No. 92-300
IN THE SUPREME COURT OF THE STATE O F MONTANA
THE STATE OF MONTANA EX REL.
VERA L. DREHER,
Plaintiffs and Appellants,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sher'iock, Judge presiding.
COUNSEL OF RECORD:
F o r Appellant:
Jacqueline T. Lenmark, Keller, Reynolds,
Drake, Johnson & Gillespie, Helena, Montana
For Respondent:
Mike McGrath, Lewis & Clark County Attorney,
K. Paul Stahl (Argued), Lewis & Clark Deputy
County Attorney, Helena, Montana
For Amicus Curiae:
Tom K. Hopgood, Luxan & Murfitt, Helena,
Montana; James G. G o e t z , ~ichardJ. Dolan,
Goetz, Madden & Dunn, Bozeman, Montana;
Mona Jamison, Attorney at Law, Helena, Montana
Submitted: February 10, 1993
Decided: March 31, 1993
Filed:
. . -
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Vera L. Dreher appeals from an order of the First
Judicial District Court, Lewis and Clark County, dismissing her
action seeking a writ of mandamus and declaratory judgment that the
Montana Subdivision and Platting Act is unconstitutional. We
affirm.
Appellant presents several issues and sub-issues for this
Court to review. We restate the issues as follows:
1. Does the Montana Subdivision and Platting Act
impermissibly delegate legislative authority to the Lewis and Clark
County Commissioners?
2. Does the "rebuttable presumption" of evasion contained in
the Lewis and Clark County subdivision regulations violate the due
process rights of appellant?
3. Does the retroactive use of valid subdivision exemptions
to establish an impermissible "patternf1 land divisions impair
of
the substantive rights of appellant?
This case comes on for appeal with an agreed statement of
facts. In 1962, Dreher and her husband purchased approximately 132
acres of land in Colorado Gulch, located just west of Helena. From
1963 until 1989, Dreher sold various parcels of the original tract
to other parties. Many of the conveyances were under the
appropriate exemptions of the Montana Subdivision and Platting Act
(Act).
On June 7, 1988, the Lewis and Clark County Board of
Commissioners approved a resolution adopting subdivision
regulations for the County under the authority of 5 76-3-501, MCA.
The regulations included "Criteria for Review of Claimed Exemptions
from Provisions of Subdivision and Platting Act." Subdivision
Regulations Appendix J, J-1 to J-7.
On April 3, 1989, Dreher applied for approval of the creation
of a six-acre tract based on an occasional sale exemption. On
May 9, 1989, Lewis and Clark County denied the request on the basis
that the proposed division did not comply with the newly enacted
county subdivision regulations.
The regulations in question creates a rebuttable presumption
that the division was an inappropriate use of the occasional sale
exemption. The rebuttable presumption arose because previous
transactions within the original parcel created three or more
parcels that were subdivided from the original tract; the division
fit a pattern of land divisions and transfers; and the division was
similar to prior transfers from the original tract of land. See,
Subdivision Regulations Appendix J, Section D(4) (b)( 3 ) , (5),
and (6).
Based upon the County's denial of the proposed division,
appellant filed an action in District Court seeking a writ of
mandamus and declaratory judgment alleging the unconstitutionality
of the Act. The District Court ruled against appellant on
April 17, 1992. It is from this order that appellant appeals.
I.
Does the Montana Subdivision and Platting Act impermissibly
delegate legislative authority to the Lewis and Clark County
Commissioners?
When determining the constitutionality of a statute, we give
a strong presumption that the statute is constitutionally valid.
McClanathan v. Smith (1980), 186 Mont. 56, 606 P.2d 507.
Presumption of the validity applies to all legislative enactments
and it is this Court's responsibility to resolve all conceivable
doubts in favor of the validity of the statute when possible.
McClanathan, 606 P.2d at 512. The party challenging the
constitutional validity of a statute has the burden of proving its
unconstitutionality. McClanathan, 606 P.2d at 512.
The Montana Subdivision and Platting Act was enacted by the
Legislature in 1974 to give local government entities the power to
regulate subdivision development to protect the health, safety, and
welfare of the public. Sections 76-3-102 and -501, MCA.
Legislation enacted for such a beneficent purpose is to be
liberally construed. State ex rel. Florence-Carlton School
District No. 15-16 v. Board of County Commissioners of Ravalli
County (l978), 180 Mont. 285, 291, 590 P.2d 602, 605. Accordingly,
the exemption provisions of the Act are to be generally given a
narrow interpretation. Florence-Carlton School Dist., 590 P.2d at
605.
Section 76-3-501(1) and (2)' MCA, grants the following
authority to local entities:
(1) Before July 1, 1974, the governing body of
every county, city, and town shall adopt and provide for
the enforcement and administration of subdivision
regulations reasonably providing for the orderly
development of their jurisdictional areas ...
(2) Review and approval or disapproval of a
subdivision under this chapter may occur only under those
regulations in effect at the time an application for
approval of a preliminary plat or for an extension under
76-3-610 is submitted to the governing body.
As set out in 5 76-3-207, MCA, the Act exempts certain
conveyances including "occasional sales1'from its mandate:
(1) ... [Ulnless the method of disposition is
adopted for the purpose of evadins this chapter, the
following divisions of land are not subdivisions under
this chapter .. .
(d) a single division of a parcel outside of
platted subdivisions when the transaction is an
occasional sale . . ..[Emphasis added.]
An woccasional sale" is defined as "one sale of a division of
land within any 12-month period." Section 76-3-103(7), MCA.
Appellant claims that the statutory preamble to the Act's
exemptions amounts to an unconstitutional delegation or usurpation
of legislative authority on the basis that the Act contains
insufficient guidelines as set out in 5 5 76-3-102 and -501, MCA.
Appellant relies primarily upon Douglas v. Judge (1977), 174 Mont.
32, 568 P.2d 530, which is based upon our holding in Bacus v. Lake
County (1960), 138 Mont. 69, 354 P.2d 1056.
In Bacus, the Legislature gave power to the county boards of
health to enact rules and regulations "pertaining to the prevention
of disease and the promotion of public health" over their areas of
jurisdiction "but in no instance shall such rules and regulations
be less effective than, nor in conflict with, rules and regulations
promulgated by the state board of health." Bacus, 354 P.2d at 1060
(citing 5 69-809 R.C.M. (1947)). We held that "if the legislature
fails to prescribe with reasonable clarity the limits of power delegated to an administrative
agency, or if those limits are too broad, its attempt to delegate is a nullity.
Bacus, 354 P.2d at 1061. In order for the Legislature to properly
delegate authority to an administrative aclencv, the statutory
provisions must be "suficiently clear, definite, and certain to enable the agency to know
its rigizls and obligations." Bacus, 354 P.2d at 1061. In Bacus, we held
that the statute in question was unconstitutional because the
Legislature did not provide sufficient and definite standard for
the board's guidance. Bacus, 354 P.2d at 1063.
Bacus has been applied on various occasions. In Bell v.
Department of Licensing (1979), 182 Mont. 21, 594 P. 2d 331, we held
that regulations promulgated by the Montana Board of Barbers and
the Department of Professional and Occupational Licensing engrafted
additional licensing requirements that were not authorized by the
Legislature. We also held that where the Legislature failed to set
adequate guidelines and standards for the Board of Natural
Resources and Conservation's determination of projects eligible for
renewable resource development loans, the action amounted to an
6
unconstitutional delegation of authority. Doualas, 568 P.2d at
535. In White v. State (1988), 233 Mont. 81, 759 P.2d 971, we
held that the Legislature unconstitutionally delegated its power to
the Science and Technology Development Board. These cases are
distinguished from the present case.
The Montana Constitution delineates the power of county
government:
(1) A local government unit without self-government
powers has the following general powers:
(b) A county has leaislative, administrative, and
other powers provided or implied by law.
(2) The powers of ...
counties shall be liberally
construed. [Emphasis added.]
Mont. Const. art. XI, 5 4(l) (b) and (2).
Under the 1972 Constitution, the relationship between the
State, counties, and agencies was more defined in both function and
operation. Counties became constitutionally empowered and
possessed "leaislative, administrative, and other powers provided
or implied by law." The elected officials or county commissions
were entrusted with broad legislative powers by the 1972
Constitutional Convention because ofthe fundamental principle that
local affairs should be decided and regulated by local officials
who could be held accountable to their constituents. Mont. Const.
art. XI, § 4(1) (b).
Agencies, on the other hand, are statutorily created and are
part of the executive branch. Agency officials are not directly
accountable to the public. Agency powers are limited to specific
and definite guidance from the Legislature. State agencies, as a
result, have much more limited authority.
We have stated in State ex rel. Leach v. Visser (1989), 234
Mont. 438, 447, 767 P.2d 858, 863, that "governing bodies have the
power and duty to evaluate and determine from all the circumstances
whether the proposed division of land is based on a purpose to
evade subdivision requirements." In Leach, we adopted the opinion
of the Attorney General relating to the extent of authority given
county commissioners by the Act.
A local government may legitimately require one claiming
an exemption from the Act's requirements to make some
evidentiary showing that the exemption is justified.
... It would also be legitimate for the local
government to establish by rule some sort of hearing
procedure to allow the local government to evaluate the
evidentiary basis for the claimed exemption and to allow
or disallow it. . . . [A] regulation establishing
procedures for evaluation of a claimed exemption gives
substance to the Act's policy of local government control
of land use and is certainly consistent with the Act's
requirements.
Leach, 767 P.2d at 864 (quoting 40 0p. Att'y Gen. 58, 61-62
(1983)) .
In the past, this Court has struck down certain regulations
adopted pursuant to the Act. The stricken agency regulations
engrafted additional and contradictory requirements on the
subdivision statutes. State ex rel. Swart v. Casne (1977), 172
Mont. 302, 308, 564 P.2d 983, 986. This Court has also struck down
county regulations if they categorically deny an exemption from the
Act. Leach, 767 P.2d at 861.
However, a regulation which establishes procedures for
evaluation of claimed exemptions gives substance to the Act's
policy of local government control. Local governments are
authorized to establish procedures to evaluate a proposed
conveyance to determine if it is an attempted evasion of the Act.
Withers v. County of Beaverhead (1985), 218 Mont. 447, 450, 710
P.2d 1339, 1341. As stated by the Attorney General:
The local governing body should evaluate all relevant
circumstances in assessing the claimant's intent. These
circumstances might include, inter w, the nature of
the claimant s business ( ie. , whether the claimant is in
the business of dividing and selling land), the prior
history of the particular tract in question (i.e.,
whether this claimant has engaged in prior exempt
transactions involving the tract), and the proposed
configuration of the tract after the allegedly exempt
transactions are completed. ... A claimant who attempts
to engage in a pattern of exempt transactions which will
result in the equivalent of a subdivision without local
government review, should be denied exemption. If
necessary, the county attorney may take action to ensure
that conveyances do not occur in such circumstances.
5 76-3-301(3), MCA. To allow an exemption in such
circumstances would obviously subvert the Act's public
policy requiring a priori review of divisions of land
which may have substantial impact on public health,
safety, and general welfare. § 76-3-102, MCA. [Citation
omitted. ]
40 Op. Att'y Gen. 58, 62 (1983).
The constitutionality of the ltdelegationw power to regulate
of
subdivisions must be viewed under local government parameters and
not administrative agency parameters. The County Commission has
the power to make a determination as to whether or not the proposed
division is an evasion of the Act. The regulations are not
inconsistent and contradictory to the Act. They give notice to the
property owner as to what the County will look at in making a
determination as to whether or not an evasion exists in any
particular case. We hold that the Legislature did not impermissibly
delegate its authority to the ~ e w i s
and Clark County Commissioners
forthe regulation of subdivisions and that the Montana Subdivision
and Platting Act and the subdivision regulations adopted by Lewis
and Clark County pursuant to the Act are constitutional.
11.
Does the "rebuttable presumption" of evasion contained in the
Lewis and Clark County subdivision regulations violate the due
process rights of appellant?
Appellant complains that the rebuttable presumption of evasion
contained in the regulations is invalidly created, and further
asserts that the effect of the presumption is to change the burden
of proof. Discussions relating to the definition and use of
rebuttable presumption are primarily found in criminal cases. Both
parties cite Barrett v. United States (5th Cir. 1963), 322 F.2d
292, wherein the Fifth Circuit Court of Appeals reviewed certain
criteria to determine the constitutional validity of a rebuttable
presumption. Barrett involved the unconstitutional use of a
rebuttable presumption for a criminal conviction based on a
defendant's possession of a still and of carrying on the business
of a distiller based upon a showing of the defendant's unexplained
presence at the site of an unregistered still. Barrett, 322 F.2d
at 294. The Court held that for a rebuttable presumption to comply
with the due process clause:
[Plroof of the fact upon which the statutory presumption
is based must carry a reasonable inference of the
ultimate fact presumed.
. . . [I]t is not enough that the fact proved be
relevant to the ultimate fact presumed. The fact proved
must carry an inference of the fact presumed. Moreover,
the inference must not be "strained": it must be so
reasonably related to the fact proved as to tend to
establish the defendant's guilt.
Barrett, 322 F.2d at 297-98.
Because exemptions of statutes pertaining to health, safety,
and welfare of the public should be narrowly construed, a party
claiming the exemption should have the burden of proving his
entitlement to the exemption. We hold that the "rebuttable
presumption" of evasion contained in the subdivision regulations
does not violate due process.
Does the retroactive use of valid subdivision exemptions to
establish an impermissible "pattern" of land divisions impair the
substantive rights of appellant?
Appellant contends that the retroactive use of the prior valid
conveyances to establish a presumption is a taking without just
compensation. In determining whether a proposed transfer is a
violation of the Act, and therefore, an inappropriate use of the
exemption, local government officials need to examine the prior
history of developers and the tract in question. After such an
evaluation, an informed decision can be made regarding whether an
applicant is evading the Act.
In this instance, the plain language of the regulations does
not have a retroactive application. All of appellant's previous
transactions remain unaffected. We hold that the subdivision
regulations do not constitute a taking without just compensation.
We affirm.
/
We concur:
&hW
'
Justices
of ch&f ~ustice A. Turnage
J.