Davisco Foods International, Inc. v. Gooding County

Justice JONES

dissenting.

The majority holds that the Archibalds had “standing” to appeal the P & Z’s decision to the Board and, having so held, determines also that the Board’s decision was supported by substantial evidence and comported with the “reasoned decision-making” requirements of I.C. § 67-6535. My analysis of the facts and the law leads me to a contrary result. Accordingly, I respectfully dissent.

I.

“Standing” refers to the status one must hold to invoke court jurisdiction. Noh v. Cenarrusa, 137 Idaho 798, 800, 53 P.3d 1217, 1219 (2002). By appealing the P & Z’s decision to the Board, the Archibalds were seeking an administrative remedy, not a judicial one. The constitutional test for standing, then, does not apply to the question of whether the Archibalds held the status necessary to appeal the P & Z’s decision to the Board. Rather, Gooding County’s zoning ordinance applies. It reads, in relevant part: “The applicant or any affected person (one who has an interest in real property which may be adversely affected) who appeared in person or in writing before the Commission may appeal the decision of the Commission .to the Board____” Gooding County, Idaho Zoning Ordinance No. 60, Art. X, Sec. K (1995). Therefore, the question in this case *793really is, what does it mean to have an interest in property that “may be adversely affected”? I believe it means more than the what-ifs on which the Board’s decision relied. Read as the Board and majority have read it, practically any allegation a landowner might advance would bestow the right to appeal a decision, whether or not the landowner has shown any reasonable factual basis for the allegation.

This Court’s task in interpreting a statute or ordinance is to give effect to the intent of the body that wrote it. Lockhart v. Dept. of Fish and Game, 121 Idaho 894, 897, 828 P.2d 1299, 1302 (1992). Reviewing courts generally presume that a local governing body’s interpretation of its own ordinance is valid. Friends of Farm to Market v. Valley County, 137 Idaho 192, 197, 46 P.3d 9, 14 (2002). The plain language of an unambiguous ordinance, of course, controls the meaning. Evans v. Teton County, 139 Idaho 71, 77, 73 P.3d 84, 90 (2003). But the word “may,” as used in the County’s ordinance, is very expansive— so much so that it is, I believe, ambiguous and in need of a narrower definition than the Board and the majority have implicitly given it.

Gooding County’s ordinance reads almost exactly like LLUPA’s “affected person” statute, found at I.C. § 67-6521(l)(a). There, an “affected person” is “one having an interest in real property which may be adversely affected by the issuance or denial of a permit ...” In the judicial standing context, the Court has indicated that the degree of likelihood of harm is a relevant factor in deciding whether a person “may be adversely affected.” 1 In Evans, the Court entertained two landowners’ challenge to a decision of the Teton County Board of Commissioners approving a 780-aere hotel/golf course/equestrian facility/500-home subdivision/helicopter pad project south of Victor in sparsely populated Teton County. The landowners, whose rural homes were on property adjacent to the project, “clearly” had standing to appeal.2 Evans v. Teton County, 139 Idaho at 75, 73 P.3d at 88. Landowners in Tetonia (17 miles from Victor) or Driggs (about 8.6 miles) or even Victor itself, the Court wrote, may not be able to “show” their property would be adversely affected. Id.

The Court’s observation about landowners other than those adjacent to the property, reflects a common-sense approach to the question of whether one is a person whose property “may be adversely affected.” This is consistent with the Court’s longstanding principle that legislative intent may be gleaned not only from the language used, but also “on grounds of policy or reasonableness.” Summers v. Dooley, 94 Idaho 87, 89, 481 P.2d 318, 320 (1971); see also Thomson v. City of Lewiston, 137 Idaho 473, 478, 50 P.3d 488, 493 (2002). It also comports with the idea that interpretations of even plain language that lead to absurd results are not favored. Kootenai Med. Ctr. v. Bonner County Comm’rs, 141 Idaho 7, 9, 105 P.3d 667, 669 (2004).

In Evans, the thing causing the harm was the project itself. The harm would be caused as a direct result of the permit being granted. Here, however, the alleged harm is purely speculative (if not highly improbable), possible to occur only if everything goes wrong from a regulatory, mechanical, and meteorological standpoint — that is, the Archibalds might be able to get a whiff of the plant if the plant malfunctioned and substantially exceeded allowable odor standards, and if the County failed to enforce the permit requirements, and if the prevailing wind blew in a nonprevailing direction toward the Archibalds. The distance of the Archibalds’ property from the project, combined with other telling facts in the record, demonstrate that they do not fit the description of persons whose property “may be adversely affected.” *794Consider the following: the Archibalds live about three and a half miles away from the project site. The prevailing winds do not blow their direction. The plant is designed to produce far less hydrogen sulfide than the amount necessary to offend the olfactory senses. The evidence shows that the plant would have to produce over twice the allowable amount of hydrogen sulfide for the Archibalds to smell it. Among the 59 conditions in the P & Z’s proposed permit is one providing that penalties will be imposed when odor, detectible off the plant site, is sustained for a certain period of time. Another condition provides that if the plant continues to produce an offensive amount of odor, the County can revoke Jerome Cheese’s permit. In short, the occurrence of the alleged harm depends on the happening of too many speculative contingencies to say with a reasonable amount of comfort that the Archibald’s property may be adversely affected. The Archibalds certainly did not “show” there to be a possibility that any of these contingencies might occur. See Evans v. Teton County, 139 Idaho at 75, 73 P.3d at 88. One might conclude that the Archibalds have even failed to pass the smell test approved by the majority.

II.

Even if the Archibalds satisfied the ordinance’s requirements to appeal the decision to the Board, I would still hold that the Board’s decision fails to meet the requirements set forth in the Idaho Administrative Procedure Act (APA) and in LLUPA.

The Court adheres to the rule that under the APA, when an agency’s findings disagree with the hearing officer’s recommended order, the reviewing court still examines the agency’s findings and whether they are supported by substantial evidence. Pearl v. Bd. of Prof'l Discipline, 137 Idaho 107, 112, 44 P.3d 1162, 1167 (2002). But, in such cases the Court “will scrutinize the agency’s findings more critically,” since the Court imposes on agencies “an obligation of reasoned decision making that includes a duty to explain why the agency differed from the administrative law judge.” Id.

Our Court of Appeals first adopted this rule in Woodfield v. Bd. of Prof'l Discipline, 127 Idaho 738, 746, 905 P.2d 1047, 1053 (Ct.App.1995). In Woodfield the Board of Professional Discipline of the State Board of Medicine issued an order revoking the appellant physician’s license to practice medicine. The hearing officer had expressed concerns with the physician’s conduct but did not recommend the physician’s license be revoked. The Board of Medicine conducted an independent review and “depart[ed] significantly” from the hearing examiner’s findings. 127 Idaho at 743, 905 P.2d at 1052. On review, the district court required the Board of Medicine to articulate its reasons for departing from the hearing examiner’s decision. The Court of Appeals agreed, explaining:

[I]t is consistent with the Board’s statutory obligation to render a reasoned decision to require the Board to identify facts, as well as inferences drawn from the facts upon the application of its expertise and judgment, which underlie its decision. Such an explanation is essential to meaningful judicial review, and it is a logical adjunct to the agency’s statutory duty to supplement its decisions with findings of fact and conclusions of law.

127 Idaho at 747, 905 P.2d at 1054. The court grafted this rule from several federal cases involving the federal Administrative Procedure Act. Id. at 746 n. 3, 905 P.2d at 1053 n. 3. Because the court was not satisfied the Board of Medicine had met its obligation, the court remanded the Board of Medicine’s decision “to delineate its own findings as the basis for its contrary conclusion to that of the hearing officer.” Id. at 747, 905 P.2d at 1054.

This Court has not considered whether to extend Woodfield to cases under LLUPA where the county board of commissioners reverses its planning and zoning commission. Why the principle would not apply in such cases, however, I cannot say. Just as agencies must issue a reasoned statement for their conclusions — I.C. § 67-5248 (which requirement formed part of the basis for the court’s rule in Woodfield, see 127 Idaho at 746, 905 P.2d at 1053) — so, too, must county boards of commissioners issue a reasoned statement explaining their decisions under *795LLUPA. I.C. § 67-6535. If the APA’s reasoned statement requirement produced the rule in Woodfield, one could reasonably conclude the rule would apply to decisions that must conform to I.C. § 67-6535.

In this case, the record clearly demonstrates that the Board faded to explain its departure from the P & Z’s extensive decision. The Board articulated these two reasons for denying the permit: (1) the activity is an industrial use sought in an agricultural zone; and (2) the plant may adversely affect surrounding landowners if the plant ever malfunctioned or did not operate properly. The Board thus concluded that allowing out-of-county waste to be transported to and treated in Gooding County would not be in the best interests of county citizens. Despite the P & Z’s extensive fact finding and comprehensive proposed permit, the Board offered no explanation for its reversal and summarily decided there was nothing Jerome Cheese could do to obtain a permit. Such conclusory decisions do not inspire confidence in the decision-making process.

Even without applying the Woodfield rule to LLUPA cases, the Board’s decision fails I.C. § 67-6535. It neither mentions the P & Z’s facts, nor does it explain (with any appreciable depth) “the relevant contested facts relied upon, and ... the rationale for the decision based on the applicable provisions of the comprehensive plan, relevant ordinance and statutory provisions, pertinent constitutional principles and factual information contained in the record.” I.C. § 67-6535(b). As mentioned above, the decision utterly fails to discuss the facts on which the P & Z relied, and provides only conclusory, unsubstantiated reasons for its decision. In a ease like Evans, where a board simply adopts its planning and zoning P & Z’s findings and affirms the decision, there is no requirement that the board make findings, “only that they are made.” Evans v. Teton County, 139 Idaho at 80, 73 P.3d at 93. However, in a case where the board reverses its planning and zoning commission, the board has no commission findings to adopt, since it reversed the commission’s decision. In such a case, the statute requires the board to make and articulate findings that support the decision. Having failed to do so, the Board’s decision is subject to reversal and remand in order to provide an explanation that satisfies I.C. § 67-6535.

. When conducting a test for judicial standing, LLUPA’s "may be adversely affected" requirement is read to require no less than the constitutional mínimums: as the Court has repeatedly said, the legislature cannot relieve a party from meeting those requirements. See Evans v. Teton County, 139 Idaho at 75, 73 P.3d at 88; Noh v. Cenarrusa, 137 Idaho at 801, 53 P.3d at 1220.

. Apparently, the claimed adverse effects of this project were self-evident; no analysis of the project’s effects on property values or quiet enjoyment was conducted.