This case comes before this Court from the district court's grant of summary judgment in favor of Camas County, on the basis that George Martin and Martin Custom Homes, LLC (collectively "Martin"), lacked standing to bring a declaratory judgment action against Camas County to challenge the validity of various planning and zoning ordinances and regulations. Martin argues that the district court committed prejudicial error in failing to take judicial notice of orders entered in a related case (CV-2007-24) challenging substantially identical amended zoning ordinances, wherein the district court found that Martin had standing. Martin also argues that the district court erred in finding that Martin lacked standing where Martin owned, or held interests in, properties that were either rezoned or adjacent to properties which were rezoned, cumulatively having a negative fiscal impact on Martin. We affirm, holding that Martin has failed to show a distinct palpable injury.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. CV-2007-24 (currently awaiting hearing before this Court as Case No. 36055-2009)
In late 2005 the Camas County Board of Commissioners ("the Board") instructed the Camas County Planning and Zoning Commission ("the Commission") to amend the Camas County Zoning Ordinance and rezone certain areas of the county. The Commission submitted an Amended Comprehensive Plan (Resolution 96) with an amended Land Use Map (Resolution 103) and an Amended Zoning Ordinance (Ordinance 153) with an amended Zoning Map (Ordinance 150) (collectively, the "2007 zoning amendments") to the Board, which subsequently adopted them. On May 4, 2007, Martin filed a declaratory judgment action against Camas County, seeking a permanent injunction of the 2007 zoning amendments.
On December 28, 2007, the district court granted preliminary injunctive relief to Martin. The district court found, inter alia, that: (1) the Idaho Administrative Procedures Act (IDAPA) applied to Camas County's zoning decisions; (2) the action of the County—in enacting the 2007 zoning amendments—constituted a quasi-judicial, rather than quasi-legislative,
On May 12, 2008, the Board adopted a new Amended Comprehensive Plan (Resolution 114) and Land Use Map (Resolution 115) as well as a new Zoning Ordinance (Ordinance 157) and a Zoning Designation Map (Ordinance 158) (collectively the "2008 zoning amendments"). On August 8, 2008, Martin requested to amend his complaint to include claims for damages under Section 1983 of the Civil Rights Act and an additional declaratory relief action for the 2008 zoning amendments. On October 8, 2008, the district court granted Martin's request to amend his complaint to include Section 1983 claims, but denied the motion as to the 2008 zoning amendments.
On November 5, 2008, Camas County removed CV-2007-24 to the United States District Court for the District of Idaho ("USDCDI"), pursuant to 28 U.S.C. §§ 1441(b), 1446(b), divesting the district court of jurisdiction. On December 3, 2008, the district court entered its Findings of Fact, Conclusions of Law and Order Following Trial granting Martin's requested relief as to the 2007 zoning amendments. On May 17, 2009, the USDCDI remanded CV-2007-24 back to the district court. On May 27, 2009, the district court recognized that it had been divested of jurisdiction prior to entering its order on December 3, 2008, and was not revested until the USDCDI issued an order of remand. The district court accordingly reissued its December 3 order on May 27, 2009.
B. CV-2008-40 (the present matter, before this Court as Case No. 36605-2009)
On October 15, 2008, Martin filed a Complaint for Declaratory Judgment, seeking both preliminary and permanent injunctions of the 2008 zoning amendments. The district court denied the preliminary injunction on November 10, 2008, finding that Martin had not shown that he had suffered or would suffer irreparable injury in the event that the court did not enter the injunction. Camas County filed a motion for summary judgment on February 12, 2009, which the district court granted on May 6, 2009, finding that Martin lacked standing to bring a complaint for declaratory judgment. Martin filed his notice of appeal with this Court on June 15, 2009.
The parties stipulated before the district court that Martin owned the following property in Camas County:
However, since the time of that stipulation Martin has sold the one acre parcel located in the platted subdivision. At oral argument before this Court counsel for Martin notified
In addition to the property that Martin owns in fee simple, Martin holds contractual interests in the following:
These three properties were given an "R7" designation (allowing seven residential units per acre) on the Comprehensive Plan Land Use Map prior to the 2007 and 2008 zoning amendments, and an R1 designation afterward.
II. STANDARD OF REVIEW
As noted in Castorena v. General Electric:
149 Idaho 609, ___, 238 P.3d 209, 213 (2010) (quoting Vavold v. State, 148 Idaho 44, 45, 218 P.3d 388, 389 (2009)). The party seeking summary judgment has the burden of proving the absence of material facts, but the non-moving party cannot rest upon mere allegations and denials. Baxter v. Craney, 135 Idaho 166, 170, 16 P.3d 263, 267 (2000). The non-moving party must set forth specific facts that show a genuine issue for trial. Id.
Martin argues that the district court erred in granting summary judgment in favor of Camas County because it incorrectly determined that Martin lacked standing to bring a declaratory judgment action seeking to question the validity of the 2008 zoning amendments. Martin contends that: (1) the district court erred in not taking judicial notice of the orders entered in Case No. CV-2007-24, and if the court had taken judicial notice of these orders, the doctrine of collateral estoppel would have prevented the court from reaching the issue of standing; (2) Martin owned property intended for development that was rezoned as a result of the 2008 zoning amendments, and property adjacent to Martin's property was also rezoned, resulting in a negative fiscal impact on Martin, and as such the district court erred in finding that Martin failed to demonstrate a specific and personal injury and, consequently, did not have standing. These issues shall be addressed in turn.
A. Standing is a jurisdictional issue, not an adjudicative fact that a court may take judicial notice of.
Martin argues that the district court was required to take judicial notice of the orders entered in CV-2007-24, under I.R.E. 201. Idaho Rule of Evidence 201 is titled "Judicial notice of adjudicative facts" and provides, inter alia:
The district court noted that Martin had requested that it take judicial notice of decisions and orders entered in CV-2007-24, and wrote "[t]his court declines to take judicial notice of those proceedings, but it would appear to this court that the issue of `standing' was not directly addressed in those prior proceedings."
Martin requested that the district court take judicial notice of:
The three specifically referenced documents were attached to Martin's Statement of Material Fact as exhibits.
To the extent that Martin's request can be read as requesting that the district court take judicial notice of the general proceedings in CV-2007-24, that request did not comply with I.R.E. 201(d), as that Rule requires the requesting party to identify the specific documents or items for which judicial notice is requested. However, drawing reasonable inferences in Martin's favor, we view this as a request that the district court take judicial notice of the adjudicative facts contained in the three CV-2007-24 documents that were attached to his Statement of Material Fact.
An "adjudicative fact" is "[a] controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding and that helps the court or agency determine how the law applies to those parties. For example, adjudicative facts include those that the jury weighs." Black's Law Dictionary 669 (9th ed. 2009). Where a plaintiff does not have standing it cannot be said that the "case or controversy" requirement has been satisfied; therefore the judiciary lacks jurisdiction to hear the case. See Koch v. Canyon County, 145 Idaho 158, 162, 177 P.3d 372, 376 (2008) (noting that "standing is jurisdictional and may be raised at any time"). Jurisdictional issues, such as standing, are questions of law, see Christian v. Mason, 148 Idaho 149, 151, 219 P.3d 473, 475 (2009), and are, therefore, not adjudicative facts of which a court may properly take judicial notice. As such, even if the court in CV-2007-24 had reached a clear determination on the issue of standing, which it never expressly did, the district court in the case at hand would have been free to reach its own independent determination.
B. The district court correctly determined that Martin lacked standing to bring a declaratory judgment action.
Title 10, chapter 12 of the Idaho Code is titled the "Uniform Declaratory
In Young v. City of Ketchum, this Court noted:
It must first be determined whether Martin has shown that he has suffered, or will suffer, a distinct palpable injury that is fairly traceable to Camas County's actions in passing the 2008 zoning amendments. See Harris v. Cassia Cnty., 106 Idaho 513, 516-17, 681 P.2d 988, 991-92 (1984) ("[T]he right sought to be protected by a declaratory judgment may invoke either remedial or preventive relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered . . . .").
Martin states that he:
None of the parcels that Martin owns—or holds contractual interests in—were downzoned as a result of the 2008 zoning amendments. Martin's argument concerning the palpable harm he has suffered seems to be that: (1) the upzoning of property Martin has no interest in, which is located in Camas County, decreases the value of the property that Martin owns or holds an interest in; and (2) the 2008 zoning amendments prevent Martin from developing the properties he owns, or in which he holds an interest, in the same manner that he would have been able to prior to the 2007 and 2008 zoning amendments.
Martin cites to no authority in support of his argument that a comprehensive countywide change in zoning designations (wherein some parcels of land receive a higher zoning density classification than they previously enjoyed) constitutes an injury to a property owner, absent some resultant specific and traceable harm. Martin argues that the upzoning of approximately 20,000 acres of
In Ameritel, the Greater Boise Auditorium District ("Auditorium District") sought to expand a convention center it owned and to issue bonds to finance that expansion. 141 Idaho at 850-51, 119 P.3d at 625-26. Ameri-Tel Inns, Inc. ("Ameritel"), the owner of three hotels (portions of which Ameritel rented out for use in conventions) within the geographic boundaries of the area that the Auditorium District operated in, sought a declaratory judgment that the Auditorium District's expenditure of public funds to advocate for voter approval of the proposed bonds violated State law. Id. at 851, 119 P.3d at 626. Additional qualified electors who resided within the operating area of the Auditorium District joined in Ameritel's action. Id. The district court found that none of the plaintiffs had standing to bring the declaratory judgment action. Id. at 852, 119 P.3d at 627. This Court confirmed that those plaintiffs who were mere voters who opposed the bond did not have standing, as they had failed to show a particularized distinct palpable injury. Id. However, this Court found that Ameritel, as a taxpayer that alleged that its business would be negatively impacted by the increased competition, and most importantly, would have to pay increased taxes to support the expansion if the bond proposal passed, had standing. Id. at 853, 119 P.3d at 628.
Martin argues that he, like Ameritel, will suffer from increased competition if Camas County's 2008 zoning amendments are permitted to stand, and, therefore, has standing. The facts in Ameritel are distinguishable. Focusing on increased competition, Martin fails to note that there were two other factors that aggregated to provide standing in Ameritel: (1) Ameritel's status as a taxpayer whose tax funds were being used to advocate in favor of approving the bond, and (2) the imminent and certain increase in the taxes Ameritel would be subjected to if the bond were passed. Martin's purported injuries are thoroughly speculative and cannot be said to be specific or distinct and palpable. This Court has never held that increased competition alone is sufficient to confer standing.
Martin next argues that the proximity between the properties he holds an interest in and other parcels which were upzoned results in an injury. In Butters v. Hauser, Butters sought a declaratory judgment that a newly enacted Latah County zoning ordinance was void. 131 Idaho 498, 499, 960 P.2d 181, 182 (1998). Latah County had adopted a new ordinance, repealing the existing ordinance that governed conditional use permits, and Hauser obtained a special use permit under the new ordinance. Id. Hauser's conditional use permit allowed him to build a radio transmission control tower, and Butters alleged that the tower loomed over Butters's nearby land and required her to install an expensive new telephone system in order to eliminate the radio tower's electrical interference. Id. at 501, 960 P.2d at 184. The district court granted summary judgment in favor of Hauser, finding that Butters's injuries—although arguably palpable—were not unique to her. Id. at 500, 960 P.2d at 183. In reversing the district court, this Court clarified that "[a]lthough the location of [Butters's] property alone does not confer standing, the location does expose her to peculiarized harm." Id. at 501, 960 P.2d at 184. The Butters Court concluded that Butters had "shown a peculiarized harm as a result of the conditional use permit which was issued pursuant to the new appeal procedure prescribed by the ordinance amendment in question. Thus, we conclude that Butters does have standing to pursue a declaratory judgment action regarding the validity of the ordinance amendment." Id.
Martin argues that the reasoning of Butters should be applied to his situation, since he is in the business of land development and property near the property that he owns was upzoned, while Martin's was not. This argument is unpersuasive; the plaintiff in Butters alleged that she suffered specific and palpable harm as a result of a conditional use
Martin next argues that even if the injury he suffers is generalized to a large group of landowners in Camas County he still has standing to bring suit. In Miles v. Idaho Power Co., Miles, a customer and ratepayer of Idaho Power, brought a declaratory judgment action, challenging the constitutionality of legislation enacted as a result of an agreement entered into by Idaho Power and the State. 116 Idaho 635, 637, 778 P.2d 757, 759 (1989). That legislation prevented the Idaho Public Utilities Commission (the "IPUC") from considering whether Idaho Power could or should have done something to maintain and protect its full water rights, contrary to what it did in entering the agreement. Id. at 637-38, 778 P.2d at 759-60. Miles argued that this legislation would effectively force Idaho Power ratepayers to pay for equipment that was rendered useless due to the agreement (turbines that would not be required under the agreed-upon decrease in the rate flow of water going to hydroelectric facilities), by preventing the IPUC from taking into consideration that the equipment was no longer necessary. Id. at 638, 778 P.2d at 760. The Court found that Miles did have standing, as the ratepayers and customers of Idaho Power, injured by the legislation, did not constitute the entirety of Idaho citizens or tax payers. Id. at 642, 778 P.2d at 764. The Court reasoned that:
Id. Therefore, while in Miles this Court found standing where a large class of individuals were harmed, that harm was still particularized. Miles provides no exception to the particularized grievance requirement that must be demonstrated in order to have standing.
In Koch, the plaintiffs sought a judicial determination that Canyon County had entered into a lease agreement that violated Article VIII, section 3, of the Idaho Constitution. 145 Idaho at 160, 177 P.3d at 374. The district court found that the plaintiffs—as residents, property owners and tax payers—did not have standing to challenge the lease. Id. On appeal, this Court noted that "[a]s a general rule, a citizen or taxpayer, by reason of that status alone, does not have standing to challenge governmental action." Id. However, "[i]n appropriate circumstances . . . taxpayers do have standing to challenge governmental action." Id. at 161, 177 P.3d at 375. This Court noted that the United States Supreme Court had carved out a narrow exception to the general prohibition against taxpayer standing in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in situations where a taxpayer argues that the government violates a specific constitutional limitation on congressional taxing and spending. Id. In certain situations, if a taxpayer is not deemed to have standing to challenge violations of specific constitutional limitations on government action, it would have the effect of deleting such a provision from the Constitution. Koch, at 162, 177 P.3d at 376. This Court found that "[t]here is no logical difference between making an appropriation that is specifically prohibited by the Constitution and incurring an indebtedness or liability that is specifically prohibited by the Constitution" and held that, therefore, the district court had erred in determining that the plaintiffs in Koch lacked standing to
Martin has cited to no cases where taxpayer or ratepayer standing has been granted for a challenge grounded in statute rather than a constitutional provision. Furthermore, the exception developed in Koch has only been applied where failure to find that the appellants in question had standing would have resulted in no party having standing. Here, a party whose property had been downzoned by the 2008 zoning amendments would unquestionably have standing to bring this action, as would a property owner who could show a specific palpable harm that he would incur from the imminent development of an upzoned neighboring property. Therefore, even if the upzoning of property in Camas County could be found to constitute a generalized injury to some of the remaining property owners that generalized grievance does not confer standing to sue under the Koch exception.
Martin has not pled facts to support his contention that he cannot develop his properties in the same manner that he could have prior to the 2007 and 2008 zoning amendments. As noted above, none of the properties that Martin holds an interest in were downzoned as a result of the 2008 zoning amendments. The designation on the Comprehensive Plan Land Use Map was changed for the three parcels that Martin holds an interest in, from R7 to R1, and the forty acre property that he owns had its planning map designation changed from AT to A. However, Martin has failed to cite any authority in support of the proposition that a residential density designation in a comprehensive plan creates a vested or enforceable property right.
In Bone v. City of Lewiston, 107 Idaho 844, 693 P.2d 1046 (1984), this Court noted that a comprehensive plan does not provide that a landowner is entitled to have his property zoned in a certain way, or even that the use indicated in the plan is the appropriate present use for the property; it is merely a projection of what will be appropriate in the future. Id. at 850, 693 P.2d at 1052. This Court holds that the use or residential density designation of property in a comprehensive plan creates no present right or enforceable expectation that the property will ever be zoned in accordance with the comprehensive plan.
C. Attorney Fees
In the section of its brief dedicated to Issues Presented on Appeal, Camas County requests attorney fees under I.C. § 12-117 and I.A.R. 40 and 41, arguing that Martin brought his appeal without a reasonable basis in fact or law.
Idaho Appellate Rule 35(b) reads, inter alia, as follows:
Camas County fails to mention the issue of attorney fees in the Argument section of its brief, as such that request shall not be considered. See McVicker v. City of Lewiston, 134 Idaho 34, 38, 995 P.2d 804, 808 (2000) ("The [appellants] requested attorney fees and costs on appeal in their statement of issues on appeal. The [appellants] did not,
As standing is a jurisdictional issue, not subject to collateral estoppel, we find that any error the district court committed in failing to take judicial notice of documents from case CV-2007-24 was necessarily harmless. We affirm the district court's grant of summary judgment in favor of Camas County on the basis that Martin lacked standing to bring an action for declaratory judgment, as Martin failed to demonstrate that he has suffered from a distinct palpable injury, or that he should have been found to have standing under the Koch exception. Costs to Camas County.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON concur.