IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37320-2010
DOUGLAS and MICHELLE STAFFORD, )
husband and wife, ) Coeur d’Alene, April 2011 Term
)
Petitioners-Appellants, ) 2011 Opinion No. 48
)
v. ) Filed: April 20, 2011
)
KOOTENAI COUNTY, a Political ) Stephen W. Kenyon, Clerk
Subdivision of the State of Idaho, acting )
through the KOOTENAI BOARD OF )
COMMISSIONERS; and ELMER R. )
“RICK” CURRIE, RICH PIAZZA, and )
TODD TONDEE, COMMISSIONERS, in )
their official capacities, )
)
Respondents. )
Appeal from the District Court of the First Judicial District of the State of Idaho,
in and for Kootenai County. The Hon. John T. Mitchell, District Judge.
The judgment of the district court is vacated.
John F. Magnuson, Coeur d’Alene, argued for appellants.
Patrick M. Braden, Deputy Prosecuting Attorney, Coeur d’Alene, argued for
respondents.
EISMANN, Chief Justice.
This is an appeal from a decision of the district court on a petition for judicial review
upholding the county’s determination that the appellants had violated a zoning ordinance.
Because there is no statute granting judicial review of administrative proceedings enforcing a
zoning ordinance, we vacate the decision of the district court and remand this case with
instructions to dismiss the petition for judicial review without prejudice.
I. FACTS AND PROCEDURAL HISTORY
In 1999, Douglas and Michelle Stafford purchased a three-quarter-acre lot with frontage
on Lake Coeur d’Alene in Kootenai County (County). On July 27, 1999, they obtained a
building permit from the County to construct a single family residence on their property. The
residence was completed in 2000, and on March 23, 2000, the County issued them a certificate
of occupancy for the residence.
On August 19, 2005, the Staffords obtained a building permit to construct an addition to
their residence. While a County framing inspector was inspecting the construction on August 28,
2007, he advised a subcontractor that the Staffords would not receive a certificate of occupancy
because the Staffords’ landscaping violated the County site disturbance ordinance. Later that day
and the next, the County inspected the Staffords’ property and took photographs of the area of
the alleged violation.
On August 29, 2007, the County issued a notice of violation of the site disturbance
ordinance, giving the Staffords until September 7, 2007, to take corrective action. Mrs. Stafford,
the Staffords’ contractor, and a County representative later met on the property, and the
representative stated that the Staffords would have to prepare a remediation plan to return a
portion of the property back to its natural state.
On November 21, 2007, the Staffords’ counsel sent the County a letter contesting the
alleged violation and stating that they may have to seek a writ of mandamus to obtain the
certificate of occupancy for the addition. The County responded by letter dated January 15,
2008. It stated that no decision had been made regarding the certificate of occupancy, and it
gave the Staffords until February 1, 2008, to submit a remediation plan or additional information
supporting the Staffords’ contention that they were not in violation of the site disturbance
ordinance. The letter also reflected the County’s misinterpretation of the wording of its site
disturbance ordinance that persisted throughout the agency proceedings.
The County adopted Site Disturbance Ordinance No. 251 with an effective date of
January 1, 1997. On July 21, 1999, it adopted Site Disturbance Ordinance No. 283. That
ordinance provided, “The provisions of this Ordinance shall supersede the provisions of
Kootenai County Site Disturbance Ordinance No. 251.” On December 8, 2005, the County
adopted Site Disturbance Ordinance No. 374, and it provided, “The provisions of this Ordinance
shall supersede the provisions of Kootenai County Site Disturbance Ordinance No. 283.”
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Because the relevant provisions of all three ordinances are identical, we will refer to them
collectively as the site disturbance ordinance. The site disturbance ordinance provides:
For lots with frontage on a recognized lake or the Coeur d’Alene or
Spokane Rivers, an undisturbed natural vegetation buffer shall be retained at the
waterfront. A stairway or walkway (which does not exceed 4 feet in width),
stairway landings (which do not exceed 6 feet in width or length), or a tram shall
be allowed to encroach within the buffer. The buffer shall be a minimum of 25
feet in slope distance from the high water mark of the water body. . . .
The ordinance required that an “undisturbed natural vegetation buffer” of twenty-five feet
in width be “retained at the waterfront.” The words “undisturbed natural vegetation buffer” were
defined as: “An area where no development activity has occurred or will occur, including, but
not limited to, logging, construction of utility trenches, roads, structures, or surface and
stormwater facilities. Buffer areas shall be left in their natural state.”
An ordinance is construed according to its literal language. Lane Ranch Partnership v.
City of Sun Valley, 145 Idaho 87, 90, 175 P.3d 776, 779 (2007). The relevant portion of the
ordinance is unambiguous. By its terms, it only applies to property within the twenty-five-foot
buffer “where no development activity has occurred or will occur.” It does not apply to property
within that twenty-five-foot buffer where development activity has already occurred.
That is significant in this case because Mr. Stafford presented uncontradicted testimony
in the agency proceedings that at least some of the property was not in its natural state when they
purchased the building lot. He stated that the waterfront area of the property was a “mess” when
they purchased it. The property had been logged by the developer and then subdivided. There
was a slash pile consisting of stumps, logs, and brush that he estimated was four to six feet high
and about twenty-five feet in diameter. He described the property as being “torn up.” People
had camped on the property and hunted ducks from it, and it was strewn with trash. We cannot
determine from the record how much, if any, of the property within the twenty-five-foot buffer
could be classified as undisturbed natural vegetation because during his testimony Mr. Stafford
was pointing to photographs to explain where the development activity had occurred, and the
record does not indicate where he was pointing. Development activity appears to have occurred
within twenty-five feet of the ordinary high water mark because he described the slash pile as
being on “the area down by lake.” It is also not clear whether the entire property had been
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logged or only portions of it. By definition, any areas that had been logged were no longer an
undisturbed natural vegetation buffer.
However, throughout the proceedings, the County disregarded the fact that some or all of
the Staffords’ property may not be classified as an undisturbed natural vegetation buffer due to
the fact that development activity had previously occurred there. The failure to address that
evidence was apparently because the County contended that its site disturbance ordinance
created a twenty-five-foot zone above the ordinary high water mark in which there could be no
development activity without prior County permission. 1 In its letter to the Staffords’ counsel
dated January 15, 2008, the County referred to the twenty-five-foot buffer as a “required 25’
setback” and a “25’ no disturbance zone,” and it stated that Ordinance No. 283 “required a 25’
no disturbance buffer from the ordinary high water mark.” In the decision for which the
Staffords sought judicial review, the Board of County Commissioners characterized the site
disturbance ordinance as “requir[ing] a 25’ no disturbance buffer from the ordinary high water
mark.”
During his argument to the Board at the conclusion of the hearing, the Staffords’ counsel
stated: “The interesting dichotomy with this property is it wasn’t an undisturbed natural
vegetation buffer when the Staf—Stafford’s bought it because it had already been logged. Add a
slash pile which takes it out of the definition of an undisturbed natural vegetation buffer.” In its
decision, the Board did not address Mr. Stafford’s testimony or his counsel’s argument quoted
above. Its only mention of Mr. Stafford’s testimony was its summary of the testimony he had
previously given before the hearing examiner in that portion of the Board’s decision entitled
“Background and Course of Proceedings.”
In its written decision issued after the hearing, the Board found, “The testimony and
evidence admitted at the appeal hearing clearly shows that there is site disturbance in the 25 foot
no-disturbance zone.” It failed to realize that the ordinance did not create a “25 foot no-
disturbance zone.” The ordinance created a twenty-five-foot buffer above the ordinary high
water mark in which one could not disturb undisturbed natural vegetation. The Board was
obviously misinterpreting the site disturbance ordinance as prohibiting any disturbance of the
1
The ordinance lists certain activities that are exempt from the permit requirements, but they are not relevant to this
case.
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soil within twenty-five feet of the ordinary high water mark, even if the area at issue was not
undisturbed natural vegetation.
Although there is a strong presumption that a zoning board’s interpretation of its own
zoning ordinance is valid, Lane Ranch Partnership v. City of Sun Valley, 145 Idaho 87, 89, 175
P.3d 776, 778 (2007), that presumption is overcome when the board’s interpretation is not a
reasonable construction of the wording of the ordinance, id. at 90-91, 175 P.3d at 779-80. As
stated above, the County’s interpretation was not a reasonable construction of the wording of the
site disturbance ordinance.
During oral argument, the County sought to support its interpretation of the ordinance
based upon the definition of “undisturbed natural vegetation buffer.” It is defined as: “An area
where no development activity has occurred or will occur, including, but not limited to, logging,
construction of utility trenches, roads, structures, or surface and stormwater facilities. Buffer
areas shall be left in their natural state.” The County contended that the words “will occur” in
the definition mean that no future development activity can occur even in areas where
development activity has occurred. Although that interpretation is certainly imaginative, it is not
a reasonable construction of the wording.
The relevant portion of the ordinance prohibiting conduct is Section 8(B) which states,
“For lots with frontage on a recognized lake or the Coeur d’Alene . . . , an undisturbed natural
vegetation buffer shall be retained at the waterfront.” It only requires retaining an undisturbed
natural vegetation buffer. In those areas where development activity had already occurred, there
would be no undisturbed natural vegetation buffer to retain. One cannot retain what one did not
have. Considering the definition of such a buffer as “[a]n area where no development activity
has occurred or will occur” and the statement that “[b]uffer areas shall be left in their natural
state,” the ordinance simply does not apply to areas within the twenty-five-foot zone that were
not in their natural state due to development activity that had occurred before the Staffords
purchased their property.
On August 29, 2007, the county issued a notice that the Staffords’ property violated Site
Disturbance Ordinance No. 374. The parties attempted unsuccessfully to resolve the matter.
The County then decided to withhold the certificate of occupancy for the addition to the
Stafford’s home until they remediated their property as desired by the County, in essence taking
the addition hostage to coerce the Staffords into submitting to the County’s demands. By a letter
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dated February 21, 2008, sent to the Staffords’ attorney, the County informed him, “Until a
complete Site Disturbance remediation plan has been received and approved, a Certificate of
Occupancy will not be issued.”
On March 19, 2008, the County issued a “Notice of Site Disturbance Ordinance
Violation,” which gave the Staffords forty-five days in which to resolve the violation. The
Notice also stated that they had thirty days within which to appeal the Notice. The Staffords
appealed to a County hearing examiner and then to the Board of County Commissioners.
A County enforcement officer explained to the hearing examiner and to the Board the
basis of the County’s claim that it had the right to refuse issuance of the certificate of occupancy
in order to force compliance with the County’s demand that the Staffords perform site
remediation on their property. Its asserted justification for doing so was section 105.4 of the
International Residential Code, which the County had adopted. That section provides, “The
building official is also authorized to prevent occupancy or use of a structure where in violation
of this code or of any other ordinances of this jurisdiction.” The words “where in violation” refer
to the structure. The structure must be in violation of the code or some other ordinance. Unless
the addition was in violation of the building code or some other ordinance, this provision would
not give the county authority to withhold the certificate of occupancy. During oral argument, the
County admitted that the addition was not in violation of the code or any other ordinance. The
County apparently chose to ignore the applicable section of its building code which stated,
“After the building official inspects the building or structure and finds no violations of the
provisions of this code or other laws that are enforced by the department of building safety, the
building official shall issue a certificate of occupancy . . . .” (Emphasis added.)
During oral argument on this appeal, the County did proffer another justification for
withholding the certificate of occupancy. It pointed to a sentence in the site disturbance
ordinance which states that if any listed violations of the ordinance have occurred, “[t]he
Administrator may also withhold further issuance of permits.” The County argued that a
certificate of occupancy could be considered to be a permit since it permitted the owner to
occupy the structure.
In making that argument, the County did not address the above-quoted portion of the
building code, which is a specific provision controlling the issue of a certificate of occupancy. It
also did not address the section of the building code defining when one must apply for a required
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permit. That section lists various types of activity that require a permit, but it does not mention
applying for a permit in order to occupy a structure once it has been completed. The County also
did not mention that the permit application forms on the County website do not include an
application for a certificate of occupancy. In context, the reference in the site disturbance
ordinance to withholding further issuance of permits refers to withholding further issuance of
permits under that ordinance, not under the building code. Although it has been imaginative in
seeking to justify its conduct, the County had no authority to withhold the certificate of
occupancy for the Staffords’ addition.
The primary issue raised by the Staffords before the Board of Commissioners and the
district court was that they were cited under the wrong ordinance. When the Staffords purchased
their property, Site Disturbance Ordnance No. 251 was in effect. When they landscaped their
property, Site Disturbance Ordinance No. 283 was in effect. In these proceedings, the County
cited them with violating Site Disturbance Ordinance No. 374. The Staffords contended in the
agency proceedings, in the district court, and on appeal to this Court that the County cited them
under the wrong ordinance. Neither party nor the district court addressed the applicable law.
In Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954), we recognized the
following rule:
[W]here a statute is repealed and all of its provisions are at the same time re-
enacted, such re-enactment is an affirmance of the old law so that the provisions
of the repealed act which are thus re-enacted, continue in force without
interruption and all rights and liabilities incurred thereunder are preserved and
may be enforced.
Id. at 345, 272 P.2d at 706.
We next addressed the issue in State v. Webb, 76 Idaho 162, 279 P.2d 634 (1955). In
Webb, the defendant was charged with driving under the influence of alcohol on February 23,
1954, under Idaho Code § 49-520.2 which was a newly enacted statute that took effect on
January 1, 1954. That statute provided that “[e]very person who is convicted of a violation of
this section” shall be imprisoned in the state penitentiary if it is a second or subsequent violation.
Id. at 166, 279 P.2d at 636 (emphasis added). The defendant was charged with having a prior
conviction on March 30, 1953, which occurred prior to the effective date of the newly enacted
statute. The defendant contended that he was wrongly convicted of having a second conviction
of violating Idaho Code § 49-520.2 because his prior conviction had not been a violation of “this
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section”—the current statute. It was a violation of former Idaho Code § 49-502, which had been
repealed. We summarized his argument as follows, “Appellant bases this contention upon the
requirement of Section 49-520.2, I.C., that there be a former conviction under ‘this section,’
which does not refer to a conviction under the statutes originally enacted in 1927.” Id.
This Court noted that there was a difference in wording between the two statutes. The
former statute declared it a crime for “any person who is under the influence of intoxicating
liquor or narcotic drugs to drive any vehicle upon any highway within this state.” The new
statute declared it a crime for “for any person who is under the influence of intoxicating liquor to
drive or be in actual physical control of any vehicle within this state.” We held that the
difference in wording was not material to the case.
In the case now before the Court, it is to be noted all of the statutory
provisions repealed and those simultaneously re-enacted are not the same, but as
far as this case is concerned, the statute under consideration makes it unlawful for
any person who is under the influence of intoxicating liquor to drive any vehicle
upon any highway within this State and the penalty for a second offense has
remained the same. Section 49-520.2, I.C., omits the words ‘upon any highway’,
which broadens it and there is also added additional offenses, but Section 49-
520.2, I.C., continues the offense of which appellant originally was convicted.
....
As far as the substance of the crime in this particular case and the
appropriate penalties are concerned, the new statute is a reaffirmance of the old,
even though there are modifications in the new statute.
Id. at 166-67, 279 P.2d at 636-37.
This Court held, “The new statute being a continuation of the former, the offense
committed by appellant on February 23, 1954 was a second offense within the meaning of
Section 49-520.2, I.C.” Id. at 167, 279 P.2d at 637. In doing so, we stated, “‘A subsequent act
of the Legislature repealing and re-enacting, at the same time, a pre-existing statute, is but a
continuation of the latter, and the law dates from the passage of the first statute and not the
latter.’” Id. at 166-67, 279 P.2d at 636 (quoting State v. Ward, 40 S.W.2d 1074, 1078 (Mo.
1931)).
The relevant provisions of Site Disturbance Ordinances Nos. 251, 283, and 374 are
identical. With respect to this case, No. 374 is merely a continuation of No. 283, and the county
did not err in alleging a violation of No. 374.
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The Board of Commissioners found that the Staffords had violated the site disturbance
ordinance, and it gave them sixty days within which to submit a remediation plan. The issuance
of the certificate of occupancy was not an issue presented to the Board and was not mentioned in
its decision. The Staffords filed a petition for judicial review with the district court, and it
affirmed the decision of the Board. The Staffords then appealed to this Court.
II. ANALYSIS
The dispositive issue in this case is whether this Court has jurisdiction. “[S]ubject matter
jurisdiction is an issue that this Court may raise sua sponte at any time.” Johnson v. Blaine
County, 146 Idaho 916, 924, 204 P.3d 1127, 1135 (2009). The agency order at issue in this case
affirmed that the Staffords had violated the site disturbance ordinance and ordered that they
submit a remediation plan within sixty days. All three site disturbance ordinances expressly
stated that they were enacted pursuant to Idaho Code § 67-6518, which is one section of the
Local Land Use Planning Act (LLUPA), Idaho Code §§ 67-6501 to 67-6538. To obtain judicial
review of final action under LLUPA, there must be a statute granting the right of judicial review.
Rollins v. Blaine County, 147 Idaho 729, 731, 215 P.3d 449, 451 (2009). In 2010, the legislature
limited the persons entitled to judicial review under LLUPA. 2 Because the petition for judicial
review in this case was filed on March 27, 2009, before the amendments took effect, it is
governed by the prior statutes.
Former Idaho Code § 67-6519(4) granted the right of judicial review regarding
applications for a permit required or authorized under LLUPA. Ch. 123, § 1, 2003 Idaho Sess.
Laws 373, 374. An applicant who had applied for a permit required or authorized under LLUPA
could file a petition for judicial review if the applicant was either denied the permit or aggrieved
2
After the 2010 amendment, petitions for judicial review are limited to the matters identified in Idaho Code § 67-
6521(1)(a). I.C. §§ 67-6519(4)(c) and 67-6521(1)(d). Those matters are:
(i) The approval, denial, or failure to act upon an application for a subdivision, variance, special
use permit and such other similar applications required or authorized pursuant to this chapter;
(ii) The approval of an ordinance first establishing a zoning district upon annexation or the
approval or denial of an application to change the zoning district applicable to specific parcels or
sites pursuant to section 67–6511, Idaho Code; or
(iii) An approval or denial of an application for conditional rezoning pursuant to section 67–
6511A, Idaho Code.
I.C. § 67-6521(1)(a). The amendments were effective March 31, 2010. Ch. 175, § 5, 2010 Idaho Sess. Laws 359,
362.
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by the decision on the application. Ch. 123, § 1, 2003 Idaho Sess. Laws 373, 374. Former Idaho
Code § 67-6521(1)(d) granted the right of judicial review to “one having an interest in real
property which may be adversely affected by the issuance or denial of a permit authorizing the
development.” Ch. 199, § 1, 1996 Idaho Sess. Laws 620, 620-21.
The agency action in this case does not involve the denial or granting of a permit. In the
order appealed from, the Board of Commissioners determined that the Staffords had violated the
site disturbance ordinance by landscaping their property without first obtaining a permit. The
Staffords have not appealed the denial of a permit or the conditions attached to a permit.
Although the denial of the certificate of occupancy was involved in this case, that certificate
neither is a permit under LLUPA nor was it addressed in the agency order appealed from.
Therefore, the Staffords did not have the right to seek judicial review of that agency action under
either former Idaho Code § 67-6519(4) or former Idaho Code § 67-6521(1)(d). The legislature
has not granted the right of judicial review of administrative enforcement proceedings under
local planning and zoning ordinances. Therefore, the district court did not have jurisdiction to
rule on the merits of the petition for judicial review, and this Court does not have jurisdiction on
the appeal.
IV. CONCLUSION
We vacate the decision of the district court. We remand this case to the district court
with instructions to dismiss the petition for judicial review without prejudice. Because neither
party raised the issue of jurisdiction, we do not award costs on appeal.
Justices BURDICK, W. JONES, and HORTON CONCUR.
J. JONES, J., specially concurring.
While I would hold that the Staffords are entitled to judicial review under former Idaho
Code § 67-6519(4), I otherwise concur in the Court’s analysis of the issues presented in this case.
Of particular concern is the fact that the County has refused to issue the certificate of occupancy
for the Staffords’ addition, despite the fact that the Staffords have fully complied with the terms
of the building permit, as acknowledged by the County’s counsel at oral argument. The Staffords
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are entitled to the certificate of occupancy and there appears to be no valid reason for the County
to withhold it.
With regard to the jurisdiction issue, it appears to me that the Staffords are applicants
“aggrieved by a decision” of a governing body within the meaning of Idaho Code § 67-6519(4),
entitling them to judicial review. The decision that aggrieved them relates directly to the building
permit. Without the certificate of occupancy, the building permit is of little use to them. Having
complied with the terms of the permit, they are unequivocally entitled to the certificate of
occupancy. That being said, there is no need to belabor the jurisdictional point because it appears
that the County will be hard pressed to deny the Staffords the relief to which they are entitled.
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