This ease comes before this Court from the district court's grant of summary judgment in favor of Camas County, on the basis that George Martin and Martin Custom Homes, LLC (collectively “Martin”), lacked standing to bring a declaratory judgment action against Camas County to challenge the validity of various planning and zoning ordinances and regulations. Martin argues that the district court committed prejudicial error in failing to take judicial notice of orders entered in a related case (CV-2007-24) challenging substantially identical amended zoning ordinances, wherein the district court found that Martin had standing. Martin also argues that the district court erred in finding that Martin lacked standing where Martin owned, or held interests in, properties that were either rezoned or adjacent to properties which were rezoned, cumulatively having a negative fiscal impact on Martin. We affirm, holding that Martin has failed to show a distinct palpable injury.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. CV-2007-24 (currently awaiting hearing before this Court as Case No. 36055-2009)
In late 2005 the Camas County Board of Commissioners (“the Board”) instructed the Camas County Planning and Zoning Commission (“the Commission”) to amend the Camas County Zoning Ordinance and rezone certain areas of the county. The Commission submitted an Amended Comprehensive Plan (Resolution 96) with an amended Land Use Map (Resolution 103) and an Amended Zoning Ordinance (Ordinance 153) with an amended Zoning Map (Ordinance 150) (collectively, the “2007 zoning amendments”) to the Board, which subsequently adopted them. On May 4,2007, Martin filed a declaratory judgment action against Camas County, seeking a permanent injunction of the 2007 zoning amendments.
On December 28, 2007, the district court granted preliminary injunctive relief to Martin. The district court found, inter alia, that: (1) the Idaho Administrative Procedures Act (IDAPA) applied to Camas County’s zoning decisions; (2) the action of the County — in enacting the 2007 zoning amendments — constituted a quasi-judicial, rather than quasi-
On May 12, 2008, the Board adopted a new Amended Comprehensive Plan (Resolution 114) and Land Use Map (Resolution 115) as well as a new Zoning Ordinance (Ordinance 157) and a Zoning Designation Map (Ordinance 158) (collectively the “2008 zoning amendments”). On August 8, 2008, Martin requested to amend his complaint to include claims for damages under Section 1983 of the Civil Rights Act and an additional declaratory relief action for the 2008 zoning amendments. On October 8, 2008, the district court granted Martin’s request to amend his complaint to include Section 1983 claims, but denied the motion as to the 2008 zoning amendments.
On November 5, 2008, Camas County removed CV-2007-24 to the United States District Court for the District of Idaho (“USDCDI”), pursuant to 28 U.S.C. §§ 1441(b), 1446(b), divesting the district court of jurisdiction. On December 3, 2008, the district court entered its Findings of Fact, Conclusions of Law and Order Following Trial granting Martin’s requested relief as to the 2007 zoning amendments. On May 17, 2009, the USDCDI remanded CV-2007-24 back to the district court. On May 27, 2009, the district court recognized that it had been divested of jurisdiction prior to entering its order on December 3, 2008, and was not re-vested until the USDCDI issued an order of remand. The district court accordingly reissued its December 3 order on May 27, 2009.
B. CV-2008-40 (the present matter, before this Court as Case No. 36605-2009)
On October 15, 2008, Martin filed a Complaint for Declaratory Judgment, seeking both preliminary and permanent injunctions of the 2008 zoning amendments. The district court denied the preliminary injunction on November 10, 2008, finding that Martin had not shown that he had suffered or would suffer irreparable injury in the event that the court did not enter the injunction. Camas County filed a motion for summary judgment on February 12, 2009, which the district court granted on May 6, 2009, finding that Martin lacked standing to bring a complaint for declaratory judgment. Martin filed his notice of appeal with this Court on June 15, 2009.
The parties stipulated before the district court that Martin owned the following property in Camas County:
(1) A forty acre parcel that was zoned as Agricultural (“A”)—allowing one residential unit per eighty acres—both before and after the 2007 and 2008 zoning amendments.1
(2) A twenty-nine acre parcel that was zoned A prior to the 2007 and 2008 zoning amendments, and zoned Residential (“Rl”)—allowing one residential unit per acre—after.
(3) A one acre parcel consisting of three lots in an existing, approved and platted subdivision, which was zoned as Agricultural Transitional (“AT”)—allowing one residential unit per acre— prior to the 2007 and 2008 zoning amendments and zoned Rl, allowing the same residential density, after.
However, since the time of that stipulation Martin has sold the one acre parcel located in the platted subdivision. At oral argument before this Court counsel for Martin notified
In addition to the property that Martin owns in fee simple, Martin holds contractual interests in the following:
(1) Two eighty acre parcels in which Martin holds contractual rights for development, marketing and building. The northern parcel’s zoning designation did not change with the 2008 zoning amendments; the southern parcel was rezoned from A to Rl.
(2) A sixty-seven acre parcel to which Martin holds the right of first refusal was rezoned from A to Rl.
These three properties were given an “R7” designation (allowing seven residential units per acre) on the Comprehensive Plan Land Use Map prior to the 2007 and 2008 zoning amendments, and an Rl designation afterward.
II. STANDARD OF REVIEW
As noted in Castoreña v. General Electric:
When reviewing an order for summary judgment, the standard of review for this Court is the same as that used by the district court in ruling on the motion. Summary judgment is appropriate if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). Disputed facts should be construed in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. This Court exercises free review over questions of law.
III. ANALYSIS
Martin argues that the district court erred in granting summary judgment in favor of Camas County because it incorrectly determined that Martin lacked standing to bring a declaratory judgment action seeking to question the validity of the 2008 zoning amendments. Martin contends that: (1) the district court erred in not taking judicial notice of the orders entered in Case No. CV-2007-24, and if the court had taken judicial notice of these orders, the doctrine of collateral estoppel would have prevented the court from reaching the issue of standing; (2) Martin owned property intended for development that was rezoned as a result of the 2008 zoning amendments, and property adjacent to Martin’s property was also rezoned, resulting in a negative fiscal impact on Martin, and as such the district court erred in finding that Martin failed to demonstrate a specific and personal injury and, consequently, did not have standing. These issues shall be addressed in turn.
A. Standing is a jurisdictional issue, not an adjudicative fact that a court may take judicial notice of.
Martin argues that the district court was required to take judicial notice of the orders entered in CV-2007-24, under I.R.E. 201. Idaho Rule of Evidence 201 is titled “Judicial notice of adjudicative facts” and provides, inter alia:
(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of*512 the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(d) When mandatory. When a party makes an oral or written request that a court take judicial notice of records, exhibits or transcripts from the court file in the same or a separate case, the party shall identify the specific documents or items for which the judicial notice is requested or shall proffer to the court and serve on all parties copies of such documents or items. A court shall take judicial notice if requested by a party and supplied with the necessary information.
The district court noted that Martin had requested that it take judicial notice of decisions and orders entered in CV-2007-24, and wrote “[tjhis court declines to take judicial notice of those proceedings, but it would appear to this court that the issue of ‘standing1 was not directly addressed in those prior proceedings.”
Martin requested that the district court take judicial notice of:
the proceedings commenced in ... CV-2007-24, on May 4, 2007 upon which the Court issued Findings of Fact, Conclusions of Law and Order Following Trial, that incorporated Preliminary Injunctions entered on December 28, 2007 and April 2, 2009, titled Decision on Requirements of a “Transcribable Record” and Other Records and Decision on Conflict of Interests Issue.
The three specifically referenced documents were attached to Martin’s Statement of Material Fact as exhibits.
To the extent that Martin’s request can be read as requesting that the district court take judicial notice of the general proceedings in CV-2007-24, that request did not comply with I.R.E. 201(d), as that Rule requires the requesting party to identify the specific documents or items for which judicial notice is requested. However, drawing reasonable inferences in Martin’s favor, we view this as a request that the district court take judicial notice of the adjudicative facts contained in the three CV-2007-24 documents that were attached to his Statement of Material Fact.
An “adjudicative fact” is “[a] controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding and that helps the court or agency determine how the law applies to those parties. For example, adjudicative facts include those that the jury weighs.” Black’s Law Dictionary 669 (9th ed. 2009). Where a plaintiff does not have standing it cannot be said that the “case or controversy” requirement has been satisfied; therefore the judiciary lacks jurisdiction to hear the case. See Koch v. Canyon County,
B. The district court correctly determined that Martin lacked standing to bring a declaratory judgment action.
Title 10, chapter 12 of the Idaho Code is titled the “Uniform Declaratory
In Young v. City of Ketchum, this Court noted:
It is a fundamental tenet of American jurisprudence that a person wishing to invoke a court’s jurisdiction must have standing. Standing is a preliminary question to be determined by this Court before reaching the merits of the case. The doctrine of standing is a subcategory of justiciability. As this Court has previously noted, the doctrine is imprecise and difficult to apply. Standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated. To satisfy the case or controversy requirement of standing, a litigant must allege or demonstrate an injury in fact and a substantial likelihood the relief requested will prevent or redress the claimed injury. This requires a showing of a distinct palpable3 injury and fairly traceable causal connection between the claimed injury and the challenged conduct. But even if a showing can be made of an injury in fact, standing may be denied when the asserted harm is a generalized grievance shared by all or a large class of citizens.
It must first be determined whether Martin has shown that he has suffered, or will suffer, a distinct palpable injury that is fairly traceable to Camas County’s actions in passing the 2008 zoning amendments. See Harris v. Cassia Cnty.,
Martin states that he:
does not complain that he is harmed solely because of the location of his land in a new comprehensive land use designation he may suffer some future harm, but that he has suffered an immediate negative fiscal impact because of the actual rezoning of his property and adjacent lands. More specifically, Mr. Martin does allege that the value of the property in which he has an interest is reduced in value by the 2008 [zoning] amendments; will suffer decrease in available services; increase in taxes; and prevent him from developing the land as he would have been able under the preexisting zoning schematic.
None of the parcels that Martin owns — or holds contractual interests in — were down-zoned as a result of the 2008 zoning amendments. Martin’s argument concerning the palpable harm he has suffered seems to be that: (1) the upzoning of property Martin has no interest in, which is located in Camas County, decreases the value of the property that Martin owns or holds an interest in; and (2) the 2008 zoning amendments prevent Martin from developing the properties he owns, or in which he holds an interest, in the same manner that he would have been able to prior to the 2007 and 2008 zoning amendments.
Martin cites to no authority in support of his argument that a comprehensive countywide change in zoning designations (wherein some parcels of land receive a higher zoning density classification than they previously enjoyed) constitutes an injury to a property owner, absent some resultant specific and traceable harm. Martin argues that the upzoning of approximately 20,000 acres of
In Ameritel, the Greater Boise Auditorium District (“Auditorium District”) sought to expand a convention center it owned and to issue bonds to finance that expansion.
Martin argues that he, like Ameritel, will suffer from increased competition if Camas County’s 2008 zoning amendments are permitted to stand, and, therefore, has standing. The facts in Ameritel are distinguishable. Focusing on increased competition, Martin fails to note that there were two other factors that aggregated to provide standing in Ameritel: (1) Ameritel’s status as a taxpayer whose tax funds were being used to advocate in favor of approving the bond, and (2) the imminent and certain increase in the taxes Ameritel would be subjected to if the bond were passed. Martin’s purported injuries are thoroughly speculative and cannot be said to be specific or distinct and palpable. This Court has never held that increased competition alone is sufficient to confer standing.
Martin next argues that the proximity between the properties he holds an interest in and other parcels which were upzoned results in an injury. In Butters v. Hauser, Butters sought a declaratory judgment that a newly enacted Latah County zoning ordinance was void.
Martin argues that the reasoning of Butters should be applied to his situation, since he is in the business of land development and property near the property that he owns was upzoned, while Martin’s was not. This argument is unpersuasive; the plaintiff in Butters alleged that she suffered specific and palpable harm as a result of a conditional use
Martin next argues that even if the injury he suffers is generalized to a large group of landowners in Camas County he still has standing to bring suit. In Miles v. Idaho Power Co., Miles, a customer and ratepayer of Idaho Power, brought a declaratory judgment action, challenging the constitutionality of legislation enacted as a result of an agreement entered into by Idaho Power and the State.
This is more than a generalized grievance. It is a specialized and peculiar injury, although it may affect a large class of individuals. The political process obviously will be more unkind to injured ratepayers seeking to change legislation affecting the whole state of Idaho than to injured citizens and taxpayers. When the impact of legislation is not felt by the entire populace, but only by a selected class of citizens, the standing doctrine should not be evoked to usurp the right to challenge the alleged denial of constitutional rights in a judicial forum.
Id. Therefore, while in Miles this Court found standing where a large class of individuals were harmed, that harm was still particularized. Miles provides no exception to the particularized grievance requirement that must be demonstrated in order to have standing.
In Koch, the plaintiffs sought a judicial determination that Canyon County had entered into a lease agreement that violated Article VIII, section 3, of the Idaho Constitution.
Martin has cited to no cases where taxpayer or ratepayer standing has been granted for a challenge grounded in statute rather than a constitutional provision. Furthermore, the exception developed in Koch has only been applied where failure to find that the appellants in question had standing would have resulted in no party having standing. Here, a party whose property had been downzoned by the 2008 zoning amendments would unquestionably have standing to bring this action, as would a property owner who could show a specific palpable harm that he would incur from the imminent development of an upzoned neighboring property. Therefore, even if the upzoning of property in Camas County could be found to constitute a generalized injury to some of the remaining property owners that generalized grievance does not confer standing to sue under the Koch exception.
Martin has not pled facts to support his contention that he cannot develop his properties in the same manner that he could have prior to the 2007 and 2008 zoning amendments. As noted above, none of the properties that Martin holds an interest in were downzoned as a result of the 2008 zoning amendments. The designation on the Comprehensive Plan Land Use Map was changed for the three parcels that Martin holds an interest in, from R7 to Rl, and the forty acre property that he owns had its planning map designation changed from AT to A However, Martin has failed to cite any authority in support of the proposition that a residential density designation in a comprehensive plan creates a vested or enforceable property right.
In Bone v. City of Lewiston,
C. Attorney Fees
In the section of its brief dedicated to Issues Presented on Appeal, Camas County requests attorney fees under I.C. § 12-117 and I.A.R. 40 and 41, arguing that Martin brought his appeal without a reasonable basis in fact or law.
Idaho Appellate Rule 35(b) reads, inter alia, as follows:
Respondent’s Brief. The brief of the respondent shall contain the following divisions under appropriate headings:
(5) Attorney Fees on Appeal. If the respondent is claiming attorney fees on appeal the respondent must so indicate in the division of additional issues on appeal that respondent is claiming attorney fees and state the basis for the claim.
(6) Argument. The argument shall contain the contentions of the respondent with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon.
Camas County fails to mention the issue of attorney fees in the Argument section of its brief, as such that request shall not be considered. See McVicker v. City of Lewiston,
IV. CONCLUSION
As standing is a jurisdictional issue, not subject to collateral estoppel, we find that any error the district court committed in failing to take judicial notice of documents from case CV-2007-24 was necessarily harmless. We affirm the district court’s grant of summary judgment in favor of Camas County on the basis that Martin lacked standing to bring an action for declaratory judgment, as Martin failed to demonstrate that he has suffered from a distinct palpable injury, or that he should have been found to have standing under the Koch exception. Costs to Camas County.
Notes
. The 2008 zoning amendments superseded the 2007 zoning amendments, which the district court declared invalid in CV-2007-24; however many of the changes in zoning or designation (on the planning map) that occurred under the 2008 zoning amendments had also occurred under the 2007 zoning amendments. It is therefore most correct to discuss the condition of zoning and planning designations before both the 2007 and 2008 zoning amendments and the condition of the same after.
. One of the documents that Martin requested the district court take judicial notice of was the December 3, 2008, Findings of Fact, Conclusions of Law and Order Following Trial ("12/3/08 Order”). At the time that the 12/3/08 Order was entered, the district court in CV-2007-24 had been divested of jurisdiction by the removal of the case to federal court, and had no authority to issue an order in the case. The CV-2007-24 district court recognized this when it reissued the order on May 27, 2009, after the USDCDI remanded the case to its jurisdiction. The 12/3/08 Order had been improperly issued, and the district court in the present case entered its order on the summary judgment motion on May 6, 2009, before the district court in CV-2007-24 reissued the 12/3/08 Order. As such, the 12/3/08 Order was not subject to mandatory judicial notice under I.R.E. 201(d).
. "Palpable” is defined as ”[e]asily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.” Black’s Law Dictionary 1110 (6th ed. 1990).