No. 87-485
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
JACK PETTY,
Plaintiff and Appellant,
FLATHEAD COUNTY BOARD OF COUNTY
COMMISSIONERS, ALLEN JACOBSON,
KENNETH KRUEGER, and HOWARD GIPE,
and FLATHEAD COUNTY, MONTANA,
a political body,
Defendants and Respondents.
APPEAL FROM: DISTRICT Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard DeJana, Kalispell, Montana
For Respondents:
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Dennis Hester, Deputy County Attorney
Submitted on Briefs: March 11, 1988
Decided: April 25, 1988
Filed:
'APR 2 5 1988 /*
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Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This case involves the creation of a zoning district by
the Flathead County Board of County Commissioners (Board).
Appellant Jack Petty sued the Board claiming that the Board's
failure to follow the proper procedures for creating a zoning
district voided the zoning district where Mr. Petty had
recently purchased property. The District Court granted a
motion for summary judgment made by the Board holding that
the Board had substantially complied with the procedures for
creating a zoning district under 55 76-2-101 to -112, MCA.
Mr. Petty appeals the summary judgment order. We affirm.
The following facts are undisputed: The property at
issue is called the Two Bridges Zoning District. Prior to
the creation of the district, the Board received a valid
petition from 60% of the freeholders in the area requesting
that the district be created. After receipt of the petition,
the Board passed a motion on March 10, 1978, creating the
district and ordering a meeting of the County Zoning
Commission to determine the district's development pattern.
On March 13, 1978, and March 20, 1978, the Zoning
Commission met to consider the district's development
pattern. After the second meeting the Zoning Commission
scheduled a hearing for April 11, 1978, to receive public
comment on proposals for the development pattern. Notice of
the hearing was published in the local paper on April 3,
1978, and April 10, 1978. The record is unclear as to
whether any notice of the hearing was posted in public
places. At the hearing interested parties commented on the
district's boundaries and development pattern.
After the hearing the Zoning Commission made
recommendations to the Board of County Commissioners, and the
Board scheduled its own public hearing. Notice of the
Board's hearing was published in the local paper on May 5,
1978, and May 12, 1978. The record fails to disclose whether
or not notice of this hearing was posted in public places.
At the hearing the Board heard public comment on the
development pattern and boundaries of the district as
recommended by the Zoning Commission.
Following the hearing the Board effectuated the Zoning
Commission's recommendations by adopting Resolution No. 298.
The resolution omitted acreage that had been included under
the description of the district as set out in the motion
creating the district.
The following are assigned as issues on appeal by Mr.
Petty:
(1) For a proper exercise of the police power in the
act of zoning, must the enabling legislation be strictly
followed?
(2) At the time of creation of a planning and zoning
district, must the area to be included in the district be
defined and described?
(3) Must a specific commission be appointed for each
planning district as stated in S 76-2-101, MCA, or may a
county use the same commission for each zone without separate
appointment?
(4) Were the notice provisions complied with?
(5) May the adoption of a resolution by the County
Commissioners creating a zone moot the failure to follow the
process prescribed by the enabling legislation?
(6) Need there be a developmental pattern prepared by
the Planning and Zoning Commission of each district and what
is that pattern?
(7) Need a plaintiff bring an action prior to such time
as his use for his land is threatened in order to avoid the
doctrine of latches?
Issue I.
Mr. Petty claims generally that the District Court erred
by failing to strictly construe the procedural requirements
for establishing zoning districts as mandated by S S 76-2-101
to -112, MCA. However, Mr. Petty fails to point out any
specific error under his discussion of this issue.
In its memorandum the District Court concluded that the
Board had "substantially complied" with the procedural
requirements. The proper issue facing a district court
interpreting these statutes is whether or not a board of
county commissioners substantially complied with the
procedural steps for creating zoning districts. Dover Ranch
v. County of Yellowstone (1980), 187 Mont. 276, 284, 609 P.2d
711, 716. Thus, the District Court's decision as to the
standard for reviewing the procedures set out in the zoning
statutes correctly interpreted Montana law, and we affirm on
this issue.
Issue 11.
Mr. Petty contends that when the Commissioners passed
the motion creating the district, the district was not
adequately defined and described. The subsection of the
statute authorizing Flathead County's creation of the
district at issue here reads:
76-2-101. Planning and zoning commission and
district. ..
(1) Whenever the ~ u b l i c interest or
. .
convenience may require and upon petition of 60% of
the freeholders affected thereby, the board of
county commissioners is hereby authorized and
empowered to order and create a planning and zoning
district and to appoint a commission consisting of
five members.
To support his contention, Mr. Petty cites cases decided
under another statute, $ 76-2-201, MCA. According to Mr.
Petty, this statute requires the establishment of an actual
jurisdictional area prior to adoption of zoning regulations.
See, e.g., Allen v. Flathead County (1969), 184 Mont. 58, 601
P.2d 399. The statute reads:
76-2-201. County zoning authorized. For the
purpose of promoting the health, safety, morals,
and-general welfare of the the people in-cities and
towns and counties whose governing bodies have
adopted a comprehensive development a n for
jurisdictional areas pursuant to chapter 1, the
boards of county commissioners in such counties are
authorized to adopt zoning regulations for all or
parts of such jurisdictional areas in accordance
with the provisions of this part. (Emphasis
added).
Sections 76-2-101 -112, MCA, the statutes at issue in
this case, authorize what has been "referred to as the rural
zoning law or the forty acre law, [which] gives county
commissioners the power to zone in a given district which
exceeds 40 acres and which has been called into existence
- petition - - least sixty percent - - freeholders
a of at of the
within the district." (Emphasis added). Lundberg, County
Zoning in Montana, 33 Mont. L. Rev. 63, 65. In contrast,
zoning under § $ 72-2-201 to -228, MCA, involves county-wide
planning and zoning by county commissioners working with
county planning boards. Lundberg, County Zoning - Montana,
in
33 Mont. L. Rev. 63, 68. Our interpretations of the
procedural requirements for zoning jurisdictional areas under
the county wide zoning statutes have no application to the
requirements for the creation of zoning districts under the
rural zoning laws in $ § 76-2-101 to -112, MCA. See Montana
Wildlife Federation v. Sager (Mont. 1980), 620 P.2d 1189,
1197, 37 St.Rep. 1897, 1905. And nothing in the record
demonstrates noncompliance with the applicable procedure,
i.e., the existence of a petition signed by 60% of the
freeholders in the district to be created, which petition and
the notices that follow adequately describe the district.
See City of Missoula v. Missoula County (1961), 139 Mont.
256, 260, 362 P.2d 539, 541. Thus, we affirm on this issue.
Issue 111.
Mr. Petty argues that the district at issue here is void
because the Board failed to appoint a zoning commission at
the time the district was created. The Board responds that
since the Zoning Commission already existed, there was no
need for an appointment.
Section 76-2-101, MCA, (set out above) requires the
appointment of a zoning commission at the time the zoning
district is created. Section 76-2-102, MCA, mandates that
the commission consist of the three county commissioners, the
county surveyor, and the county assessor.
The motion by the Board creating the district is
recorded in the Commissioners1 Journal. The motion reads:
Motion by Guay, seconded by Deist and carried
to create the Two Bridges Zoning District (#32). A
meeting of the Zoning Commission will be called to
determine a development pattern for this area.
We hold that the Board's motion is sufficient to satisfy the
requirement that the Board appoint a zoning commission at the
time the district is created. The statute mandates the
zoning comrnissionls membership, and it is obvious from
subsequent events in this case that the membership of the
Flathead County Zoning Commission had notice that they were
required by the motion to meet and determine a development
pattern for the district. Thus, we affirm on this issue.
Issue IV.
Mr. Petty contends that the notices of the public
hearings on the district's development pattern were not
publicly posted as required by S 76-2-106, MCA. The Board
responds that this issue was not raised in the lower court.,
and thus cannot be raised on appeal.
Mr. Petty contends that the issue was raised in his
"Plaintiff's Reply Memorandum and Rebuttal Memorandum", filed
in response to the Board's motion for summary judgment in the
lower court. The followinq discussion on the notices occurs
in this brief:
While visiting the Defendants facts it is
useful to examine exhibit 6 "Notice of Hearing" for
the April 11, 1978 "Zoning Commission" Meeting.
This is dated March 28, 1978. (14 days before the
hearing, if the date of the notice and date of
hearing are included.) Further on its face the
notice reflects that it wasn't published until
April 3 and 10, 1978. Section 76-2-106 MCA
requires 15 days prior notice. The county again
violates the law. The zone was and is void.
Nothing in this argument refers to the requirement that the
notice be posted in public places. Nothing in the District
Court's memorandum suggests that the issue was tried in the
lower court. Furthermore, there is no evidence to show that
the public notices were not posted, and since Mr. Petty has
not proved whether or not they were posted, there can be no
proof as to whether or not the posting was timely. Thus,
there is no issue here for this Court to consider in regard
to notice. Bowman v. Prater (Monk. 19841, 692 P . 2 d 9 , 11-12,
41 St.Rep. 2236, 2739-40.
Issue V.
Mr. Petty argues that the District Court erred in
concluding that any irregularities in the initial stages of
the zoning process were rendered moot bv the Board's adoption
of the development pattern in Resolution No. 298, and by the
passage of several years without objection. The Board
responds that the District Court discussion of mootness did
not form the basis for its grant of summary judgment, and
thus cannot be assigned as error on appeal.
The statement objected to by Mr. Petty is in the
conclusion of the lower court's Memorandum. It reads:
Based on the foregoing findings, the Court
holds that the Two Bridges Zoning District was
validly created, that the Flathead County Zoning
Commission is also the Two Bridges Zoning District
Commission and that the provisions of Part 1,
County Planning and Zoning Commission, of Chapter
2, Planning and Zoning, of Title 76, Land Resources
and Use of the Montana Code Annotated have been
substantially complied with. Any inconsequential,
procedural irregularities became moot upon the
adoption of Resolution 298 in 1978 and the passage
of several years without challenge until the filing
of Plaintiff's Complaint.
The essential conclusion here is that the Board substantially
complied with the procedures mandated by Montana law for the
creation of the district at issue. The findings supporting
this conclusion are that: (1) a valid petition signed by over
60% of the freeholders in the area was submitted to the Board
prior to creation of the district, (2) the Zoning Commission
proposed a development pattern, and (3) the public was
properly noticed prior to a public meeting on the issue that
the Board proposed to adopt the Zoning Commission's
development pattern. Thus, the lower court's comments on the
significance of Resolution No. 298, and the passage of time
between creation of the district and the bringing of the law
suit, do not form the basis for its judgment, and are not
relevant to this appeal. See Sink v. School District No. 6
(1982), 199 Mont. 352, 361-62, 649 P.2d 1263, 1268. And we
affirm on this issue.
Issue VI.
There are actually two issues advanced here by Mr.
Petty. First, Mr. Petty contends that the Zoning
Commission's development pattern for the district violates
S 76-2-104(2), MCA, because the development pattern allowed
only one use as opposed to allowing multiple uses. Mr. Petty
also contends that the development pattern violates
S 76-2-104(2), MCA, because maps, plats, charts, and
descriptive matter did not accompany the adoption of the
development pattern by the Zoning Commission.
Section 76-2-104, MCA, states:
Development Pattern: (1) For the purpose of
furtherinq the health, safety, and general welfare
of the people of the county, the county planning
and zoning commission hereby is empowered and it
shall be its duty to make and adopt a development
pattern for the physical and economic development
of the planning and zoning district.
(2) Such development pattern, with the
accompanying maps, plats, charts, and descriptive
matter, shall show the planning and zoning
commission's recommendations for the development of
the districts, within some of which it shall be
lawful and within others of which it shall be
unlawful to erect, construct, alter, or maintain
certain buildings or to carry on certain trades,
industries, or callings or within which the height
and bulk of future buildings and the area of the
yards, courts, and other open spaces and the future
uses of the land or buildings shall be limited and
fu-t-urebuilding setback lines shall be established.
Mr. Petty argues that the language in subsection 2 of
this statute requires multiple districts with varying uses
within each zoning district created by boards of county
commissioners, and that the district at issue in this case
violates that mandate by allowing only residential uses. We
disagree. Subsection 1 of this statute refers in the
singular to a "district" and its development pattern.
Subsection 2, upon which Mr. Petty relies for his theory that
multiple uses must accompany the creation of every district,
refers in the plural to a development pattern for
"districts". This Court has held previously that the
reference to districts in subsection 2 does not require
zoning commissions to conduct a county wide survey prior to
the establishment of a particular district. See Doull v.
Wohlschlager (1963), 141 Mont. 354, 363, 377 P.2d 758, 763.
Similarly, the use of the plural in subsection 2 does not
mandate that each district, which may be as small as 40
acres, be fractionalized into several smaller districts with
different regulations for each fraction. Such an
interpretation "would create an absurd result where a
reasonable construction would avoid it." McClanathan v.
Smith (1980), 186 Mont. 56, 62, 606 P.2d 507, 511. Thus, we
affirm on the first argument under this issue.
The second argument Mr. Petty groups under this issue is
that the district is void because the Zoning Commission
failed to refer expressly to maps, charts and descriptive
matters forming the pattern or part thereof. The development
pattern recommended a single land use classification, and the
notice of the public hearing held prior to the Zoning
Commission's recommendation on the development pattern
contained a legal description of the district. Under these
circumstances, we agree with the District Court's conclusion
that the statutory requirement for reference to maps, charts,
and descriptive matters was substantially complied with.
Doull, 3 7 7 P.2d at 7 6 3 .
Issue VII.
Mr. Petty contends that the District Court erred by
relying on latches to find for the Board on its motion for
summary judgment. As pointed out in our discussion of issue
V, the essential conclusion for resolution of this case was
the District Court's finding that the Board had substantially
complied with the procedures for creating districts under the
40 acre law. Thus, there is no issue which requires our
determination. Affirmed.
We Concur: /
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