No. 01-654
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 115
HAROLD ENGLIN and MARY A. BROWN,
Plaintiffs and Appellants,
v.
BOARD OF COUNTY COMMISSIONERS,
YELLOWSTONE COUNTY, MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone,
Honorable Russell C. Fagg, Judge Presiding
COUNSEL OF RECORD:
For Appellants:
Kelly J. Varnes, Hendrickson, Everson, Noennig and Woodward,
Billings, Montana
For Respondent:
Dennis Paxinos, County Attorney; Mark A. English, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: January 31, 2002
Decided: June 4, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Harold Englin and Mary Brown (Owners) appeal from the judgment
entered by the Thirteenth Judicial District Court, Yellowstone
County, holding that the Board of County Commissioners’
(Commissioners) denial of the Owners’ zone change request was not
arbitrary or capricious. We affirm.
¶2 Englin and Brown raise the following issues on appeal:
¶3 1. Did the District Court err when it held that
the Commissioners’ zoning decision was not
arbitrary or capricious?
¶4 2. Did the District Court abuse its discretion by
excluding evidence of a subsequent zone change
application?
Facts and Procedural Background
¶5 Englin and Brown own three acres of land (the Property)
located at 1442 Ethelyn Avenue, Billings, Montana. They acquired
the Property by inheritance in 1982, at which time the Property was
zoned as Residential-9600. This zoning classification permits
single family residences with lot sizes no smaller than 9600 square
feet. The Property is bordered on the north by Beall Trucking
which is zoned Highway Commercial. To the south, the Property is
bordered by a single family residence and a vacant lot, both zoned
Residential-9600. To the east is a storage barn for a local
limousine service which is zoned Controlled Industrial. To the
west is the Lockwood Evangelical Church which is zoned Residential-
9600.
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¶6 In December 1989 the Owners applied for a zone change on the
Property from Residential-9600 to Highway Commercial. Highway
Commercial zoning classification permits commercial and service
businesses intended to provide services to the traveling public.
The Yellowstone County Zoning Commission (Zoning Commission)
recommended that the application for zone change be granted. On
December 21, 1989, the Commissioners denied the application.
¶7 In November 1997, the Owners again applied for a zone change
of the Property from Residential-9600 to Highway Commercial. The
Zoning Commission held a public hearing and subsequently
recommended denying the application. In a letter dated December 2,
1997, the Commissioners informed the Owners that it had denied
their application for a zone change.
¶8 The Owners then filed this action in the District Court,
arguing that the Commis-sioners’ denial of their 1997 zone change
application violated their due process rights because it was
arbitrary or capricious and that it constituted a taking by inverse
condemnation. The Commissioners filed a motion for summary
judgment and, after a hearing on the motion, the District Court
granted summary judgment in favor of the Commissioners.
¶9 The Owners appealed the summary judgment to this Court. We
affirmed the District Court as to the takings issue, but remanded
on the substantive due process claim because the Commissioners had
not issued specific findings in support of the denial of the zone
change request.
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¶10 After remittitur was filed, the District Court remanded the
case to the Commissioners “to provide separate findings as to why
it denied Appellants zone change request.” The Commissioners
provided the findings and the District Court held a hearing on the
substantive due process claim on July 11, 2001. Subsequently, the
court entered findings of fact and conclusions of law, dismissing
the claim. The Owners appeal.
Discussion
¶11 Did the District Court err when it held that the
Commissioners’ zoning decision was not arbitrary or capricious?
¶12 We review a district court’s findings of fact to determine
whether they are clearly erroneous. We review a district court’s
conclusions of law to determine whether the interpretation is
correct. Greater Yellowstone Coalition, Inc. v. Board of County
Commissioners of Gallatin County, 2001 MT 99, ¶ 20, 305 Mont. 232,
¶ 20, 25 P.3d 168, ¶ 20.
¶13 This appeal concerns the District Court’s conclusion that the
Commissioners did not act arbitrarily in denying the Owners’ zoning
change application. The Owners essentially seek review of factual
determinations by the District Court. However, if substantial
evidence supports the District Court’s findings and they are not
otherwise clearly erroneous, we will not substitute our judgment
for that of the trier of fact. Greater Yellowstone, ¶ 21.
¶14 The Fourteenth Amendment to the United States Constitution and
Article II, Section 17 of the Montana Constitution protect persons
from being deprived of life, liberty or property by state
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governmental action without due process of law. The guarantee of
due process has both a procedural and a substantive component.
Substantive due process bars arbitrary governmental actions
regardless of the procedures used to implement them and serves as a
check on oppressive governmental action. Newville v. State, Dept.
of Family Services (1994), 267 Mont. 237, 249, 883 P.2d 793, 800.
An examination of whether a person’s substantive due process rights
have been violated requires that we decide whether the challenged
governmental act is reasonably related to a legitimate governmental
objective. Newville, 267 Mont. at 249, 883 P.2d at 800.
¶15 Section 76-2-201, MCA, states that zoning regulations may be
adopted “[f]or the purpose of promoting the public health, safety,
morals, and general welfare.” Section 76-2-203(1), MCA, provides
that zoning regulations must be made:
in accordance with the growth policy and must be designed
to lessen congestion in the streets; to secure safety
from fire, panic, and other dangers; to promote public
health and general welfare; to provide adequate light and
air; to prevent the overcrowding of land; to avoid undue
concentration of population; and to facilitate the
adequate provision of transportation, water, sewerage,
schools, parks, and other public requirements.
¶16 “The purpose of zoning is not to provide for the highest or
best use of each particular lot or parcel of land within the zones
or community, rather it is to benefit the community generally by
the sensible planning of land uses taking into consideration the
peculiar suitabilities and most appropriate use of land throughout
the community.” Mack T. Anderson Insurance Agency v. City of
Belgrade (1990), 246 Mont. 112, 117, 803 P.2d 648, 651 (emphasis in
original). This Court will not sit as a super-legislature or
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super-zoning board. Anderson Ins., 246 Mont. at 120, 803 P.2d at
652.
¶17 In 1989, the Zoning Commission considered the factors
enumerated in § 76-2-203, MCA, and recommended that the
Commissioners approve the Owners’ zone change request. Although
the Commissioners copied verbatim the Zoning Commission’s findings,
they denied the zone change request. However, not all of the
findings relating to the statutory factors were positive. The
findings stated that the zone change was designed in accordance
with the comprehensive plan, it “should not create any more
congestion in the area than what is already found until
improvements of Ethelyn Avenue are made,” it “possibly may not
promote health and general welfare to the adjacent residential uses
due to the potential increase of noise, traffic, etc.,” and it may
decrease the value of a nearby church and residential dwelling.
¶18 In 1997, the Zoning Commission again considered the same
twelve factors after holding a public hearing and, unlike in 1989,
it recommended that the application for zone change be denied. It
found that the zone change “will not retain and improve existing
residential neighborhoods . . . will not protect against the
encroachment of incompatible or unrelated uses . . . could increase
traffic in the general area . . . [and] could alter the value of
buildings in the area.” The Commissioners again denied the zone
change request.
¶19 The Owners argue that the conflicting recommendations of the
Zoning Commission in 1989 and 1997 show that the Commissioners’
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decision was arbitrary. They state that “[p]roperty cannot
rationally at one time be acceptable for a Highway Commercial
zoning classification and then at another time be unacceptable when
none of the adjoining uses has been altered.”
¶20 County planning boards are required to make written
recommendations to the Commissioners, but these recommendations are
advisory only. Section 76-2-204, MCA. The Commissioners had the
discretion to reject the recommendation, particularly because the
1989 findings had both negative and positive factors. The
conflicting recommendations of the Zoning Commission do not
establish that the Commissioners acted arbitrarily. In any event,
the Commissioners had the discretion to accept or reject the
planning staff’s recommendation. The Owners did not appeal the
Commissioners’ 1989 denial, and it is not for this Court to address
that decision now.
¶21 Next, the Owners argue that the following findings of fact are
clearly erroneous: (1) “the Property’s access is not adjacent to a
primary or secondary highway as required, and, thus, the Property
would be difficult to serve the needs of tourist, traveler,
recreationist or the general traveling public;” (2) “granting the
zone change would increase the noise and traffic in a relatively
placid neighborhood;” (3) “granting the zone change would not be
compatible with the majority of surrounding land uses;” and (4)
“designating the Property as Highway Commercial would not be in
accord with the County’s Comprehensive Plan.”
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¶22 The Owners argue that the Property is only 330 feet from
Highway 87 East and is located in “very close proximity to the
Interstate 90, Lockwood/Billings interchange.” They note that
Highway Commercial zoning does not require the property to be
adjacent to an interstate highway.
¶23 Englin testified that the only access to the Property is over
a dirt road, the Property does not front a paved road or a major
roadway and the Property is not easily accessible. A map of the
area indicates as much. Therefore, after reviewing the record, we
conclude that substantial evidence exists for the District Court’s
finding that the location of the Property would make it difficult
to serve the needs of travelers.
¶24 Next, the Owners argue that noise was already a problem in the
neighborhood and that the neighborhood was not “placid.” Several
owners of adjoining lots testified at the public hearing about the
noise level from Beall Trucking and their concern that changing the
zoning on the Property would increase the noise in the
neighborhood. Although the evidence does not support the court’s
finding that the neighborhood is “placid,” substantial evidence
exists to support the finding that the zone change would increase
noise and traffic in the neighborhood.
¶25 The Owners argue that the Property is surrounded on three
sides by commercial use and the finding that the zone change is not
compatible with the majority of surrounding uses is “simply wrong.
It is a whitewash.”
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¶26 The evidence before the Commissioners and before the District
Court established that the Property is surrounded on one side by
high intensity commercial use and on three sides by either low
intensity commercial use or residential use. One neighbor
testified before the Commissioners that he uses his property to
produce “a large amount of produce of garden vegetables.” A
representative from the Lockwood Community Church testified that
the church’s playground is adjacent to the Property. The church
also maintains a softball field and a volleyball court near the
Property.
¶27 After reviewing the record, we conclude that substantial
evidence supports the District Court’s finding that the zone change
would not be compatible with the majority of the surrounding land
uses.
¶28 Finally, the Owners argue that the Zoning Commission’s finding
in 1989 that the zone change accords with the Comprehensive Plan
supports their contention that the 1997 finding is erroneous. In
1989, the Zoning Commission stated that “the Billings Area
Comprehensive Plan shows this particular location as being an area
that is not suitable for cropland. . . . The use of this land is
currently transitional in nature. A few head of cattle are
presently grazing on this piece of ground.” In 1997, the Zoning
Commission stated, “The new zoning will not retain and improve
existing residential neighborhoods. The new zoning will not
protect against the encroachment of incompatible or unrelated
uses.”
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¶29 As stated previously, the record shows the majority of the
surrounding land usage is residential or low intensity commercial
use. A designation of the Property as Highway Commercial would not
retain or improve the character of this area.
¶30 This sentiment was reflected at the hearing before the
Commissioners. The Commissioners seemed to agree that Residential-
9600 was not the appropriate zoning for the Property. Their
concern, though, centered around the wide gap between Residential-
9600 zoning and Highway Commercial zoning. The senior planner for
the county noted that “there’s a wide range of other zoning
districts; multi-family or light commercial that maybe the
applicant can pursue.”
¶31 After reviewing the record, we conclude that substantial
evidence supports the District Court’s finding that the zone change
would not be in accord with the County Comprehensive Plan.
¶32 We conclude that the District Court correctly held that the
Commissioners adequately considered the statutory factors, that the
Commissioners properly based their decision on the statutory
factors and that the Commissioners’ decision was reasonably related
to the legitimate governmental objective of promoting public
health, safety and welfare. We hold that the Commissioners’ denial
of the Owners’ zone change application was not arbitrary or
capricious.
¶33 Did the District Court abuse its discretion by excluding
evidence of a subsequent zone change application?
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¶34 The Owners argue that the District Court abused its discretion
by refusing to hear testimony and receive exhibits concerning a
zone change application that they submitted to the Commissioners on
the same property in July 2000. This zone change application
requested a less intense commercial designation than the commercial
designation sought in the present case, yet it was also denied.
The Owners argue that this evidence was relevant because it showed
“the continued intent by the Commissioners to act arbitrarily
concerning the property at bar.”
¶35 The Commissioners argue that what occurred three years after
the decision in this case is not relevant to the issue of whether
the Commissioners acted arbitrarily or capriciously in 1997.
¶36 The District Court excluded the evidence of the subsequent
zone change request, stating that the case had been ongoing since
1997 and had been before the Supreme Court and that “if I allowed
you now to go beyond the information that the Supreme Court had,
that Judge Baugh had, really would be a new case.”
¶37 Rule 401, M.R.Evid., provides that relevant evidence is any
evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.
¶38 Whether evidence is relevant and admissible is left to the
sound discretion of the district court, and the determination will
not be overturned on appeal absent an abuse of that discretion.
Lopez v. Josephson, 2001 MT 133, ¶ 14, 305 Mont. 446, ¶ 14, 30 P.3d
326, ¶ 14. “The question is not whether this Court would have
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reached the same decision, but, whether the district court acted
arbitrarily without conscientious judgment or exceeded the bounds
of reason.” Lopez, ¶ 14.
¶39 On remand, this Court noted that, “Without any separate
findings made by the Board in support of its denial of Appellants’
zone change request, we are unable to determine the basis of the
Board’s consistent denial.” Therefore, the District Court remanded
the case to the Commissioners, directing them to issue specific
findings supporting their denial of the zone change request in
1997. Under these circumstances, we agree that evidence concerning
a 2000 zone change request was irrelevant and immaterial to the
question before the District Court–that is, whether the
Commissioners acted arbitrarily or capriciously in denying the zone
change request in 1997. We also agree with the District Court that
injecting the 2000 request into this proceeding would be tantamount
to amending the petition and that would be inappropriate at this
late date.
¶40 We conclude that the District Court did not abuse its
discretion by excluding evidence of the subsequent zone change
application.
¶41 The District Court is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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