No. 14457
IN THE SUPREME COURT O THE STATE O MNTANA
F F
STATE ex rel. DEPAKIT@2W OF
HEALTH AND L
A
- SClEKEs,
P l a i n t i f f and Appellant,
DONNA LASORI'E, Clerk and Recorder of
Glacier County et al.,
Defendants and Respondents.
Appeal fram: D i s t r i c t C o u r t of t h e N i n t h Judicial D i s t r i c t ,
Honorable R. D. W h i l l i p s , Judge presiding.
Counsel of Record:
For Appellant:
S t a n Bradshaw argued, Helena, Wntana
For Respondents:
Smith, l31~mns,B a i l l i e and Walsh, Great Falls, Pbntana
James R. Walsh argued, Great Falls, Wntana
James C. Nelson,County Attorney, Cut Bank, Pbntana
For Amicus Curiae:
Hon. Mike Greely, Attorney General, Helena, Pbntana
Mike Karter argued, Assistant Attorney General, Helena, Mntana
Suhnitted: March 21, 1979
Decided: J N 1 8 1979
U
Filed:
Honorable John M. McCarvel, District Judge, sitting in place
of Mr. Justice Sheehy, delivered the Opinion of the Court.
Plaintiff appeals from an order of the Glacier County
District Court dismissing its amended complaint.
On June 10, 1977, William and Mary Kessner of Great
Falls, Montana, initiated a series of twenty-six conveyances
involving a 14.457 acre tract of land in Glacier County. They
transferred the entire 14.457 acre parcel to Kenneth and Mary
Kessner by warranty deed. Kenneth and Mary Kessner, in turn,
transferred 13.446 acres to Louis Fontana, and at the same time
deeded the remaining 1.034 acres back to William and Mary Kessner.
Louis Fontana then made a similar conveyance, transferring all
but approximately one acre of land to the third party and quit-
claiming the remaining acre back to William and Mary Kessner. A
chain of conveyances continued until the original owners held
title to the entire tract of land again, but instead of hold-
ing the original deed, they had thirteen deeds, evidencing
thirteen separate and distinct parcels of land. The twenty-six
deeds were all dated June 10, 1977, and were recorded in sequence
on June 16, 1977, together with certificates of survey for each
of the thirteen new lots. These certificates of survey were
characterized as certificates of survey for occasional sales.
The Department reviewed none of the transactions.
It is obvious from the foregoing that the transactions
thus made were designed to evade the provisions of the Montana
Subdivision and Platting Act, section 11-3859 et seq., R.C.M.
1947, now section 76-3-101 et seq. MCA, and the Sanitation
in Subdivisions Act, section 69-5001 et seq., R.C.M. 1947, now
section 76-4-101 et seq. MCA. The amended complaint and the
issues raised in the lower court by the appellant were directed
only to alleged violations of the Sanitation in Subdivisions
Act, section 69-5001 et seq., R.C.M. 1947, now section 76-4-
101 et seq. MCA.
The District Court entered judgment dismissing the
amended complaint with prejudice on August 7, 1978. The Dis-
trict Court based its dismissal on the fact that section
69-5003(1) of the Sanitation in Subdivisions Act gives the
Department authority to approve plats before filing, but not
certificates of survey, and that certificates of survey were
properly used in this case because the transfers were "occa-
sional sales" under the Montana Subdivision and Platting Act,
section 11-3859 et seq., R.C.M. 1947, now section 76-3-101 et.
seq. MCA.
Notice of appeal was filed by the Department on August
10, 1978. On August 24, 1978, Mike Greely, Attorney General
of the State of Montana, filed a motion in this Court request-
ing that he be permitted to appear and participate in the case
on appeal as amicus curiae, due to his interest in the enforce-
ment of the Subdivision and Platting Act. The motion was granted
on August 25, 1978.
On appeal, the Department raises two issues:
1. Does the word "plat" as it is used in the Sanitation
in Subdivisions Act, contemplate review of certificates of survey
by the Department of Health and Environmental Sciences?
2. Does the Department of Health and Environmental
Sciences have the authority under the Sanitation in Subdivisions
Act (as it existed prior to the 1977 amendments) to review
certificates of survey for occasional sales?
In his role of amicus curiae, the Attorney General is con-
cerned with only one issue:
Were the conveyances in the instant case made in an
attempt to evade the purposes of the Subdivision and Platting
Act and therefore not subject to the "occasional sales" excep-
tion?
At the outset, we note that the critical facts of this
case arose prior to July 1, 1977, the effective date of sub-
sequent amendments to the Act.
The Montana Subdivision and Platting Act, section 11-3859
et seq., R.C.M. 1947, now section 76-3-101 et seq. MCA, was
enacted in 1973 for the purpose of promoting the public health,
safety, and general welfare by regulating the subdivision of
land. It requires that every subdivision of land (a division
of land which creates one or more parcels containing less than
twenty acres) shall be surveyed and platted in conformance with
the Act. County clerks and recorders are prohibited from re-
cording any instrument which purports to transfer title to or
possession of a parcel of land which is required to be surveyed
by the act unless the required certificate of survey or sub-
division plat has been filed with the Clerk and Recorder.
The terms "certificate of survey" and "plat" are given
distinct definitions under the act:
"'Certificate of survey' means a drawing of
a field survey prepared by a registered sur-
veyor for the purpose of disclosing facts
pertaining to boundary locations." Section
11-3861(1), R.C.M. 1947, now section 76-3-
103(1) MCA.
"'Plat' means a graphical representation of
a subdivision showing the division of land
into lots, parcels, blocks, streets, and
alleys, and other divisions and dedications."
Section 11-3861 (6), R.C.M. 1947, now section
76-3-103 (9) MCA.
A plat must be filed for every subdivision of land, but
a certificate of survey need only be filed when required by
section 11-3872, R.C.M. 1947, as amended, now section 76-3-404 MCA.
"11-3872. Certificate of survey--when re-
quired--contents--form. (1) Within one
hundred eighty (180) days of the completion
of a survey the registered land surveyor
responsible for the survey, whether he is
privately or publicly employed, shall prepare
and file for record a certificate of survey
in the county in which the survey was made
if the survey:
"(a) provides material evidence not appear-
ing on any map filed with the county clerk
and recorder or contained in the records of
the United States bureau of land management;
" (b) reveals a material discrepancy in such
map ;
"(c) discloses evidence to suggest alternate
locations of lines or points;
"(d) establishes one or more lines not shown
on a recorded map the positions of which are
not ascertainable from an inspection of such
map without trigonometric calculations."
Certain divisions of land are exempt from the Act's
numerous requirements for subdivisions. One such division of
land is the "occasional sale". An occasional sale is "one sale
of a division of land within any twelve month period." Section
11-3861(13), R.C.M. 1947, now section 76-3-103(7) MCA. The
statutory exemption applies unless the occasional sale is adopted
for the purpose of evading the Act. Section 11-3862(6), now
section 76-3-207 MCA. If an occasional sale is made in an attempt
to evade the Act, then the division of land is treated as any other
subdivision.
Section 69-5001 et seq., R.C.M. 1947, now section 76-4-
101 et seq. MCA, commonly referred to as the Sanitation in Sub-
divisions Act, was passed in 1967, and rewritten in 1973 to
conform with the Montana Subdivision and Platting Act. The Act's
definition of subdivision is identical to that found in the
Subdivision and Platting Act. However, the terms "certificate
of survey" and "plat" are not defined.
Administration and enforcement of the Sanitation in
Subdivisions Act rests with the Department of Health and Environ-
mental Sciences. Section 69-5003(1), R.C.M. 1947, now section
76-4-123 MCA states:
"69-5003. Approval of plans for facilities in
subdivisions. (1) A person may not file a
subdivision plat with a county clerk and recorder,
make disposition of any lot within a subdivision,
erect any building or shelter in a subdivision
which requires facilities for the supply of water
or disposal of sewage or solid waste, or occupy
any permanent building in a subdivision until
the department has indicated that the subdivison
is subject to no sanitary restriction."
Additional review authority is granted to the Depart-
ment under section 69-5003(3), R.C.M. 1947, now section 76-
4-124 MCA:
"When a subdivision as defined in this chapter
is excluded from the provisions of Title 11,
Chapter 38, section 11-3862, R.C.M. 1947,
[e.g. occasional sales] except section 11-
3862(8), R.C.M. 1947 and the subdivision is
otherwise subject to the provisions of this
chapter, plans and specification of the sub-
divisions shall be submitted to the department
and the department shall indicate by certifi-
cate that it has approved the plans and specifi-
cations and that the subdivision is not subject
to a sanitary restriction."
The Department relies on sections 69-5003(1) and (3),
(as they appear above in the form prior to the 1977 amendments)
in its attempt to block the filing of the certificates of survey
in this case.
Although section 69-5003 makes no mention of certificates
of survey, the Department published MAC (ARM) 16-2.14 (10) -
S14340, adopted April 9, 1976, subsection (1)(j) defined "plat"
as follows:
"'Plat', for the purposes of this rule and Sec-
tion 69-5003, R.C.M. 1947, means a graphical
representation of a subdivision showing the
division of lots, parcels, blocks, streets, alleys,
and other divisions and dedications, and any
document which geographically describes a division
of land, including a certificate of survey."
(Emphasis added.)
The Department's definition of "plat" is in direct con-
flict with statutory definitions which distinguish plat and
certificate of survey. The Department's contention that it has
broad authority in defining the term plat by virtue of the lack
of a statutory definition under the Sanitation in Subdivisions
Act is without merit. "Whenever the meaning of a word or phrase
is defined in any part of [the] code, such definition is appli-
cable to the same word or phrase wherever it occurs, except where
a contrary intention plainly appears." Section 12-215, R.C.M.
1947, now section 1-2-107 MCA. The definition of plat found
under the Montana Subdivision and Platting Act is clearly
applicable to the Sanitation in Subdivisions Act.
The significance of the distinction between plats and
certificates of survey was discussed in State ex rel. Swart v.
Stucky (1975), 167 Mont. 171, 174, 175, 536 P.2d 762:
"The terms 'certificate of survey', 'plat',
and 'subdivision' have important technical
meanings that are established by the definition
section of the Act ...
"The classification of the instrument as a sub-
division 'plat' or as a 'certificate of survey'
is important since the Act requires different
treatment, depending upon the classification.
If the instrument is classified as a 'plat',
it must be submitted to the city or town govern-
ing body for review and approval prior to filing.
The governing body can approve or reject the plat
within 60 days after it has been submitted and
after a public hearing has been held. Section
11-3866, R.C.M. 1947."
Two years ago, in State ex rel. Swart v. Casne (1977)
Mont. , 564 P.2d 983, 34 St-Rep. 394, this Court determined
that the Department of Health and Environmental Sciences had im-
properly relied on the Department of Community Affairs' regula-
tions which were in direct conflict with section 11-3862 of the
Subdivision and Platting Act. The invalid regulations eliminated
the statutory exemption as applied to "resubdivisions or redesign"
of platted and recorded subdivisions. They required an amended
plat reviewed and approved by the governing body to be filed with
the Clerk and Recorder in direct contradiction to the statutory
exemption. They engrafted additional and contradictory requirements
on the statute in the guise of defining and implementing the eva-
sion of statutory requirements. Finally, they frustrated the pur-
pose of the "occasional sale" exemption of the Act. In striking
down the regulations, the Court said: "It is axiomatic that a
statute cannot be changed by administrative regulations." (Citation
omitted.) "An administrative agency is not a 'super legislature'
empowered to change statutory law under the cloak of an assumed
delegated power." Nor can an administrative agency engraft
additional and contradictory requirements on the statute under
the guise of definition.
M.A.C. 516-2.14 (10) - S14340, subsection (1)(j), being
in direct conflict with the statutory distinction between "plat"
and "certificate of survey", is hereby declared to be void on
its face. Section 69-5003(1) , R C 1 .
..5 1947, now section 76-4-
123 MCRgives the Department authority "to indicate that [a] sub-
division is subject to no sanitary restriction" only before a plat
is filed.
We hold that the word "plat", as it is used in the Sani-
tation in Subdivisions Act does not contemplate review of certifi-
cates of survey by the Department of Health and Environmental
Sciences.
The Department finds support for its contention that
section 69-5003(3) R.C.M. 1947, gives the Department authority to
review certificates of survey in the Casne decision. The Court,
after excising a paragraph of the Casne opinion, inserted the
following paragraph on June 9, 1977:
"While MDH has the statutory authority under
section 69-5003(3) to review a certificate of
survey regarding sanitary restrictions, this
provides no justification either for the MDH
br the clerk-and recorder to refuse to process
relator's certificate of survey. MDH's author-
ity to review a certificate of survey under
section 69-5001 et seq., R.C.M. 1947, relates
to sewage disposal, water quality and avail-
ability, solid waste disposal and other environ-
mental factors such as recreation and wildlife.
Section 69-5001, R.C.M. 1947. Here it is ad-
mitted that no such problems existed with res-
pect to relator's certificate of survey. Rather,
the sole reason for MDH's refusal to process
relator's certificate of survey was its reliance
on the invalid DCA regulations." (Emphasis added.)
Section 69-5003(3), R.C.M. 1947, does - give the De-
not
partment authority to review certificates of survey. Only "plans
and specifications" of facilities are to be submitted to the
Department for review under subsection (3). Although the
precise holding of Casne was well-founded (that the sole
reason for the Department's refusal to process relator's cer-
tificate of survey was its reliance on the invalid DCA regula-
tions) the amended language of the opinion incorrectly expands
the statutory authority of the Department.
We hold that the Department had no authority under the
Sanitation in Subdivisions Act (as it existed prior to the 1977
amendments) to review certificates of survey for occasional
sales.
The Attorney General has maintained two roles in the
instant case. The pleadings were filed in District Court by the
Department through the Attorney General pursuant to section
69-4111, R.C.M. 1947, now section 50-1-102 MCA, which names
the Attorney General as the legal advisor to the Department.
The suit was brought to enforce the Sanitation in Subdivisions
Act. On appeal, the Attorney General has been permitted to par-
ticipate as amicus curiae due to his interest in the enforce-
ment of the Subdivision and Platting Act.
Throughout the proceedings, counsel for the Department
(who are acting as special assistant attorney generals) have
contended that the Department has authority to review certifi-
cates of survey under the Sanitation in Subdivisions Act. The
Department has not challenged Kessner's method of disposition
as being adopted for the purpose of evading the Subdivision and
Platting Act. The Attorney General is counsel of record in
this case. However, the Attorney General chose to raise this
challenge for the first time as amicus curiae in the appellate
court.
An amicus curiae cannot raise separate issues not raised
by the parties. Montana Department of Social and Rehabilitation
Services v. Angel (1978), Mont . , 577 P.2d 1223, 35 St.
Rep. 532.
A party complaining of error must stand or fall upon
the grounds relied upon in the trial court, State Highway Com-
mission v. Voyich (1963), 142 Mont. 355, 384 P.2d 765.
Therefore, because the Attorney General, as amicus
curiae, cannot raise separate issues on appeal and because the
Department must stand or fall on the grounds relied upon in
the trial court, we cannot set aside the conveyances in this
case on the ground that they were made for the purpose of evad-
ing the I?lontana Subdivision and Platting Act.
The legislature has amended the statutes involved herein,
effective July 1, 1977, which will eliminate the problems in-
volved herein.
The District Court's dismissal of the amended complaint
with prejudice is affirmed.
H#
O . John 1. McCarvel, District
4
~ u h g e ,sitting in place of Mr. JUS-
tice John C . Sheehy.
We concur:
~
h
$
& Justice -
..............................
Justices
Mr. Justice John C. Harrison dissents.
Mr. Justice Daniel J. Shea will file a dissent at a later date.