NO. 93-183
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
DAN BUCKLEY and ROBERT DOUGLAS and
DONNA DOUGLAS, ALBERT ADAMS and
MARILYN ADAMS, GLORIA DOYLE, CHET
DREHER and VERA DREHER, LOUIS DYLL,
JAMES DYLL, DONALD FREDRICKSON,
LOUISE FULBRIGHT, GARY GUTHRIE and
JILL GUTHRIE, DAVID HARTNETT, RICHARD
JORGENSEN, DONALD LAIS, KATE LAWLER,
VICTORIA MACLEAN, THOMAS MCBRIDE,
INDIA SUPERA and LAUGHING WATER,
CHRIS YAHVAH, DOUG POWELL and SONIA
POWELL, JAMES POWELL, GAIL WILSON and
PAUL WILSON, EUGENE NIXON and NORMA
NIXON and STEVE BALAZS and JANELLE BAIAZS,
Plaintiffs and Respondents,
BLAKE WORDAL, LINDA STOLL-ANDERSON,
and DAVID FULLER, in their capacity
as Lewis and Clark County Commissioners,
LEWIS AND CLARK COUNTY, a local
governmental unit and political division
of state government, and MONTANA ATTORNEY
GENERAL MARC RACICOT,
Defendants and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable James E. Purcell Judge presiding.
COUNSEL OF RECORD:
For Appellants:
K. Paul Stahl, Deputy County Attorney, Helena,
Montana
For Respondents:
John C. 'Doubek 8 Carl A. Hatch, Small, Hatch,
Doubek and Pyfer, Helena, Montana
Submitted on briefs: October 28, 1993
Decided: December 7, 1993
Justice James C. Nelson delivered the Opinion of the Court,
Defendants/Appellants appeal an order of the First Judicial
District Court, Lewis and Clark County, stating that the
Defendants/Appellants had not complied with a prior modified order
and ordering them to delete or refund rural improvement district
assessments and re-notice the hearings which initiated the rural
improvement district process. We reverse.
We state the issues on appeal as follows:
1. Did the Board of County Commissioners for Lewis and Clark
County (BOCC) timely file its notice of appeal?
2. Did the BOCC follow the correct statutory procedures when
it created the Colorado Gulch Rural Improvement District (CGRID)?
3. Did the District Court err in holding that the BOCC
failed to hold adequate public hearings when creating the CGRID?
The BOCC also contends that the plaintiffs did not file a
timely complaint. Given our holdings on the above issues, that
issue is moot.
The current controversy began in 1991, when landowners in the
Colorado Gulch area formed a committee to address various road
problems. However, the controversy regarding improvements to the
road in question has a long history, and the BOCC has been actively
involved since as early as 1984 or 1985.
On March 23, 1992, the committee called a meeting of all
landowners in the Colorado Gulch area to vote on whether to form a
rural improvement district. At this meeting, each parcel of
property in the area for which a property identification number
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could be traced was given a vote, and the assessed value of each
parcel was not taken into consideration. A vote regarding the
rural improvement district was taken, and the majority of
landowners present opposed creating the district.
After the March, 1992, meeting, the original committee was
disbanded. Thereafter, a *'splinter group " from the committee sent
a letter to all Colorado Gulch landowners, revealing their intent
to attempt to persuade the BOCC to create a rural improvement
district for the purpose of having the road chip-sealed.
The BOCC requires that, prior to any formal action on a
proposed improvement district, a petition from the potentially-
affected landowners be filed evidencing a "significant interest" in
the creation of such a district. The purpose of this requirement
is to avoid county staff time being wasted if no interest exists
for the creation of a district.
In this case, the "splinter group" filed the required
petition. Based on that petition, the BOCC found significant
public interest in the rural improvement district, and adopted a
resolution of intent to create the CGRID on April 28, 1992. After
the adoption of the resolution to create the CGRID, a Notice of
Resolution of Intent and Public Hearing was sent to all property
owners in the proposed district. The notice informed the
landowners of the adoption of the resolution to create the CGRID,
indicated the nature of the proposed improvements and maintenance,
and proposed a formula to be used for assessments. The notice also
provided estimated costs, informed the landowners of their right to
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file a written protest within fifteen days (by 5:00 p.m. on May 18,
1992), and informed the landowners that the public hearing was
scheduled for May 19, 1992.
All written protests were properly filed by May 18, 1992. On
the morning of May 19, 1992, two landowners filed rescissions of
their prior written protests.
The BOCC held the public hearing on May 19, 1992. At that
time, staff members informed the BOCC that further work was
required to answer questions raised by various protests. After
some discussion, the BOCC chairperson requested comments from the
audience, and one person spoke. Following that person's comments,
the chairperson again requested questions or comments, but no one
responded. The chairperson of the BOCC then publicly announced
that the hearing was adjourned and continued until May 26, 1992, in
order to allow the staff time to address the validity of certain
protests.
At the May 26, 1992, hearing, staff members again informed the
BOCC that additional time was needed to complete a review of the
protests. The chairperson of the BOCC again publicly announced
that the hearing was adjourned and continued until May 28, 1992.
At the May 28, 1992, hearing, the BOCC heard and passed on all
protests submitted prior to the May 18 deadline. Dorothy Carrico
and Leah Tursich rescinded their protests by written request, and
the BOCC accepted those rescissions. The BOCC rejected a protest
filed by Don Dais because both record landowners did not sign the
protest. A protest filed by James Powell was rejected for one
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parcel because the parcel had been deeded to the Smiths, who did
not wish to protest. The BOCC rejected three protests signed by
Laughing Water because the joint tenant, India Supera, did not sign
the protests and Mr. Water did not present a written power of
attorney to sign on her behalf. The protest total, after the BOCC
accepted the rescissions and rejected the above protests, was 44.5%
of the landowners. After this hearing, the BOCC adopted a
resolution creating the CGRID.
On July 1, 1992, the plaintiffs, all of whom own real property
affected by the CGRID, filed a complaint alleging violations of
Montana statutes and constitutional provisions. The plaintiffs
sought temporary and injunctive relief and a writ of prohibition,
as well as a declaratory ruling that gg 7-12-2101, et seq., MCA,
were unconstitutional.
District Judge Thomas Honzel deemed himself disqualified and
invited District Judge James Purcell to assume jurisdiction, which
Judge Purcell did on July 7, 1992. On July 22, 1992, the District
Court ordered the BOCC to show cause why injunctive relief should
not be granted. A hearing was held on August 11, 1992. During
that hearing, the protest total calculated at the May 28, 1992,
meeting was revised to 45.45%. as Don Isis' protest was accepted
after he submitted a quit claim deed evidencing his sole ownership
of the property in question.
On August 13, 1992, the District Court issued findings of
fact, conclusions of law, and an order denying relief to the
landowners "under any theory." However, the District Court
5
chastised the BOCC for taking the "most convenient statutory route
. . . without debating the substantive nature of the protestor's
complaints."
The plaintiffs moved the District Court to modify its August
13, 1992, order and the BOCC failed to file a response. On August
18, 1992, the BOCC adopted a resolution levying and assessing a tax
upon all benefitted property within the CGRID. On September 3,
1992, the l3OCC held a hearing to receive and consider objections to
the assessments proposed to be levied on the landowners' property.
The chairperson opened the discussion to comments about the
assessments and to questions and comments regarding the creation of
the CGRID and the BOCC's actions. After this hearing, the BOCC
delivered the final resolution creating the CGRID to the county
treasurer for assessment purposes.
On September 16, 1992, the District Court "amended" its
original order dated August 13, 1992, apparently based on the
BOCC's failure to respond to the plaintiffs' motion to modify. In
that modified order, the District Court ordered the BOCC to re-
notice the hearings and allow all the Colorado Gulch landowners an
opportunity to participate in the hearings. By this time, the
chip-sealing of the road had been completed.
On September 17, 1992, the BOCC moved the District Court to
modify its "modified order" and requested a hearing. The District
Court took no action on the BOCC motion and did not hold a hearing.
Then, on November 27, 1992, the plaintiffs moved the District Court
to enforce the September 16, 1992, modified order. On January 8,
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1993, the District Court ordered the BOCC to show how it had
complied with the modified order or to re-notice the hearings. The
BOCC filed proof of compliance with the modified order on January
15, 1993, and the District Court heard oral argument on February 9,
1993.
On March 10, 1993, the District Court issued a final order
stating that the ROCC had failed to comply with the September 16,
1992, modified order by refusing to re-notice the hearings, and
ordered the county to mail retroactive notices to delete or refund
the CGRID assessments, and to re-notice the hearings which
initiated the CGRID process. From that order, the BOCC appeals.
Our standard of review relating to conclusions of law is
whether the trial judge's interpretation of the law is correct.
Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, SO3
P.2d 601, 603.
I - NOTICE OF APPEAL
Plaintiffs contend that the BOCC did not timely file its
notice of appeal and that this appeal should be dismissed. We
disagree.
The basis for the plaintiffs' argument is that the BOCC is
appealing from the District Court's decision filed September 16,
1992, and that the notice of appeal filed March 12, 1993, is not
timely. The plaintiffs contend that, although the District Court
issued an order on March 10, 1993, that order simply determined
that the BOCC had not complied with the "final" judgment of the
District Court entered on September 16, 1992.
Rule 5(a)(l), M.R.App.P., requires that, when the appellant is
. .
a political subdivision of the state, the notice of appeal must be
filed within sixty days from the entry of the judgment z from the
service of notice of entry of judgment. We have previously held
that the time for filing an appeal does not begin to run until the
prevailing party serves a notice of entry of judgment. In re
Marriage of Robertson (1989), 237 Mont. 406, 411, 773 P.2d 1213,
1217. If the prevailing party does not serve a notice of entry of
judgment, the time for appeal never begins to run. See Robertson,
773 P.2d at 1217.
In this case, the plaintiffs never served a notice of entry of
judgment on the BCCC, either for the September 16, 1992, order,
which the plaintiffs contend is the "final" judgment in this case,
or for the March 10, 1993, order. Therefore, because no notice of
entry of judgment was filed and served, the sixty-day appeal time
never began to run on either order. Thus, the BOCC's appeal was
timely, and we need not address the issue of whether the September
16, 1992, order or the March 10, 1993, order was the VXfinala
judgment in this case.
II - STATUTORY PROCEDURES
The BCCC contends that, contrary to the District Court's
conclusion, it followed the correct statutory procedures when it
created the CGRID. We agree.
Sections 7-12-2101, et seq., MCA, provide the statutory
framework by which a county may create a rural improvement
district. This statutory scheme provides a nine-step process which
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requires notice and the opportunity to be heard. We will address
each step in turn.
A. RESOLUTION OF INTENTION
The first step in the statutory process of creating a rural
improvement district requires a resolution of intention. Section
7-12-2103, MCA, provides, in pertinent part:
(1) Before creating any special improvement district for
the purpose of making any of the improvements or
acquiring any private property for any purpose authorized
by this part, the board of county commissioners shall
pass a resolution of intention to do so.
(2) The resolution shall:
(a) designate the number of such district:
(b) describe the boundaries thereof:
(cl state therein the general character
of the improvements which are to be
made:
(d) designate the name of the engineer
who is to have charge of the work
and an approximate estimate of the
cost thereof: and
(e) specify the method or methods by
which the costs of the improvements
will be assessed against property in
the district. . . .
"The resolution of intention is the primary step to be taken in
every [proposed creation of a rural improvement district]. It is
the basis of the whole proceeding." Billings Bench Water Ass'n v.
Yellowstone County (1924), 70 Mont. 401, 408, 225 P. 996, 999. In
this case, the BOCC adopted Resolution of Intention No. 1992-51 at
a public hearing on April 28, 1992. The plaintiffs have not
challenged the contents or the adoption of the resolution of
intention.
B. NOTICE OF RESOLUTION OF INTENTION
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After the resolution of intention is passed, notice of that
resolution must be given. Section 7-12-2105, MCA, provides, in
pertinent part:
(1) Upon having passed the resolution of intention
pursuant to 7-12-2103, the board of county commissioners
must publish notice of the passage of such resolution of
intention as provided in 7-12-2121.
(2) The board shall also cause a copy of such notice to
be posted in three public places within the boundaries of
such special improvement district. A copy of such notice
shall be mailed as provided in 7-1-2122 to every person
. . . owning real property within the proposed district
listed in his name upon the last completed assessment
roll for state, county, and school district taxes.
In addition, subsection (3) of § 7-12-2105, MCA, lists a number of
specific details which must be provided in the notice.
Compliance with the notice requirement is essential, as the
failure to give notice of the intention to create a rural
improvement district deprives the county of jurisdiction to
proceed. Billinas Bench Water Ass'n, 225 P. at 999. In this case,
the BOCC published, posted, and mailed notice to all the landowners
in the proposed district, and its actions complied with the
statute. All landowners were given notice and, in fact, none of
the plaintiffs have contended that the required notice was not
given. Therefore, the BOCC met this statutory requirement.
C. RIGHT TO PROTEST CREATION OF DISTRICT
After notice of the intent to create the resolution is given,
the affected landowners must be given the opportunity to protest
the creation of the district. Section 7-12-2109, MCA, provides, in
pertinent part:
At any time within 15 days after the date of the first
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publication of the notice of the passage of the
resolution of intention, any owner of property liable to
be assessed for said work may make written protest
against the proposed work or against the extending or
creation of the district to be assessed, or both. Such
protest must be in writing, identify the property in the
district owned by the protestor, and be signed by all
owners of the property. . . .
Here, the BOCC mailed the Notice of Resolution of Intent and public
Hearing on April 30, 1992. This notice contained the following
language:
Any owner of property within the proposed district may
makeprotest against the creation of the district. Such
protest must be in writing, identify the property in the
proposed district by legal description or PIN number, and
be signed by all owners of the property. Protests must
be deliveredtothe Countv Treasurer/Clerk and Recorder's
Office no later than 5~00 v.m.. on Mondav, Mav 18. 1992.
. . .
This notice contained all the statutory requirements and gave the
affected landowners the opportunity to protest the creation of the
CGRID. Again, the plaintiffs have not alleged that they were not
given the statutory fifteen days to file written protests. The
BOCC complied with the third step in the statutory process.
D. HEARING ON PROTESTS
After all written protests have been filed, a hearing on those
protests must be held. Section 7-12-2111, MCA, provides, in
pertinent part:
(1) At the next regular meeting of the board of county
commissioners after the expiration of time within which
protest may be made, the board shall proceed to hear and
pass upon all protests so made, and its decision shall be
final and conclusive. The board may adjourn said hearing
from time to time.
The importance of hearing and passing on the protests is
illustrated by 5 7-12-2112, MCA, which provides, in pertinent part:
11
(1) Except as provided in subsection (2), no further
proceedings shall be taken for a period of 6 months from
the date when said protest was received by the county
clerk when the board of county commissioners finds that
such protest is made by the owners of property in the
district to be assessed for more than 50% of the cost of
the proposed work, in accordance with the method or
methods of assessment described in the resolution of
intention.
Pursuant to this statute, the affected landowners can 'Ublock*' the
proposed district, for a period of six months, by filing an
adequate amount of protests.
On May 19, 1992, the BOCC held a public hearing to determine
the validity of the protests which had been filed by affected
landowners. At that time, staff members informed the BOCC that
more time was required to research the validity of certain
protests. The hearing was then publicly adjourned and continued to
May 26, 1992. At the May 26 hearing, staff members again requested
additional time, and the BCCC again publicly adjourned and
continued the hearing until May 25, 1992.
One of the primary issues raised by the county staff at the
May 28 hearing was that of ownership. The BOCC was required to
determine ownership of each affected parcel to determine the
validity of certain protests and to ascertain if the proper owners
registered a protest.
Section 7-12-2110, MCA, defines "owner*' as the person owning
the fee, the person with legal title, or the person in possession
of the land. Section 7-12-2105, MCA, requires that the names of
the owners of the affected land be taken from the last completed
assessment roll for state, county, and school district taxes.
12
Based on these statutes, and on 5 7-12-2109, MCA, which requires
that the written protest be signed by all owners of the property,
the BDCC required that all owners listed on the assessment roll
sign the written protest. If that was not done, the BOCC rejected
the protest.
For example, Laughing Water signed a written protest on three
parcels owned jointly by him and India Supera. However, Ms. Supera
was out of the country and did not sign the protest. Mr. Water
attempted to file a protest and signed Ms. Supera's name by power
of attorney. However, it was discovered that Mr. Water had no
written power of attorney from Ms. Supera. To have any legal
authority, a power of attorney must be given pursuant to a written
instrument. See 95 70-15-304 and 72-5-501, WCA. In this case, Mr.
Water presented no written power of attorney, and the BOCC properly
concluded that the protest filed by Mr. Water must be rejected,
because all owners did not sign the protest as required by 5 7-12-
2109, MCA. Bob Scow also filed a protest by power of attorney on
behalf of Mohammad Iianif, which was accepted by the SOCC, because
Mr. Scow presented a written power of attorney.
The BOCC rejected the protest of Don Lais on two parcels,
because the county assessment records revealed that the two parcels
were owned by Don Lais and Luanna Cowen. Because Ms. Cowen did not
sign the protest, it was rejected. At the District Court hearing
on August 11, 1992, the plaintiffs admitted a quit claim deed from
Ms. Cowen to Mr. Lais, and the protest was subsequently accepted.
In addition, the BDCC allowed two landowners, who had filed
13
written protests prior to the Way 18, 1992, deadline, to rescind
the protests after that deadline. Leah Tursich filed a written
protest: however, it was not signed by the other owner of the
parcel, Joe Tursich. Both parties signed the rescission. In
addition, Dorothy Carrico signed a protest and then rescinded the
same. We note that, based on the analysis above, Ms. Tursich's
protest was not valid in any case, because all owners of the
property had not signed the protest. Therefore, whether the BCCC
properly accepted her rescission is moot. However, we must address
whether the BCCC properly accepted the rescission of Ms. Carrico.
We have not previously ruled on whether a board can accept a
rescission under its discretionary authority "to hear and pass upon
all protests." Section 7-12-2111, MCA. However, we have
previously ruled on a similar issue in Ford v. Mitchell (1936), 103
Mont. 99, 61 P.2d 815. In Ford, the plaintiff sought to restrain
the Secretary of State from certifying an initiative. In
discussing the withdrawal of names from the initiative petition, we
stated that '*any person signing the petition has an absolute right
to withdraw his name at any time before the person or body created
by law to determine the matter submitted by the petition has
finally acted.n Ford, 61 P.2d at 822. We apply this reasoning to
the case at hand, and hold that a landowner has the right to
withdraw his or her protest prior to the time the board holds the
hearing to pass on the protests. Therefore, when Ms. Carrico
rescinded her written protest prior to the May 19, 1992, hearing,
her rescission was valid and the BOCC properly accepted the same.
14
After the SOCC heard and passed on all the protests, the total
protest vote on May 28, 1992, totaled 44.5% of the eligible
property values. We note that, notwithstanding, had the BOCC
accepted every written protest which was filed, including those of
Mr. Water, Ms. Supera, and Mr. Lais, and rescinded those who no
longer wished to protest, including Ms. Tursich and Ms. Carrico,
the total amount of protests would have been 48.65%, which was not
enough, under 5 7-12-2112, MCA, to prevent the BOCC from proceeding
to create the CGRID.
The plaintiffs have made issue of the fact that the 8OCC
adjourned the Way 19, 1992, meeting until Way 26, 1992, and then
again until Way 28, 1992. However, we note that 5 7-12-2111, MCA,
specifically states that the "board may adjourn said hearing from
time to time." In this case, the adjournment of the hearing was
necessary to allaw the staff to adequately research and prepare
responses to certain protests. The BOCC adjourned each hearing
with a specific time and place given for continuation of the
hearing, and was authorized to do so under 5 7-12-2111, MCA. We
hold that the BOCC complied with the statutory requirements for
holding a public hearing to pass on the protests.
E. RESOLUTION CREATING DISTRICT
If, pursuant to § 7-12-2112, MCA, the proposed district is not
*'blocked*t by the affected landowners, the board has the power to
create the proposed district. Section 7-12-2113, MCA, provides, in
pertinent part:
(1) Before ordering any of the proposed improvements, the
board of county commissioners shall pass a resolution
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creating the special improvement district in accordance
with the resolution of intention theretofore introduced
and passed by the board.
In this case, the affected landowners did not present sufficient
valid protests to prohibit the DOCC from passing a resolution
creating the CGRID and the DOCC, within its authority, passed
Resolution No. 1992-65 on Way 28, 1992, in compliance with
statutory requirements.
F. RESOLUTION FOR LEW AND ASSESSMENT OF TAX
After the board passes the resolution which creates the rural
improvement district, it must pass a resolution to levy and assess
a tax against the affected landowners. Section 7-12-2158, MCA,
provides, in pertinent part:
(1) To defray the cost of making or acquiring
improvements in any special improvement district, the
board of county commissioners shall by resolution levy
and assess a tax upon all benefited property in the
district created for such purpose, by using for a basis
for such assessment the method or methods provided for by
this part and described in the resolution of intention.
The statute further provides a list of particulars the resolution
must contain. In this case, the BOCC adopted a resolution to levy
and assess taxes on August 18, 1992. The resolution adopted by the
ROCC complied with the statutory requirements, and the plaintiffs
have not alleged otherwise.
G. NOTICE OF RESOLUTION FOR LEW AND ASSESSMENT OF TAX
After adopting the resolution for levy and assessment of
taxes, the board must give notice of that resolution. Section 7-
12-2159, RCA, provides, in pertinent part:
(1) A notice, signed by the county clerk and stating that
the resolution levying a special assessment to defray the
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cost of making the improvements is on file in the office
of the county clerk and is subject to inspection, shall
be:
(a) published as provided in 7-1-2121;
(b) mailed to the owner of each lot, tract,
or parcel of land to be assessed . . .;
and
Cc) mailed to such other persons known
to the clerk to have an ownership
interest in the property.
In addition, the notice must state the time and place in which
objections to the final adoption of the resolution will be heard by
the board. Section 7-12-2159(2), RCA.
In this case, legal notice was mailed on August 20, 1992, and
published as required by statute on August 21 and 28, 1992. Again,
the plaintiffs have not alleged that proper notice of the
resolution for levy and assessment of taxes was not given, and we
hold that the DOCC complied with the seventh step in the process of
creating a rural improvement district.
H. HEARING ON PROTEST
After notice of the resolution for levy and assessment of
taxes is given, the board must "meet and hear all such objections"
as the affected landowners may present. Section 7-12-2160, RCA.
In this case, the DOCC held a hearing on September 3, 1992, in
which it heard all objections, both regarding the assessment and
the CGRID process itself. By holding the hearing, the DOCC
satisfied its statutory requirement. The DOCC chose not to
reconsider the adoption of the CGRID, and it was not required to do
so under the statutory scheme enacted by the legislature.
I. DELIVERY OF RESOLUTION
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The last reguirement in the creation of a rural improvement
district mandates that the final resolution creating the rural
improvement district be delivered to the county treasurer within
two days after its passage. Section 7-12-2160(2), FICA. Here, the
BOCC properly forwarded the resolution to the treasurer for
assessment purposes, and the plaintiffs have not challenged the
BOCC's compliance with this final statutory step.
In summary, after reviewing each and every one of the nine
statutory steps required to complete the process of creating a
rural improvement district, we conclude that the BOCC complied with
each of these requirements.
III - FAILURE TO HOLD ADEQUATE PUBLIC HEARINC
The District Court held that the BOCC failed to hold adequate
public hearings when it created the CGRID. We disagree.
In its March 10, 1993, order, the District Court stated that
the plaintiffs had been denied their constitutional and statutory
rights of a fair hearing and public participation, as no public
comment or participation was solicited at the May 26, 1992, or May
28, 1992, hearings. As stated above, § 7-12-2111, MCA, allows the
board to adjourn these hearings. Based on our discussion above, it
is clear that the BOCC followed each and every step in the nine-
step statutory process when it created the CGRID. The legislature
has designed the process a board of county commissioners must
follow to create a rural improvement district. Whether or not the
opportunity for more public participation should be given is a
matter left to the discretion of the legislature. Given the
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statutory requirements now in place, we hold that the BOW's
hearings complied with those mandates. The District Court erred in
concluding that the BOCC failed to comply with the statutes and in
requiring the BOCC to delete or refund the CGRID assessments and to
re-notice the hearings and provide further opportunity to
participate.
Reversed.
We Concur:
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