*1 P.3d 963 L.L.C., FALLS, an Idaho LOCHSA liability company,
limited
Plaintiff-Appellant,
v. Idaho, Transportation
STATE of Defendant-Respondent.
Board, 34039.
No.
Supreme Court Idaho.
Boise, May 2008 Term. 7, 2009.
April May
Rehearing Denied
dential lots. development, The according to consultant, Lochsa Falls’ traffic Washington Services, Infrastructure gen- estimated to 12,480 1,396 trips per day, erate vehicle with trips during peak hour. January present- preliminary plat
ed a
of the entire subdivi-
(the
City
sion to the
City)
Meridian
approval.
City approved
prelimi-
nary plat.
In order to accommodate the
*4
significant
in
increase
traffic at the time of
out,
plat
build
called for an internal
collector street
to intersect with Chinden
Boulevard.1
Because Chinden
designated
Boulevard is
as a controlled-access
ITD required
that Lochsa Falls obtain an encroachment
permit.
part
application
As
of the
process,
Lochsa
Falls was
to submit a
(TIS).
Transportation Impact Study
Lochsa
Falls’ traffic consultant recommended that a
McColl, Boise,
appellant.
Wilson &
for
signal
traffic
be installed at one of the two
argued.
Lisa Rasmussen
approaches to Chinden
During
Boulevard.
Wasden, Attorney
Hon. Lawrence G.
Gen-
permit application
the encroachment
process,
eral, Boise,
respondent.
Parry
for
Steven
the location of the
sig-
'recommended traffic
argued.
nal
Engineer.
was modified
ITD’s Chief
exception
With the
change
of the
in the
HORTON, Justice.
signal,
location of the traffic
Falls,
approved
appeal by
This is an
Lochsa
L.L.C.
submitted and
(Lochsa Falls), developer,
Engineer
a
ITD’s Chief
temporary
from an order of
issued a
permit
dismissing
complaint
the district court
on
its
November
against
permit
That
Transportation Depart-
permit
the Idaho
states: “This
SHALL
(ITD)
BE
if
completed
ment
and the Board of ITD
VOID all work is not
for failure
and
Department
inspec-
to exhaust administrative
has not made final
remedies. Be-
approval
year
cause we find that no
tion and
within
administrative reme-
one
date,”
ease,
in
issuance
dies were available
the instant
and “Permit will
be consid-
Temporary
judgment
vacate the
ered
until
dismissing
inspection
Lochsa
final
Falls’
and
complaint
approval by Department
a
proceed-
Representative.”
and remand for further
ings
(emphasis in
opinion.
original).
consistent with this
We decline
attorney
appeal.
to award
fees
Lochsa Falls’ TIS estimated construction
signal
costs for the
approach
approx-
and
I.
AND
FACTUAL
PROCEDURAL
$180,000.
imately
Accordingly,
the en-
BACKGROUND
croachment
included inter alia the
developer
Lochsa Falls is the
of a 254
“Developer
design
acre
conditions that
shall
and
along
Highway
subdivision located
signal prior”
U.S.
construct
and that “[a] Per-
20/26
(Chinden Boulevard) between Linder
Deposit
and
formance Bond or a Certificate of
in
roads, Meridian,
Ten Mile
in
$180,000.000,
Idaho. The
the amount of
provid-
shall be
development
approximately
includes
developer
740 resi-
ed
signal, prior
County
appeal.
1. Lochsa Falls also has access to Ada
in this
streets,
Highway District
which are not at issue
three
right
presented
causes
on the
being done
work
arguing
action
the district court
before
way.”2
requirement
it construct
preliminary
receives
After
subdivision
(1)
tax,
a disguised
was:
and unconstitutional
City,
developer
plat approval from
(2)
just compensation,
taking
without
constructing
option
the subdivision
has the
process
of substantive due
violation
Falls elected to construct
phases.
Lochsa
equal protection
response,
the law.
phases.
Lochsa
twelve
subdivision
summary judgment
ITD filed
a motion
plan approval
Falls
construction
obtained
court
requesting that
the district
dismiss
phases
for all
plat approval
twelve
final
complaint
prejudice
without
Falls’
phases
City. After all
of the subdi-
from the
for,
alia,
inter
failure to exhaust administra-
complete,
under construction or
vision were
tive remedies.
roadways,
of all
and all
including completion
The district court dismissed Lochsa Falls’
except
had been
lots in the subdivision
sold
prejudice
failure to
without
contained
Phase
for the 116 lots
exhaust administrative remedies. The dis-
City
building per-
Falls that
informed Lochsa
trict court further found that
the fee was
issued until
mits would not be
reasonably
pursuant
imposed
police
valid
requirement
complied
ITD’s
with
*5
rationally
public safety,
related to
power, was
signal
by Lochsa
paid
be
for
Falls.
and was not an unconstitutional
tax. The
circumstances, Lochsa Falls
Under these
district court did not address Lochsa Falls’
option
agree
that it had no
but to
to
believed
of action in
second and third causes
its deci-
signal.
pay
of the installation of the
the cost
from the
appeals
sion.
Falls
district
Lochsa
2005,
Thus,
Lochsa
March
Falls submitted
in
complaint.
court’s dismissal of its
to
Office
letter of credit to
ITD’s District
costs. The
of credit
cover construction
letter
II.
OF
STANDARD
REVIEW
by
accompanied
a cover
from Bri-
letter
(1)
from:
an
This
is
order of
McColl,
attorney,
which
F.
(2)
summary
arising
judgment,
under
stated,
filing the
part,
in
“letter of credit
(APA),
Act
Idaho
Procedures
Administrative
a waiver of
does not constitute
... Lochsa’s
(3)
questions.
which raises constitutional
rights
question
authority
to
to
District’s
recently
with a
This Court was
faced
similar
require
pay
Falls to
the traffic
Lochsa
situation in American Falls Reservoir Dist.
signal
question.”3
This was the first indi-
Resources,
Dep’t
2. v.
No.
Idaho
Water
143
of
Lochsa Falls to ITD that
it
cation from
(2007)
862,
Idaho
237 any, genuine recognized show that there is no issue as This Court has exceptions two (a) moving material fact and that the justice this rule: when the interests of so (b) judgment to a require, is entitled as matter agency when the acted out- conflicting law. If there are authority. inferences Regan side its v. Kootenai Coun- 721, contained in the record or reasonable ty, 725, 615, 140 Idaho 100 P.3d 619 conclusions, (2004). might minds reach different
summary judgment must be denied. requires The APA an exhaustion of constitutionality of a The statute or ad- gamut” the “full of administrative remedies regulation question ministrative is of law judicial may before sought. review I.C. over which this Court exercises free re- 67-5271; § County, Petersen v. Franklin presumption view. There is a in favor of 176, 185, 130 Idaho 938 P.2d 1223 constitutionality challenged stat- Co., (quoting Grever v. Idaho Tel. 94 regulation, ute or and the burden of estab- 900, 903, (1972)); Idaho 499 P.2d lishing that regulation the statute or is Regan, 724, 100 see also 140 Idaho at P.3d at upon challeng- unconstitutional rests 618; Constr., Westway Inc. v. Transp. appellate obligated ers. An court is 107, 111, Dep’t, interpretation seek an of a statute that (2003). Therefore, we first consider whether upholds constitutionality. judicial governs the APA the issuance of an en power legislative to declare action uncon- permit by croachment the ITD. only stitutional should be exercised in clear cases. remedy pro- Where an administrative governs 1. The APA the issuance statute,
vided
relief
sought
must be
permit.
anof
body
from the administrative
and this rem-
*6
governs
The APA
if the issue at
edy exhausted before the courts will act.
case,”
hand arose from a “contested
which
869,
(internal
Id. at
154
P.3d
440
citations
the APA
proceeding by
defines as “[a]
an
omitted).
quotation
and
marks
agency
may
...
result in the issuance of
§
an order.”
added);
I.C.
(emphasis
67-5240
III. ANALYSIS
111,
Westway,
thority permits to issue granting help preserve highways as the constructed specify the conditions necessarily begins permits. growth Id. This provide responsible such and where al- the lowed, individual, business, relevant statutes. any with a consideration or other enti- add, modify, relocate, ty main- planning to granted follow- ITD Board are the and its tain, or an encroachment on the remove powers by statute: ing applicable duties permit highway ... shall obtain ...” State location, for To standards the “[establish require IDAPA These 39.03.42.200.01. rules construction, reconstruction, design altera any to a new encroachment controlled tion, extension, repair and maintenance of comply safety with state must 40-310(5). § I.C. highways....” state specified by specification and standards ITD highways, “[d]esignate parts To state or may application and that be denied if it an them, facilities and as controlled-access 39.03.42.300.06; IDAPA does not. regulate, prohibit or access to restrict 39.03.42.300.09. highways those to serve the traffic § facility intended.” 40- which the I.C. applicant lay out the costs can rules 310(9). rules, expect permit bear. Under af “[p]roscribe regulations To rules and application fee is “based on [ITD’s] ... highways enforce fecting state produce cost to and administer compliance regula with those rules and program.” IDAPA 39.03.42.700.01. The 40-312(1). § tions.” I.C. major development application fee for prohibit “regulate To or use of type size and of Lochsa Falls is IDA- $100.4 highway by any class or controlled-access PA An ma- 39.03.42.700.02. for a kind traffic which is found to incom- be jor development like Lochsa Falls also must patible the normal and movement with safe accompanied provided full TIS 49-202(23). § of traffic.” I.C. developer. paid legislature empowered Clearly, has 39.03.42.301.01.a. The rules that: regula- Board to make and its rules and A TIS shall document extent of controlling rights of tions access to and the development impact proposed on the Furthermore, highways. safe use of state System, including Highway State addition- signals particular, legislature to traffic trips, resulting during al level of service specifically empowered has ITD and its *7 peaks, AM and and the need PM for auxil- Board to: iary special capacity lanes or other or safe- maintain [E]rect and traffic-control devices ty changes Any required in traf- features. highways on controlled-access on which use, access, control, pedestrian, fic land or applicable. § prohibitions are I.C. 49- bicycle usage be shall also addressed. 202(24). IDAPA the 39.03.42.301.01.C. reviews Furnish, maintain, erect and whenever TIS regarding and final decision makes the public safety necessary for and conven- IDAPA 39.03.42.301.02. any requirements. markers, ience, signs, signals and suitable control, guide other devices to and warn provide Additionally, ap the rules that an pedestrians entering and vehicular traffic plicant any changes adjust pay “shall or sys- traveling upon highway or the state of or highway ments features fixtures 40-313(1). § tem. I.C. actions, brought by operations re about or quirements by applicant” the that caused and grant authority to its of under Pursuant 40-311(1), may require payment of 40-310(9), 40-312(3), “[ITD] costs associ §§ I.C. 40- of 313(2), 49-202(19), 49-221, ated with ... mod (28), [construction and and 67-5203, improvements, including ifications or but not and of ITD promulgated the Board signals....” limited IDAPA Governing Highway Right-of- the to “Rules 39.03.42.200.06; Way rules Rights-of- on State 39.03.42.700.03.e. The Encroachments that, ITD, Way.” seq. provide also at the discretion IDAPA 39.03.42 et These ad- of require challenge authority application $100 to fee. Lochsa Falls does not ITD's the at applicant may required be to secure a 100 P.3d at the internal cita- omitted). tions guarantee completion performance bond to of requirements in accordance with of the work provide The IDAPA rules an inter IDAPA permit. 39.03.42.700.03.d. the appeal nal mechanism for an from the denial permit. of an encroachment This internal appreciation specific In of the IDAPA appeals process outlined in is IDAPA provisions and of Idaho Code as set rules the process 39.03.42.003. This commences when above, power we conclude the to forth applicant the the local ITD notifies District specific upon certain impose conditions an appeal Traffic office of the written form permit, for an in- application encroachment thirty days receipt within after of notification to, provision cluding, but not limited bonds of the denial. IDAPA 39.03.42.003.01. signals, of traffic is and construction within appeal the initial process, the District office scope grant legislature’s of the of author- the has 14 working days appeal. to review the ity regulate ITD to safe use of to the IDAPA If 39.03.42.003.03. the District office highways. access controlled access denial, does not overturn initial ap the peal is then forwarded to the State Traffic concluded, Having so must next consid- Engineer who 14 working days also has test, is, part second er the wheth- review the Id. appeal. The State Traffic agency er the decision on issue deter- Engineer prepare is appeal duties, legal rights, privileges, “the mines for review ITD’s Engineer. Chief immunities, legal or other interests” of the Engineer granted The Chief is also 14 work Westway, party. ing days appeal. review Id. The approval Because the denial or at 726. ITD’s appellant must then notified within seven application permit encroachment deter- of an working days Engineer’s Chief deci legal rights interests mines of a sion Engi on the Id. If matter. the Chief accessing property owner in their property neer application, affirms the denial of the a state it falls within the from secondary appeals process begins. If within Thus, judicial of an definition order. review thirty days, appellant then notifies ITD’s ITD’s action on an section, legal legal section will then initi governed by the APA. appeal ate an in accordance with APA 04.11.01. IDAPA applicable 2. The rules do 39.03.42.003.04. imposed conditions Right-Of-Way Appli- Encroachment per- connection with an encroachment cation and Permit issued to Lochsa Falls mit. “[p]ermit stated that the will be considered Temporary inspection until and approv- final Typically, of administra exhaustion (em- al Department Representative.” prerequisite seeking tive remedies is a phasis original). Although judicial review under APA: *8 light, installed the traffic ITD never conduct- impor- The doctrine of exhaustion serves inspection approved ed a final the con- considerations, policy including “pro- tant Nonetheless, struction. was viding opportunity mitigating or formally formally never nor approved. denied intervention, curing judicial errors without reason, argues For that that deferring process to the administrative es- was not to follow the multi-tiered Legislature tablished and the ad- appeals process internal set administrative body, comity ministrative the sense of seeking forth in the rules before quasi-judicial functions of the ad- judicial agree. review. We body.” ministrative with Consistent these “[p]jursuit statutory While admin principles, statutory that courts infer ad- precedent istrative remedies a condition to is implemented by ministrative remedies judicial APA, Park, review” under 143 to Legislature are intended be exclusive. 578, 853, Idaho at to 149 P.3d failure 576, 579, Banbury, v. Park 143 Idaho 149 exhaust remedies a administrative is not bar (2006) 851, Regan, litigation are no to (quoting P.3d 853-854 140 when there remedies 240 that Despite having determined pact fees. Dep’t Transp., 125 v. In James exhaust. complaint should be dismissed (1994), this Court P.2d 590 876 Idaho reme- to exhaust administrative for failure employee was terminated that a held Lochsa dies, court addressed the district remedies administrative exhaust required to challenge and held Falls’ first constitutional department’s griev- and the a statute
when
pursu-
reasonably imposed
fee was
that the
grieve
him to
not entitle
did
procedures
ance
rationally re-
power, was
police
ant to valid
895, 876 P.2d
Idaho at
125
his termination.
uncon-
safety, and was not an
public
lated
requir-
apply the rule
did
at 593. This Court
did not
tax. The district court
stitutional
remedies as
administrative
ing exhaustion of
and third
Falls’ second
consider Lochsa
claim for
component of James’s
one
to the
Accordingly,
of action
its decision.
causes
was an
for which there
of contract
breach
ques-
constitutional
will address the sole
we
hold-
remedy.
Id. The clear
administrative
court,
is,
that
addressed
the district
tion
not bar
that this Court will
ing in James is
that Lochsa Falls
requirement
whether
to exhaust administrative
litigation for failure
disguised
a
construct the
remedy
no
is available.
remedies when
tax.
action, the adminis-
Turning
present
that administrative
This court has held
whereby a
provide
process
trative rules
generally
exhausted before
remedies must
permit application
appeal-
can be
of a
denial
jurisdiction to decide
a district court has
However,
ITD.
those
internally within
ed
Falls,
American
143
constitutional issues.
whereby
ap-
no mechanism
rules
However,
871,
241
contrast,
would be valid.” Id.
[law]
to TIS that Lochsa
prepared
and submit-
prove a
ap-
Moreover,
statute is unconstitutional “as
ted to ITD.
only
received
that,
plied”,
only
the
must
show
as
the
fee Lochsa
$100
Falls was
conduct,
applied to the defendant’s
required
Therefore,
pay.
to
we conclude the
Korsen,
statute is unconstitutional.
138
complains
fees that Lochsa Falls
of were for
Idaho at
at
69 P.3d
purpose
regulating
of
the safe use of and
highways
access to state
at
Falls,
development
its
870-71,
American
protection, part. in dissenting appeal and time on the first issues for those court’s consid- for the district them reserve opinion, except that in the Court’s I concur with the benefit remand eration on my attorney to ITD. In I award fees would present then- further opportunity to parties’ estimation, little Falls’ claims contain develop factual record. technically the arguments and While the Court substance. remanding in the constitutional
correct (only the district court did claims because Appeal Attorney on Fees and Costs C. them), less they appear to have consider by decided attorney than the issues were request merit parties Both argue brief and Lochsa Falls did this Court. pursuant to I.C. on and costs fees a put forth takings claim but failed its provides part: That § 12-117. statute compensable a tak- convincing argument that statute, provided otherwise Unless left with This Justice was ing had occurred. proceeding ... involv- any administrative Falls benefit- abiding feeling that Lochsa agency ... parties a state ing as adverse than the State from ted much more shall award the person, the court and transaction at issue. fees, attorney’s prevailing party reasonable portrays as hav- Lochsa Falls itself While expenses, if and reasonable witness fees sig- ing put upon being been party against court finds that for the benefit of the nalize an intersection acted judgment is rendered whom reality motoring public, the State and the in fact or law. without a reasonable basis facts are that Lochsa otherwise. The salient develop parcel property Falls wished to party. to either decline to award fees We highway, its along a limited access located court’s order we vacate the district Because and it re- traffic consultant recommended summary judgment and dis- granting ITD signalized intersection to quested a complaint it cannot be missing Lochsa Falls’ access to and from the subdivision Thus, prevailing party. said that ITD is the signalized it have the it was advised could Al- not entitled to fees of costs. ITD is same, it pay if it would for the intersection though prevailing Falls is the requirement, protest no to this routine raised ITD acted appeal, we cannot find that gotten sought it Loch- having the benefit in fact or law. a reasonable basis without ITD bill. Falls now wishes to have foot the sa ad- typically required to exhaust Parties are appropriately analyzed This case could judi- pursuing ministrative remedies before Lochsa Falls re- in a contractual context. APA, cial review in actions under the right quests grant that ITD it the to have if it were not for a would be the case here its subdivi- signalized intersection to benefit pertain- procedural void rules agrees, provided that Lochsa sion. imposed in connection with ing to conditions pays signalizing for the intersection. Falls applications. accepts proposal without Lochsa Falls signaliz- protest proceeds perform IV. CONCLUSION work, completion ing Upon work. unilaterally changes its mind judgment court’s We vacate the district signal- paid it needs to be and decides dismissing without giving up izing, expresses no intention of but prejudice for failure to exhaust administra- from the valuable it has derived benefit remand this matter to tive remedies. We got bargained deal. Lochsa Falls what proceedings consistent the district court for undertaking to not wish to honor its but does opinion. appellant. with this Costs Had Lochsa the cost of such benefit. bear requirement pay that it objected to the intersection, EISMANN, signalizing Justice it could sim- Chief Justice “thanks, but no thanks” ply Pro Tem TROUT have said BURDICK and Justice suspects there is signal. One done without CONCUR. *11 See, right have done deeded of access.” slightest chance would words, so, value of its lots 39.03.42.300.04. In other when the increase substantially outweigh signal accept- traffic and new intersection are the cost would by permitting process ed ITD and the signal. has traffic completed, get been Lochsa Falls will a deed- portrays signalized inter- Lochsa Falls property right ed to the access. improvement as an section brief, benefitting traveling public. brought ap- In its Because Lochsa Falls has Legislature] pealed asserts “had claims without a reasonable basis in [the law, I developers pay attorney for the costs to fact or would award ITD fees wanted granted § improve highways,” it could have under Idaho Code 12-117. impact power
ITD the to assess fees. Loeh- continues, stating ITD
sa Falls that “has developers pay for
decided that should
privilege having highway a state with a signal property, abut their while the
traffic traveling public pass through who
other
signal
highway
benefit from the
and state
do