No. 89-467
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
LEONARD CHRISTIANSON,
Plaintiff and Appellant,
RICHARD GASVODA, PAT RYAN
and JACK WHITAKER, acting as
the BOARD OF COUNTY COMMIS-
SIONERS OF CASCADE COUNTY,
State of Montana,
Defendants and Respondents.
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APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
George McCabe, Jardine, Stephenson, Blewett
and Weaver, Great Falls, Montana
For Respondent:
Patrick Paul, Cascade County Attorney, and
Stephen E. Hagerman, Deputy Cascade County Attorney,
Great Falls, Montana
Submitted on Briefs: March 8, 1 9 9 0
Decided: April 5, 1990
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Leonard Christianson appeals from an order of the Eighth
Judicial District, Cascade County, granting summary judgment in
favor of respondents Richard Gasvoda, Pat Ryan and Jack Whitaker
acting as the Board of County Commissioners (Board). The District
Court found that the Board acted properly in denying Christiansonts
application for approval of a subdivision. The court further found
that Christianson had no legal standing to bring this action and
that the Board was immune from suit. We affirm.
Because we hold that the Board acted properly in denying
Christiansonts application, we need not address every issue
submitted. The one issue to be addressed is:
Whether the Board properly rejected Leonard Christianson's
proposed subdivision plat.
Leonard Christianson (Christianson) is a Great Falls developer
who has previously developed three subdivisions. These plats were
developed in an area south of Great Falls, Montana in Cascade
County. Following development of this property by Christianson,
and further subdivision by others not named in this lawsuit,
residents of an area known as Gibson Flats began to experience
increased drainage and flooding problems. Apparently, the
subdivisions are located above Gibson Flats. Precipitation in the
form of rain or snowfall, has always drained from this area onto
Gibson Flats. However, following development the drainage problem
and subsequent flooding has intensified.
Despite these problems, Christianson sought to develop another
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subdivision in the area. He therefore entered into a buy-sell
agreement with the owners of undeveloped agricultural property
which lies next to his existing subdivisions. According to the
agreement Christianson agreed to buy the property on the condition
that his subdivision plan was approved. Christianson signed the
agreement on August 1, 1987. However the owners did not sign until
June 23, 1988.
Christianson then filed an application for approval of the
proposed subdivision with the Board of County Commissioners.
Following this filing, several residents of Gibson Flats objected
upon the assertion that the development would increase surface
water drainage onto Gibson Flats. On October 3, 1987, the Board
approved the preliminary plat on the condition that Christianson
provide adequate drainage. Christianson then submitted a
supplemental engineering plan, which provided that two water
detention ponds would be built that would hold surface water runoff
temporarily. According to Christianson's theory, this temporary
impoundment would prevent any further flooding of Gibson Flats
caused by runoff from his new subdivision.
The residents of Gibson Flats were not satisfied, however,
and as a result they continued to object. The Board investigated
further and it also began to doubt that the detention ponds would
solve the flooding problem. In particular, it found Christianson's
engineering plan and the testimony of his expert witness, who
offered different testimony at two separate Board hearings,
unconvincing. Consequently, the Board rejected Christianson's
application on November 18, 1987. In rejecting the application,
the Board maintained that no further development should occur until
the drainage problem, caused by prior development, was solved.
Following this denial, Christianson filed an action in
District Court seeking damages for inverse condemnation. Both
parties filed motions for summary judgment. The Board's motion was
granted on June 15, 1989. This appeal follows.
In determining whether subdivision approval should be given
the Board must determine whether the proposed development is in the
public interest. Section 76-3-608(1), PICA. The Board, basing
their decision upon all of the evidence presented, found that
Christianson's proposal was not in the public interest. This
decision was within the scope of their discretion and therefore
their denial should be upheld. Pearson Kent Corporation v. Bear
(New York 1971), 271 N.E.2d 218.
The District Court, in its review of the Board's actions,
found that there was substantial evidence that the proposed
subdivision would adversely affect public health, safety and
welfare. In particular, it found that the flooding problems which
were exacerbated by previous development justified rejection of the
proposed plat. The Board based its conclusion upon testimony given
at Board hearings, numerous letters submitted by the public, and
personal observations of the problems at Gibson Flats. Moreover,
the Board, as fact finders, were in the best position to weigh
conflicting testimony and determine the credibility of the
witnesses. They chose not to accept the testimony of
Christianson's expert because he changed his opinion concerning the
drainage on at least one occasion and his testimony conflicted with
the Board's experience with the Gibson Flats problem. In short we
hold that the Board's decision to deny further development pending
resolution of existing drainage problems and assurances that this
development would not further contribute to the problem was not an
abuse of discretion.
Moreover we also note that even assuming the Board's decision
was incorrect, Christianson did not suffer any real damages. At
the time of denial, he was not the owner of the property in
question, nor did he have any interest therein. The sellers of the
land did not sign the buy-sell agreement until June 23, 1988. The
denial occurred on November 16, 1987 and this lawsuit was filed on
January 28, 1988. Therefore, Christianson had no possible legal
interest in the land until seven months following the denial of his
application and five months following the instigation of this
lawsuit. Furthermore, the buy-sell agreement was conditional and
Christianson's obligation to buy did not arise until subdivision
approval was granted. Given these facts, Christianson did not have
any standing to maintain this litigation.
The judgment of the District Court upholding the Board of
County Commissioners is affirmed.
We Concur: