NO. 91-390
I N WIE SUPREME COURT O F THE STATE OF M N A A
O T N
1992
SOL'EDOUGH PROI'ECTIVE ASSOCIATION, I N C . ,
d Montana C o r p o r a . t i s n ,
P l a i n t i f f and Appellant,
D e E c n d a n t s and R e s p o n d e n t s .
A!?P??AL F'ROI~T: D i s t r i c t C o : l r t o f t h e E i y h t . e e i i t h J u d i c i a l ~ i s l r ic:':,
r
I n and f o r t h a County o f G a l . l a t i n ,
The N o r ~ o r a b l eMark P. S u l l i v a n , J u d g e p r e s i d i n g .
CO[lIJSEL G F RECORD:
7'erL-y F . S c n a p l o w , a t t o r n e y a t Law, 3 o z e n a r 1 , Montar'c
For Respondent:
h. Mickael S a l v a g n i , G a L i a t i n County Attcrriey,
'dozeman, Montana
Nicriae'l J . L i l l y ; B e r g , L,.iLly, A ~ d r i o l o Tol! e f s o n ,
&
Enzer!?an, N o n t a n a .
S u b m i t t e d on B r i e f s : March 1 2 , 1992
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant Sourdough Protective Association Inc. (Sourdough)
appeals from the Judgment of the District Court of the Eighteenth
Judicial District, Gallatin County, Montana, which dismissed
Sourdough's appeal and denied Sourdough's motion for a stay of
proceedings. We affirm.
This appeal originates fromthe respondent's, High Ridge Estates
of Montana, Inc. (High Ridge), application to the Board of County
Commissioners of Gallatin County (Board) for a preliminary plat
approval of a proposed subdivision. High Ridge desiredto subdivide
real property located within the jurisdiction ofthe City of Bozeman
as well as the jurisdiction of Gallatin County.
Initially, High Ridge presented the subdivision concept to the
City-County Planning Board which indicated to the Board that it would
accept an invitation to review the proposal in total. In January
of 1990, the Board declined the City-County Planning Board's
invitation, citing concerns about possible unauthorized expansion
of that entity's planning jurisdiction. Accordingly, High Ridge
applied to the Board for preliminary subdivision plat approval. In
December of 1990, after public notice and hearing, the Board granted
conditional approval of the proposed subdivision application and issued
Findings of Fact.
In January 1991, Sourdough appealed the Board's decision to
District Courtrequestingthata Writ of Mandamus be issued directing
the Board to appoint the City-County Planning Board to review the
entire project and reverse the Board's Findings of Fact. In February
2
of 1991, High Ridge, whose motion to intervene was later granted,
and the Board filed motions to dismiss under Rule 12 (b)(6), M.R. Civ.P.
Sourdough moved for a stay on May 6, 1991. The District Court
conducted a hearing on all motions on May 13, 1991. The District
Court denied Sourdough's motion for a stay on June 3, 1991, and
dismissed the appeal a day later.
The issues on appeal are as follows:
I. Whether the District Court erred in granting the respondents'
motions to dismiss Sourdough's petition for appeal.
11. Whether the District Court erred in denying Sourdough's
motion for a stay of proceedings.
We previously set forth the standard of review regarding
discretionary trial court rulings as follows:
Our standard of review relating to conclusions of law is
not to be confused with our review of discretionary trial
court rulings. This has been defined as "encompassing the
power of choice among several courses of action, each of
which is considered permissible.'' See Aldisert, The
Judicial Process, 1976, page 759. Suchrulingsareusually
trial administration issues, scope of cross-examination,
post-trial motions, and similar rulings. The standard of
abuse of discretion will be applied to these rulings.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803
P.2d 601, 603-604. Therefore, we confine our review to encompass
only whether the District Court abused its discretion in dismissing
Sourdough's petition for appeal and for denying Sourdough's motion
for a stay.
I. Dismissing Sourdough's petition for appeal.
Sourdough asserts that it properly appealed under 1 76-2-110,
MCA. However, this statute deals with planning and zoning issues
and cannot be interpreted, as Sourdough urges, to apply to the
subdivision issue in the case at bar. Instead, the applicable sections
regarding subdivision issues are 5 5 76-3-101 et seq., MCA, which is
Montana's Subdivision and Platting Act. The purpose of the Act is
to "promote the public health, safety, and general welfare by
regulating the subdivision of land; . . . ." Section 76-3-102, MCA
(emphasis added). The legislature did not provide an appeal process
under this Act for cases involving decisions of conditional approval
of preliminary plats; accordingly, this Court, will not fabricate
one. The District Court did not err in concluding that 5 76-2-110,
MCA, is inapplicable in the case at bar.
In the samemanner, Sourdough assertsthat its appeal was proper
under 5 2-4-702, MCA. Again, Sourdough misapplies this statute to
the case at bar. Sections 2-4-701 et seq., MCA, are contained in
the Montana Administrative Procedure Act (MAPA) and apply to
administrative agencies. However, the County Board of Commissioners
is specifically excluded from the agency definition of MAPA via 5 2-4-
102(2)(b), MCA, which states that an "[algency does not include a
school district, unit of local government, or any other political
subdivision of the state." Therefore, the appeal provisions of MAPA
do not apply to the case at bar. Since Sourdough cannot properly
appeal under 5 2-4-702, MCA, the District Court did not abuse its
discretion in arriving at that conclusion.
Respondents moved to dismiss under Rule 12(b)(6), M.R.Civ.P.,
because Sourdough failed to state a claim upon which relief could
be granted. We have previously said that a motion to dismiss under
Rule 12 (b)(6), M.R. Civ.P., should not be granted "unless it appears
beyonddoubtthatthe plaintiff could proveno set of facts in support
of his claim which would entitle him to relief." Proto v. Missoula
County (l988), 230 Mont. 351, 353, 749 P.2d 1094, 1096; quoting Conley
v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d
80, 84.
We affirm the conclusion of the District Court that 5 76-2-110,
MCA, does not contain authorization to Sourdough to prosecute the
present appeal, and that @ 2-4-702, MCA, does not provide a legal
basis upon which Sourdough may prosecute this appeal. We hold the
District Court properly granted the respondents' motions to dismiss
Sourdough's petition for appeal. In affirming the dismissal by the
District Court on the foregoing basis, we do not find it necessary
to consider the remaining conclusions of the District Court in which
it weighed the conduct of the Board of County Commissioners and
concluded that the Board did not abuse its discretion.
11. Denial of Sourdough's motion for a stay of proceedings.
Sourdough asserts that the District Court erred in not granting
its motion for a stay of proceedings. A review of the record indicates
that Sourdough failed to cite authority for this position. The
transcript of the May 13, 1991 hearing on motions to dismiss and for
a stay further indicates Sourdough's lack of authority for the stay.
The testimony, in part, was as follows:
THE COURT: ...So, what do you think about his position
that this really isn't a stay motion. It's a motion for
an injunction.
MR. SCHAPMW [counsel for Sourdough]: Well, your Honor,
we feel like it is a motion for a stay.
THE COURT: What's your authority for that?
MR. SCHAPLOW: We feelthatamotion for stay is appropriate
here as we 've mentioned in our brief. We re simply asking
that the Court stay the action of the County Commissioners
until such time as the Bozeman Area Transportation Plan
has been updated as will be testified by Mayor Hawks. A
motion for stay is a typical motion that ' s brought in these
kinds of proceedings to hold in obeyance any actions taken
by the governing body until such time as the Court decides
onthemerits, or, aswelveindicatedhere, until such time
as the Bozeman Area Transportation Plan is updated.
THE COURT: You're asking that the County Commissioners1
actions be stayed at this point.
MR. SCHAPLOW: That's true.
THE COURT: Haven't they already acted by approving the
subdivision?
MR. SCHAPMW: Well, they've approved it conditionally,
by allowing the developer, High Ridge Estates, to go through
a lot of procedural applications and so forth, which would
ultimately end up in the construction of roads and various
other improvements that have been contemplated. ...
We agree with the District Court that Sourdough's motion for
a stay is without statutory basis or other authority. In the event
that the stay motion is interpreted as a preliminary injunction it
must also fail as it does not meet the statutory criteria for such
a motion as set forth by 5 27-19-104, MCA.
Finding no abuse of discretion, we hold that the District Court
ruled correctly in dismissing Sourdough's appeal and in denying the
motion for a stay of proceedings. Affirmed.
We concur:
Justice Terry N. Trieweiler specially concurring.
I reluctantly concur in the opinion of the majority.
It does not appear that either 5 2-4-702, MCA, or 5 76-2-110,
MCA, allows an appeal from the county commissioners1 preliminary
plat approval of a proposed subdivision. However, it does seem
anomalous that the legislature would enact specific criteria, such
as those found in 5 76-3-608, MCA, which must be met before a local
commission can approve a subdivision, and then provide no means of
judicially enforcing the law.
This opinion has not dealt with the issue of whether a writ of
review or certiorari is available should county commissions or
other local governing bodies ignore these criteria which have been
enacted to "promote the public health, safety, and general
welfare." Section 76-3-102, MCA. Therefore, I express no opinion
about whether this decision leaves people who object to
subdivisions, without any legal remedy. However, it does seem
important to me that if the legislature's omission of an appeal
provision comparable to 5 76-2-110, MCA, from the Montana
Subdivision and Platting Act was inadvertent, that that omission be
remedied for the purpose of future review.
My concurrence in the majority opinion is based simply upon
the record before the Court and the legal issues raised in this
case. It is not intended to imply that there is no other method by
which the decisions of local governmental bodies can be reviewed
judicially.