Burns Holdings, LLC v. Madison County Board of County Commissioners

J. JONES, J.,

dissenting.

I respectfully dissent. Had Burns merely sought an amendment to the Madison County Comprehensive Plan Map, without also seeking permission to develop its property, I would concur in the result reached by the Court. However, Burns’ purpose in petitioning the county was to obtain permission to develop its property. The zoning change sought by Burns would have made its proposed development project a permitted use under the zoning ordinance. Because Burns is an applicant aggrieved by a governing body’s decision denying permission that would authorize the proposed development of its property, I believe Burns is entitled to obtain judicial review under the Local Land Use Planning Act (LLUPA), Idaho Code §§ 67-6501-6538.

In Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 181 P.3d 1238 (2008), we held, in essence, that a property owner seeking merely to amend a county comprehensive plan map, without also seeking authorization to develop its property, may not obtain judicial review under Idaho Code § 67-6521. We stated: “Because the amendment to the comprehensive plan map does not authorize development, Giltner Dairy is not an affected person under [Idaho Code § 67-6521].” Id. at 633, 181 P.3d at 1241. Thus, because an amendment to a comprehensive plan map does not, in and of itself, authorize any development, a person unsuccessfully seeking such an amendment may not obtain judicial review. However, Giltner Dairy strongly suggested that a property owner who unsuccessfully applied for a land use classification that would permit development of his property would be able to obtain judicial review under Idaho Code § 67-6521.

Indeed, following the enactment of LLU-PA in 1975, this Court consistently held for over a quarter of a century that LLUPA authorized judicial review of county zoning decisions under either Idaho Code § 67-6519 *665or Idaho Code § 67-6521. See Hill v. Bd. of County Comm’rs, 101 Idaho 850, 851, 623 P.2d 462, 463 (1981) (holding I.C. § 67-6519 to be “controlling statutory authority for [the district court’s] review of the [county] board’s zoning decision”); Love v. Bd. of County Comm’rs of Bingham County, 105 Idaho 558, 559, 671 P.2d 471, 472 (1983) (holding “the district court was empowered to review on appeal the rezoning decision of the County” under I.C. § 67-6521). In Burt v. City of Idaho Falls, 105 Idaho 65, 665 P.2d 1075 (1983), we clarified, however, that pre-LLUPA decisions confining review to quasi-judicial zoning actions, i.e., those which apply “a general rule to a specific interest, such as a zoning change affecting a single piece of property, a variance, or a conditional use permit,” continued to apply under LLUPA. Id. at 67, n. 4, 665 P.2d at 1077, n. 4 (quoting Allison v. Washington County, 24 Or.App. 571, 548 P.2d 188, 191 (1976)). Zoning actions that were legislative in nature, i.e., those affecting “a large area consisting of many parcels of property in disparate ownership,” were not reviewable either pre- or post-LLUPA. Id.

These cases were good law for 25 years. The Court has routinely held quasi-judicial zoning decisions, such as that involved in this case, to be reviewable under LLUPA4 until the Court’s 2008 decision in Highlands Development Corp. v. City of Boise, 145 Idaho 958, 188 P.3d 900 (2008). There, the Court decided that LLUPA contained “no provision granting judicial review of the initial zoning classification applied to annexed property.” Id. at 961, 188 P.3d at 903. Today, the Court expands the Highlands decision to preclude judicial review of any zoning decision under LLUPA.

The dissent in Highlands anticipated today’s decision, laying out the case for continuing the tradition of providing judicial review of quasi-judicial zoning decisions. Id. at 962-66, 188 P.3d at 904-08. What was stated in the Highlands dissent applies equally, but need not be restated, here. Since issuance of the Highlands decision, the Court has issued two decisions regarding judicial review of administrative actions that are deserving of consideration and application here.

On March 4, 2009, the Court issued opinions in St. Luke’s Regional Medical Center, Ltd. v. Board of Commissioners of Ada County, 146 Idaho 753, 203 P.3d 683 (2009), and Saint Alphonsus Regional Medical Center v. Ada County, 146 Idaho 862, 204 P.3d 502 (2009), both of which vacated district court orders dismissing petitions for judicial review of county medical indigency determinations. The district court dismissed both petitions for review, concluding that the medical indigency statutes, particularly Idaho Code § 31-3505G, did not specifically list medical providers as persons or entities authorized to obtain judicial review of county indigency determinations under the Idaho Administrative Procedure Act (IDAPA), Idaho Code §§ 67-5201-5292. Indeed, section 31-3505G only provides for “the applicant, or a third party making application on an applicant’s behalf’ to seek judicial review of a county board’s final determination denying an application for medical assistance.

In St. Luke’s, which contains the Court’s complete analysis of the issue, the Court determined that, despite the statute’s lack of a specific reference to medical providers as being entitled to seek judicial review of an adverse county determination, medical providers had the authority to seek judicial review based upon two grounds: (1) the Legislature’s apparent acquiescence in the Court’s long-standing practice of allowing medical providers to obtain judicial review of adverse decisions affecting their interests, and (2) the denial of judicial review would produce an absurd result, given the intent of the statutory scheme. Both grounds apply equally here.

In St. Luke’s, the Court set out the following background:

The Medical Indigency Act has never explicitly granted providers the right to petition for judicial review. Until 1996, Idaho Code § 31-3505 only provided applicants the right to judicial review. I.C. § 31-*6663505 (1981) (repealed 1996). At that time, “applicant” was an undefined term within the statute.
However, for over twenty years, Idaho courts have recognized that providers have standing to seek judicial review in the district courts of adverse decisions made by county boards, pursuant to this Court’s rulings in Carpenter v. Twin Falls County, 107 Idaho 575, 691 P.2d 1190 (1984) and Intermountain Health Care, Inc. v. Board of County Comm’rs of Blaine County, 109 Idaho 299, 707 P.2d 410 (1985) [hereafter Intermountain Health Care II]. In both cases this Court ruled that providers have standing to seek judicial review of adverse county board decisions based on providers’ expectation of compensation for medical care of indigents under the Medical Indigency Act.

Id. at 753, 203 P.3d at 686. Ada County contended the district court had correctly determined that medical providers had no right to seek judicial review of medical indigency decisions because certain 1996 amendments to the Medical Indigency Act, including I.C. § 31-3505G, failed to specifically list medical providers as being entitled to appeal, thereby demonstrating a legislative intent to overrule Carpenter and Intermountain Health Care II. We dismissed that argument, stating:

In discussing rules of statutory construction, this Court in Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003), recognized that some terms and phrases have developed specific meanings or subtexts resulting from years of consistent judicial interpretation and “[t]his Court assumes the Legislature has full knowledge of this existing judicial interpretation when it amends a statute.” ... Furthermore, in George W. Watkins Family v. Messenger, 118 Idaho 537, 540, 797 P.2d 1385, 1388 (1990), this Court held “[t]he legislature is presumed not to intend to overturn long established principles of law unless an intention to do so plainly appears by express declaration or the language employed admits of no other construction.” Here, there is no express declaration or language that offers an unequivocal construction that the legislature intended to overturn the long established principle that providers have standing to seek review of adverse board decisions. If the legislature had intended to deny providers standing and to overturn Carpenter and Intermountain Health Care II, it could have simply added the clause “providers have no standing to seek judicial review” into the statute. It clearly did not.

Id. at 756, 203 P.3d at 688.

The history of judicial review under LLU-PA is strikingly similar to that with regard to the medical indigency statutes. Sections 67-6519 and 67-6521 were enacted into law in 1975. 1975 Idaho Sess. Laws, eh. 188, § 2, p. 524-25. The Hill case, wherein the Court determined that I.C. § 67-6519 authorized judicial review of zoning decisions, was decided in 1981, and the Love case, wherein the Court determined that I.C. § 67-6521 authorized judicial review of zoning decisions, was decided in 1983. It is presumed that the Legislature had full knowledge of those judicial interpretations when it amended section 67-6519 in 1993, 2000 and 2003, and when it amended section 67-6521 in 1993 and 1996. Yet, in none of these instances did the Legislature indicate any intent to overturn the long-standing and consistently-followed holdings in Hill and Love. It must be presumed that the Legislature was content with such holdings.

Burns and persons similarly situated have even a stronger case to make, based on the language of the pertinent LLUPA statutes, than the medical providers in St. Luke’s and St. Al’s had under the medical indigency statutes. I.C. § 67-6519(4) provides that “[a]n applicant denied a permit or aggrieved by a decision” may obtain judicial review. The Court acknowledges that an applicant denied a permit may seek judicial review but fails to take into account that the statute also allows review when an applicant is aggrieved by a decision. The language cannot be construed to mean the same thing, i.e., that a permit need be involved, otherwise the alternate language would have no meaning. With regard to § 67-6521(1) the Court acknowledges that a person affected by the issuance *667or denial of a permit authorizing development may seek judicial review but holds that a person affected by the issuance or denial of permission authorizing development has no such right. This plays into the second ground relied upon by the Court in St. Luke’s.

In this ease, had Burns applied for a special use permit that would have allowed the very same development Burns wished to pursue on its property through the zoning change, it would have had the right, under the Court’s decision, to obtain judicial review of the adverse decision. Since it sought to change the zoning status of the property, which would have allowed it to pursue its development plans as permitted uses under the new zoning classification, the Court holds it may not obtain judicial review. This appears to be a distinction without much difference. The two purposes are functionally equivalent.

By allowing judicial review in certain instances where permission is granted or denied by virtue of a piece of paper entitled “permit” and denying judicial review where the permission is either allowed or prohibited in a document entitled “zoning ordinance,” there is the risk of untoward consequences. For example, a developer wishing to pursue plans for construction of a nuclear power plant may determine that, with a favorably-inclined county commission, it is better to seek a zoning change that would permit such project, rather than a conditional use permit that would provide the same result. If the county commission granted the zoning change, affected citizens would have no right of judicial review. If the developer pursued the conditional use permit avenue, the affected citizens would have the right of judicial review.

LLUPA was enacted to require local governing bodies to implement comprehensive planning and zoning schemes. With regard to the question of zoning, the Legislature engrafted into Idaho Code § 67-6511 a number of requirements and protections designed to give property owners the right to develop their property and to give their neighbors the right to have a say in the matter. Safeguards, such as notice, required public hearings and the like were implemented by the Legislature and have been supplemented by the courts to ensure fair and proper procedures. The statement of purpose for LLU-PA’s enacting legislation, Senate Bill 1094, indicated that the bill “provides for due process in land use decisions.” It is extremely doubtful that the Legislature would have so carefully engrafted due process provisions into the bill if it had no intention of allowing aggrieved parties to seek judicial review of zoning decisions. Indeed, several provisions of LLUPA specifically provide for judicial review. In addition to sections 67-6519 and 67-6521, both of which have been previously mentioned, judicial review is provided for in Idaho Code § 67-6520, which allows for the appointment of hearing examiners where authorized by local ordinance. That section allows hearing examiners to consider applications for subdivision, special use and variance permits, as well as “requests for zoning district boundary changes which are in accordance with the plan.” See I.C. § 67-6520. The statute provides that the decision or recommendation of the hearing officer shall specify, among other things, “the actions, if any, that the applicant could take to obtain a permit or zoning district boundary change in accordance with the plan.” Id. An applicant who is denied a permit or who is aggrieved by a decision may seek judicial review. Id. Is there any reason why a person aggrieved by a hearing officer’s decision on a zoning district boundary change should be able to obtain judicial review but persons aggrieved by a downzone or upzone decision of a county commission cannot obtain such review? Certainly, the Legislature could not have intended such a logic-defying result.

A decision approving or denying a zoning request that would authorize a particular development proposal for a particular piece of property either authorizes or denies permission to so develop the property, the same as the approval or denial of an application for a written permit. In this ease, Burns sought permission to develop its property in a particular fashion by way of a zoning change. With the change in the property’s zoning status, the provisions of the zoning code, rather than a piece of paper called a “per*668mit,” would have granted the permission Burns sought. In other words, the written zoning code would be the “permit” authorizing the development desired by Burns. A permit by any other name is still a permit. We should not impose artificial barriers to consideration of such cases.

Justice BURDICK concurs.

. See, e.g., In Re Application for Zoning Change, 140 Idaho 512, 96 P.3d 613 (2004), where the Court held the decision on a rezoning application to be reviewable under I.C. § 67-6521(d). Id. at 514, 96 P.3d at 615.