Cooper v. Bd. of County Com'rs of Ada County , 101 Idaho 407 ( 1980 )

DONALDSON, Chief Justice.

Plaintiffs-appellants Coy Cooper and Wirt Edmonds have an option to purchase some 99 acres of land in Ada County. When the option was acquired, the property was and remains zoned D-2. The D-2 district is a suburban zone which permits a maximum density of one home per acre. The Ada County Comprehensive Plan (hereinafter, plan) explains the purpose of the D-2 district as follows, at 28:

“The D-2 district is established to reserve agricultural lands which are likely to undergo a more intensive urban development during the planning period.”

In February 1975, appellants applied for a rezone of the property from D-2 to R-5. The R-5 zone is a transitional residential zone which was created by the Ada County Zoning Ordinance (hereinafter, ordinance) after the enactment of the plan. Section 30.11 of the ordinance provides in part, that “[ojnly those lands which have available central sewer or central water facilities or both shall be considered suitable for transitional residential use.” Permissible maximum density in the R-5 zone is two residential units per acre if either a central sewage facility or central water facility is available, and three residential units per acre if both facilities are available. Central water is available to the subject property, while central sewage is not. The relevant governmental authorities have approved the use of individual septic tanks on the subject property.

The land in question is located southwest of the intersection of South Five Mile and Lake Hazel roads, in the Meridian School District. It is bordered on the east by Fox Meadow subdivision, which is zoned R-5. Hidden Valley Estates subdivision, also zoned R-5, lies in close proximity to the west. Sunset Villa subdivision, located to the south, is zoned R-2 (urban residential), with a permissible maximum density of one residential unit per 65' X 80' lot if served by central sewer and water, or one residential unit per acre if either service is unavailable. Hidden Valley Estates No. 5 subdivision is located to the southwest and is zoned R-l (single family residential), the maximum permissible density of which is the same as that of the R-2 zone. Fox Ridge Estates subdivision lies to the southeast and is zoned R-5.

The Ada County Planning and Zoning Commission heard appellants’ application March 10, 1975. While the planning and zoning staff recommended denial of the application, the Planning and Zoning Commission recommended its approval to respondent Board of Ada County Commissioners (hereinafter, board). Respondent board, after valid notice, held a public hearing on the matter April 7, 1975, and deferred its decision.until a later time. Thereafter, on May 7, 1975, respondent board met again to reach its decision. Although no public notice of this second meeting was given, appellants knew it was to be held and were present. Also present were members of the planning and zoning staff, the Chief Civil Deputy of the Ada County Prosecuting Attorney’s Office, and the news media, among others. At this meeting, members of the planning and zoning staff spoke against granting the requested rezone and presented information concerning overcrowding in the Meridian School District. No transcribable record was kept of any of the proceedings.

The following day respondent board sent appellants a letter informing them of the board’s action on their application. It read as follows:

“May 8, 1975

“Coy Cooper and Wirt Edmonds

2004 Northcrest Drive

Boise, Idaho

Re: 75-17-ZC

Gentlemen:

This is to advise you of the action taken by the Board of Ada County Commissioners on the above entitled zone. The Board has voted to deny the change of zone from D-2 to R-5 because of items 1, 2, 3 and 4 and Agricultural Policies No. 4 and No. 5 and also because of the school district.

If you have any questions, please contact this office.

Sincerely,

BOARD OF ADA COUNTY COMMISSIONERS”

The letter was signed by the three commissioners. Enclosed were copies of two pages of the planning and zoning staff’s report to the Planning and Zoning Commission. The recommendation was as follows:

“Staff must recommend denial of this application for the following reasons:

1. The application does not comply with Agricultural Policy #4. No special study has been made in this area to determine what is prime agricultural land.

2. The application does not conform to agriculture policy # 5. No special study has been made to determine whether public sewer can be obtained in the future. Further, no sewer is planned during the current planning period for this area.

3. The application does not comply with Residential Policy #5. No public sewer facility is planned during current planning period for this area.

4. The Meridian School District generally and Lake Hazel school in particular are already over burdened by excess enrollment. This development would add to this problem.”

Appellants received no other communication or document concerning the board’s disposition of their application.

Thereafter, appellants brought suit in district court appealing the decision of the board and seeking a writ of mandate compelling the board to grant the rezone. The court evidently did not consider the prayer for writ of mandate but conducted the appeal from the board’s decision as a trial de novo. Characterizing the board’s action as legislative, the court reviewed it solely on the basis of whether the board acted arbitrarily or capriciously in denying the application. Finding it did not, the court affirmed the board’s action. Appellants now appeal the decision of the district court.

Appellants contend the procedures followed by respondent board in denying their application for rezone were fundamentally unfair. They cite as the major failings (1) the board’s failure to give public notice of the second meeting; (2) presentation to the board at the second meeting of evidence concerning crowding in the Meridian School District, which evidence appellants had no opportunity to rebut due to absence in the comprehensive plan and original ordinance of any mention of school districts as a criteria in the designation of property zones; (3) partiality of the board in allowing members of the planning staff to advocate against the application at the second meeting; (4) absence of a transcribable record of the evidence received at the public hearing and at the subsequent meeting; and (5) failure of the board to enter written findings of fact and the conclusions upon which it based its decision to deny the application. In denying appellants relief, the trial court stated:

“Members of a legislative body in enacting legislation do not have to base the reasons for their decisions entirely on materials received at public hearings. Legislative bodies can be lobbied. There are no limitations on evidence. Decisions can be based on hearsay information, intuitive . reaction or the color of the advocate’s eyes. This fact of life eliminates most due process considerations.”

Appellants contend the court erred in characterizing the action of the board in this case as legislative. In their view, the application for rezone of specific property required a decision in the nature of an administrative, quasi-judicial determination of individual rights. We agree. It is beyond dispute that the promulgation or enactment of general zoning plans and ordinances is legislative action. Dawson Enterprises, Inc. v. Blaine County, 98 Idaho 506, 567 P.2d 1257 (1977); Harrell v. City of Lewiston, 95 Idaho 243, 506 P.2d 470 (1973); Cole-Collister Fire Protection District v. City of Boise, 93 Idaho 558, 468 P.2d 290 (1970); Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461 (1941). However, appellants urge that a crucial distinction be drawn between a zoning entity’s action in enacting general zoning legislation and its action in applying existing legislation and policy to specific, individual interests as in a proceeding on an application for rezone of particular property. We find merit in appellants’ argument and the following from an Illinois case:

“It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government.” Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529, 533 (1962) (Klingbiel, J., specially concurring.)

Oregon, rejecting the view that all decision-making action of a zoning board is legislative, stated in Fasano v. Board of County Com’rs, 264 Or. 574, 507 P.2d 23, 26 (1973):

“At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from, less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. . . ”

In delineating the distinction between legislative and judicial zoning action, the Court stated:

“Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test. .

“ ‘Basically, this test involves the determination of whether action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations. If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.’

“We reject the proposition that judicial review of the county commissioners’ determination to change the zoning of the particular property in question is limited to a determination whether the change was arbitrary and capricious.” Id., 507 P.2d at 26, 27.

The Washington Supreme Court has reached the same conclusion:

“Generally, when a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.” Fleming v. City of Tacoma, 81 Wash.2d 292, 502 P.2d 327, 331 (1972).

See also, Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975); Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); Donovan v. Clarke, 222 F.Supp. 632 (D.D.C. 1963).

We are persuaded the cases which characterize as quasi-judicial the action of a zoning body in applying general rules or policies to specific individuals, interests, or situations represent the better rule. The shield from meaningful judicial review which the legislative label provides is inappropriate in these highly particularized land use decisions. The great deference given true legislative action stems from its high visibility and widely felt impact, on the theory that appropriate remedy can be had at the polls.

“General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Investment Co. v. Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915).

This rationale is inapposite when applied to a local zoning body’s decision as to the fate of an individual’s application for rezone. Most voters are unaware or unconcerned that fair dealing and consistent treatment may have been sacrificed in the procedural informality which accompanies action deemed legislative. Only by recognizing the adjudicative nature of these proceedings and by establishing standards for their conduct can the rights of the parties directly affected, whether proponents or opponents of the application, be given protection. See Booth, A Realistic Reexamination of Rezoning Procedure: The Complementary Requirements of Due Process and Judicial Review, 10 Ga.L.Rev. 753 (1976).

A law review article by Professor Arthur Smith points out the need for some type of control over the discretion exercised by zoning bodies in rezone cases:

“At the governing board level, a petition is considered by local elected officials. Unless constrained by standards and procedures, decisions will be largely political. The guideline for political judgments is only rarely that of previous decisions and only rarely proceeds with high regard for formal process. Rather, political judgments are a product of informal negotiation, conciliation, and compromise with a variety of end goals in mind which may or may not be cannonized in something described, for that matter, as a ‘plan’ or ‘regulation.’ Such a process is admirably suited to broadly-based decisions in which the general feeling of the populace is deciphered. When such a process determines what a particular owner may or may not do, whether an adjoining owner’s expectation will be compromised, whether a community will accommodate legitimate housing needs, we may question its essential fairness. The combination of broad authority exercised on an ad hoc basis by local laymen and political officials has been described by some as chaotic.” Smith, Judicial Review of Rezoning Discretion: Some Suggestions for Idaho, 14 Idaho L.Rev. 591, 599 (1978) (footnote omitted).

“In the absence of any more specific controlling standard than the ‘arbitrary and capricious’ test, regulatory decisions can be justified by an almost completely open-ended number of possible police power explanations.” Id. at 628.

It is clear there is a pressing need in Idaho for established standards and procedures by which particularized land use regulation is to be administered. To allow the discretion of local zoning bodies to remain virtually unlimited in the determination of individual rights is to condone government by men rather than government by law. Accordingly, we adopt the rule which distinguishes between legislative and quasi-judicial actions of local zoning bodies and hold that the decision of the board in this case was quasi-judicial. Our prior cases, to the extent they are inconsistent with our holding today, are overruled.

Having determined the action of the board in denying appellants’ application was quasi-judicial, we must now decide whether the proceedings before that body afforded appellants the procedural due process to which they were entitled. We hold they did not. Because the board failed to provide notice of its second meeting regarding appellants’ application; because no transcribable verbatim record of the proceedings was kept; and because the board failed to make specific written findings of fact and conclusions upon which its decision was based, the decision of the board cannot stand.¹

The judgment of the district court is reversed and the case is remanded to the Board of County Commissioners for further proceedings in accordance with I.C. §§ 67— 6501 et seq. and this opinion.

Costs to appellants.

SHEPARD, McFADDEN and BISTLINE, JJ., concur. BAKES, J., concurs in result.

1 . It is appropriate to add a word about judicial review of quasi-judicial decisions of zoning bodies. Pursuant to I.C. §§ 67-6519 through 67-6521 of the Local Planning Act of 1975, which is now in effect, judicial review shall be sought and conducted in accordance with the provisions of I.C. §§ 67-5215(b) through (g) and 67-5216.