NO. 8 8 - 2 1 1 ?
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
THE STATE OF MONTANA, ex rel.,
TAMMY L. LEACH and CRAIG S. LEACH,
GREGORY LEACH, and SUSAN LEACH,
Petitioners and Appellants,
-vs-
WILBUR VISSER, JANE JELINSKI, and
RAMON S. WHITE, THE GALLATIN COUNTY
BOARD OF COMMISSIONERS,
Respondents and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eula Compton, Bozeman, Montana
For Respondent :
A. Michael Salvagni, County Attorney, Bozeman,
Montana; James D. McKenna, Deputy County Attorney
Submitted on Briefs: Aug. 11, 1 9 8 8
Decided: November 1, 1 9 8 8
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
State law permits a single division of a parcel of land
outside of platted subdivisions without a local subdivision
review when the transaction is an occasional sale. An
"occasional sale" means one sale of a division of land within
any 12 month period. State law also limits a single division
of a parcel of land if "the method of disposition is adopted
for the purpose of evading" local subdivision review.
Gallatin County has adopted Subdivision Regulation 2.b.(3)(b)
to the effect that an occasional sale is an evasion of local
subdivision review if "a parcel contiguous to the parcel to
be transferred has been previously transferred by the same
transferor as an occasional sale."
Tammy Leach proposed a division of a certain Tract 14 as
an occasional sale. The tract of the proposed division was
contiguous to a tract which had earlier been transferred as
an occasional sale to Tamrny Leach. On that basis, the
District Court, Eighteenth Judicial District, Gallatin
County, determined that the attempted division of Tract 14
did not qualify for an occasional sale of land and was not,
therefore, exempt from local subdivision review. The District
Court denied a petition for a peremptory writ of mandamus.
We determine here that Gallatin County Subdivision
Regulation 2.b. (3)(b) directly conflicts with the provisions
of S 76-3-207, MCA, permitting single divisions of land
parcels outside of platted subdivisions when they qualify as
occasional sales. We therefore reverse and remand this cause
with directions to the District Court to issue a writ of
mandate to the respondents to permit the proposed division of
land.
The findings of fact of the District Court adequately
describe the problem. In 1981, the Leach family purchased
265 acres of land in Gallatin County. A 20-acre tract within
the purchase, Tract 12, was divided without subdivision
review in 1983 into two 10-acre tracts. Tract 12B was
conveyed away. In 1984, Tract 13 was divided without local
subdivision review into two 10-acre tracts and Tract 13A was
conveyed away. In May, 1985, petitioner Tammy Leach acquired
Tract 13B. In 1984, the Leach family conveyed Tract 14 to
Craig, Don, Gloria and Tamrny Leach. Later, in 1984, Tract l A
was sold to petitioners Gregory and Susan Leach. The present
controversy involves an attempt to divide Tract 14.
Petitioner Tammy Leach would become the owner of Tract 14A.
In 1986, the proposed division of land of Tract 14A to Tamrny
Leach was rejected by the County Commission because the
proposed transfer was contiguous to the transfer of Tract
13B; and so under the Gallatin County subdivision regulations
did not qualify as an "occasional sale." Another request for
the transfer of Tract 14A to Tammy Leach was considered by
the County Commission and denied in February, 1987.
The decision of the County Commission not to approve the
division of land proposed by the Leaches was conveyed to them
by a letter signed by the Commissioners, dated February 25,
1987. The letter recited the history of the transfers of the
tracts as above enumerated and pointed out that the county
subdivision rules "do not allow a parcel contiguous to the
parcel to be transferred if it has been previously
transferred by the same transferor as an occasional sale."
Based on that history, the Commission "determined that the
method of disposition of the land was adopted for the purpose
of evading the requirements of Title 73, Ch. 2, Pt. 2, MCA
(t.he local subdivision review requirements).
The petitioners filed an action in the District Court
for a writ of mandate directing the County Commission to
permit the division of land as proposed. The District Court,
after entering findings of fact and conclusions of law,
denied the petition for peremptory writ of mandamus on
January 23, 1988. From that order of denial the petitioners
have appealed to this Court.
The issues presented by the Leaches are:
1. In accordance with 5 s 76-3-207 and 76-3-103(7), MCA,
a landowner may enter into one occasional sale each and every
year without the sale or a series of sales being deemed
subject to local subdivision review.
2. The Gallatin County Subdivision regulation is void
as eliminating the statutory exemption for occasional sales.
3. Gallatin County's subdivision regulati-ons violate
the Montana and United States Constitutions.
In answer, the Commission contends that: (1) the
Gallatin County subdivision regulations are reasonable and
not in conflict with state law; (2) the County Commission is
given discretion to determine whether a proposed division of
land is for the purpose of evading the Subdivision and
Platting Act; and, (3) the constitutional arguments should
not be considered because they were not presented in the
District Court.
The principal issue in this case is controlled by our
decision in State of Montana ex rel. Swart v. Casne, et al.
(1977), 172 Mont. 302, 564 P.2d 983. In that case, the same
provisions now contained in 76-3-207, MCA, and §
76-3-103 (7), MCA, were involved, though contained in earlier
numbered statutes. In that case, Gallatin County had adopted
a regulation to the effect that the exemption contained in [ S
76-3-2071 did not apply to the resubdivision or redesign of a
subdivision platted or filed with the clerk and recorder.
Swart owned five lots in a platted subdivision which he had
proposed to divide by drawing a straight line dividing each
lot into substantially equal parts, and transferring one of
the halves as an occasional sale of the property. His
proposal was denied by the County Commission, and he applied
to the District Court for a writ of mandate, directing the
Commission to permit the division. The District Court
granted a writ of mandate, and the decision was affirmed on
appeal to this Court. In affirming, this Court said:
These regulations are in direct conflict with the
provisions of the Subdivision and Platting Act
heretofore set forth in S [76-3-2073. They
eliminate the statutory exemption as applied to
"resubdivisions or redesign" of platted and
recorded subdivisions. They require an amended
plat reviewed and approved by the governing body to
be filed with the clerk and recorded in direct
contradiction to the statutory exemption. They
engraft additional and contradictory requirements
on the statute in the guise of implementing the
evasion of statutory requirements. They frustrate
the purpose of the "occasional sale" exemption of
the Act. As such, the .. . regulations are void
on their face. See Bartels v. Miles City, 145
Mont. 116, 399 P.2d 768. It is axiomatic that a
statute cannot be changed by administrative
regulation. See Begay v. Graham, L 8 Ariz. App.
336, 501 P.2d 964.
172 Mont. at 308, 564 P.2d at 986.
In this case, we are faced with the exact problem that
came before this Court in Swart. Here, the earlier divisions
of tracts qualified as occasional sales because more than 12
months elapsed between each division of the parcels. In the
case directly before us, the transfer to Tammy Leach has been
refused because it is contiguous to a tract that had earlier
qualified as an occasional sale, although in the present
case, more than a year has elapsed from the time of the
earlier transfer. The effect of the continguous tract
provision in the Gallatin County Subdivision Regulations is,
in the words of Swart, to "engraft additional and
contradictory requirements on the statute in the guise of
implementing the evasion of statutory requirements." The
Gallatin County regulation is therefore impermissible
because, in the language of Swart:
This grant of authority does not include the right
to promulgate regulations in direct conflict with
the Act. Where, as here, the Act provides for
exemption of occasional sales from the subdivision
requirements, DCA cannot prescribe subdivision
regulations eliminating the exemption for the
reasons heretofore stated. An administrative
agency is not a "super legislature" empowered to
change statutory law under the cloak of an assumed
delegated power.
172 Mont. at 308-09, 564 P.2d at 986.
For the same reasons, the contention of the County
Commission that it has discretion to determine whether the
method of disposition is adopted for the purpose of evading 5
76-3-207, MCA, has no merit. Plainly, under our statutes, a
landowner is permitted a single division of a parcel outside
of a platted subdivision if the division and any other
division do not occur within any 12 month period. The County
Commission has no discretion to deny a division of land if
the landowner otherwise complies with the exemptions provided
to him und.er the statutes for a single division of land.
There is no need to address the constitutional issues
raised by the Leaches since we determine that the county
regulation is void.
The Commission, however, further contends that a
declaratory judgment rather than a writ of mandate is a
proper remedy in this cause. The County Commission points to
decisions in other states which hold that a declaratory
judgment action is a proper method of challenging a zoning
ordinance and that a writ of mandamus in this case is
inappropriate since the county had no legal duty to disregard
its own regulations. Again, this contention was answered in
Swart :
Here there was a clear legal duty the defendants
were required to perform for the reasons heretofore
stated. A declaratory judgment action would not
necessarily get the certificate of survey filed in
the light of previous difficulties between petition
and the clerk and recorder in getting such
certificates filed as evidenced in State ex rel.
Swart v. Stuckey, supra. A declaratory judgment
action would not make petitioner whole as attorneys
fees are not allowable in such an action. A writ
of mandate is the only remedy available to secure
the ultimate relief sought by the petitioner--to
compel the lifting of sanitary restrictions, the
filing of a certificate of survey, and an award of
relator's attorney fees.
172 Mont. at 309, 310, 564 P.2d at 987.
In order for the petitioners to obtain complete relief,
a writ of mandate is proper in this cause. Accordingly, we
reverse and remand to the District Court with instructions to
issue a writ of mandate directed to the County Commission to
permit the division of land as proposed by Tamrny Leach, and
for such other relief as may be appropriate for a writ of
mandate in this cause.
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Justice
We Concur:
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Justices