                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 42756


COALITION FOR AGRICULTURE’S               )
FUTURE, an Idaho unincorporated nonprofit )
association,                              )
                                          )
                                                             Boise, February 2016 Term
     Plaintiff-Appellant,                 )
                                          )
                                                             2016 Opinion No. 34
v.                                        )
                                          )
                                                             Filed: March 23, 2016
CANYON COUNTY, a political subdivision )
of the State of Idaho, and the CANYON     )
                                                             Stephen W. Kenyon, Clerk
COUNTY BOARD OF COMMISSIONERS, )
                                          )
     Defendants-Respondents.              )
_______________________________________ )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

       The judgment of the district court is affirmed.

       Sawtooth Law Office, PLLC, Boise, for appellant. David P. Claiborne argued.

       Borton Lakey Law Offices, Meridian, for respondents. Todd M. Lakey argued.

                                _____________________


J. JONES, Chief Justice
       This is a declaratory relief action related to planning and zoning in Canyon County.
Appellant Coalition for Agriculture’s Future (“the Coalition”) sued respondents Canyon County
and the Canyon County Board of Commissioners (collectively “Canyon County”) under the
Uniform Declaratory Judgment Act. The Coalition sought to invalidate Canyon County’s 2011
comprehensive plan and amendments thereto for noncompliance with Idaho’s Local Land Use
Planning Act (LLUPA). The district court granted Canyon County’s motion to dismiss the action
for lack of standing. The Coalition appealed.




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                                      I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Because the district court dismissed the case pursuant to Idaho Rule of Civil Procedure
12(b)(6), the Coalition’s factual allegations must be taken as true for the purpose of this appeal.
Losser v. Bradstreet, 145 Idaho 670, 672–673, 183 P.3d 758, 760–761 (2008). Accordingly, the
facts stated below are those alleged by the Coalition.
       The Coalition is an unincorporated nonprofit association established to preserve and
promote agricultural heritage by educating the public regarding threats to agricultural heritage,
economies, and traditions that are posed by irresponsible urban development. Its members
include natural persons residing and conducting business in Canyon County. In particular, its
members include owners of real property and commercial seed growers in Canyon County.
       Prior to May 2011, Canyon County conducted land use planning pursuant to its 2005
Canyon County Comprehensive Plan. On May 19, 2011, the Canyon County Planning and
Zoning Commission recommended the adoption of the 2020 Canyon County Comprehensive
Plan (the “2020 Plan”) to the Canyon County Board of Commissioners. On May 31, 2011,
Canyon County adopted Resolution No. 11-098, purporting to repeal the 2005 plan and adopt the
2020 Plan. Resolution No. 11-098 contained the 2020 Plan without any agricultural component
and without any future land use map. Although the minutes from the meeting refer to a map, no
future land use map was contained in the hearing file or attached to the 2020 Plan.
       On August 3, 2011, Canyon County adopted Resolution No. 11-141, purporting to amend
the 2020 Plan to include an agricultural component. No future land use map was attached to
either the resolution or the amended comprehensive plan.
       The Coalition alleges that since May 31, 2011, Canyon County has been making land use
and zoning decisions based on a future land use map that was not officially adopted. The map
Canyon County has been utilizing has been changed and modified, but not through the processes
required by LLUPA. The unofficial map has been used by Canyon County to approve and allow
the rezoning, reclassification, and development of agricultural land for residential uses. The
unadopted and unofficial future land use map used by Canyon County since May 31, 2011, was
based on “windshield surveys” of areas and expired conditional use permit approvals without
adequate consideration of agricultural effects or the preservation of agricultural lands. Since July
1, 2011, Canyon County allegedly has not properly amended or modified any future land use
map to reflect and incorporate the goals, policies, and implementation actions of the agricultural


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component of the 2020 Plan.
       The Coalition further alleges that since August 3, 2011, Canyon County has failed to
implement the goals, policies, and implementation actions of the agricultural component of the
2020 Plan to protect and preserve Canyon County’s agricultural lands. Consequently,
agricultural lands in Canyon County are allegedly being lost to residential development without
consideration of Canyon County’s stated goal to preserve and protect agricultural lands.
       On July 17, 2013, Canyon County adopted Resolution No. 13-239 to amend the 2020
Plan, nunc pro tunc, to include a future land use map and other maps, purporting to correct the
error of not including a future land use map with the May 31, 2011 and August 3, 2011
resolutions. The resolution purports to confirm the existence and use of a future land use map
since May 31, 2011, despite the fact that no such map existed in the prior public record. The
Coalition alleges that in May 2013 the official website for Canyon County included a future land
use map that differs from the future land use map Canyon County actually used for land use
planning since May 31, 2011.
       The Coalition takes issue with Canyon County’s alleged failure to comply with LLUPA.
The Coalition sued, seeking entry of a declaratory judgment that Canyon County had not duly
and properly adopted the 2020 Plan and, therefore, Canyon County’s zoning ordinance enacted
under that plan is invalid. The action also sought a declaration that all land use decisions made
by Canyon County since May 31, 2011, are invalid and of no effect. Alternatively, the action
sought an order restraining Canyon County from approving any rezoning of agricultural areas in
Canyon County or otherwise approving the use of those areas designated as agricultural areas in
the comprehensive plan for non-agricultural uses. The action did not challenge any specific land
use decisions. Canyon County filed an answer, generally denying all claims and specifically
alleging that the Coalition lacked standing to pursue its claims. Canyon County subsequently
moved under Idaho Rule of Civil Procedure 12(b)(6) to dismiss the action on the ground that the
Coalition lacked standing.
       Thereafter, the Coalition filed four affidavits sworn by individual Coalition members,
generally detailing concerns about Canyon County’s alleged spot zoning and the need for
“isolation.” Isolation is the practice of growing seed crops such as onions, sweet corn and
popcorn physically separate and apart from differing varieties of the same species to avoid cross-
pollination, a condition detrimental to quality seed production. Cross-pollination diminishes or



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   eliminates the value of seed by making it unmarketable.
           After conducting two hearings on the issue of standing, the district court entered an order
   granting Canyon County’s motion to dismiss. In a later, amended order, the district court held
   that the Coalition failed to allege a concrete and palpable injury sufficient to form a basis for
   standing to seek declaratory relief. It further held that the relief requested would not prevent or
   redress the claimed injury. Finally, it held that even if the Coalition had alleged an adequate
   injury, any such injury was suffered alike by all Canyon County citizens and taxpayers so no
   standing existed. Accordingly, the district court entered a final judgment dismissing the
   Coalition’s amended complaint. The Coalition timely appealed.
                                                 II.
                                         ISSUES ON APPEAL
1. Whether the district court erred in dismissing the Coalition’s complaint for lack of standing.
2. Whether either party is entitled to attorney fees or costs on appeal.
                                              III.
                                       STANDARD OF REVIEW
                    When this Court reviews an order dismissing an action pursuant to
           I.R.C.P. 12(b)(6), we apply the same standard of review we apply to a motion for
           summary judgment. After viewing all facts and inferences from the record in
           favor of the non-moving party, the Court will ask whether a claim for relief has
           been stated. The issue is not whether the plaintiff will ultimately prevail, but
           whether the party is entitled to offer evidence to support the claims.
                    In addition, this Court reviews an appeal from an order of summary
           judgment de novo, and this Court’s standard of review is the same as the standard
           used by the trial court in ruling on a motion for summary judgment. Ergo, a
           district court’s dismissal of a complaint under I.R.C.P. 12(b)(6) shall be reviewed
           de novo.
   Taylor v. McNichols, 149 Idaho 826, 832, 243 P.3d 642, 648 (2010) (citations and internal
   quotation marks omitted).

                                                  IV.
                                               ANALYSIS
   A. The district court did not err in dismissing the complaint for lack of standing.
           Although the Coalition raises some concerns about the manner in which Canyon County
   handled the adoption of the 2020 Plan, that is not the focus of our inquiry. The district court did
   not address the merits of the case, but held the Coalition lacked standing to seek judicial redress.
   “The doctrine of standing focuses on the party seeking relief and not on the issues the party



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wishes to have adjudicated.” Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763
(1989).
          “It is a fundamental tenet of American Jurisprudence that a person wishing to invoke a
court’s jurisdiction must have standing.” Van Valkenburgh v. Citizens for Term Limits, 135 Idaho
121, 124, 15 P.3d 1129, 1132 (2000). In order to satisfy the requirement of standing, a petitioner
must “allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief
requested will prevent or redress the claimed injury.” Miles, 116 Idaho at 641, 778 P.2d at 763.
Standing requires a showing of a distinct palpable injury and fairly traceable causal connection
between the claimed injury and the challenged conduct. State v. Philip Morris, Inc., 158 Idaho
874, 881, 354 P.3d 187, 194 (2015). “This Court has defined palpable injury as an injury that is
easily perceptible, manifest, or readily visible.” Id. The injury cannot be “one suffered alike by
all citizens in the jurisdiction.” Troutner v. Kempthorne, 142 Idaho 389, 391, 128 P.3d 926, 928
(2006). There must be a fairly traceable causal connection between the claimed injury and the
challenged conduct. Id. “An interest, as a concerned citizen, in seeing that the government abides
by the law does not confer standing.” Id.
          The Coalition contends that for many years its members have been involved in the
vegetable seed industry, either as growers or by leasing farmland for growing vegetable seeds,
and that because of Canyon County’s “spot zoning” it has become increasingly difficult to find
suitable farmland with sufficient isolation to prevent the seed crops from being cross-pollinated
by other plant varieties of the same species. One member also contends that such spot zoning
has placed residential development near farmland, exposing farmers to nuisance actions and
increasing vehicle traffic on roads.
          The Coalition’s complaint fails to allege a sufficient injury. Four affidavits the Coalition
filed in response to Canyon County’s motion to dismiss do allege harm, but the harm alleged is
all based on specific zoning decisions rather than on the allegedly invalid 2020 Plan. Each
affidavit uses substantially identical language to allege injury to agricultural land from spot
zoning decisions that have allowed residential homes to be built among existing agricultural
lands.
          Neither the complaint nor the affidavits asserts that Canyon County’s alleged failure to
adopt a valid comprehensive plan has caused a specific injury to the Coalition or its members.
What they allege is that Coalition members are harmed by spot zoning decisions. There is no



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allegation that any particular spot zoning request would have been decided differently if Canyon
County had complied with LLUPA in adopting the 2020 Plan. Absent such an allegation, the
Coalition has failed to establish standing. Each harm alleged arises as a result of unchallenged
zoning decisions, not the 2020 Plan.
       If the claimed injury is based on the failure to comply with statutory requirements in
adopting the 2020 Plan, the Coalition lacks standing because its injury is neither distinct nor
particularized. Assuming that Canyon County failed to comply with LLUPA in adopting the
2020 Plan, all its citizens alike suffer the per se injury of that failure. But such a generalized
grievance is insufficient to confer standing. Troutner, 142 Idaho at 391, 128 P.3d at 928.
Alternatively, if the claimed injury is based on particular but non-specified spot zoning
decisions, the Coalition lacks standing because its claimed injury is not fairly traceable to the
challenged conduct. That is, there is not a “sufficient causal connection between the injury and
the conduct complained of,” as required under Philip Morris, because the Coalition has not
alleged that particular spot zoning decisions would have come out differently under a valid
comprehensive plan. Indeed, it would have been difficult for the Coalition to make such an
allegation because a comprehensive plan does not entitle a landowner to have property zoned in
a certain way. Bone v. City of Lewiston, 107 Idaho 844, 850, 693 P.2d 1046, 1052 (1984).
Therefore, injurious zoning decisions that vary from projections in a comprehensive plan cannot,
standing alone, constitute an injury sufficient to confer standing.
       The Coalition argues at length that because it is seeking declaratory relief, the standing
requirements are relaxed. “However, the Declaratory Judgment Act does not relieve a party from
showing that it has standing to bring the action in the first instance.” Schneider v. Howe, 142
Idaho 767, 772, 133 P.3d 1232, 1237 (2006).
       The Coalition contends that it has standing to bring a declaratory judgment action based
upon two prior decisions of this Court: McCuskey v. Canyon Cnty., 123 Idaho 657, 851 P.2d 953
(1993), and Ciszek v. Kootenai Cnty. Bd. of Comm’rs, 151 Idaho 123, 254 P.3d 24 (2011).
Neither case supports the Coalition’s claim to standing in this case.
       In McCuskey, the zoning of the plaintiff’s property was downzoned from heavy industrial
to rural residential without providing him with notice that the Commissioners were considering
doing so. 123 Idaho at 658-59, 851 P.2d at 954-55. This Court held that he could file a
declaratory judgment action because “he is not arguing that the authorities made the wrong



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zoning decision, but rather he challenges the validity of the zoning ordinance.” Id. at 660, 851
P.2d at 956. “[T]here was no zoning decision for McCuskey to appeal.” Id. at 661, 851 P.2d at
957. There is no contention in this case that any of the properties of the Coalition’s members
were rezoned.
       In Ciszek, the plaintiff argued that she suffered a particularized injury because “her
property is adjacent to the new mining rezone and that there will be ‘detrimental dust, noise and
traffic created’ by new mining activity taking place adjacent to her property [and] . . . her
property values will decrease by over $10,000 as a result of the rezones.” Id. at 128, 254 P.3d at
29. We agreed, stating, “Ciszek’s allegations of interference with the use and enjoyment of her
property, as well as decreased property values, are sufficient to demonstrate a particularized
harm.” Id. The plaintiff in Ciszek had no right to appeal the rezoning decision, which was made
in 2008. Like the plaintiff in McCuskey, her only recourse was a declaratory judgment action. It
was not until 2010 that the legislature amended Idaho Code section 67-6521 to define an affected
person as being one whose interest in real property may be adversely affected by the approval of
a zoning change pursuant to Idaho Code section 67-6511 and to grant such affected person the
right to seek judicial review of the decision changing the zoning. Ch. 175, § 3, 2010 Idaho Sess.
Laws 359, 361.
       Only one of the Coalition’s members, Robin Linquist, has alleged that her real property
has been adversely impacted by a zoning change. In her affidavit she does not state when the
zoning change occurred, but it was apparently after the County’s adoption of the comprehensive
plan on May 31, 2011, because the Coalition’s amended complaint does not seek to set aside any
earlier comprehensive plan. Since she would have had the right to seek judicial review of that
zoning change, she cannot later challenge it by a declaratory judgment action. A party who
could have appealed an adverse zoning decision cannot later challenge the decision by bringing a
declaratory judgment action. Bone, 107 Idaho at 849, 693 P.2d at 1051.
       A party’s standing to challenge a land-use decision depends upon whether the party’s real
property will be adversely affected by the decision.       Hawkins v. Bonneville Cnty. Bd. of
Comm’rs, 151 Idaho 228, 231-32, 254 P.3d 1224, 1227-28 (2011); Cowan v. Bd. of Comm’rs of
Fremont Cnty., 143 Idaho 501, 509-10, 148 P.3d 1247, 1255-56 (2006); Davisco Foods Int’l,
Inc. v. Gooding Cnty., 141 Idaho 784, 786-87, 118 P.3d 116, 118-19 (2005); HD Dunn & Son LP
v. Teton Cnty., 140 Idaho 808, 810, 102 P.3d 1127, 1129 (2004); Evans v. Teton Cnty., 139 Idaho



                                                7
71, 75, 73 P.3d 84, 88 (2003). If the plaintiff is an organization, it must show that the real
property of one of its members would be adversely affected. Rural Kootenai Org., Inc. v. Bd. of
Comm’rs, 133 Idaho 833, 841, 993 P.2d 596, 604 (1999). Other than Ms. Linquist, who is
precluded from challenging the comprehensive plan for the reason stated above, Coalition
members have not shown that real property in which they have an interest has been adversely
affected by the comprehensive plan or by a zoning change made pursuant to that plan.
Therefore, the Coalition does not have standing.
       Ms. Linquist also alleged that she was concerned about a nuisance action being brought
against her by residential landowners who may move onto property near her farming operation.
A speculative harm is not sufficient to confer standing. Martin v. Camas Cnty. ex rel. Bd. of
Comm’rs, 150 Idaho 508, 514, 248 P.3d 1243, 1249 (2011). Under the Right to Farm Act, Idaho
Code sections 22-4501 to 22-4506, her farm operation could be a nuisance only if it were not
“operated in accordance with generally recognized agricultural practices or in compliance with a
state or federally issued permit.” I.C. § 22-4505(2). Whether that would happen is speculative.
       For the foregoing reasons, we affirm the district court’s dismissal of the Coalition’s
complaint for lack of standing.
B. Attorney fees on appeal.
       The Coalition requests costs but not attorney fees on appeal under Idaho Code sections
12-101, 12-107, 12-114, and 12-119. Canyon County requests attorney fees on appeal under
Idaho Code sections 12-117 and 12-121. Idaho Code section 12-117 mandates that in a judicial
proceeding involving a governmental entity such as Canyon County, the prevailing party is
entitled to an award of reasonable attorney fees if the Court finds that the other party acted
without a reasonable basis in fact or law. Idaho Code section 12-121 permits an award of
attorney fees to a prevailing party when the claim was brought, pursued, or defended frivolously,
unreasonably, or without foundation. Phillips v. Blazier-Henry, 154 Idaho 724, 731, 302 P.3d
349, 356 (2013).
       Canyon County argues that it is entitled to fees under both section 12-117 and section 12-
121 because there is no basis in law for the Coalition’s claims based on the overwhelming case
law covering the issues on appeal. Canyon County notes that the Coalition does not seek to add
to or modify the law of standing and asserts that this appeal is merely an attempt to sidestep the
proper process for reviewing zoning decisions.



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       The Coalition cannot recover costs because it lost its appeal. Canyon County is the
prevailing party and could recover attorney fees if the Coalition acted without a reasonable basis
in fact or law or pursued its claim frivolously, unreasonably, or without merit. On these facts, the
Coalition’s complaint was not obviously unreasonable, frivolous, or without foundation.
Accordingly, Canyon County is not entitled to fees on appeal.
                                             V.
                                         CONCLUSION
       We affirm the district court’s judgment dismissing the Coalition’s complaint. We award
costs but not fees to Canyon County.

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




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