                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                          Docket 40262

IN THE MATTER OF THE CERTIFIED            )
QUESTION OF LAW.                          )
______________________________________    )
KAREN WHITE, an individual, and           )
ELKHORN, LLC., a Florida limited liability)
                                                               Boise, January 2014 Term
company,                                  )
                                          )
                                                               2014 Opinion No. 26
    Plaintiffs/Appellants,                )
                                          )
                                                               Filed: March 18, 2014
v.                                        )
                                          )
                                                               Stephen W. Kenyon, Clerk
VALLEY COUNTY, a political subdivision of )
the State of Idaho,                       )
                                          )
    Defendant/Respondent.                 )
______________________________________ )

       On order certifying question to the Idaho Supreme Court from the U.S. District Court
       for the District of Idaho, Hon. Edward J. Lodge, U.S. District Judge.

       In response to the certified question, the Court held that, “The limitations period for
       statutory remedies made available under Idaho law to obtain a refund of an illegal
       county tax commences upon payment of the tax.”

       Borton Lakey Law Offices, Meridian, for appellants. Victor S. Villegas argued.

       Givens Pursley LLP, Boise, for respondent. Christopher H. Meyer argued.
                                 _____________________


J. JONES, Justice.
       This case comes to the Court as a certified question from the U.S. District Court for the
District of Idaho, the Honorable Edward J. Lodge, U.S. District Judge, presiding. Karen White
and her development company, Elkhorn, LLC, seek to recover $166,496 paid to Valley County
for “capital investments for roads in the vicinity of [their] White Cloud development.” Pursuant
to I.A.R. 12.3(c), this Court accepted the certified question and we hereby answer the same.
                                           I.
                                    BACKGROUND FACTS
       When considering a certified question of law, this Court will consider “only those facts
contained in the [certification] order.” Kunz v. Utah Power & Light Co., 117 Idaho 901, 902 n.1,
792 P.2d 926, 927 n.1 (1990). Thus, the following facts are drawn and recited verbatim from the
U.S. District Court’s certification order (Order).
            In 2005, Valley County (the “County”) initiated a Capital Improvements Program (“CIP”)
in response to an increase in development within the County and in an attempt to mitigate the
impacts of the developments on the County’s roads and bridges. The CIP is described in the
County’s Master Transportation Plan as follows:
            Capital Improvement Program Process and Purpose
            ...
            In 2005, the Valley County Commissioners initiated a Road Development
            Agreement (RDA) process to require new developments to pay a fee to mitigate
            the impacts of their developments on the roads and bridges in Valley County. The
            RDA process replaced the Capital Contribution Agreements that were used by
            Valley County for larger developments that needed infrastructure improvements.
            The RDA requires all developers to pay a fee based on the number of trips their
            developments generate. Developers are, in effect, required to pay for the
            roadway capacity their developments use. The fee must be paid at time of final
            plat. Credit is given for [right of way] required from the development and any in-
            lieu-of contributions, such as construction materials or developer sponsored
            construction of portions of roads and bridges.
(bolding and underlining provided by Plaintiffs).
            During the same year the County initiated the CIP, Karen White (Plaintiff) and her father,
E.T. Usher, 1 were in the process of developing a residential subdivision in Valley County known
as White Cloud. The subdivision included a preliminary plat for 80 lots on 210 acres and was
approved on May 12, 2005. Phase I of the development included 44 lots. All land within Valley
County’s jurisdiction is zoned multiple use, pursuant to Valley County’s Land Use Development
Ordinance. Within the district, various uses are listed as “allowed,” while others are listed as
“conditional” necessitating a conditional use permit (“CUP”).
            The CUP for Phase I of White Cloud was approved by the County on May 24, 2005. The
CUP included as a condition that Plaintiff enter into a Development Agreement with the Board of
County Commissioners. To satisfy this requirement, White entered into a Road Development
Agreement (“RDA”) with the County in June of 2006.
            Negotiations on the RDA began sometime in the late spring or summer of 2005 and the


1
    Plaintiff’s father is not a party to this action.
                                                        2
County has provided evidence that a draft RDA was sent to the engineering firm working on the
White Cloud development in August of 2005. The final RDA was provided to Scott Findlay,
project manager for White Cloud, on or about June 24, 2006. The final RDA differed from the
draft RDA in that it covered only the 44 lots being developed in Phase I and eliminated an offset
for a dedicated roadway right of way. The RDA contained the following provision: “The developer
agrees to pay Valley County their proportionate share of roadway costs for a total cash payment of
$166,496 due at the time of Final Plat approval.” Plaintiff signed the RDA on June 26, 2006, and
paid the required fees under the RDA on July 21, 2006. The County executed the RDA on July 24,
2006, and the RDA was recorded on July 26, 2006.
         Phase I of White Cloud has been completed and it appears undisputed by the parties that
the RDA monies paid for Phase I were used by the County to complete capital investments for
roads in the vicinity of the White Cloud development.
         The County concedes that it did not adopt an impact fee ordinance or administrative
procedures for the impact fee process as required by the Idaho Development Impact Fees Act
(“IDIFA”). Idaho Code § 67-8201 et seq. IDIFA prohibits certain impact fees unless they are
imposed pursuant to an ordinance in compliance with the statute. The County concedes it did not
enact an IDIFA-compliant ordinance, because, at the time, the County believed in good faith that
none was required. . . .
         On October 1, 2009, Plaintiff filed suit against the County claiming that the road
development fee imposed by the County as a condition for approval of the White Cloud project
violated Idaho state law and deprived Plaintiff of due process under both the federal and Idaho
constitutions. 2 In her Second Amended Complaint, Plaintiff raised two claims for relief. The first
claim for relief alleged that “Valley County’s practice of requiring developers to enter into a
Road Development Agreement (or any similar written agreement) solely for the purpose of
forcing developers to pay money for its proportionate share of road improvement costs
attributable to traffic generated by their development is a disguised impact fee, is illegal and
therefore should be enjoined.” The first claim for relief also alleged that, because the County
failed to enact an impact fee ordinance under IDIFA, the imposition of the road development



2
  Elkhorn, LLC, is also a named plaintiff in this case. Elkhorn is a business entity organized under the laws of the
State of Florida and is the assignee of Phase II of the White Cloud Subdivision. Elkhorn’s claims are not relevant to
the matter currently before the Court and all references to “Plaintiff” relate to Plaintiff Karen White.
                                                         3
fees constituted an unauthorized tax.
        Plaintiff’s second claim for relief alleged that the County’s imposition of the road
development fee constituted a taking under the federal and Idaho constitutions and sought relief
under the theory of inverse condemnation. Ultimately, Plaintiff has requested that the Court
declare the County’s practice of imposing impact fees illegal under Idaho law, enjoin the County
from the continued implementation of the practice, and order the County to refund the $166,496
paid by Plaintiff in connection with Phase I of the White Cloud project.
        The County maintains that Plaintiff voluntarily agreed to pay the RDA monies. Plaintiff
denies that the payment was voluntary since it was required to obtain the final plat approval. It is
undisputed that Plaintiff did not file an appeal of the CUP or final plat approval for Phase I after
Plaintiff paid the RDA fees of $166,496. Nor did Plaintiff file an inverse condemnation claim in
state court regarding the monies paid under the RDA for Phase I.
                                           II.
                                   PROCEDURAL HISTORY
        The U.S. District Court noted the rather lengthy procedural history of the case, including
two summary judgment motions by the County. The first motion sought dismissal of all federal
and state claims. The District Judge granted summary judgment with regard to the federal takings
claim but denied it with regard to the state law claims, observing that “the parties were unclear on
which statute of limitations applied, but the County ultimately argued that ‘Plaintiffs’ state law
claims (takings and anything else) are subject to the state’s catch-all four-year statute of
limitations.” The District Court declined to grant summary judgment on the inverse condemnation
claim because, “[v]iewing the facts in the light most favorable to Plaintiffs,” they “were not ‘fully
aware’ of the alleged taking until they received the final RDA setting forth the requirement that
$166,496 was due for proportional road impact fees relating to Phase I of the project.” The District
Court noted that the County had not made any arguments with regard to an accrual date for the
illegal tax claim.
        The County again moved for summary judgment and also filed a motion to certify several
questions to this Court. In its Order, the District Court determined that only one question met the
requirements for certification under I.A.R. 12.3. According to the Court, “[t]hat question concerns
the accrual date of Plaintiff’s claim that the road development fees imposed by the County
constitute an illegal tax under Idaho law.”

                                                 4
                                          III.
                              CERTIFIED QUESTION OF LAW
       The District Court certified the following question:
       Under Idaho law, when does the statute of limitations begin to run on a cause of action
       arising out of an allegedly illegal impact fee imposed by a local government entity as part
       of a land use application?
       Because this question involves some fine distinctions and qualifications, the Court deems
it necessary to reword the question in such a fashion that it comports with the intent of the Order
without entailing possible unintended consequences. For instance, the question initially proposed
by the County in its motion inquired about an allegedly illegal “tax,” but the Order inquires
about an allegedly illegal “impact fee.” In their briefing, the parties used the terms “tax” and
“fee” interchangeably, which provides a source of confusion. Decisions made by this Court
following the certification of the question may well have a bearing upon the issues subsequently
to be determined by the U.S. District Court. In that regard, the Order inquires about an
imposition made by a local government entity as part of a land use application, which implicates
the Local Land Use Planning Act (LLUPA), I.C. §§ 67-6501 to 6536. Because we have not been
requested to address the issue of exhaustion of remedies under LLUPA, we have further revised
the question to make it clear that we do not opine on that issue. Therefore, we revise the question
as follows:
       When does the limitations period commence for statutory remedies made
       available under Idaho law to obtain a refund of an illegal county tax?
                                         IV.
                                  STANDARD OF REVIEW
       “Courts of the United States may certify a controlling question of law in a pending action
to the Idaho Supreme Court for determination where there is no controlling precedent in the
decisions of the Idaho Supreme Court and the determination would materially advance the
orderly resolution of the litigation in the United States court.” St. Luke’s Magic Valley Reg’l
Med. Ctr. v. Luciani, 154 Idaho 37, 39–40, 293 P.3d 661, 663–64 (2013) (citing I.A.R. 12.3(a)).
“The date when a cause of action accrues is a question of law to be determined by this Court
where no disputed issues of material fact exist.” Harris v. State, ex rel. Kempthorne, 147 Idaho
401, 405, 210 P.3d 86, 90 (2009). The Court’s role “is limited to answering the certified
question” when the question it presents is narrow. Peone v. Regulus Stud Mills, Inc., 113 Idaho


                                                5
374, 375, 744 P.2d 102, 103 (1987) (noting that “to now decide [extraneous matters] would
result in an advisory opinion on a question not certified”).
                                         V.
                      QUESTIONS THIS COURT DECLINES TO ANSWER
        The County has briefed and argued a number of issues that go beyond the specific inquiry
addressed to us by the U.S. District Court. The Plaintiffs 3 do so to a lesser extent. Because the
answer we give to the narrow question addressed to us depends on certain legal assumptions―
including but not limited to: whether the road development fee was voluntarily agreed to in an
arm’s length transaction that benefitted both parties; if not, whether the fee is violative of IDIFA
and, if so, whether it is an illegal tax; and whether or not the fee should have been challenged in
the zoning and planning process―it is important for this Court to state what we are not deciding.
Furthermore, because the determination of some of these ancillary issues, which have a bearing
on the question we are asked to answer, are dependent upon a full developed factual record that
we do not have, we are simply not in a position to address those ancillary matters.
        We first note the comments of the District Judge in the Order:
        As a preliminary matter, given the claims and defenses raised in this case, and the
        fact that two cases raising similar issues are currently on appeal before the Idaho
        Supreme Court, 4 it is of some importance to explain what this Court is not asking
        the Idaho Supreme Court to address in this request for certification. This Court is
        not asking the Idaho Supreme Court to address the accrual date for inverse
        condemnation claims. The Idaho Supreme Court has addressed that particular
        legal issue in multiple cases. See, e.g., McCuskey v. Canyon County Comm’rs,
        912 P.2d 100 (Idaho 1996); Rueth v. State, 644 P.2d 1333 (Idaho 1982); Tibbs v.
        City of Sandpoint, 603 P.2d 1001 (Idaho 1979). Those cases stand for the
        proposition that, in the context of inverse condemnation claims, “[t]he time of
        taking occurs, and hence the cause of action accrues, as of the time that the full
        extent of the plaintiff’s loss of use and enjoyment of the property becomes
        apparent.” McCusky, 912 P.2d at 104. This is the date on which the plaintiff “was
        fully aware of the extent to which [the government] interfered with his full use
        and enjoyment of the property.” Id.

        In Tibbs v. City of Sandpoint, the Idaho Supreme Court stated that “[t]he actual
        date of taking, although not readily susceptible to exact determination, is to be
        fixed at the point in time at which the impairment, of such a degree and kind as to
        constitute a substantial interference with plaintiffs’ property interest, became

3
 From this point forward, White and Elkhorn will be referred to as “Plaintiffs.”
4
 The two cases cited in the District Court’s footnote are Hehr v. City of McCall and Buckskin v. Valley Cnty., both
of which have subsequently been decided by this Court. Hehr v. City of McCall, 155 Idaho 92, 305 P.3d 536 (2013)
and Buckskin v. Valley Cnty., 154 Idaho 486, 300 P.3d 18 (2013).
                                                        6
         apparent.” 603 P.2d at 1005 (emphasis added). Explaining when an interference
         becomes “apparent,” in Rueth v. State, the Idaho Supreme Court held that the date
         of a taking accrued on the date at which time there was “recognition of the
         severity of the problem.” 644 P.2d at 1338.
Therefore, we do not address the issue of the application of the statute of limitations for an
inverse condemnation claim. The District Court correctly concluded that the four-year statute of
limitations in Idaho Code § 5-224 applies to such a claim, citing several cases that deal with the
issue of when such a claim accrues.
         Although the question proposed to us would only apply in the situation where a fee was
determined to be an illegal tax, we express no opinion as to the legality of the road development
fee at issue here. Just because what appears to be an impact fee is not IDIFA compliant does not
necessarily mean that it is an illegal fee. In Buckskin, where the County had no IDIFA compliant
ordinance, this Court held that “a developer and a governing board can legally enter into a
voluntary agreement to fund capital improvements to be made by the governmental entity that
facilitate the developer’s development plans.” 154 Idaho at 493, 300 P.3d at 25. That case also
involved a suit by a developer against the County, seeking recovery of road development fees
based on claims of an illegal impact fee and inverse condemnation. Id. at 489, 300 P.3d at 21.
We first addressed the legality of the agreement, finding that issue to be “central to the
determination” of the case. Id. at 490, 300 P.3d at 22. We observed that “a voluntary agreement
between a governmental entity and a developer, whereby the developer voluntarily agrees to pay
for capital improvements that will facilitate his development plans, does not run afoul of IDIFA.
The key is whether the agreement is truly voluntary.” Id. at 491, 300 P.3d at 23. In Buckskin, we
upheld the district court’s grant of summary judgment against Buckskin because the record
contained no evidence “indicating that Buckskin was strong-armed into signing the . . . RDA;
that it voiced any objection to anyone, at any time, to making the payment required under [the]
agreement; or that it did not, as the County avers, benefit from the agreement by virtue of the
road improvements facilitated by its payments.” 5 Id. at 492, 300 P.3d at 24. The question of




5
  One possible difference between this case and Buckskin is that in Buckskin the developer proposed payment of a
road development fee in its initial application, whereas the record here does not disclose that to be the case. Id. at
492, 300 P.3d at 24. However, in Buckskin the developer contended it only offered to pay the fee because it knew
the County would require it. Id. Ultimately, however, this disputed issue was not deemed material to our decision so
as to preclude summary judgment against the developer.
                                                          7
whether or not such an agreement is voluntarily entered into by the developer is factual in nature
and will therefore need to be determined by the U.S. District Court.
       We have not been asked to address the County’s contention that the Plaintiffs failed to
exhaust their administrative remedies under the LLUPA. We addressed the exhaustion issue in
Buckskin (154 Idaho at 493−94, 300 P.3d at 25−26) but decline the County’s invitation to
address it here.
                                VI.
  THE LIMITATIONS PERIOD FOR STATUTORY REMEDIES MADE AVAILABLE
   UNDER IDAHO LAW TO OBTAIN A REFUND OF AN ILLEGAL COUNTY TAX
               COMMENCES UPON PAYMENT OF THE TAX.
       While the parties dispute the date on which the Plaintiffs’ state-law claims began to run,
both parties assert the claims are subject to Idaho Code § 5-224. Under that statute, “[a]n action for
relief not hereinafter provided for must be commenced within four (4) years after the cause of
action shall have accrued.” I.C. § 5-224. Plaintiffs contend that where a person seeks to obtain a
refund of money paid to satisfy an impact fee that is actually an illegal tax, the four-year statute of
limitations in I.C. § 5-224 runs from the date the payment was made. The County, however, argues
that this “case consists of a single cause of action, informally known as inverse condemnation,”
and should be treated as such for purposes of determining the accrual date. The County contends
the action accrued upon issuance of the CUP on May 24, 2005, or at the latest when the draft RDA
was furnished to Plaintiffs’ engineering firm in August of 2005.
       A careful reading of the Order discloses that the District Judge had concerns about treating
a tax refund claim the same as an inverse condemnation claim. Otherwise, there would be no
apparent reason for certifying the question. In this regard, the District Judge was correct.
       Before proceeding further, it is necessary to acknowledge some confusion resulting from
the parties’ interchangeable use in their briefing of the terms “fee” and “tax.” A tax is generally a
tax. A fee can be either a legitimate fee or a disguised tax. The question as to the true nature of the
amount sought to be recovered by the Plaintiffs will necessarily be determined by the District
Judge. For purposes of answering the certified question, we will assume that we are presented
with a situation where the payment sought to be recovered by the Plaintiffs is clearly an illegal
tax. Indeed, they state in their brief, “White filed this lawsuit seeking a declaration that the
payment of the impact fee was an illegal tax and therefore the money White paid should be
returned.”

                                                   8
       The process of avoiding or recovering payment of an allegedly illegal county tax is
informed by a framework of statutes and caselaw. It is useful to review some history in Idaho
county tax law. In Howell v. Board of Comm’rs of Ada Cnty., the Ada County Board of
Commissioners assessed the plaintiff more tax than he actually owed. 6 Idaho 154, 53 P. 542
(1898). After paying the tax, the plaintiff presented his refund claim to the board of commissioners,
which denied his claim. Id. at 155, 53 P. at 542. He then appealed, but the Court ultimately found
that the board did not have the authority to refund the plaintiff’s tax payment because at the time,
we knew “of no law in this state, nor has counsel cited us to any, authorizing a board of county
commissioners to refund a tax which has been paid, whether the tax is illegal or not.” Id. at 156, 53
P. at 543. The Court went on to explain the process by which a taxpayer may seek to avoid or
recover an erroneous payment:
       Our statutes are ample to protect the citizen from illegal taxation, and in case an
       illegal tax is levied, if the person fails to appear before the board of equalization
       that is provided for by law, he has another remedy—by injunction—to prevent the
       collection thereof. But when, as in this case, there is no appearance before the board
       of equalization, and no application made for the correction of said assessment, and
       the tax is voluntarily paid, the board is without authority to refund the tax so paid.
Id. at 156–57, 53 P. at 543.
       The Court subsequently observed that in Howell, “the court held that in the absence of a
statute county commissioners had no right to refund taxes voluntarily paid though illegal and
void.” Asp v. Canyon Cnty., 43 Idaho 560, 563, 256 P. 92 (1927). In Asp, the issue before the
Court was whether the plaintiff was entitled to a refund of taxes paid under an assessment later
found to be illegal. Id. The Court held that the plaintiff was not entitled to a refund because he did
not pay the tax under protest, explaining that “[t]he general rule is that taxes voluntarily paid may
not be recovered . . . . Not having been paid under protest, the taxpayers were not ‘entitled’” to a
refund. Id. at 563, 256 P. at 92–93.
       In Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942), the Court considered whether
a plaintiff was required to pay under protest to recover income taxes paid to the State when the
income tax statutes did not mention a requirement of payment under protest. At the time the
income tax law was passed, the Court “had uniformly held that other forms of taxes could not be
recovered unless there was a protest made at the time of their payment.” Id. at 289, 130 P.2d at 857
(citing Howell and Asp).
       We held in Lundy v. Pioneer Irr. Dist., that the plaintiffs were not entitled to relief from
                                                  9
assessments they had paid when they had previously “failed to avail themselves” of the rights
statutorily granted them under former I.C.A. § 42-703 (now I.C. § 43-703). 52 Idaho 683, 690, 19
P.2d 624, 626 (1933). The plaintiffs, having “failed to appear before the board of correction and
present their objections, are deemed to have waived them, and thus having a remedy at law and
failing to avail themselves thereof, they are precluded from obtaining equitable relief.” 52 Idaho at
690–91, 19 P.2d at 626.
        The foregoing cases tell us that, generally, a taxpayer may not seek to obtain a refund of a
tax, whether legal or not, without having lodged a protest to payment of the same. However, we
have held that the payment under protest requirement does not apply to an illegal fee. BHA
Investments Inc. v. City of Boise, 141 Idaho at 168, 176, 108 P.3d 315, 323 (2004). This brings us
back to the issue of whether the charge in this case was a tax or a fee and, again, we decline to
make that determination. The more important lesson to draw from these cases is that, regardless of
whether payment is made under protest, available statutory remedies must be resorted to in order to
recover what is alleged to be an illegal tax.
        There are two statutory remedies that appear to be available to a taxpayer in the
circumstances presented in this case. Idaho Code § 31-1501 applies to general claims asserted
against the county and I.C. § 63-1308 applies to property taxes or money paid to a county. The
limitations period for the former provision is one year and that for the latter provision is 60 days
after payment.
        Idaho Code § 31-1501 provides:
        The board of commissioners must not hear or consider any claim against the county
        unless accompanied by a receipt or documentation giving all items of the claim,
        duly certified by the authorized county official that the amount claimed is justly due
        or services were rendered. No claim shall be paid if not presented to the board
        within a year from the date the bill was generated.
The predecessor of this provision, C.S. § 3506 (1919), was held in Wilson v. Twin Falls Cnty. to
apply to proceedings by a taxpayer to obtain a refund of amounts paid for void delinquency tax
certificates. 47 Idaho 527, 531, 277 P. 1114, 1115 (1929). The “date the bill was generated” would,
in the instance of the payment of a tax, be the date of payment.
        Idaho Code § 63-1308(2) provides: “An action against a county . . . for property taxes or
money paid to such county . . . under protest . . . and which it is claimed ought to be refunded, shall
be commenced within sixty (60) days after such payment.” While one might argue that this
provision applies only to property taxes, I.C. § 63-1301 would indicate otherwise. That section
                                                10
says that “[t]he provisions of [Title 63 of the Idaho Code] governing . . . collection of state and
county property taxes, are hereby made applicable to all general and special taxes of any taxing
district . . . under any general or special laws of this state.”
        These seemingly short limitations provisions are not unreasonable when considered in
context. This Court recently held that a developer requesting a refund of what was determined to
be an illegal city tax had to file a claim for the refund within 180 days from the date the claim arose
in order to pursue recovery. Hehr, 155 Idaho at 96, 305 P.3d at 540. According to the Court:
        Idaho Code § 50-219 states, “All claims for damages against a city must be filed as
        prescribed by chapter 9, title 6, Idaho Code.” Idaho Code § 6-906 requires that a
        notice of claim against a city be filed with the city clerk or secretary within 180
        days from the date the claim arose or reasonably should have been discovered,
        whichever is later. Greystone concedes that section 6-906’s notice requirement
        applies to its state law claim and that more than 180 days passed after this claim
        initially accrued. Thus, Greystone failed to provide sufficient notice of its state law
        inverse condemnation claim . . .”
Id. Of course, I.C. § 50-219 does not apply to claims against counties. However, I.C. § 31-1501
does apply to counties and imposes a one year cut-off for claims against the county.
        It all boils down to this: a person wishing to challenge an allegedly illegal tax must either
pay the tax under protest and then bring a cause of action in court within sixty days or file a claim
with the board of county commissioners within a year. 6 In either case, the limitations period
commences upon payment.
                                               VII.
                                            CONCLUSION
        Based on the foregoing, we provide the following answer to the certified question: “The
limitations period for statutory remedies made available under Idaho law to obtain a refund of an
illegal county tax commences upon payment of the tax.” No costs are awarded.



        Chief Justice BURDICK, and Justices EISMANN, W. JONES, and HORTON
CONCUR.




6
 As previously mentioned, we decline to address how Plaintiffs’ claim may be affected by the provisions of
LLUPA.
                                                     11
