HIGHLANDS DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. CITY OF BOISE, Respondent, 145 Idaho 958

EISMANN, Chief Justice. Highlands Development Corporation asked the City of Boise to annex two parcels of real property. The City did so, but gave the parcels a different zoning classification than the Corporation desired. It sought judicial review of the City’s actions. The district court held that it had no authority to vacate the annexation and that the Corporation must apply for a rezone and submit a development proposal before it could challenge the zoning classification given by the City in conjunction with the annexation. The district court therefore dismissed this appeal.

Highlands Development Corporation then appealed to this Court. Because there is no statute authorizing judicial review of the City’s actions in this case, we dismiss the appeal. I. FACTS AND PROCEDURAL HISTORY Highlands Development Corporation (Highlands) owned two parcels of real property located in Ada County (County) adjacent to the boundary of the City of Boise (Boise). One of the parcels consisted of 35.58 acres and the other consisted of 52.63 acres. The existing County zoning applicable to the parcels would permit six dwelling units per acre.

Highlands approached Ada County about developing the properties and was informed that it must first seek to have the City annex the properties. Highlands applied to the City for annexation on November 7, 2000. In its application, it requested that upon annexation the properties be zoned R-3, which would permit twenty dwelling units per acre. On January 8, 2001, the Boise City Planning and Zoning Commission voted to recommend annexation of the properties with the initial zoning classification being A (Open), which permits one dwelling unit per acre.

On February 5, 2001, it adopted the ■written findings of fact supporting that recommendation. On March 20, 2001, the Boise City Council approved the requested annexation with a zoning designation for the parcels of A (Open). On April 3, 2001, the City adopted findings of fact and conclusions of law supporting the annexation and initial zoning. On August 28, 2001, the City adopted an ordinance annexing the two parcels and zoning them A (Open). On April 26, 2001, Highlands filed this action seeking judicial review of the City’s action. The matter was first heard by the district court.

Highlands argued that the district court should vacate the annexation because Highlands had been coerced by the County into applying for the annexation and that the court should order the City to assign the properties a zoning classification comparable to the County zoning that had applied prior to the annexation. The district court ruled that it had no authority to vacate the annexation and that any issue regarding zoning is not ripe until an application to rezone the properties in conjunction with a development plan has been presented to the City and denied.

The district court therefore dismissed the appeal on May 16, 2006. Highlands then timely appealed to this Court. II. ANALYSIS A. Did the District Court Err in Dismissing the Petition for Judicial Review? In its brief, Highlands contended that it had the right to seek judicial review pursuant to Idaho Code § 67-5273.

The City did not raise the issue of whether Highlands had a right to judicial review in this case. “Where an appeal is taken from a non-appealable order, the appeal should be dismissed, even by the court sua sponte, for lack of jurisdiction over the particular appeal.” State, Dept. of Law Enforcement v. One 1955 Willys Jeep, V.I.N. 573481691, 100 Idaho 150, 152, 595 P.2d 299, 301 n. 1 (1979); accord, South Fork Coalition v. Board of Comm’rs of Bonneville County, 112 Idaho 89, 90, 730 P.2d 1009, 1010 (1986). Idaho Code § 67-5273 is part of the Idaho Administrative Procedures Act (IAPA).

That Act does not grant the right to review decisions made by counties or cities. As we explained recently in Giltner Dairy, LLC v. Jerome County, 145 Idaho 630, 632, 181 P.3d 1238, 1240 (2008): “The IAPA and its judicial review standards apply to agency actions.” Gibson v.

Ada County Sheriffs Dept., 139 Idaho 5, 7, 72 P.3d 845, 847 (2003). “Counties and city governments are considered local governing bodies rather than agencies for purposes of the IAPA.” Id. “The language of the IAPA indicates that it is intended to govern the judicial review of decisions made by state administrative agencies, and not local governing bodies.” Idaho Historic Preservation Council, Inc. v. City Council of City of Boise, 134 Idaho 651, 653, 8 P.3d 646, 648 (2000).

In order to obtain judicial review of the City’s annexation and initial zoning of property, there must be a statute granting the right of judicial review. Gibson, 139 Idaho at 8, 72 P.3d at 848. At the time the petition for judicial review was filed on April 26, 2001, there was no statute granting the right to obtain judicial review of the City’s decisions at issue in this ease. The legislature later enacted Idaho Code § 50-222 which permits judicial review of the decision of a city council to annex and zone lands under certain circumstances. Ch. 333, § 2, 2002 Idaho Sess. Laws 939, 944.

However, that statute did not take effect until July 1, 2002, over a year after the petition for judicial review was filed in this case. The Local Land Use Planning Act (LLUPA) permits judicial review of some land use decisions made by a governing board. However, there is no provision granting judicial review of the initial zoning classification applied to annexed property. LLU-PA grants the right of judicial review to persons who have applied for a permit required or authorized under LLUPA and were denied the permit or aggrieved by the decision on the application for the permit. I.C. § 67-6519.

LLUPA mentions special use permits, I.C. § 67-6512; subdivision permits, I.C. § 67-6513; planned unit development permits, I.C. § 67-6515; variance permits, I.C. § 67-6516; and building permits, I.C. § 67-6517. It does not mention any permit that would relate to the initial zoning of land annexed by a city. LLUPA also grants the right of judicial review to persons having an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing development. I.C. § 67-6521. This ease does not involve the granting or denial of a permit authorizing development.

The dissent argues that Idaho Code § 67-6519 grants Highlands the right to file a petition for judicial review because it was “aggrieved by a decision.” As we said in Giltner, “Idaho Code § 67-6519 applies to applications for a permit required or authorized under

Chapter 65 of Title 67, Idaho Code.” 145 Idaho at 633, 181 P.3d at 1241. There was no application for a permit in this ease. The application filed by Highlands with the City was entitled, “annexation/rezone application.” The dissent argues that in prior cases we have granted judicial review of “zoning permits” and have characterized action establishing a zoning classification as a zoning permit. The cases cited do not support that assertion. The permit at issue in Ralph Naylor Farms, LLC v.

Latah County, 144 Idaho 806, 808, 172 P.3d 1081, 1083 (2007), was a conditional use permit, it was not a zoning classification. As we stated: In January of 2005, POW presented the County with a petition requesting that the County impose a moratorium prohibiting the acceptance, review or approval of all conditional use permits or zoning permits related to mineral resource extraction within Latah County..... On June 27, 2005, Naylor Farms attempted to file an application with the Latah County Planning and Building Department for a conditional use permit in order to conduct mineral extraction on its property.

Likewise, In re the Approval of the Zoning of Idaho Frozen Foods, 109 Idaho 1072, 712 P.2d 1180 (1986), did not involve the zoning of property. It involved the issuance of a construction permit. Compare, “No appeal was, nor has been, filed to the district court from the decision of the county commissioners to issue the zoning permit,” 109 Idaho at 1073, 712 P.2d at 1181, with, “As indicated herein, no appeal was taken from the actual granting of the construction permit,” 109 Idaho at 1076, 712 P.2d at 1184.

In fact, this Court noted, “Idaho Frozen Foods might have been well advised to return to the county zoning commission and the board of county commissioners to obtain a conditional use permit or a rezone.” The dissent has not pointed to any ease in which a zoning application is called an application for a permit. The dissent’s argument that we should stretch the meaning of the word “permit” in Idaho Code § 67-6519 to include zoning applications would effectively amend Idaho Code § 50-222. In specified circumstances,

Section 50-222 permits judicial review of “[t]he decision of a city council to annex and zone lands.” (Emphasis added.) Had that statute been in effect, it would not have granted Highlands the right to file a petition for judicial review of the zoning because Highlands did not object to the annexation. Under the dissent’s expansive

interpretation of a permit, a landowner who could not challenge the zoning under

Section 50-222 could do so. The dissent also argues that this opinion “will prevent property owners from obtaining judicial review of decisions downzoning their property.” It will not. As we recognized in McCuskey v. Canyon County Commissioners, 128 Idaho 213, 912 P.2d 100 (1996), such landowners can seek relief in an independent action. The only statute in LLUPA mentioning annexation is Idaho Code § 67-6525.

It provides, “Concurrently or immediately following the adoption of an ordinance of annexation, the city council shall amend the plan and zoning ordinance.” However, this statute does not grant any right of judicial review regarding either the annexation decision or the zoning decision. Absent any statute granting Highlands the right to seek judicial review of the City’s decision to annex and zone Highlands’ properties, this appeal must be dismissed because this Court lacks jurisdiction to decide the issues raised. B. Is Either Party Entitled to an Award of Attorney Fees Pursuant to Idaho Code § 12-117?

Both Highlands and the City seek an award of attorney fees pursuant to Idaho Code § 12-117(a). That statute provides, Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney’s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rendered acted without a reasonable basis in fact or law.

Highlands cannot be awarded attorney fees under the statute because it is not a prevailing party. The City is a prevailing party on the appeal. Since there is no statute authorizing Highlands’s petition for judicial review, it acted without a reasonable basis in fact or law. We therefore award the City attorney fees on appeal. Giltner Dairy, 145 Idaho at 633-34, 181 P.3d at 1241-42. IV. CONCLUSION This appeal is dismissed. We award costs, including a reasonable attorney’s fee, to respondent. Justices W. JONES and HORTON concur. .

Because we hold that Highlands had no right to seek judicial review, we do not address whether the petition for judicial review was premature where the ordinance annexing and zoning the properties had not yet been adopted. . The pleading filed by Highlands to initiate this action is entitled “Notice of Appeal, and Complaint and Demand for Jury Trial.” Highlands may have been attempting to combine a petition for judicial review with a civil action for declaratory judgment. When dismissing the action, the district court stated that the complaint outside the appeal did not state a claim.

On appeal to this Court, however, Highlands has apparently challenged only the dismissal of its petition for judicial review. When describing these proceedings in its opening brief, Highlands stated: The Petitioner appealed to the District Court of the Fourth Judicial District pursuant to Idaho Code § 76-5373(3). The Honorable D. Duff McKee dismissed the appeal on May 15, 2006 on the grounds and for the reasons that there was no basis for appeal.

Petitioner appealed to this Court on June 20, 2006. (Emphasis added.) Highlands also stated in its opening brief, "The Petitioner would contend that the District Court erred in dismissing the Administrative Appeal from the Boise City Council....

Accordingly, the Court should vacate the District Court’s decision in dismissing the Petitioner’s appeal of the City's action.” (Emphasis added.) In its reply brief to this Court, Highlands begins by arguing that the "reasons set forth in Idaho Code § 67-5279 are the basis for the Appellant’s request lor judicial review." (Emphasis added.) It then lists the arguments it has made on this appeal and states, "These are the exact premises the Appellant relied upon when it requested judicial review of these allegations and the actions of the Respondent.” (Emphasis added.) Highlands then asserts that "the District Court would not even entertain the issues of the appeal because it had predetermined, without hearing any testimony or evidence, that the appeal did not form a basis for a general civil complaint....

The Appellant was never given the proper hearing to address the allegations and request for judicial review arising out of the actions of Respondent with respect to Idaho Code § 67-5279.” (Emphasis added.) In the closing paragraph of its reply brief, Highlands states, "The Appellant is simply requesting to be heard. The District Court adamantly refused to review and rule on their appeal other than to state that they had no basis for appeal." . The term “initial zoning” means the City’s act in zoning the properties in conjunction with the annexation.

A city has no authority to zone property in the county, and vice versa. Reardon v. Magic Valley Sand and Gravel, Inc., 140 Idaho 115, 90 P.3d 340 (2004). Although the properties had been zoned by Ada County prior to the annexation by the City, "the county zoning ordinance ceased to apply once the land in question was removed from the county’s jurisdiction by annexation.” Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 599, 448 P.2d 209, 213 (1968).

That rule is based upon the proposition "that local subdivisions of government are separate sovereignties and that the ordinances of one political subdivision are of no effect in another.” Id. Thus, when a city annexes property, it must zone the property also.