In this the second of two lawsuits arising from the construction of a shopping mall on the Cedar Street Bridge in Sandpoint, Idaho, Jack L. Bopp sues the City of Sandpoint (city), contending that the city's ordinance vacating the public right-of-way in the Cedar Street Bridge and subsequent lease of the underlying property to the
The dispute in this case centers around certain real property deeded to the city in fee simple in 1908. The property is an 80-foot wide strip of land which commences at the intersection of Cedar Street and Sand Creek in Sandpoint, Idaho, and then crosses to the east side of Sand Creek. In 1908-09, the city constructed a wood bridge known as the Cedar Street Bridge on the property. The bridge connected Cedar Street in the downtown business district of Sandpoint to the Burlington Northern Railroad depot and other property on the east side of Sand Creek. In 1969 the bridge was closed to vehicular traffic due to its deteriorating condition. Over the passage of time the bridge deteriorated even further. In 1978 the city council initially voted to demolish the bridge and a few days later voted to repair it instead. Repairs were never made due to lack of money. On April 28, 1980, for public safety reasons, the mayor ordered the bridge barricaded, even to pedestrian traffic.
In June, 1980, the city council adopted resolution No. 19-80, authorizing the execution of an option to lease the bridge property to Scott Glickenhaus. (Glickenhaus is the general partner in the respondent company.) The following October the city entered into a formal lease (first lease) of the property with the company. Bopp challenged this lease in his first lawsuit against the city in district court and prevailed on his motion for summary judgment. The district court held the first lease void because, among other reasons, no formal action had been taken by the city to vacate the property as public right-of-way, and that the resolution authorizing the lease did not contain a determination that the property was not needed for city purposes. The district court's judgment in this first lawsuit was entered on September 23, 1982. It was not appealed. Shortly thereafter the city sought to remedy the faults found by the district court.
On October 12, 1982, at a special meeting of the Sandpoint City Council, a motion was adopted to commence proceedings to vacate the bridge right-of-way. A public hearing on the proposed vacation was held two weeks later, on October 28, 1982, after notice of the hearing was published twice in each of the local newspapers. On November 8, the Sandpoint City Council and the mayor approved Ordinance No. 767 declaring the bridge unnecessary for city purposes and vacating the public right-of-way portion of the bridge. (The ordinance claimed that the public's right-of-way was only a 32-foot wide strip inside the city's 80-foot ownership strip spanning Sand Creek.) Eight days later, on November 16, 1982, the city council adopted resolution No. 52-82 which declared that the real property in question (the entire 80 feet), owned in fee simple by the city, was not needed for public purposes and authorized a lease of that portion of the property to respondent Cedar Street Bridge Company. The resolution also found that the terms of the lease were just and equitable.
Bopp commenced the present action in the district court on December 20, 1982, seeking both declaratory judgment and equitable relief from the city's actions in vacating the bridge and thereafter leasing it to the company. In essence, Bopp again seeks to have the lease declared void on grounds that: (1) the vacation ordinance is invalid; and (2) the terms of the lease are neither just nor equitable as required by I.C. § 50-1409.
We first address the issue of whether Bopp, who does not own any property adjacent
In this case if the appellant Bopp can be said to have suffered some injury, it is one which is not special or peculiar to him; rather, it is one generally shared by all residents of the City of Sandpoint alike. The district court correctly applied the general rule "that only those who sustain some special or peculiar injury, differing in kind and not merely in degree from that sustained by the general public, are entitled to complain of a street vacation."
Appellant alleges that even if his injury is one which is shared generally by all residents of the city, he may nevertheless state a cause of action against the city under our mandamus and prohibition statutes. The district court held that appellant's failure to specifically pray for the issuance of such writs constitute a basis for denying any relief under said statutes. However, we affirm the trial court because writs of mandate (and their counterpart, prohibition) will not issue to compel the performance of a purely discretionary function, Dalton v. Idaho Dairy Products Com'n, 107 Idaho 6, 684 P.2d 983 (1984); Lisher v. City and/or Village of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980); Saviers v. Richey, 96 Idaho 413, 529 P.2d 1285 (1974), vacation of streets under I.C. § 50-311 being such a discretionary function. Appellant's arguments regarding mandamus and prohibition, therefore, are without merit.
Appellant also argues that the Canady decision should be held inapplicable to his proceeding for relief under our declaratory judgment statute because Canady was decided prior to the enactment of the declaratory judgment statute. Appellant argues that the declaratory judgment provision is much broader in its scope as to those interests cognizable in courts of justice. Again, appellant argues that in a proceeding for declaratory judgment he need not allege some injury special or peculiar to himself. We disagree. In Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959), we specifically held that a taxpayer suit challenging the validity of a statute or municipal ordinance must allege an interest other than "such as is common to all other like-situated taxpayers... ." Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho at 397, 342 P.2d at 722.
Accordingly, the district court did not err in dismissing Bopp's claim challenging the validity of the vacation ordinance. Likewise, the district court correctly concluded that Bopp may not challenge the ordinance indirectly via a challenge of the lease. Thus, to the extent appellant challenges the lease based on the validity of the vacation ordinance, he likewise fails to establish a cause of action.
The only other grounds advanced by appellant regarding the validity of the
The decision of the district court is affirmed. Costs to respondents. No attorney fees.
DONALDSON, C.J., and SHEPARD, J., concur.
HUNTLEY, J., concurs in result.
BISTLINE, Justice, dissenting.
If counsel for the parties and the district judge on reading the majority opinion recognize that it is the same case with which they wrestled, it will be a welcome surprise. The court below did not rule that the plaintiffs had failed to plead a cause of action, but rather ruled that the plaintiff was without standing to maintain the action. "The Court will first address the claim that Plaintiff does not have standing to maintain this action." R., Vol. 2, p. 245. Relying almost entirely on Canady v. Coeur d'Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911), which the trial court thoroughly discussed and declared itself bound by, R., Vol. 2, p. 250, 1. 20, the conclusion was reached that "the Plaintiff does not have standing upon which to assert his case against the City regarding Ordinance 767." Id. The conclusion was based upon language in Canady believed to impose the absolute requirement that absent being an abutting owner plaintiff had no standing.
At p. 251 of the record, Vol. 2, the district court disposed of plaintiff's contention that as a resident and taxpayer of the city he had standing, writing that it was insufficient that plaintiff had a "generalized public-spirited interest in the enforcement of its laws." Green v. Lewiston Golf Club was relied upon.
Although the plaintiff's trial brief contained cases supporting his contention of entitlement to the extraordinary relief affordable by writs of mandate or prohibition, the trial court ruled that the failure to pray for relief thereunder "shall constitute the basis for their rejection." R., Vol. 2, p. 251.
On plaintiff's contention as to reversionary rights where the ordinance vacated the "public right-of-way underlying Cedar Street Bridge," again the trial court held that plaintiff, as a non-abutting owner, had no standing. Id. at 252.
On plaintiff's challenge to the leasing of city property, again the trial court concluded "that Plaintiff does not have the requisite standing." This was said to follow from the ruling that an attack on the lease was a collateral attack on the ordinance vacating the public right-of-way. "Plaintiff should not be allowed to do indirectly that which he does not have the requisite standing to do directly." Id.
Although much of the record in the prior case, Civil No. 20044, is in this record, the pleadings do not seem to be. We do have the benefit of the district court's (The Honorable
The majority opinion is indeed guilty of placing too much reliance on Canady v. Coeur d'Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911). True, there is a discussion in that opinion as to the rights of a non-abutting owner to damages, together with a recitation of cases from other jurisdictions, and a statement of a general principle with two exceptions, as to there being no cause of action in such non-abutting owner. Id. at 88-93, 120 P. at 832-835. The only clear true holding in Canady is at the close of the opinion where the Court held against Mrs. Canady on the basis of limitations, but in language equally appropriate to laches and estoppel:
On just a cursory examination of the Canady opinion, that such was indeed the holding is quickly learned by that Court's statement of the issues raised by the answers to Mrs. Canady's
At an early point in its opinion, the Canady Court reached the ratio decidendi which resulted in its holdings and judgment:
From that point on to page 93, 120 P. 830, the Court's opinion was mere obiter dicta, not necessary to its decision. Simplistically stated, where it is concluded that an action was barred by a statute of limitations, it is inescapable that anything else added is wholly gratuitous.
Canady and the cases upon which it relied all involved a plaintiff seeking monetary damages. This fact taken alone is a marked distinction between those cases and this case because here plaintiff is seeking only declaratory and equitable relief, and not monetary damages.
Reliance on the gratuitous dicta in Canady is less than wise, especially where no current analysis of the case law found in Canady is attempted. Canady's antiquity is highlighted by its reliance upon even more ancient cases, one of which is now 149 years old. Discussions of standing in Canady and cases cited therein should hardly command any deference today, and for certain, not blind deference without any concern for the present state of the law.
Canady itself has been cited to but four times since it was written. Alexander v. Trustees of Village of Middleton, 92 Idaho 823, 825-26, 452 P.2d 50, 52-53 (1969); Hillman v. City of Pocatello, 74 Idaho 69, 72, 256 P.2d 1072, 1073 (1953); Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 102, 286 P. 353, 359 (1930); and Thomas v. Boise City, 25 Idaho 522, 533, 536, 138 P. 1110, 1115 (1914). But in none of those four cases was Canady relied upon for what was purely a gratuitous dissertation on standing. In three of the cases — Alexander, Hillman, and Continental Oil Co., Canady was discussed in terms of its estoppel holding. Today the majority applies its discussion of standing for the very first time ever — 74 years having gone by since Canady.
The majority also relies upon Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 395-96, 342 P.2d 719, 721 (1959), to support its holding that plaintiff is without standing. The majority cites Greer for the rule that "a taxpayer suit challenging the validity of a statute or municipal ordinance must allege an interest other than such as is common to all other like-situated taxpayers... ." Slip op., p. 1262 quoting Greer, supra, 81 Idaho at 397, 342 P.2d at 722. The majority would do better to make a closer examination of Greer. Justice
What should have commanded the attention of the majority in its reading of Greer, a case which dates back in time a quarter of a century, was that the Court saw fit to include a passage from then current C.J.S. which showed a then trend in the law — one which would and did grow and grow:
In the intervening 25 years since Greer, how has that trend observed in Greer progressed? Just a cursory and rapid review of the law establishes an expansion of the trend to allow residents and taxpayers to prosecute suits challenging city actions. See, e.g., State v. Weidner, 684 P.2d 103, 110 (Alaska 1984) (Local property owners within area of land to be disposed of through agricultural land lottery had sufficient personal stake in outcome of the controversy to have standing.); Board of County Commissioners of Riley County v. City of Junction City, 233 Kan. 947, 667 P.2d 868, 871 (1983) (Individual land owners of land in county had standing to seek a declaration as to constitutionality of ordinance annexing certain lands in county to city.); Conrad v. City and County of Denver, 656 P.2d 662 (Colo. 1982) (Plaintiffs' economic interest in having their tax dollars spent constitutionally is sufficient to grant them standing.); State ex rel. Wenzel v. Murray, 178 Mont. 441, 585 P.2d 633, 638 (1978) (Property owner had standing to sue to prevent waste of public money.); Clark County v. City of Las Vegas, 94 Nev. 74, 574 P.2d 1013, 1014 (1978) (Individual taxpayers had standing to maintain action challenging constitutionality of statute creating metropolitan fire departments.).
It has been observed that on occasion, depending oft-time on the author, in the early years the opinions did sometimes exhibit a tendency to extend beyond the holding. Another such a case was Village of Sand Point v. Doyle, 11 Idaho 642, 83 P. 598 (1905). As in Canady, the Court said considerably more than necessary before it finally concluded, "We think the demurrer should have been overruled." Id. at 651, 83 P. at 601.
As shown at p. 79 of 21 Idaho 120 P. 830, Mrs. Canady's counsel relied upon the then recent case of Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945 (1908). That case involved the other bridge in downtown
The reader to this point will find that Justice Ailshie at that early time recognized the bent for superfluity, which is only academically interesting.
But, after getting the opinion in the first case out of the way, Justice Ailshie got into the issue presented on the second appeal, and some of which is pertinent to varying degrees:
If today's majority were to put Canady aside it would be hardpressed to find a justifiable reason for holding the plaintiff powerless to challenge the city's actions. Unlike Mrs. Canady, the plaintiff in this action moved with alacrity and in fact was successful in his first action, as the majority does note.
As to the mandamus and prohibition discussion by the majority, again I am as unimpressed as by misplaced reliance on Canady. First, the majority, after observing that the district court held that "failure to specifically pray for the issuance of such writs constitutes a basis for denying any relief ...," does not tell the reader whether such was or was not error. Instead, the majority itself supplies the answer by saying that such writs will not be used to compel the performance of a purely discretionary function. The plaintiff's arguments are then said to be without merit. It seems more likely that the majority opinion will seem to some readers to be lacking in merit. Appellant's only citation of authority for its statement that the courts are powerless to compel the performance of a purely ministerial function is I.C. § 50-311. On ten or more readings of that section, I am unable to discern any language which gives carte blanche unquestionable and arbitrary discretion to a city in exercising the empowering provisions and procedures therein contained. My reading of Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964) establishes the principle that discretionary acts that transgress the bounds of reasonableness are very much a concern of the courts. The action in that case was for injunctive relief. A unanimous court, per Justice McFadden, held there as applicable here:
If one were to accept the majority's statement as gospel, Boise City, acting with unfettered and judicially unreviewable discretion, could vacate all of Fairview Avenue, provided that all of the abutting owners agreed to it, and other vastly affected
Finally, I am equally concerned with the majority's blase' declaration that the city's lease of the Cedar Street Bridge cannot be judicially inquired into: "Courts may not inquire into motives behind legislative enactments or resolutions except as to acts which are purely ministerial." Majority slip op., pp. 1262-1263. Footnote 1 of the majority opinion does advise that the lease was for 99 years, via a 40-year term and an option to renew for additional years — all 99 years to require payment of $1.00 each. For the first forty years, no percentage of rental receipts was required. The city did not expose the lease proposition to competitive bidding.
Another city property-owner and taxpayer — owner or part owner of four other properties on First Avenue (which connects to the Cedar Street Bridge) — submitted his affidavit with approximately 100 signatures urging the city council retain the bridge as part of the public highway system. Alternatively, he offered to become lessee at $25,000 per annum, fixed, on a conceded value of the raw real estate at $400,000. R., p. 129.
A major and pertinent concern which probably plagues me alone is created by paragraph 22 of the lease which was entered into:
My recollection is that this bypass would commence at a point on the fill which connects Sandpoint proper to the two long concrete bridges over Pend Oreille River, one built approximately 25 years ago and the other five years ago, and parallels the Burlington tracks going north, on the westerly side. That proposed bypass would indeed be adjacent to the east end of the Cedar Street bridge. Unmentioned in the lease, in the complaints, or anywhere is that in contemplation of the building of the first concrete bridge, the initial start of the Sandpoint bypass, is that at public meeting in Sandpoint, as required by statute, the State of Idaho Department of Highways committed itself to the people that in the eventual finishing of the bypass, its plans called for construction of an all-new Cedar Street bridge with access onto that bypass highway. Another and different City of Sandpoint administration, however, worked some sort of a transaction whereby the city purported to excuse the state from its commitment to the people. That issue has never been litigated.
Under the authority of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945 (1908), the plaintiff, and all residents of Sandpoint, would appear to have a very considerable interest in maintaining ownership of that bridge on the possibility that it will one day provide a valuable and almost indispensable access onto the bypass, and its loss leaves but one bridge providing access from 95 percent of all Sandpoint to the city frontage on Lake Pend Oreille. A great concern has to be felt for the disruption of all waterfront activity on Lake Pend Oreille should the sole remaining bridge become obsolete — which was exactly what occurred with respect to the first long concrete bridge the state built 25 years ago at the same time it was aiding the city in the total construction of the sole remaining bridge which is used as a bridge and not a mall.
The plaintiff should have been allowed to pursue his claims in court, and not tossed out on such a flimsy excuse as lack of standing. Hopefully, the majority will reconsider and concede that Canady cannot be used as it is being used — to deprive the plaintiff of his access to the courts. By no stretch of the most elastic of consciences can it be said that the standing discussion in Canady was anything but dicta.
The case should be reinstated, and plaintiff should have leave to bring in the State of Idaho in order to examine into what may have been an unlawful transaction between
My thoughtful analysis of the actual holding of the Canady case did not produce any stampede of other Court justices rushing to embrace it. Nothing daunted, on turning to perhaps my tenth perusal of that case, my eyes wondrously focused on something that has for all of these many years eluded my observation. The Court in those days prepared the syllabus which was used by the publisher of the Idaho Reports, and it was careful to emphasize what it was holding by, of all things, making use of the word "held" and italicizing it at the same time.
Exactly as I wrote earlier, the plaintiff in Canady was (1) held estopped by reason of her laches, and (2) held barred by the statute of limitations. West Publishing, in the Pacific Reports, also used that same syllabus by the Court and added to it a thirteenth headnote prepared by its editorial staff, which merely amplified on the Court's twelfth headnote by stating the delay of nine years and the applicable statutory limitations which barred the action. 120 P. at 830-31.
ON DENIAL OF PETITION FOR REHEARING
BISTLINE, Justice, voting to grant rehearing.
The plaintiff-appellant has petitioned for a rehearing, but has limited the request of the petition to a single issue. No complaint is registered to the Court's opinion insofar as its very first paragraph stated that: "The district court held, in sum, that Bopp had failed to state a cause of action both with regard to the vacation ordinance and the subsequent lease." Slip op., p. 1261. Apparently, notwithstanding the error in that statement, and the majority's misplaced reliance on the Canady case, what any three members of the Court declare to be so — is so, or, at least it becomes so even if it is not so. The district court did not hold that a cause of action was not stated, but made it extremely clear, even to a second grader one would think, that because of Canady Mr. Bopp did not possess the requisite standing to bring the lawsuit. Had he been an owner abutting on the Cedar Street Bridge, then he would have had standing. Lack of standing was presumably a defense which had not been pleaded in the first action brought before Judge Prather — wherein Mr. Bopp was successful. Lack of standing and failure to state a cause of action are two different animals, and the majority opinion has done Mr. Bopp a great disservice by having seized on one part of the Canady opinion, to wit, "a property owner has no cause of action against a municipality for damages to his or her property by the vacation of a public highway where no part of his property abuts upon the portion of the highway vacated... .," and artfully ignoring a passage which appeared two pages earlier in the Canady opinion:
The district court, Judge Magnuson, and the defendants themselves, recognized full well that the Canady opinion centered on standing. It is both interesting and demoralizing to read pertinent portions of Judge Magnuson's excellent Memorandum Decision allowing summary judgment against Mr. Bopp, as compared to the majority's distortion of that decision — pertinent portions of which are:
It would be a bright and sunny day for the science of jurisprudence in this state if only three members of the Court were to acknowledge the unjust and unfair way in which the Court's opinion portrays the decision of Judge Magnuson, and, of their own volition and motion vote to grant a rehearing in full, so that this case be again examined to see if Canady does have any precedential effect where (1) it's statement on standing was a gratuity; (2) even as a gratuity it is now outdated, and; (3) the district judge by his own pen was highly inclined to allow Mr. Bopp the opportunity to amend in order to show the standing which he believed necessary to reach the merits. There is no doubt in my mind that, had Judge Magnuson observed from the Supreme Court's headnoting to Canady, that the standing discussion was not holding, he would not have felt as outright bounden by it as he well expressed himself in that regard. I so vote for a full rehearing.