NO. 93-069
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CITY OF KALISPELL, a municipal corporation,
Plaintiff and Appellant,
V.
. I
FLATHEAD COUNTY, a political subdivision
of the State of Montana, and the FLATHEAD
BOARD OF COUNTY COMMISSIONERS,
Defendants and Respondents,
JOSEPHINE SIDERIUS,
Intervenor and Cross-Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Glen Neier, City Attorney, Kalispell, Montana
For Respondents:
Thomas J. Esch, Flathead County Attorney,
Dennis J. Hester, Deputy County Attorney,
Kalispell, Montana; Richard DeJana,
Kalispell, Montana
Submitted on Briefs: June 1, 1993
Decided: August 31, 1993
Filed:
Justice James c. Nelson delivered the Opinion of the Court.
This is an appeal and cross-appeal from an Eleventh Judicial
District Court, Flathead County judgment, granting summary judgment
to the Intervener on two issues and denying summary judgment on a
third. We dismiss the appeal and remand.
We restate the issue on appeal as follows: is the decision of
the board of county commissioners to conditionally approve a
preliminary subdivision plat appealable?
The City of Kalispell and Flathead County have established the
jurisdictional area of their city-county planning board pursuant to
5 76-l-504, MCA. The planning board formulated a master plan for
the jurisdictional area which was adopted by the City of Kalispell
(the City) and Flathead County (the County) in 1986. The
Intervener owns an approximately 40 acre property which she wants
to subdivide and which is located outside but within 3 miles of the
corporate city limits of the City and within the jurisdictional
area of the city-county planning board. This subdivision is at
issue in the present action.
In July of 1991, Intervener applied for preliminary plat
approval for a 5 lot subdivision of her property to be named Ashley
Business Park. In August of 1991, the Flathead Regional
Development Office (FRDO) provided a report to the Board of
Commissioners of Flathead County (the County Board), reviewing,
commenting on, and recommending denial of, the application for the
subdivision. The FRDO report concluded that the proposed
subdivision was not in conformity with the master plan which had
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designated the area encompassing the proposed subdivision as being
appropriate for agricultural use. Additionally, the FRDO report,
for the most part, weighed the criteria specified in 5 76-3-608,
MCA, against the proposed subdivision.
Similarly, on presentment of the proposed subdivision to the
City for its review and comment, the City adopted a resolution
opposing the granting of preliminary subdivision approval by the
County Board.
The journal of the County Board reflects that it reviewed the
Intervener's application for plat approval in September of 1991.
It adopted the FRDO's findings of fact with two amendments.
However, despite the recommendation of the FRDO that the proposed
subdivision be denied and the City's opposition, the County Board,
without making written findings of its own, granted preliminary
plat approval to Ashley Business Park.
The City filed a complaint in the District Court on October 4,
1991, contending that the County Board's action in approving the
preliminary plat was illegal because its decision amounted to spot
zoning in an unzoned area: because the preliminary plat was not in
conformity with the City-County Master Plan: and because the
decision was not supported by substantial evidence and was
arbitrary, capricious and an abuse of discretion. The City
requested judgment that the County Board's approval of the
preliminary plat was null and void and that the court prohibit the
County Board from approving the final plat until it conforms to the
City-County Master Plan.
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.-
The Intervenor filed a motion for summary judgment in the
action on the grounds that the approval by the County Board was
supported by substantial evidence and that, as a matter of law,
there could be no spot zoning. The Intervenor brought a second
motion for summary judgment on the basis that the City lacked
standing in the action.
Ultimately, the trial court ruled:
1. That Intervener's Motion for Summary Judgment on the
issue of the Plaintiff's lack of standing is DENIED.
2 . That Intervener's Motion for Summary Judgment on the
issue of whether the Defendant's preliminary plat
approval of a subdivision need not comply with the master
plan is GRANTED.
3 . That Intervener's Motion for Summary Judgment on the
issue of spot-zoning is GRANTED.
This appeal by the City followed.
On appeal, the parties raise significant issues of first
impression concerning whether the City has standing to bring this
action, whether, and to what extent, the master plan must be used
by the county board in the subdivision review process, and whether,
in this case, that process was used to illegally spot zone in an
unzoned area.
Notwithstanding, we must decline to rule on those issues at
this time by reason of our decision in Sourdough v. Board of County
Com'rs (1992), 253 Mont. 325, 833 P.2d 207.
That case involved the appeal by an intervening party from the
county board's conditional approval of a preliminary subdivision
plat. In affirming the district court's dismissal of the
petitioner's appeal from the county board's action, we held that
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the appeal was improperly taken under § 76-2-110, MCA, as that
statute deals with planning and zoning issues. We also held that
5 z-4-702, MCA, could not serve as the basis for appeal as the
county board of commissioners is specifically excluded from the
agency definition of the Montana Administrative Procedure Act via
§ 2-4-102(2)(b), MCA.
Finally, since that case, like the present one, was a
subdivision case, we held that there was no mechanism under the
Montana Subdivision and Platting Act, Title 76, Chapter 3, MCA, for
appealing from the conditional approval of a preliminary
subdivision plat. Specifically, we observed that, "[t]he
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." Sourdough
833 P.2d at 208. In dismissing the appeal we found it unnecessary
to weigh the conduct of the county board and the exercise of its
discretion in conditionally approving the preliminary plat.
In his special concurrence, Justice Trieweiler found that it
was I'... anomalous that the legislature would enact specific
criteria, such as those found in § 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." Sourdouoh, 833
P.2d at 210.
We note, however, that since our decision in Sourdough was
handed down, the legislature enacted significant amendments to the
Montana Subdivision and Platting Act but still declined to provide
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a statutory method for appealing from the conditional approval of
a preliminary subdivision plat. See House Bill 408, Section 5,
Chapter 272, Laws 1993, effective April 6, 1993.
While the dissent argues that the majority has, sua snonte,
decided this case on an issue not raised or briefed by the parties,
the Intervenor did, citing Sourdouqh, argue that there is no appeal
from the conditional granting of a preliminary plat and that,
therefore, I' . ..there can be no standing to bring an action that
cannot be brought." Intervener went on to observe that such a
ruling was understandable because "...[u]ntil the land owner has
complied with the conditions of the preliminary plat, there is no
risk of a case or controversy... [and that] [i]t is upon submission
and approval of the final plat, that the issue is ripe for judicial
review."
Notwithstanding, the City, in its reply brief filed after
Intervener's brief, chose not to discuss, meet or even mention the
citation to Sourdough by the Intervenor. We assume that if the
City had disagreed with Intervener's interpretation of or reference
to Sourdouoh, it would have said so.
That aside, for this Court to simply ignore a dispositive
precedent decided within the last year because the parties
themselves chose to avoid it or to not entirely rely on that case,
merely creates confusion and uncertainty in the law.
In Sourdouah, the plaintiff appealed the county board's
approval of a preliminary plat by requesting that a writ of
mandamus issue directing the county board to appoint the city
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-.
planning board to review the entire project and reverse the county
board's findings of fact. Notwithstanding, in affirming the
dismissal of the complaint by the district court for failure to
state a claim, we held that there is no appeal process from the
approval of a preliminary platunder !j 76-2-110, MCA, (planning and
zoning), under §§ 76-3-101, MCA, et. seq., (The Subdivision and
Platting Act), or under 5 2-4-702, MCA, (MAPA).
Similarly, the City, here, filed a complaint for declaratory
judgment, injunction, writ of mandamus or other appropriate writ
praying that the county board's approval of the preliminary plat be
adjudged null and void and praying that the county board be
prohibited from approving the final plat unless it conforms to the
master plan. Since we declined "to fabricate" an appeal process
under Sourdoush, we must, if stare decisis means anything, decline
to fabricate an appeal process in the instant case. If mandamus
did not lie in Sourdouqh: it does not lie here. If there was no
appeal process available in the former case; there is none here,
either.
While we did not discuss the availability of a writ of review
in Sourdouoh, neither did the City, here, ask for such a writ or in
any respect comply with the provisions of Title 27, Chapter 25,
MCA, in seeking that relief, if that was its intention. Aside from
referring to declaratory judgement, injunction, mandamus or other
appropriate writ in the title of its complaint, those forms of
relief are not otherwise referred to or prayed for in the City's
complaint. Under the circumstances, we are no more inclined to
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fabricate pleadings for the parties than we are to fabricate
remedies.
This Courtls opinion is not to be read as rendering
meaningless the statutory requirements of the Subdivision and
Platting Act. Again, as in Sourdoush, we make no comment on the
county board's conduct in this case nor do we pre-judge any of the
substantive issues raised by the parties in this appeal. The
discussion and resolution of those matters will simply have to
await an appeal after judicial review of the approval or denial of
a final subdivision plat in this or some other case and controversy
directly involving those issues.
Finally, and notwithstanding the adoption of major revisions
to the Subdivision and Platting Act by the 1993 Legislature, that
same body has chosen not to enact an appeal process from the
approval of a preliminary plat at any time since the Act was
adopted. While the wisdom of that decision may be questionable
given the importance of the requirements of the Act and the
potential for harm if the law is disregarded at a critical stage of
the review process, it is not the prerogative of this Court to
judicially remedy the situation.
Accordingly, our decision in Sourdouah is dispositive, and we
are constrained to dismiss this appeal as being premature.
Furthermore, and consistent with that decision, the District
Court should not have entertained the City's appeal from the County
Board's decision. Accordingly, we also remand to the District
Court with instructions that it enter an order which vacates its
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findings of fact, conclusions of law and judgment dated October 29,
1992 and filed November 2, 1992, and which dismisses the City's
complaint without prejudice.
Appeal dismissed and case remanded.
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
We have repeatedly held that we will not decide cases on
appeal based on issues which have never been raised in the District
court. Hanleyv.Dept. of Revenue (1983), 207 Mont. 302, 306, 673 P.2d
1257, 1259. The issue which the majority finds controlling in this
case was never raised in the District Court, it was never part of
the decision appealed from, and it has never been briefed nor
argued as an issue on appeal. According to the rules we apply to
the district courts of this state, we do not have jurisdiction to
decide the issue which the majority decision finds dispositive. See
hzreMam~ageofDiPaSqua~e (1986), 220 Mont. 497, 499, 716 P.2d 223,
225.
While the Sourdough decision was mentioned briefly in the
intervener's brief as it related to the issue of standing, the
right of the City to appeal the decision of the County
Commissioners was not an issue on appeal, and the City has had no
opportunity to argue, brief, or respond to the legal issue on which
the majority bases its decision to dismiss the City's appeal.
Considering our traditional notions that issues are decided
most reliably after thorough argument by adversaries, how can this
result be fair?
I concurred with the result of the Sourdough decision because
the plaintiff in that case sought to appeal a county commission's
conditional approval of a preliminary subdivision plat pursuant to
10
§§ 76-2-110 and 2-4-702, MCA. After briefing the issue and hearing
argument, the district court concluded, and I agreed, that the
former statute pertained only to appeals from planning and zoning
decisions and the latter statute was, by definition, inapplicable
to the decisions of county commissioners. That case did not
address the issue of whether there is any other procedure by which
county commissions can be compelled to perform their statutory
obligation under the Montana Subdivision and Platting Act found at
55 76-3-101 through -614, MCA.
In this case, the City of Xalispell did not attempt to appeal
a decision of the County Commissioners based on the aforementioned
statutes. It filed a complaint for declaratory judgment and
injunction and for a writ of mandamus or other appropriate writ.
The majority opinion has dismissed the City's appeal to this
Court for the reason that the Subdivision and Platting Act does not
provide for an appeal from a county commission's decision to
conditionally approve a preliminary plat. However, writs of
mandamus are specifically intended for situations like this where
there is no adequate remedy in the ordinary course of law. Section
27-26-102, MCA. Furthermore, a writ of mandamus may be issued by
the district court to a board of county commissioners to compel the
performance of an act which they are obligated to perform as a duty
of their office.
The City has complained that the Flathead County Commissioners
have refused to perform several duties which they are required to
perform under the Subdivision and Platting Act. It is alleged that
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the Commissioners approved the subdivision in question without
making specific findings that the subdivision would be in the
public interest, as required by § 76-3-102, MCA, without
determining that it conforms to the local master plan, as required
by 3 76-3-604, MCA, and without making written findings that it
considered the specific criteria set forth in § 76-3-608, MCA.
Furthermore, the City has alleged that without complying with
these statutory requirements, the County Commission was without
authority to approve this subdivision. This was, therefore, an
appropriate situation for a writ of review, pursuant to
5 27-25-102, MCA, or a writ of mandamus pursuant to 5 27-26-102,
MCA.
It is, perhaps, for these reasons that at no stage in the
proceedings before the District Court or on appeal has either
Flathead County or the intervening developer moved to dismiss the
City of Kalispell's complaint, or its appeal from the judgment of
the District Court, pursuant to our decision in Sourdough. It is
simply wrong for this Court to suasponte decide this case on a basis
that has never been suggested by the parties to the case.
The Montana Subdivision and Platting Act is extremely
important to the future quality of life in Montana. Its purpose is
to:
[Plromote the public health, safety, and general welfare
by regulating the subdivision of land; to prevent
overcrowding of land: to lessen congestion in the streets
and highways; to provide for adequate light, air, water
supply, sewage disposal, parks and recreation areas,
ingress and egress, and other public requirements; to
require development in harmony with the natural
environment . . . .
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Section 76-3-102, MCA.
Nowhere are these considerations more relevant than Flathead
County which has, in recent years, experienced the most rapid
growth in Montana.
It is to accomplish these purposes that county commissioners
who are asked to approve subdivisions are required to consider the
master plan adopted by the county. Section 76-3-604, MCA. It is
to accomplish these purposes that the county commissioners are also
required to consider whether the subdivision is in the public
interest and issue specific findings of fact which weigh criteria
such as the need for the subdivision, effects on agriculture,
effects on local services, effects on the natural environment,
effects on wildlife and wildlife habitat, and effects on public
health and safety. Section 76-3-608, MCA.
The majority's decision renders these essential statutory
requirements meaningless because the practical effect of this
decision is to preclude any form of judicial review when two out of
any three county commissioners around the state simply refuse to
comply with the statutes. The fact that this case was decided on
this basis, without the benefit of any briefing or argument by the
parties, is particularly troubling.
It is ironic that, because the Montana Legislature recognized
the threat to Montana's character, beauty, and public health from
uncontrolled development, it expended considerable time and effort
during the past legislative session to strengthen subdivision
regulations. See House Bill No. 408, 1993 Mont. Laws, ch. 272,
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effective April 6, 1993. Yet, by virtue of this decision, those
regulations are meaningless because they cannot be judicially
enforced.
The majority concludes that the City's "appeal" is premature.
However, the City's complaint to the District Court was not an
"appeal," and if it was, the majority should explain why it was
"premature." If it is being dismissed due to the lack of a
statutory appeal mechanism in the Subdivision and Platting Act,
then there is no reason to distinguish between preliminary plat
approval and final plat approval. There is no statutory mechanism
for appealing either. If the same reasoning applies to both
preliminary and final decisions, then why is this "appeal" simply
"premature"?
In response to this dissent, the majority argues that because
the intervenor made passing reference to the Sourdough decision while
citing it for other reasons, the issue upon which this case was
decided was properly raised on appeal. However, the issues, as set
forth in the parties' briefs, made clear that the issue decided by
the majority was not raised on appeal. The appellant presented the
following issues for review:
I. When a County takes erroneous, arbitrary,
capricious action, or abuses its discretion, in a
subdivision approval, does a City have standing to
challenge the action when the City is a co-adopter
of the Master Plan and !j 76-3-601, M.C.A.,
authorizes review and comment by the City?
II. Is Master Plan compliance part of the public
interest criteria of the Subdivision & Platting
Act, or does the County have authority to ignore
the Master Plan?
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III. Should the principles of "spot zoning" be applied
to subdivisions in unzoned areas?
The issues, as set forth by the County and the intervenor,
were simply variations of the same three issues set forth above.
It should be clear from the majority's own opinion that the issue
it decided was not raised by the parties. The majority's opinion
points out that "[w]e restate the issue on appeal as follows
. . . ."
If the issue that the majority resolved was actually raised by
the parties, why was it necessary to restate it?
The majority considers it significant that the City chose not
to respond to the intervener's reference to the Sourdough decision
when the City filed its reply brief. There was no reason for the
City to respond. Sourdough was simply not relevant to the issues
raised in this appeal.
Perhaps most importantly, none of the arguments made by the
majority in support of its dismissal of this appeal were made by
any party in the District Court. This fact is the most logical
explanation for why the complaint filed by the City was not refined
to the majority's satisfaction. The City, in its complaint, sought
a writ of mandamus or other appropriate writ. The purpose of
requiring that objections to the inadequacy of a parties' complaint
be made in the trial court is to give the party who filed the
complaint an opportunity to correct any alleged deficiency. The
City was not given that opportunity in this case because there was
no objection to its complaint on the grounds raised by the majority
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until the opinion was issued by this Court. It is a little late
for the City to correct the majority's objections at this time.
Finally, it is appropriate to comment on the majority's
statement that since the Legislature did not provide for a right of
appeal from plat approval, this Court would not "fabricate" an
appeal process. Such judicial restraint might be admirable if this
was in fact an appeal. However, it is not. This case was
commenced by the City of Kalispell when it filed a complaint for a
writ of mandamus or other appropriate writ to compel the Flathead
County Commissioners to perform their public duty. And, whether
Commissioners can be compelled to comply with the terms of this
State's Subdivision and Platting Act by mandamus or certiorari was
never addressed in the Sourdough opinion.
Furthermore, the majority's reluctance to "fabricate" a right
of appeal is selective at best. In the very same opinion, this
Court goes on to advise the parties that judicial review will have
to await approval of the final plat map. The majority states that:
The discussion and resolution of those matters will
simply have to await an appeal after judicial review of
the approval or denial of a final subdivision plat in
this or some other case and controversy directly
involving those issues.
The majority must have overlooked the fact that neither did
the Legislature provide an appeal process from final subdivision
plat approval. Would the same Court which showed such remarkable
restraint by declining to "fabricate" an appeal process from a
preliminary plat approval turn around and "fabricate" an appeal
process from a final plat approval? If not, then as previously
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mentioned, the provisions of the Subdivision and Platting Act are
truly meaningless.
For these reasons, I dissent from the majority opinion. I
would affirm the District Court's conclusion that the City of
Kalispell had standing to complain of the County Commission's
approval of this subdivision. I would reverse that part of the
District Court's summary judgment which dismissed the City of
Kalispell's complaint, and remand this case for further hearing to
determine whether there is a factual basis for the issuance of the
writ of mandate or other appropriate writ sought by the City of
Kalispell.
I J stice
Justice William E. Hunt, Sr., joins in the foregoing dissent.
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