IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34333
)
BOISE TOWER ASSOCIATES, LLC, a )
Washington limited liability company, )
)
Plaintiff-Appellant-Cross Respondent, )
Boise, January 2009 Term
v. )
)
2009 Opinion No. 106
TIMOTHY J. HOGLAND, an individual )
acting under color of state law, and THE )
Filed: August 24, 2009
CITY OF BOISE, an Idaho )
municipality, )
Stephen W. Kenyon, Clerk
)
Defendants-Respondents-Cross )
Appellants. )
)
Appeal from the Fourth Judicial District of the State of Idaho, Ada County.
Hon. Darla Williamson, District Judge.
The district court order granting summary judgment is affirmed in part and vacated
in part and the case is remanded for further proceedings. Costs on appeal are
awarded to respondents.
Rossman Law Group, PLLC, Boise, for appellant. Eric Rossman argued.
Anderson Julian & Hull, LLP and Scott Muir, Boise, for respondent. Phillip
Collaer argued.
_______________________________
W. JONES, Justice
NATURE OF CASE
This appeal arises out of a failed condominium tower project that Boise Tower
Associates (BTA) intended to build in downtown Boise, Idaho. BTA filed a lawsuit against
Timothy Hogland (Hogland) and the City of Boise, alleging constitutional violations and other
causes of action stemming from the mistaken miscalculation of BTA‟s building permit expiration
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date. The district court granted summary judgment in favor of Hogland and the City of Boise.
BTA brought this appeal. We affirm in part and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
The facts of this case are largely undisputed by the parties. On November 27, 1998, BTA
submitted an application to the Boise Planning and Development Services Department (PDS) for
a building permit to construct the Boise Tower Project (the Project). Hogland, Director of PDS,
approved BTA‟s application and issued the permit on May 3, 2000.
Under the applicable building regulations found in the 1994 Uniform Building Code
(UBC), the permit would expire if work authorized by such permit was suspended or abandoned
for a period of 180 days. For two years minimal work was performed on the Project. The last
date that work was performed was on May 15, 2002, when concrete was poured for the
foundation. Accordingly, BTA‟s permit was set to expire on November 11, 2002, which would
have been 180 days after the last day work was performed on the Project. However, PDS‟s
records incorrectly indicated that May 3, 2002 was the last date that BTA had performed work
on the Project. According to PDS, the permit was therefore set to expire on November 3, 2002.
On November 7, 2002, Hogland received a letter from M.A. Mortenson, BTA‟s
construction contractor, notifying PDS that work would commence that day. Under the mistaken
notion that the permit expired on November 3, 2002, an inspector for the City of Boise issued a
stop-work order to BTA and notified it that the site was to remain as-is until Hogland could meet
with BTA and agree on a course of action.
On November 13, 2002, Hogland met with representatives from BTA and Mortensen to
discuss a course of action. Rick Peterson (Peterson), the managing member of BTA, tried to
convince Hogland that the permit had not yet expired, but Peterson did not provide Hogland with
any supporting evidence that BTA had worked on the Project on May 15, 2002. At that meeting,
Hogland told BTA that to move forward and continue work under the permit BTA would have to
enter into a written stipulation agreement. One condition of the stipulation agreement required
BTA to provide a letter from a lending institution indicating a commitment of full financing
within 60 days from the date of the agreement or the permit would be deemed expired.
BTA alleges that Hogland told Peterson if BTA did not sign the stipulation agreement
that day, Hogland would tell the Boise City Council at their meeting that night that BTA‟s permit
had expired. Peterson protested, arguing that his attorney advised him not to sign the stipulation
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agreement. However, BTA believed that if Hogland publicly announced that the permit was
expired, it would jeopardize financing and lead to the demise of the Project. On November 15,
2002, Hogland received a letter from BTA stating that Peterson had signed the stipulation
agreement. Thereafter, Peterson and his attorney suggested revisions to the agreement. The
agreement was revised and signed again by Peterson and Hogland on November 19, 2002.
BTA did not satisfy the stipulation agreement condition requiring it to provide a
commitment letter within the agreed-upon 60 day time period. Hogland agreed to grant an
extension to BTA. On January 22, 2003, the parties entered into an addendum to the stipulation
agreement, which extended the time by which BTA was required to provide a commitment letter
to February 4, 2003. BTA failed to provide a commitment letter to Hogland by that date.
On February 11, 2003, Hogland notified BTA that its permit had expired because BTA
failed to meet its obligations under the stipulation agreement and addendum. BTA requested a
hearing on the matter and Hogland allegedly denied the request.
On February 19, 2003, BTA sent a letter to Hogland and the City of Boise, requesting an
appeal to the Board of Appeals pursuant to Boise Municipal Code § 4-02-05 and UBC § 105.1.
The letter stated that in the event the Board of Appeals did not have jurisdiction to hear the
matter, the letter was to be considered notice that BTA was appealing to the City Council. The
record reflects that the Board of Appeals did not hear the matter, although it is unclear why that
procedure was not followed. Rather, a hearing on the matter was conducted before the City
Council on April 1, 2003. At that hearing, BTA was represented by counsel and was allowed to
present testimony and offer evidence. After the City Council heard BTA‟s evidence, it found
that Hogland mistakenly calculated BTA‟s permit expiration date. The City Council reinstated
BTA‟s permit on April 9, 2003.
BTA filed a complaint against Hogland and the City of Boise on November 2, 2004,
claiming that negative publicity from the miscalculation of the expiration date of the building
permit led to cancellation of a number of pre-sale condominium purchase agreements and caused
the withdrawal of financing commitments, ultimately leading to the Project‟s failure. BTA
brought various causes of action, including in relevant part: (1) intentional interference with
contract and intentional interference with prospective economic gain, (2) vicarious liability of the
City of Boise for Hogland‟s tortious actions, (3) violation of 42 U.S.C. § 1983 by Hogland and
the City of Boise, (4) a regulatory taking without just compensation by the City of Boise in
3
violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article
1, Sections 13 and 14 of the Idaho Constitution, and (5) violation of BTA‟s procedural due
process rights under the Fifth and Fourteenth Amendments to the United States Constitution and
Article 1, Section 13 of the Idaho Constitution.
Hogland and the City of Boise filed an answer, raising various affirmative defenses,
including that “some or all [state law] claims are either barred or limited by the Idaho Tort
Claims Act.” The record is unclear whether BTA complied with the notice provisions of the
Idaho Tort Claims Act.
During the course of preparing for litigation, Hogland stated in an affidavit that he was
“concerned about the safety of the BTA construction site because it was an open pit in the
middle of downtown Boise.” He stated that he issued the stop-work order because he believed
BTA‟s permit had expired and his actions “were intended to address what [he] believed to be the
significant risk to the public and adjacent buildings of the site, given the width and depth of the
excavated pit and exposed reinforcing bar, foundation, and concrete columns.”
The parties filed cross-motions for summary judgment. The district court granted
summary judgment on BTA‟s § 1983 claim in favor of the City of Boise, finding that it was
immune from suit, and Hogland, finding that he was entitled to qualified immunity. The court
did not address the takings or tort claims in its summary judgment order. The court denied
Hogland and the City of Boise‟s request for attorney fees and granted their motion for costs.
BTA filed a timely appeal raising the following issues: (1) whether Hogland acted ultra
vires in entering into the stipulation agreement and whether it is void for lack of consideration,
(2) whether Hogland and the City of Boise violated BTA‟s procedural due process rights and are
liable under 42 U.S.C. § 1983, (3) whether questions of fact preclude summary judgment on
BTA‟s takings claims, and (4) whether questions of fact preclude summary judgment on BTA‟s
tort claims against Hogland.
Hogland and the City of Boise filed a timely cross-appeal on the issue of attorney fees
below and request costs and fees on appeal.
ISSUES ON APPEAL
Appellant raises the following issues on appeal:
1. Whether Hogland acted ultra vires in entering into the stipulation agreement and whether
it is void for lack of consideration?
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2. Whether Hogland and the City of Boise violated BTA‟s procedural due process rights
and are liable under 42 U.S.C. § 1983?
3. Whether the district court properly granted summary judgment on BTA‟s takings claims?
4. Whether the district court properly granted summary judgment on BTA‟s tort claims
against Hogland?
Respondents raise the issue of whether the district court abused its discretion in denying
Respondents‟ motion for attorney fees below. Respondents request attorney fees on appeal.
STANDARD OF REVIEW
On appeal from the grant of a motion for summary judgment, this Court‟s standard of
review is the same as the standard used by the district court originally ruling on the motion. P.O.
Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 237, 159 P.3d 870, 874
(2007). 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).
The burden of establishing the absence of a genuine issue of material fact is on the
moving party. Porter v. Bassett, 146 Idaho 399, __, 195 P.3d 1212, 1216 (2008). However, if
the nonmoving party fails to provide a sufficient showing to establish the essential elements of
his or her case, judgment shall be granted to the moving party. Id. This Court will liberally
construe all disputed facts in favor of the nonmoving party, and all reasonable inferences that can
be drawn from the record will be drawn in favor of the nonmoving party. Id. If reasonable
persons could reach differing conclusions or draw conflicting inferences from the evidence
presented, then summary judgment is improper. Jones v. HealthSouth Treasure Valley Hosp.,
147 Idaho 109, __, 206 P.3d 473, 476 (2009).
ANALYSIS
Hogland did not act ultra vires when he entered into the stipulation agreement, nor is the
agreement void for lack of consideration.
BTA argues the condition in the stipulation agreement requiring Hogland to approve
financing for the Project exceeded the authority granted to Hogland under the UBC and Hogland
was therefore acting ultra vires when he entered into the agreement with BTA‟s representatives.
To succeed on an ultra vires argument, BTA must show that Hogland exceeded the broad
discretion and authority granted to him to direct and enforce all provisions of the UBC. See
Black v. Young, 122 Idaho 302, 834 P.2d 304 (1992). BTA compares the facts of the present
5
case to Black, where the City of Ketchum imposed conditions upon an agreement between
developers and the city council to enact an ordinance vacating a public alley for the purpose of
building a hotel. Id. This Court found the ordinance invalid as the conditions exceeded the
authority the city was granted through I.C. § 50-311, which specifically governed the process
whereby streets were vacated. Id. at 308, 834 P.2d at 310. Black is distinguishable from the
present case because there the city‟s authority was limited to the processes set out in the statute
for vacating streets and alleys. Id. In the present case, Hogland‟s authority was not narrowly
circumscribed; rather, he had broad discretion to direct and enforce all provisions of the UBC.
Hogland derived his authority to enter into the stipulation agreement from the powers
granted to him in the UBC to “render interpretations of [the] code and to adopt and enforce rules
and supplemental regulations in order to clarify the application of its provisions,” UBC §
104.2.1, and to “institute any other appropriate action to prevent, restrain, correct or abate” a
safety violation. UBC § 102. Hogland described in an affidavit that he was concerned about the
hazard of the open construction site, as well as BTA‟s demonstrated continuous failure to meet
the conditions of its permit and proceed with work in a timely manner. Hogland could have
declared the Project an unsafe structure and required BTA to repair, demolish, or remove the
structure. See UBC § 102. Rather than do so, Hogland attempted to cure BTA‟s violations by
entering into a stipulation agreement whereby the City of Boise would receive assurances that
the structure was safe and work on the Project could progress in a timely fashion. Hogland was
acting well within his authority when he and BTA agreed to certain conditions that permitted
BTA extra time to obtain financing while ensuring that BTA would not continue to unreasonably
delay the Project and create hazardous conditions at the job site. Accordingly, we hold that
Hogland was not acting ultra vires.
BTA also argues the stipulation agreement is void for lack of consideration. While this
Court will not inquire as to the adequacy of consideration as bargained for by parties to an
agreement, some consideration is a necessary element to a contract. Vance v. Connell, 96 Idaho
417, 419, 529 P.2d 1289, 1291 (1974). “To constitute consideration, a performance or a return
promise must be bargained for. A performance or return promise is bargained for if it is sought
by the promisor in exchange for his promise and is given by the promisee in exchange for that
promise.” Restatement (Second) of Contracts § 71 (1981). The stipulation agreement and
addendum were negotiated between Peterson, his attorney, and Hogland, and both agreements
6
include changes specifically proposed by BTA. Hogland and the City of Boise gave up other
actions they could have taken to correct safety hazards in the Project site, and conversely, BTA
received the benefit of Hogland not finding BTA in violation of the UBC. We hold that the
stipulation agreement is not void for lack of consideration.
Hogland and the City of Boise did not violate BTA’s procedural due process rights, so they
are not liable under 42 U.S.C. § 1983.
BTA argues its procedural due process rights were violated because it was not afforded a
pre-deprivation hearing prior to Hogland (1) issuing the stop-work order, or (2) mistakenly
deeming the building permit expired.1 Specifically, BTA claims Hogland and the City of Boise
violated its constitutional right to due process and are liable under 42 U.S.C. § 1983, which
provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . .
To invoke § 1983, a plaintiff must show a violation of a right secured by the Constitution and
laws of the United States and must show that the alleged deprivation was committed by a person
acting under color of state law. Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 92, 982
P.2d 917, 927 (1999). The right to procedural due process is secured by the Fifth Amendment to
the United States Constitution, as applied to the states through the Fourteenth Amendment, and
by Article 1, Section 13 of the Idaho Constitution. Procedural due process protects the minimum
guarantees of notice and a hearing where deprivation of a property interest may occur. See
Bradbury v. Idaho Judicial Council, 136 Idaho 63, 72, 28 P.3d 1006, 1015 (2001). The
opportunity to be heard must occur at a meaningful time and in a meaningful manner. Id. The
United States Supreme Court explained the balancing test to determine the adequacy of a
particular process as follows:
[D]ue process…is not a technical conception with a fixed content unrelated to
time, place and circumstances...[D]ue process is flexible and calls for such
procedural protections as the particular situation demands…[I]dentification of the
1
We do not need to decide whether BTA had a constitutionally protected property right in its building permit
because, assuming arguendo that the permit was a protected property interest, we hold BTA was afforded adequate
procedural due process.
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specific dictates of due process generally requires consideration of three distinct
factors: [f]irst, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government‟s interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (internal quotations and citations omitted).
The United States Supreme Court has rejected the notion that a pre-deprivation hearing is
required in all cases. Parratt v. Taylor, 451 U.S. 527, 540 (1981) (overruled on other grounds).
Interim suspensions of licenses and temporary seizures of property may be undertaken without a
pre-deprivation hearing, provided there is sufficient factual basis for the action and that prompt
administrative or judicial review of the merits of the decision is available. See Barry v. Barchi,
443 U.S. 55, 64 (1979).
Hogland‟s decision to issue the stop-work order was merely a temporary suspension of
BTA‟s right to perform work on the Project. There was sufficient factual basis for the
suspension because PDS‟s records reflected that work had not been performed in the 180-day
period. Prompt review was available to BTA in the forms of a meeting with Hogland and a
hearing before the Board of Appeals, although in this case the City Council conducted the
hearing. Under Parratt and Barry, Hogland‟s decision to issue the temporary stop-work order
did not invoke the right to a pre-deprivation hearing.
BTA‟s argument that it was entitled to a pre-deprivation hearing before the stop-work
order was issued also fails under the Mathews balancing test. First, the private interest that was
affected by the official action was minor because the decision to issue the stop-work order was
merely intermittent until a course of action could be agreed upon by the parties. Second, the risk
of erroneous deprivation was minimal because of the temporary nature of the action. The value
of additional procedural safeguards would also have been minimal because the benefits would
have been lost if additional processes were put in place to stall the use of the stop-work order,
which is a measure used to swiftly abate unsafe work from being performed. Third, the
additional financial and administrative burdens placed on the government would be arduous if
additional procedural requirements were imposed before stop-work orders could be issued,
particularly due to the temporary nature of stop-work orders. Under the Mathews balancing test,
BTA was not entitled to notice and a hearing prior to Hogland issuing the stop-work order.
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The thornier question is whether BTA was afforded adequate procedural due process
under Mathews when Hogland and the City of Boise mistakenly deemed BTA‟s building permit
expired. In its summary judgment order, the district court incorrectly stated, “Neither the Boise
City Code nor the UBC provided for an immediate appeal following an expiration of a permit.”
The court then noted that “a builder who disagreed with the actions of Hogland had remedial
options by seeking an appeal through the Boise City Council, which BTA did. Of course this
was not specifically spelled out but it was a viable option for BTA.”
Despite what the district court stated, the UBC clearly provides for an appeals process
from any final decision made by the building official, in this case Hogland, to a Board of
Appeals. The relevant section states:
In order to hear and decide appeals of orders, decisions or determinations made by
the building official relative to the application and interpretation of this code,
there shall be and is hereby created a board of appeals consisting of members who
are qualified by experience and training to pass on matters pertaining to building
construction...The board of appeals shall be appointed by the governing body and
shall hold office at its pleasure. The board shall adopt rules of procedure for
conducting its business, and shall render all decisions and findings in writing to
the appellant with a duplicate copy to the building official.
UBC § 105.1. The record shows that BTA requested an appeal before the Board of Appeals
under UBC § 105.1, but BTA did not receive such a hearing. Rather, BTA‟s appeal went
directly to the Boise City Council. During the hearing before the City Council, BTA was
represented by counsel and allowed to present evidence. The record does not explain why
BTA‟s appeal was heard by the City Council rather than the Board of Appeals. Regardless of
who heard BTA‟s appeal, the question before us is whether the process afforded to BTA was
constitutionally adequate.
Under the Mathews balancing test, BTA received constitutionally adequate procedural
due process in the form of notice and a hearing when it appealed to the City Council. First,
assuming arguendo that BTA had a constitutionally protected property right in its building
permit, we recognize that it is imperative that we protect parties from suffering constitutional
violations pertaining to such a right. Second, although there was a risk of erroneous deprivation
of BTA‟s property interest, as shown by Hogland‟s mistaken miscalculation of the permit
expiration date, any deprivation was cured by the City Council‟s decision to reinstate the permit.
There would have been minimal value in additional or substitute safeguards because the City
9
Council did exactly what BTA had hoped for in appealing Hogland‟s decision – they reinstated
BTA‟s permit. Third, creating additional or substitute procedural requirements would have
resulted in onerous fiscal and administrative burdens where there was already an appeals process
in place. In this case, to create a more complex process would have been overly burdensome and
superfluous when the procedure in place was clearly adequate. Thus, we hold that BTA was
afforded adequate procedural due process with regard to any property rights it may have had in
its building permit.
We note that the district court below found that there was an issue of fact as to whether
there was a procedural due process violation, but it held that if there was a violation, the right at
issue was not clearly established and Hogland was therefore entitled to qualified immunity. See
Pearson v. Callahan, __ U.S. __ (2009) (holding the test to determine whether a government
official is entitled to qualified immunity, promulgated in Saucier v. Katz, 533 U.S. 194 (2001),
need not be analyzed in a particular order; the two-prong test is: 1) whether the facts the plaintiff
alleges make out a violation of a constitutional right; and 2) whether the right at issue was clearly
established at the time of defendant‟s conduct). The court also found that the City of Boise was
not liable for Hogland‟s actions because he was not a final policymaker. See Monell v. Dep’t of
Soc. Serv. of City of New York, 436 U.S. 658 (1978) (holding a plaintiff may establish municipal
liability by showing that the decision-making official had final policymaking authority).
Because we find there was no deprivation of BTA‟s procedural due process rights, we do not
reach the issues of whether Hogland was entitled to qualified immunity or whether he was a final
policymaker rendering the City of Boise liable for his actions. Although we disagree with the
district court‟s reasoning, we agree with its decision to grant summary judgment to Hogland and
the City of Boise. Where the lower court reaches the correct result by an erroneous theory, this
Court will affirm the order on the correct theory. Nampa & Meridian Irr. Dist. v. Mussell, 139
Idaho 28, 33, 72 P.3d 868, 873 (2003). For the reasons stated above, we hold that the district
court did not err when it granted summary judgment and dismissed BTA‟s § 1983 claim because
BTA‟s procedural due process rights were not violated under the United States or Idaho
constitutions.
The district court erred in failing to address BTA’s takings claims, so we remand for
further proceedings.
10
BTA alleges that it was deprived of two pieces of property – the building permit itself
and BTA‟s right to develop the Project pursuant to the permit – resulting in constitutionally
impermissible takings under the Fifth and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 13 and 14 of the Idaho Constitution. Although BTA
asserted its takings claims in its complaint, the district court failed to address the claims in its
Decision and Order on Cross Motions for Summary Judgment.
The Fifth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, provides that no person shall “be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without
just compensation.” Article I, Section 13 of the Idaho Constitution guarantees that “[n]o person
shall be…deprived of life, liberty or property without due process of law.” Article I, Section 14
of the Idaho Constitution provides: “Private property may be taken for public use, but not until a
just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.”
The Just Compensation Clause, sometimes referred to as the Takings Clause, has
developed into a complicated and multi-faceted area of constitutional law. Until the United
States Supreme Court‟s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922), “it was generally thought that the Takings Clause reached only a direct appropriation of
property, or the functional equivalent of a practical ouster of the owner‟s possession.”2 Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005) (citing Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1014 (1992) (internal quotations and brackets omitted; emphasis in original)).
After Mahon, neither a physical appropriation nor a public use has ever been a necessary
component of a “regulatory taking.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 326 (2002). The United States Supreme Court has identified two types of
regulatory action that constitute categorical or per se takings. “First, where government requires
an owner to suffer a permanent physical invasion of her property – however minor – it must
provide just compensation.” Lingle, 544 U.S. at 538 (citing Loretto v. Teleprompter Manhattan
2
BTA‟s takings claim is alleged in its complaint as a direct governmental appropriation of property without just
compensation. According to BTA, “[t]he patently erroneous revocation and/or cancellation of BTA‟s building
permit constituted a taking of BTA‟s property, without just compensation . . . .” On appeal, however, while still
complaining that it was deprived of its property by virtue of a permit revocation, BTA primarily argues its case as a
regulatory taking. The offending regulation that would have impinged on BTA‟s property interest is not specifically
identified, although reading between the lines it may be that the stop work order was the offending regulation. Our
review assumes that BTA‟s claim is the regulatory taking type, as its brief devotes the greater part of the takings
section to that theory.
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CATV Corp., 458 U.S. 419 (1982)). “A second categorical rule applies to regulations that
completely deprive an owner of „all economically beneficial us[e]‟ of her property.” Lingle, 544
U.S. at 538 (quoting Lucas, 505 U.S. at 1019) (emphasis and bracket in original). If the facts of
a regulatory takings case do not fit within these two categories, then the takings claim must be
analyzed under the catch-all standard promulgated in Penn. Central Transp. Co. v. City of New
York, 438 U.S. 104, 124 (1978). The Penn Central factors that must be considered to determine
the compensability of an alleged taking include: (1) the character of the government action, (2)
the economic impact of that action on the property owner, and (3) the extent to which the
regulation has interfered with distinct investment-backed expectations. Id.
In Tahoe-Sierra, the United States Supreme Court held that the Penn Central factors are
applicable when an alleged taking is temporary in nature. 535 U.S. at 342. In so holding, the
Court declined to adopt a per se categorical test for temporary moratoriums on development. Id.
The Court noted: “A rule that required compensation for every delay in the use of property
would render routine government processes prohibitively expensive or encourage hasty
decisionmaking.” Id., 535 U.S. at 335. “Government hardly could go on if to some extent
values incident to property could not be diminished without paying for every such change in the
general law.” Lingle, 544 U.S. at 538 (quoting Mahon, 260 U.S. at 413).
Assuming arguendo that BTA had a constitutionally protected property interest in its
building permit or in its right to build pursuant to the building permit, whether a taking occurred
was a matter not decided by the district court and for that reason, we decline to address the issue.
Accordingly, we vacate the judgment in favor of Hogland and the City of Boise on this issue and
remand to the district court for its determination of the issue, keeping in mind that there was at
most a temporary taking due to the mistaken miscalculation of the permit expiration date. It is
difficult to perceive what loss of value there could have been to the permit itself and a substantial
question remains as to what “temporary taking” gives rise to a compensable claim for damages
as BTA is asserting here. Because the district court failed to analyze BTA‟s takings claims or
reach any decision on the issue, we remand for further proceedings.
The district court erred in failing to address BTA’s state tort claims, so we remand for
further proceedings.
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BTA also asserted claims for intentional interference with contract and prospective
economic advantage. In granting summary judgment, the district court failed to address these
claims in its decision and we, therefore, decline to address those claims here.
BTA argued below and on appeal that material questions of fact exist on the issues of
whether Hogland acted with criminal intent, malice or reckless, willful and wanton conduct in
miscalculating the permit expiration date. Specifically, BTA alleges that Hogland intentionally
directed BTA to stop work on the Project, Hogland used an invalid excuse that BTA‟s building
permit had expired as a pretext to coerce BTA into signing the stipulation agreement, and
Hogland had no lawful authority to impose the conditions of the stipulation agreement on BTA.
Since BTA‟s claim is based on the mistaken miscalculation of a building permit expiration date,
the relevant statutory scheme precludes any claim without a showing that Hogland and the City
of Boise acted with “malice or criminal intent” or with “gross negligence or reckless, willful and
wanton conduct.” I.C. § 6-904B(3). The burden is particularly high for BTA, as I.C. § 6-903(e)
provides a rebuttable presumption that any act of an employee within the time and place of his
employment is without malice or criminal intent. The record does not appear to support BTA‟s
claim, but this is a matter that must be addressed in the first instance by the district court, rather
than by this Court. Moreover, the record is unclear whether BTA complied with the Idaho Tort
Claims Act notice provisions, which must be resolved by the district court.
For the reasons stated above, we vacate the judgment in favor of Hogland and the City of
Boise on this issue and remand this matter, together with BTA‟s takings claims, to the district
court for its determination.
Respondents are not entitled to attorney fees below or on appeal.
Respondents argue the district court erred by denying their request for attorney fees m
below on the theory that BTA did not suffer the harm it claims because it had financing options
available to it that would have allowed the Project to move forward. Following the court‟s grant
of summary judgment, Respondents moved for costs and fees under I.R.C.P. 54(E )(1), 42
U.S.C. § 1983, and I.C. §§ 6-918A and 12-117. The statutory schemes for an award of attorney
fees to a defendant under each statute are similar, each essentially requiring a showing that
plaintiff‟s claims are frivolous, unreasonable, groundless, or in bad faith.
“The calculation of reasonable attorney fees is within the discretion of the trial court.”
Lettunich v. Lettunich, 145 Idaho 746, 749, 185 P.3d 258, 261 (2008). “The burden is on the
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party opposing the award to demonstrate that the district court abused its discretion.” Id. To
determine whether the trial court abused its discretion, we determine: (1) whether the trial court
correctly perceived the issue as one of discretion; (2) whether the trial court acted within the
outer boundaries of its discretion and consistently with the legal standards applicable to the
specific choices available to it; and (3) whether the trial court reached its decision by an exercise
of reason. Id. Because we remand this case to the district court for consideration of BTA‟s
takings and state tort claims, we hold the district court must reconsider the issue of attorney fees
after it determines which party has prevailed.
Respondents also request attorney fees and costs on appeal on the basis that the appeal
was brought and maintained frivolously, unreasonably, and without foundation or merit. See I.C.
§ 12-117. On account of the district court‟s failure to address BTA‟s takings and tort claims
below, we cannot say that BTA brought this appeal frivolously, unreasonably, or without merit.
Thus, we deny Respondents‟ request for attorney fees on appeal. Costs are awarded to
Respondents on appeal.
CONCLUSION
We affirm in part the district court‟s decision to grant summary judgment in favor of
Hogland and the City of Boise because 1) Hogland did not act ultra vires in entering into the
stipulation agreement and the agreement is not void for lack of consideration, and 2) Hogland
and the City of Boise did not violate BTA‟s procedural due process rights and are not liable
under 42 U.S.C. § 1983. Because the district court failed to address BTA‟s takings and state tort
claims, we vacate the judgment in favor of Hogland and the City of Boise on those issues and
remand those issues for further proceedings consistent with this Opinion. Accordingly, the
district court must determine attorney fees after it determines which party prevailed. We deny
Hogland and the City of Boise‟s request for attorney fees on appeal. Costs on appeal are
awarded to Hogland and the City of Boise.
Justices BURDICK, J. JONES, HORTON and Justice pro tem TROUT, CONCUR
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