Appeal from the District Court of the First Judicial District of the State of Idaho, Shoshone County. Hon. Fred M. Gibler, District Judge.
The opinion of the court was delivered by: J. Jones, Justice.
The decision of the district court is affirmed.
David and Pamela Randel appeal the denial of their request for attorney fees under I.C. § 12-117, following the dismissal of a zoning enforcement action brought against them by the City of Osburn (City). The district court found the Randels to be the prevailing party but held they were not entitled to a fee award because the City had not pursued the action frivolously or without foundation. The Randels appeal to this Court and we affirm.
On August 14, 2007, the City's attorney wrote to the Randels to notify them they were in violation of City zoning ordinances. The City took issue with "two (2) storage sheds on the lot that [the Randels] own east of [their] home which is situated at 1263 East Larch, Osburn, Idaho." The City noted that the Randels' home was on "Lot 15 of Block 6, Dunkle's Third Addition," and their "storage sheds are located on Lot 16 (a portion thereof, which [the Randels] own) of Block 6, Dunkle's Third Addition." According to the City, its zoning ordinances "do not allow for accessory uses, such as the storage sheds, without a primary building or residence also being constructed on the same lot." The City demanded the Randels remove the sheds within two weeks of receiving the letter or the City would file a "criminal and/or civil action against [the Randels] to compel [the sheds'] removal."
The Randels promptly responded in a letter, that, "[y]es, [they] did add two (2) temporary storage buildings to the side yard of [their] property at 1263 East Larch Avenue, Osburn, ID." But, the Randels explained: they understood their property to be a single parcel; they purchased the property as a single parcel; and the recorded deed to the property evidenced a single parcel.
The City then filed this action, seeking to compel the Randels to remove the sheds. The City moved for summary judgment, supporting its motion with the affidavit of Nila Jurkovich, the City Clerk. The Randels opposed the City's motion with several affidavits, including those of the Randels themselves, a land surveyor, and the Shoshone County Assessor. Neither the City nor the Randels submitted briefs in support of their positions. The district court denied the City's motion because it determined there was a genuine issue of material fact. At a status conference several months later, the City moved to dismiss its action, and the court dismissed with prejudice. The Randels moved for costs and attorney fees under I.C. §§ 12-117, 12-120, 12-121, which the court denied. After the Randels' motion for reconsideration, however, the court granted costs but still denied fees. In their motion for reconsideration, the Randels focused their argument for fees on I.C. § 12-117 and a private attorney general theory. With respect to the Randels' Section 12-117 argument, the court determined they were the prevailing party, but concluded that the City did not pursue the action "frivolously or without foundation." The court therefore denied the Randels' fee request.*fn1 The Randels timely appealed from that decision.*fn2
I. Were the Randels entitled to fees in ...