idaho 420, 614 P.2d 960 (1980). There is no language in the Local Planning Act of 1975 which expressly requires application of I.C. §§ 67-5215(b) through (g) and 67-5216 to rezone applications. Given that fact, it would have been better if sometime we had analyzed this issue before assuming that the appeal provisions of the Administrative Procedure Act applied to rezoning applications.

Notes

1. I.C. § 67-6519 of the Local Planning Act of 1975, provides in pertinent part: “An applicant denied a permit or aggrieved by a decision may within sixty (60) days after all remedies have been exhausted under local ordinance seek judicial review under the procedures provided by sections 67-5215(b) through (g) and 67-5216, Idaho Code.” I.C. § 67-5216 deals with review by the Supreme Court and is not pertinent to the instant case.

In their amended complaint, submitted after trial, the Sears do state that they have adversely used “all said water right with a priority as of the years 1872, 1873 and 1879 ...” This reference to priority dates is ambiguous, but may be interpreted as a claim to water which includes a claim to those priority dates. While it does not appear to be in the interests of justice to so interpret the phrase, even such an interpretation would not preclude a forfeiture from being found under the other allegations in the Sears’ amended complaint. Certainly the Sears do not claim a right to water with those dates, and only those dates. 2. The complete I.C. § 67-5215 provides: “Judicial review of contested cases.—(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case of an agency other than the industrial commission or the public utilities commission is entitled to judicial review under this act. This section does not limit utilization of or the scope of judicial review available under other means of review, redress or relief provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy. (b) Except when otherwise provided by law, proceedings for review are instituted by filing a petition in the district court of either the county in which the hearing was had or the county in which the final decision of the agency was made, within 30 days after the service of the final decision of the agency or, if a rehearing is requested within 30 days after the decision thereon. (c) The filing of the petition does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms. (d) Within 30 days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require subsequent corrections to the record and may also require or permit additions to the record. (e) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decisions by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. (f) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. (g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon lawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the relevant, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”