North 93 Neighbors, Inc. v. Board of County Commissioners

No. 05-179

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 132

_______________________________________
NORTH 93 NEIGHBORS, INC.,

Plaintiff and Appellant,

v.

BOARD OF COUNTY COMMISSIONERS OF FLATHEAD
COUNTY, acting as the governing body of the County of
Flathead, a government entity, and WOLFORD DEVELOPMENT
MONTANA, LLC, Intervenor,

Defendants and Respondents.
______________________________________

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DV 2003-637A
The Honorable Stewart E. Stadler, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David K. W. Wilson, Jr., Reynolds, Motl & Sherwood, PLLP, Helena,
Montana

For Respondent Flathead County Board of Commissioners:

Alan F. McCormick and William T. Wagner, Garlington, Lohn &
Robinson, PLLP, Missoula, Montana

For Respondent Wolford Development Montana, LLC:

Kristin L. Omvig and Scott D. Hagel, Crowley Haughey Hanson Toole &
Dietrich, PLLP, Kalispell, Montana

Ken Kalvig, Scott & Kalvig, Kalispell, Montana

For Amicus Montana Smart Growth Coalition:

Richard R. Thweatt, Attorney at Law, Helena, Montana
____________________________________
Submitted on Briefs: December 13, 2005
Decided: June 13, 2006
Filed:
______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 A citizens’ group challenges the decision of its local elected officials to amend

various planning documents to facilitate the development of a large suburban shopping

mall on land that formerly had been used for agricultural purposes. The citizens’ group,

North 93 Neighbors, Inc. (Neighbors), appeals from an order of the Eleventh Judicial

District, Flathead County, affirming the Flathead County Board of Commissioner’s

(Board) decisions to amend the Flathead County Growth Policy (Growth Policy) and to

amend portions of the Flathead County Zoning Regulations (Zoning Regulations). We

affirm in part, reverse in part, and remand for further proceedings consistent with this

opinion.

¶2 Neighbors present the following issues on appeal:

¶3 1. Whether the Board developed a factual record sufficient to overcome

Neighbors’s claim that it abused its discretion by failing to support its decisions to amend

the Growth Policy and the Zoning Regulations with independently adopted findings of

fact.

¶4 2. Whether the Growth Policy documents suffer from fatal internal

inconsistencies.

¶5 3. Whether the Wolford Amendment conflicts with the Growth Policy.

¶6 4. Whether the Zoning Amendment constitutes illegal spot zoning.

FACTUAL AND PROCEDURAL HISTORY

¶7 This case involves the long, convoluted, and sometimes fractious history of

planning and zoning in Flathead County. The Board and the Kalispell City Council

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created the Kalispell City-County Planning Board in 1965. Flathead County and the

cities of Kalispell, Whitefish, and Columbia Falls established the Flathead Regional

Development Office (FRDO) in 1971 to provide planning staff and administrative

services for Flathead County and the three cities. The Board and the Kalispell City

Council adopted the Kalispell City-County Master Plan (City-County Plan) in 1986.

¶8 The City-County Plan includes a master plan map and goals in twelve specific

areas, including growth management, environment, economy, land use, and agriculture,

along with specific objectives for each of these goals. The Board also adopted the

Flathead County Master Plan (County Plan) in 1987 to cover those areas not otherwise

covered by the City-County Plan. The County Plan discusses five elements: agriculture,

land use, transportation, public facilities, and parks and open space.

¶9 Growth pressure in Flathead County soon spelled the end of county-wide and

cooperative planning efforts. For our purposes, the first chink in county-wide planning

came when the Board adopted the Stillwater Neighborhood Plan (Stillwater Plan) as an

amendment to both the County Plan and the City-County Plan in 1990. The Board then

revised the Stillwater Plan in 1992 to include an additional 40 acres for a total plan area

of 340 acres. The Stillwater Plan provides for the construction of a golf course, hotel and

conference center, commercial development, and residential single-family and townhouse

development. The Board zoned the property as resort commercial, residential apartment,

and suburban agriculture consistent with the Stillwater Plan. The Stillwater Plan never

materialized, but the planning and zoning amendments remained in effect.

¶10 Flathead County withdrew from the FRDO and the 1971 planning agreement with

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the City of Kalispell in 2001. The Flathead County Planning and Zoning Office

(Planning Office) now provides planning and zoning administrative staff and services for

Flathead County. The Board extended the jurisdiction of the Flathead County Planning

Board (Planning Board) to include that portion of the county outside of the City of

Kalispell that previously had been included in the jurisdictional area of the Kalispell

City-County Planning Board. The Board created a new Growth Policy in August of 2003

by combining the County Plan with those portions of the City-County Plan that covered

lands outside the City of Kalispell.

¶11 Wolford Development Montana, LLC (Wolford) entered this Balkanized planning

process when it submitted a request to the Planning Office. Wolford sought to amend the

Growth Policy by revising and expanding the Stillwater Plan in order to accommodate

the proposed Glacier Mall (Mall). Wolford’s proposal (Wolford Amendment) sought to

increase the size of the Stillwater Plan from 340 acres to 481 acres to accommodate a

commercial, office and residential development. The Wolford Amendment proposed 271

acres for commercial, 64 acres for mixed use, 141 acres of suburban agriculture, and five

acres for construction of a road. Wolford’s application indicated that it proposed to set

the agricultural land aside for the possible development of an on-site wastewater

treatment and disposal system.

¶12 The Planning Office reviewed Wolford’s application and submitted a report to the

Planning Board and the Board. The Planning Office concluded that the Wolford

Amendment complied with the Growth Policy. The Planning Board held a public hearing

on September 10, 2003, to consider the Wolford Amendment. The Planning Board

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adopted the Planning Office’s report as findings of fact and recommended that the Board

approve the amendment.

¶13 The Board then passed a resolution of intent to consider the Wolford Amendment

on September 29, 2003. The Board gave notice that it would take written public

comment on the Wolford Amendment before October 31, 2003. More than four thousand

members of the public submitted public comment on the proposal, with over 57 percent

opposing the Wolford Amendment. The Board held a public meeting on November 5,

2003, wherein it voted to approve the Wolford Amendment despite the public opposition

to the proposal. The Board passed a resolution adopting the Wolford Amendment to the

Growth Policy that same day. The Board did not prepare or adopt any independent

findings to support its decision and the Board did not analyze or discuss any of the issues

raised by the public comments in its decision.

¶14 Wolford submitted an application to the Planning Office to rezone the now 481

acres within the Stillwater Plan boundaries on August 25, 2003, in anticipation of the

Board’s decision to amend the Growth Policy. The Planning Office issued a report for

the zoning change, noting that approval of the zoning change depended on approval of

the amendment to the Growth Policy. The Planning Office’s report further noted that the

proposed development would have a significant impact on traffic and “should be

connected to public water and sewer as soon as practical.” The Planning Board held a

public meeting on the zoning change on November 13, 2003. Eight people spoke in

favor and four people spoke in opposition to the zoning change (Zoning Amendment).

The Planning Board voted to support the proposed Zoning Amendment and

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recommended its passage to the Board that same day.

¶15 The Board held a public meeting on December 23, 2003, to consider the Zoning

Amendment. Thirty members of the public spoke at the meeting in addition to Wolford’s

representatives. Fourteen people spoke in favor and 16 spoke in opposition to the Zoning

Amendment, including three of Neighbors’s board members. The Board unanimously

voted to approve the Zoning Amendment immediately following the close of the public

comment period. The Board again did not issue any independent findings of fact to

support its decision, but the Board did state in its decision that it considered issues raised

through the public comment process. The Board granted final approval of the Zoning

Amendment on February 4, 2004.

¶16 Neighbors brought this action in the Eleventh Judicial District, Flathead County,

challenging the Board’s decisions to amend the Growth Policy and Zoning Regulations.

Wolford intervened. The parties submitted cross-motions for summary judgment. The

District Court denied Neighbors’s motion for summary judgment and granted the Board’s

and Wolford’s motions. This appeal followed.

STANDARD OF REVIEW

¶17 We review a district court’s grant of summary judgment de novo, applying the

same evaluation under Rule 56, M.R.Civ.P., as the district court. Richards v. Knuchel,

2005 MT 133, ¶ 12, 327 Mont. 249, ¶ 12, 115 P.3d 189, ¶ 12. We review a district

court’s conclusions of law to determine if they are correct. Richards, ¶ 12.

¶18 Amending a growth policy or a zoning designation constitutes a legislative act.

Section 7-1-104, MCA. Courts review challenges to a governing body’s decision for an

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abuse of discretion. Schanz v. City of Billings (1979), 182 Mont. 328, 335, 597 P.2d 67,

71.

DISCUSSION

¶19 1. Whether the Board developed a factual record sufficient to overcome

Neighbors’s claim that it abused its discretion by failing to support its decisions to

amend the Growth Policy and the Zoning Regulations with independently adopted

findings of fact.

A. Growth Policy

¶20 Neighbors contend that the Board’s amendment of the Growth Policy without

issuing independent findings of fact in support rendered its decision unlawful, an abuse of

discretion, and arbitrary and capricious. They argue that the Planning Office’s report

cannot serve as a substitute in light of the fact that the staff prepared its report before the

Board received more than 4,400 public comments and thus the report did not, and could

not, address any of the concerns raised by the public. Neighbors assert that the Growth

Policy language, statutory public participation provisions, and case law, taken together,

required the Board to issue independent findings of fact in support of its decision.

¶21 We first examine the Growth Policy. In counties where a planning board has been

created, “the preeminent planning tool is the comprehensive jurisdiction-wide

development plan, which is today known as a growth policy. A growth policy essentially

surveys land use as it exists and makes recommendations for future planning.” Citizen

Advocates v. City Council, 2006 MT 47, ¶ 20, 331 Mont. 269, ¶ 20, 130 P.3d 1259, ¶ 20

(internal citations and quotations omitted). Neighbors argue that the Board must

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substantially comply with the Growth Policy and that the Growth Policy requires the

Board to issue independent findings of fact.

¶22 Section 76-1-605, MCA, provides that a governing body “must be guided by and

give consideration to” its growth policy. We held in Little v. Board of County Com’rs,

Etc. (1981), 193 Mont. 334, 353, 631 P.2d 1282, 1293, that local government units must

substantially comply with comprehensive master plans. We noted that strict compliance

would prove unworkable, but that requiring no compliance at all would defeat the whole

idea of planning. Little, 193 Mont. at 353, 631 P.2d at 1293. Although Little involved

the role of comprehensive master plans in zoning decisions, the principles set forth in

Little regarding the role of master plans when making future planning decisions apply

with equal force here. See Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont.

486, 496, 943 P.2d 85, 91 (applying substantial compliance standard to local government

unit’s adoption of local vicinity plans). The substantial compliance standard set forth in

Little and affirmed in Ash Grove Cement incorporates the statutory standard in § 76-1-

605, MCA, of being guided by and considering a growth policy.

¶23 We see no tension between these two standards and therefore agree with

Neighbors that the Board must substantially comply with its Growth Policy. We

struggle, however, with Neighbors’s claim that substantial compliance with the Growth

Policy obligates the Board to issue independent findings of fact. Neighbors rely on the

following language from the Growth Policy in arguing the Board’s lack of substantial

compliance:

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 A Plan, to be effective, must be used. Each time the Plan is consulted,
because of an issue, those policies that are relevant should be identified. A
finding should then be made as to the conformance of the identified policies
to the issue. Where polices are not complied with or cannot be met, a
specific finding should be made stating whether this is a clear violation of
the policy or whether site conditions or extenuating circumstances exist and
justify the violating of the policy or policies. [Emphasis added.]

The question arises as to whether the Board substantially complied with the Growth

Policy by identifying relevant issues and making findings regarding the conformance of

the issues raised by the Wolford Amendment.

¶24 Neighbors further argue that the public participation provisions of the Growth

Policy Act, §§ 76-1-602 through -604, MCA, contemplate that the Board consider issues

identified through the public comment process. This consideration, argue Neighbors,

includes having the Board incorporate issues identified through the public participation

process, not otherwise addressed in the Planning Office report, into its findings of fact in

support of its decision to amend the Growth Policy.

¶25 These public participation statutes outline the necessary procedures for adopting

and revising growth policies. Section 76-1-604(3)(a), MCA, allows for governing bodies

to revise a growth policy by following the same procedures for adoption of a growth

policy. The procedures require that a planning board hold a public hearing on a proposed

growth policy before the submission of a growth policy to the governing body. Section

76-1-602, MCA.

¶26 A planning board then considers the suggestions elicited at the public hearing and

either recommends acceptance or rejection of the growth policy to the governing body.

Section 76-1-603, MCA. The Planning Board held a public meeting on September 10,

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2003, and heard 28 people speak in favor of the Wolford Amendment and 18 speak in

opposition to the amendment. The Planning Board drafted a letter recommending

approval to the Board, wherein it stated that it “discussed the proposal and considered the

public testimony.” The Planning Board further stated that it had adopted the Planning

Office’s report as findings of fact. The Planning Office prepared the report, however,

before the Planning Board received any public comments on the Wolford Amendment.

¶27 The statutory scheme then requires the governing body to adopt a resolution of

intention to adopt, adopt with revisions, or reject the proposed growth policy. Section

76-1-604(1), MCA. The Board adopted a resolution of intent to adopt the Wolford

Amendment and then received over 4,400 comments from the public. The Board adopted

a resolution to approve the amendment following the public comment period, wherein it

stated that the Board had “considered the information presented to it since the adoption of

[the] resolution of intent.” Contrary to the Board’s resolution to approve the Zoning

Amendment, discussed below, this resolution did not expressly mention the public

comments. Nothing in the record indicates what issues, aside from a request from the

public to put the Wolford Amendment to a public vote, were raised by the public

participation process. Commissioner Hall testified that he personally reviewed the

comments, but that he could not speak for his fellow Commissioners. Nothing in the

record indicates that the other members of the Board considered the public comments.

¶28 Neighbors analogize the Board’s role in this process to that of an agency decision-

maker in the administrative process under the Montana Administrative Procedures Act

(MAPA). Neighbors cite to Stewart v. Region II Child and Fam. Serv. (1990), 242 Mont.

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88, 93, 788 P.2d 913, 916, for the proposition that the “rules of agency review rely on the

principle that the agency, and not the district court, is the finder of fact.” According to

Neighbors, a court should remand a case for appropriate findings “[i]f a factual question

is essential to an agency’s decision, and the agency’s findings of fact are so insufficient

that they cannot be clarified or are entirely absent . . . .” Stewart, 242 Mont. at 93, 788

P.2d at 916. Section 2-4-102(b) of MAPA admittedly excludes units of local

government, such as the Board, from the requirements of MAPA, nevertheless

Neighbors’s analogy proves apt to a degree.

¶29 Neighbors argue that the Board effectively preempted judicial review through a

process by which it “left no tracks.” Neighbors contend that a reviewing court is left with

the problem of evaluating the reasonableness of the Board’s decision that boils down to

the Board’s claim that “it is okay because we said it is okay.” We have faced this

obstacle in the context of zoning changes approved by elected city councils. First in

Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, we reversed a zoning

amendment based upon the city council’s failure to address the statutory requirements for

zoning amendments through the development of a factual record that could be reviewed

by a court for an abuse of discretion. Later in Schanz, 182 Mont. 328, 597 P.2d 67, we

determined that the information relied upon by the city council in approving the zoning

amendment was “so lacking in fact and foundation” as to render the city council’s

decision clearly unreasonable and an abuse of discretion. We remanded to the city

council for consideration of the statutory criteria. Schanz, 182 Mont. at 336, 597 P.2d at

71.

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¶30 Lowe and Schanz involve zoning amendments rather than amendments to master

plans or growth policies similar to the one at issue here. These same principles still

apply. As a general principle of administrative law, the record developed by an agency,

here the Board, serves “to flesh out the pertinent facts upon which a decision is based in

order to facilitate judicial review.” Annex Books, Inc. v. City of Indianapolis, 333 F.

Supp. 2d 773, 782 (S.D. Ind. 2004). This requirement helps prevent “judicial intrusion

into matters committed to administrative discretion by the legislature.” Annex Books, 333

F. Supp. 2d at 782. The absence in the record of facts relied upon by the Board in

making its decision to approve the amendment to the Growth Policy would place the

Court in the untenable position of having to substitute its own judgment for the Board’s

judgment. See Burgess v. Gallatin County Com’n (1985), 215 Mont. 503, 507, 698 P.2d

862, 865.

¶31 The Board generally complied here with any such fact-finding requirements. The

Planning Office reviewed Wolford’s application and analyzed the Wolford Amendment.

The Planning Office’s report identified the relevant policies implicated by the Wolford

Amendment and described its findings. For example, the Growth Policy lists

Transportation as one of its major goal and policy elements. The report noted that the

Wolford Amendment’s proposal to extend Rose Crossing from Whitefish Stage Road to

Highway 93 at Wolford’s expense provides a positive transportation improvement for the

County and helps remediate the Growth Policy’s concern regarding a lack of suitable

east-west traffic movement.

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¶32 Further, one of the policies states that “[a]dditional commercial development in

the Planning Jurisdiction along Highway . . . 93 . . . should be discouraged.” The

Planning Office seemingly justified deviation from this policy by concluding that it “is

far better to locate potential projects of the scale contemplated by this change within a

jurisdiction that is planned, has development standards, and is virtually adjacent to the

largest existing city in Flathead County and adjacent to similar uses such as the Mountain

View Plaza and the Spring Prairie Center.” The Planning Office’s report concluded that

the “proposed amendment is consistent with the intent of the existing Growth Policy Plan

policies and goals.”

¶33 The Planning Board then adopted the Planning Office’s report as findings of fact

and passed a resolution recommending that the Board adopt the Wolford Amendment.

The Board did not explicitly adopt the report as findings of fact. The Planning Office’s

report did identify the policies relevant to the Wolford Amendment. The report further

analyzed the compliance, or lack of compliance, of the Wolford Amendment with the

relevant policies. As discussed above, however, the Planning Office prepared the report

before the Board opened the proposal to public comment. The Board received more than

4,400 comments from the public regarding the Wolford Amendment. The Board closed

the public comment period on October 31, 2003, and amended the Growth Policy just

five days later on November 5, 2003.

¶34 Nothing can be found in the record that discloses what issues, aside from calls

from the public to put the Wolford Amendment to a public vote, were raised through the

public participation process. As the Dissent notes, the Board expressed appreciation for

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the public comments and thanked its clerk for preparing a tally of the comments.

Dissent, ¶ 76. Commissioner Howard Gipe referenced a newspaper article that reported

various organizations and individuals supported the change, and estimated that the

breakdown for and against the Wolford Amendment was “about 50-50.” The Board then

denied the public’s request to vote on the Wolford Amendment. The Board adopted the

amendment immediately thereafter. Aside from these comments and the Board’s vague

reference to having “considered the information presented to it since the adoption of [the]

resolution of intent” nothing in the record demonstrates that the Board, the Planning

Board, or the Planning Office ever considered any issues, other than denying the public

the opportunity to vote on the Wolford Amendment, raised through the more than 4,400

written public comments.

¶35 The Board failed to address the public comments in its decision-making and

thereby failed “to flesh out the pertinent facts upon which [its] decision [was] based in

order to facilitate judicial review.” Annex Books, 333 F. Supp. 2d at 782. Accordingly,

we cannot know whether the public raised novel issues not addressed by the Planning

Office’s report and whether the Board appropriately responded to those issues. The

public participation statutes contemplate more than merely eliciting public comment.

Section 76-1-603, MCA. Further, the Board must equip reviewing courts with a record

of the facts it relied upon in making its decision to avoid judicial intrusion into matters

committed to the Board’s discretion. Annex Books, 333 F. Supp. 2d at 782.

¶36 We conclude that the Board’s reliance upon the Planning Office’s report was

justified and appropriate to an extent. The Board’s sole reliance on the report, prepared

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before over 4,400 members of the public voiced their concerns, however, renders its

decision to amend the Growth Policy unreasonable and an abuse of discretion. See

Schanz, 182 Mont. at 336, 597 P.2d at 70. The Board has an obligation to consider the

public comments and incorporate those comments into its decision-making process.

¶37 The District Court granted summary judgment based on the fact that the Board did

not abuse its discretion in amending the Growth Policy. The District Court failed to

account, however, for the issue of whether the Board considered matters raised through

the 4,400 public comments. Absent any indication in the record that the Board

considered these public comments, the Board cannot demonstrate that it satisfied its duty

to flesh out the pertinent facts upon which it relied in approving the Wolford

Amendment.

¶38 The District Court must evaluate whether the Board satisfied this obligation by

requiring the Board to demonstrate what issues, if any, were raised through the public

comment process that were not addressed by the Planning Office’s report. The Board

must further demonstrate to the District Court that it evaluated such issues with the

requirements of the Growth Policy. As the parties initially filed cross-motions for

summary judgment, the District Court on remand likewise must allow Neighbors to

present evidence to refute the Board’s assertions. We reverse and remand to the District

Court for this limited purpose. Schanz, 182 Mont. at 336, 597 P.2d at 71. If the District

Court determines that the Board failed to satisfy its obligation, or if the record proves

insufficient to determine whether the Board complied, it should send the case to the

Board for development of the factual record that it relied upon in making its decision to

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amend the Growth Policy.

B. Zoning Regulations

¶39 Neighbors next contend that the zoning statutes and the Zoning Regulations

require the Board to issue findings of fact in support of its decision to amend the zoning

ordinance. Neighbors assert that the Board’s failure to issue findings of fact entitles them

to summary judgment voiding and setting aside the Board’s zoning decision.

¶40 Section 76-2-205, MCA, provides the process for amending a zoning ordinance.

A board of county commissioners must publish a notice of a public hearing on the

proposed zoning regulation amendment and provide the public an opportunity to be heard

at the hearing. Section 76-2-205(1) and (2), MCA. A board then must review the

recommendation from the planning board and make any revisions or amendments it

deems proper based on the public comments received. Section 76-2-205(3), MCA. A

board of county commissioners may then pass a resolution of intent to adopt the

amendment. Section 76-2-205(4). If a board passes a resolution of intent to adopt an

amendment to the zoning regulations it must publish notice of the resolution, and provide

for a 30-day protest period. Section 76-2-205(5), MCA. A board must pass a final

resolution adopting the amendment unless 40 percent of the landowners within the zoning

district protest the amendment within the 30-day protest period. Section 76-2-205(6),

MCA.

¶41 Neighbors further assert that Flathead County’s own Zoning Regulations require

the Board to issue independent findings of fact. Section 2.08.040 of the Zoning

Regulations state that when “considering an application for amendment to the provisions

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of these regulations or the Zoning Districts, the Planning Board and the Board . . . shall

be guided by and adopt findings of fact based upon [the following 12 criteria].” The 12

criteria in § 2.08.040 of the Zoning Regulations mirror the criteria for considering a

zoning amendment from § 76-2-203, MCA.

¶42 The Board must make zoning amendments in accordance with the 12 statutory and

Zoning Regulation criteria. Section 76-2-203, MCA. Wolford’s application to amend

the zoning regulations addressed all 12 of these criteria at length. The Planning Office

also addressed the 12 statutory criteria and issued a report outlining the Zoning

Amendment in the context of the criteria. The Planning Board discussed the amendment,

voted to recommend approval, and adopted the Planning Office’s report as findings of

fact.

¶43 The Board then held a public hearing on the proposed Zoning Amendment. The

Board passed a resolution of intent to adopt the Zoning Amendment following the public

hearing. The Board adopted a final resolution approving the Zoning Amendment at the

conclusion of the required protest period, wherein it stated that it based its decision upon

the recommendation of the Planning Board and public testimony. The resolution further

stated that the Board made its decision in accordance with § 76-2-205, MCA. The Board

did not expressly adopt the Planning Office’s report as findings of fact. The Board did

state, however, that it adopted the Zoning Amendment based upon the Planning Board’s

recommendation, and the Planning Board adopted the report as findings of fact. Further,

the plain language of § 2.08.040 requires only that the Planning Board and the Board “be

guided by and adopt findings of fact . . . .” Nothing requires that the Board separately

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issue its own independent factual findings.

¶44 The applicable standard of review is whether the information upon which the

Board based its decision “is so lacking in fact and foundation” that “it is clearly

unreasonable and constitutes an abuse of discretion.” Schanz, 182 Mont. at 335-36, 597

P.2d at 71. The Board reviewed the Planning Board’s recommendation. The Planning

Board discussed the Zoning Amendment, voted unanimously to recommend approval,

and adopted the Planning Office’s report as findings of fact. The Board considered

public comment, including a statement by Sharon DeMeester, President of Neighbors,

wherein she reviewed the 12 statutory criteria, and made its decision based upon these

considerations. The Board thus followed the proper statutory and regulatory procedure

for adopting zoning amendments and had sufficient evidence before it to make an

informed decision.

¶45 Neighbors finally argue that this Court’s decisions in Lowe and Schanz mandate

reversal of the Board’s decision because of the Board’s failure to consider the 12

statutory criteria. Lowe and Schanz require governing bodies to consider the 12 statutory

criteria from what is now § 76-2-203, MCA, before making changes to zoning

regulations. Lowe, 165 Mont. at 40, 525 P.2d at 552; Schanz, 182 Mont. at 336, 597 P.2d

at 71. The Planning Office’s report outlines each of the 12 statutory criteria in detail as

they relate to the Wolford’s Amendment. The Planning Board adopted the report as

findings of fact and recommended approval to the Board. The Board considered the

Planning Board’s recommendation. The Board also heard public comment on the 12

statutory criteria, and, unlike the amendment to the Growth Policy, expressly considered

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those public comments before approving the Zoning Amendment. The Board therefore

followed the requirement articulated in Lowe and Schanz before making changes to the

Zoning Regulations. We agree with the District Court that the Board did all that the law

required.

¶46 2. Whether the Growth Policy documents suffer from fatal internal

inconsistencies.

¶47 Neighbors argue that the Growth Policy suffers from a fatal flaw because it

contains internal inconsistencies. Neighbors allege that the Board failed to reconcile vast

discrepancies when it combined the City-County Plan of 1986 with the County Plan of

1987 to create the new Growth Policy in August of 2003. Specifically, Neighbors point

to three such inconsistencies.

¶48 Neighbors first argue that the Board premised its approval of the Stillwater Plan

upon annexation of the area into the city of Kalispell and the area obtaining city services.

Neither contingency has been realized. The City-County Plan likewise contains

objectives of adopting a municipal annexation program. The County Master Plan, on the

other hand, has no stated requirement that developments be annexed into the City.

Second, Neighbors allege that the City-County Plan stresses joint administration between

the City and County while the County Plan lacks any goals of joint administration.

Finally, Neighbors point to the fact that the City-County Plan contains a table projecting

future land use needs for the plan area in a number of categories, but the County Plan

contains no such projection.

¶49 Neighbors rely on BCPOA v. Planning & Zoning Com’n (1995), 270 Mont. 160,

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175, 890 P.2d 1268, 1277, for the proposition that “in order to effectively plan for the

development of a planning and zoning district, the planning documents which comprise

the development pattern must be internally consistent as well as consistent with

companion planning documents.” A clear conflict existed in BCPOA. The general plan

and the zoning map specifically excluded single family housing in the base area. The

zoning ordinance and base area plan, by contrast, contained a provision for high density

subdivision in the same area. BCPOA, 270 Mont. at 167, 890 P.2d at 1272. The

inconsistencies within the planning documents made it impossible to determine the

appropriate population densities for the area. BCPOA, 270 Mont. at 173, 890 P.2d at

1276.

¶50 The alleged inconsistencies within the Growth Policy do not rise to the level of the

inconsistencies in BCPOA. The annexation objective in the City-County Plan on which

Neighbors rely provides for the adoption of “a municipal annexation program which

coordinates with the Extension of Services Plan to aggressively deal with fringe

developments setting the stage for immediate or future annexation so as to preserve the

tax base of the city and eliminate future barriers to orderly growth.” Neighbors assert

that the Board premised its approval of the Stillwater Plan upon annexation into the City,

but that the County Plan contains no objectives for annexation. Wolford counters that the

Board considered annexation to be a future possibility, not an immediate requirement.

¶51 The Board amended both the City-County Plan and the County Plan by revising

the Stillwater Plan in 1992. The 1992 Stillwater Plan Amendment contains an objective

to “provide for public sewer services.” As part of the strategy to provide for public sewer

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services, the 1992 Stillwater Plan Amendment calls for development of an onsite

engineered sewer system for the first 200 users. Only when use exceeds 200 users does

the 1992 Stillwater Plan Amendment state that connection to the city of Kalispell sewage

collection would occur and that the developer would seek annexation. We therefore

agree with Wolford that the Board considered annexation to be a future possibility rather

than an immediate requirement in approving the Stillwater Amendment. The Wolford

Amendment to the Stillwater Plan also contains no requirement of annexation or hook up

to city sewer services. Neighbors cannot establish that the alleged inconsistencies

regarding annexation rise to the level of contradiction apparent in BCPOA, and thereby

impede the planning process.

¶52 Neighbors next argue that the City-County Plan requires joint administration while

the County Plan contains no such requirement. The City-County Plan contains a “goal”

for administration wherein the city and county “jointly cooperate in promoting, guiding,

and directing the planning jurisdiction’s growth and development.” The City-County

Plan defines goals as “very long range statements about the future of a community, they

give direction. They are, in essence, what the people of the Kalispell Planning

Jurisdiction are striving for in terms of neighborhood and community environment,

growth, community services, etc.” The County Plan contains a similar goal for joint

cooperation, wherein “[i]ntergovernmental cooperation between the three cities of

Whitefish, Kalispell, and Columbia Falls and Flathead County should be encouraged . . .

.” The Court must pause to scratch its collective heads and ponder whether the City-

County Plan’s “goal” for joint administration conflicts with the County Plan’s goal of

21
“encouraging” intergovernmental cooperation. We are hard pressed to conclude that the

City-County Plan and County Plan conflict on the topic of joint administration to such a

degree as to impede the planning process.

¶53 Neighbors finally argue that the City-County Plan contains a table projecting

future land use needs, while the County Plan does not. Once again, the City-County

Plan’s projections represent projections of future needs rather than binding criteria.

Neighbors do not explain how this alleged inconsistency impedes the planning process.

Both the City-County Plan and County Plan discuss similar goals in the areas of

residential, commercial, and industrial development. We fail to see how the County

Plan’s omission of a future land needs projection impedes the planning process in light of

the County Plan’s discussion of goals in these same areas of residential, commercial, and

industrial development. These goals largely mirror in relevant part the future land needs

projections.

¶54 We recognize the City-County Plan and the County Plan are not identical. They

do not suffer from internal inconsistencies, however, to such a degree that render them

inherently unreliable. BCPOA, 270 Mont. at 173, 890 P.2d at 1276. The lack of

significant inconsistencies arises from the intentionally vague and sometimes open-ended

language employed in the two documents. The local elected officials in Flathead County

have chosen to adopt planning documents that contain these ambiguities. BCPOA

requires that the two plans be sufficiently consistent to allow public officials to follow

them. BCPOA, 270 Mont. at 174, 890 P.2d at 1276. The Growth Policy, comprising the

City-County Plan and the County Plan and all amendments thereto, despite the presence

22
of much vague and open-ended language, provides sufficient consistency for the Board to

follow. The Board therefore did not exceed its authority or jurisdiction in amending the

Growth Policy.

¶55 3. Whether the Wolford Amendment is consistent with the Flathead Growth

Policy.

¶56 Neighbors next argue that the Wolford Amendment to the Growth Policy does not

substantially comply with the Growth Policy, and therefore must be annulled and set

aside. Section 76-1-601(4)(a), MCA, provides that growth policies may contain

neighborhood plans. If a growth policy contains a neighborhood plan, such as the

Stillwater Neighborhood Plan, such a plan must be consistent with the growth policy.

Section 76-1-601(4)(a), MCA. We therefore note that the proper standard is not whether

the Wolford Amendment substantially complies with the Growth Policy, as the parties

have framed the issue, but whether the Wolford Amendment proves consistent with the

Growth Policy.

¶57 Neighbors contend that the City-County Plan slated the area of the proposed Mall

for annexation to the City. Neighbors further contend that the Board “has gone to great

lengths to ensure that this massive development . . . is not annexed into the City and does

not get connected to city water and sewer services” without providing any supporting

authority for such a statement. As we already have determined that the Board did not

premise its approval of the Stillwater Plan upon annexation into the city, and that the

Wolford Amendment neither required nor precluded annexation into the city, we focus on

the two other inconsistencies alleged by Neighbors.

23
¶58 Neighbors argue that the Wolford Amendment conflicts with the Growth Policy’s

goals pertaining to commercial development in the Kalispell area. Neighbors rely, in

part, on a Planning Office report from 2001 for a previous application submitted by

Wolford to locate the mall in the Evergreen area. Neighbors further rely on the 1987

County Plan’s statement that “additional development in the planning jurisdiction along

Highway . . . 93 should be discouraged.” Neighbors finally argue that the development

of agricultural land at the proposed Mall site conflicts with the Growth Policy.

¶59 The 2001 Planning Office report noted that “the development will cannibalize

downtown Kalispell commercial operations, force vacancies in the existing business and

redirect growth into the unincorporated portions of Flathead County.” The Planning

Office prepared this report in 2001 for location in a different part of Flathead County.

More importantly, factors on the ground have changed significantly since 2001. The area

has seen significant population growth. The proposed Mall now comports with the

prevailing uses in the area. Thirty-six businesses surround the proposed Mall in all

directions, including large box retailers such as Target, Home Depot, TJ Maxx, Lowes,

Ross, Borders Books, and Costco. The proposed Mall admittedly may not serve to

preserve downtown Kalispell retail operations, a fear expressed by the 2001 report. It

will at least be located, however, among other “cannibalizing” sprawl developments that

the Board previously had determined to be appropriate for the area.

¶60 We find similarly unpersuasive Neighbors’s next contention that the Wolford

Amendment conflicts with the Growth Policy because the County Plan discourages

additional developments along Highway 93. The County Plan encourages development

24
“toward existing commercial areas either as expansion or infill.” The Planning Office

noted, however, that the County planned that area in 1992 (via the 1992 Amendment to

the Stillwater Plan) for “future growth because of significant population growth and

development in the Kalispell area . . . .” Flathead County thus amended the County Plan

nearly fifteen years ago through enactment of the Stillwater Plan to create a new policy

objective--one that allows for commercial development in the location of the proposed

Mall. The Planning Office report noted that the surrounding areas were slated for large

retailers and box stores, projects that have since been completed. The proposed Mall will

be sited in an “existing commercial area.”

¶61 Neighbors’s final argument, that the development of agricultural land at the

proposed site conflicts with the Growth Policy, fails to recognize that the Stillwater Plan,

and the zoning in effect before the Wolford Amendment, also allowed for significant

commercial and residential development at the proposed Mall location. The Wolford

Amendment and Zoning Amendment designate 141 acres north of the proposed Mall for

suburban agricultural zoning, an increase of 31 acres over the 2002 version of the

Stillwater Plan.

¶62 We therefore conclude that the Wolford Amendment is consistent with the Growth

Policy. We further conclude that the Board complied with this Court’s directive in Little.

Little dealt with zoning amendments that conflicted with the master plan. We noted that

we were “aware that changes in the master plan may well be dictated by changed

circumstances occurring after the adoption of the plan. If this is so, the correct procedure

is to amend the master plan rather than to erode the master plan by simply refusing to

25
adhere to its guidelines.” Little, 193 Mont. at 354, 631 P.2d at 1293. Here, the Board

amended the Growth Policy directly, rather than attempting to erode it through zoning

amendments. We remain mindful of the concerns regarding the pitfalls of piecemeal

amendments to comprehensive planning documents expressed by Justice Leaphart and

Justice Nelson in Ash Grove Cement, 283 Mont. at 500-01, 943 P.2d at 94-95 (Leaphart,

J., and Nelson, J., specially concurring). Nevertheless, the Board followed the procedure

we established in Little in amending the Growth Policy and we have not abandoned the

Little standard.

¶63 4. Whether the Zoning Amendment constitutes illegal spot zoning.

¶64 Wolford moved for summary judgment on whether the Zoning Amendment

constituted illegal spot zoning. Neighbors failed to present any evidence to the District

Court to support its position. The District Court addressed the claim despite this

omission. Neighbors now argue on appeal that the Board’s decision to amend the Zoning

Regulations constituted illegal spot zoning.

¶65 We consider three factors when determining whether a zoning amendment

constitutes spot zoning. Little, 193 Mont. at 346, 631 P.2d at 1289. We first evaluate

whether the requested use differs significantly from the prevailing use in the area. Little,

193 Mont. at 346, 631 P.2d at 1289. We next determine whether the area proposed for

rezoning is small, although not solely in physical size. Little, 193 Mont. at 346, 631 P.2d

at 1289. Finally, we evaluate whether the requested change resembles special legislation

designed to benefit only one or a few landowners at the expense of the surrounding

landowners or general public. Little, 193 Mont. at 346, 631 P.2d at 1289.

26
¶66 Wolford presented evidence to the District Court demonstrating that the proposed

land uses in the Zoning Amendment were not significantly different from prevailing uses

in the area. Neighbors did not refute Wolford’s assertions regarding the prevailing uses

surrounding the proposed Mall. Thirty-six businesses surround the proposed Mall in all

directions. One hundred and ten acres of commercially zoned property lies to the east of

the area encompassing the proposed Mall. This area includes the Spring Prairie Center

and retail establishments such as Lowes and Costco. Sixty acres make up the Mountain

View Plaza Development to the south of the proposed Mall. The Mountain View Plaza

includes Home Depot, Target, Ross, TJ Maxx and Borders. The 40-acre Semi-Tool

complex also lies to the south and within 250 feet of the proposed Mall. The Semi-Tool

area is zoned County I-1 and allows for the same commercial uses that the Zoning

Amendment allows, plus industrial uses.

¶67 The Zoning Amendment allows for zoning and uses consistent with the

neighboring properties. The County zoned the Stillwater Plan area for residential,

commercial, and agricultural uses. The Stillwater Plan allowed for 290 acres for High

Density Residential and 50 acres for Resort Commercial. Extending a preexisting zone

classification to include a larger area does not constitute spot zoning. State ex rel.

Gutkoski v. Langhor (1972), 160 Mont. 351, 353, 502 P.2d 1144, 1146. Additionally, we

may consider the current zoning when evaluating whether the requested use differs

significantly from the prevailing use in the area. Greater Yellowstone Coal. v. Bd. Of

Com’rs, 2001 MT 99, ¶ 23, 305 Mont. 232, ¶ 23, 25 P.3d 168, ¶ 23. Because the areas

surrounding the Wolford Amendment are largely commercial, and because the existing

27
zoning allowed for commercial development, we conclude that the Zoning Amendment

does not allow for uses that differ significantly from the prevailing uses in the area.

¶68 We analyze the second and third elements of the Little test together. Boland v.

City of Great Falls (1996), 275 Mont. 128, 134, 910 P.2d 890, 894. The number of

separate landowners affected by the rezoning directly relates to whether the zoning

constitutes special legislation designed to benefit only one person. Boland, 275 Mont. at

134, 910 P.2d at 894. Wolford is the sole owner of the parcel. Zone changes for property

owned by one person, however, do not automatically equate to spot zoning. Greater

Yellowstone Coal., ¶ 27. We also consider whether the zoning change occurred at the

expense of surrounding landowners or the general public and whether the requested use

accords with the comprehensive plan. Greater Yellowstone Coal., ¶ 21.

¶69 In Greater Yellowstone Coal. we evaluated whether the Gallatin County

Commissioner’s decision to amend the zoning regulations to allow for a large planned

unit development project constituted spot zoning. Greater Yellowstone Coal., ¶¶ 20-37.

We concluded that the zoning request was in the nature of special legislation designed to

benefit one or a few landowners at the expense of the surrounding landowners or general

public. Greater Yellowstone Coal., ¶ 32. We relied in part on the publicly owned nature

of the surrounding land. The public owned 59 percent of the surrounding area, including

some of the most significant wildlife habitat in the country. Greater Yellowstone Coal., ¶

32. Similarly, in Little we concluded that the Flathead County Commissioner’s decision

to rezone land from medium-density residential to allow for a regional mall was done at

the expense of the surrounding landowners. Little, 193 Mont. at 348, 631 P.2d at 1290.

28
¶70 Unlike Greater Yellowstone Coal. and Little, similar uses surround the location of

the proposed Mall. As noted above, the surrounding properties are largely commercial,

including large box retailers. We already have determined that the Zoning Amendment’s

requested use comports with the Growth Policy. We therefore conclude that despite

Wolford’s sole ownership of the parcel, the Board did not enact the Zoning Amendment

at the expense of surrounding landowners or the general public. Greater Yellowstone

Coal., ¶ 21.

CONCLUSION

¶71 We affirm the District Court’s determination that the Board adequately supported

its decision to amend the Zoning Regulations with findings of fact. We affirm the

District Court’s ruling that the Growth Policy documents do not suffer from fatal internal

inconsistencies and that the Wolford Amendment is consistent with the Growth Policy.

We further affirm the District Court’ determination that the Zoning Amendment does not

constitute illegal spot zoning. We reverse and remand, however, for the District Court to

evaluate whether the extensive public comments raised any new issues not addressed by

the Planning Office’s report and to determine whether the Board considered any such

issues.

/S/ BRIAN MORRIS
We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON

29
Justice Jim Rice dissenting.

¶72 With all due respect to the Court’s sincere effort to navigate through the maze of

the local planning process, I believe the opinion misapplies authority and imposes new,

uncertain duties upon local governing bodies which will prove to be confusing and

burdensome. Ultimately, I believe the opinion is inherently contradictory.

¶73 My primary concern is with the reasoning and holding under Issue 1A. The Court

first addresses the standard of review, “agree[ing] with Neighbors that the Board must

substantially comply with its Growth Policy,” and citing Little v. Board of County

Com’rs, Etc. (1981), 193 Mont. 334, 353, 631 P.2d 1282, 1293. See ¶¶ 22-23. The

problem is that Little was a zoning case, and the substantial compliance standard adopted

therein was for the purpose of reviewing zoning decisions vis-à-vis s growth policy.

Little, 193 Mont. at 353, 631 P.2d at 1293. In contrast, the issue here is not a zoning

decision’s compliance with a growth policy, but, rather, an amendment to the Stillwater

Neighborhood Plan, a part of the Growth Policy itself. Under § 76-1-601(4), MCA

(2003), a growth policy may include one or more neighborhood plans, but they are

optional. Contrary to the “substantial compliance” standard asserted by the Neighbors

and applied by the Court, the statute governing such plans requires that “[a]

neighborhood plan must be consistent with the growth policy.” Section 76-1-601(4)(a),

MCA (2003) (emphasis added.). This just makes common sense: there is no need to

require that an amendment to a growth policy “substantially comply” with itself.

Consistency is all that is required. Although the Court cites to Ash Grove in support of

the “substantial compliance” standard, that case offers little assistance. The discussion

30
about the neighborhood or local vicinity plan (“LVP”) at issue there was properly

couched in terms of whether it was consistent with the county’s Master Plan, and we

concluded that “[t]hus, the LVP is clearly inconsistent with the Master Plan and violates

the mandate of that Plan which authorizes local vicinity plans only to the extent they are

consistent with the Master Plan and designed to implement it. Likewise, the LVP also

violates the spirit and language of § 76-1-605, MCA . . . .” Ash Grove Cement v.

Jefferson County (1997), 283 Mont. 486, 497-98, 943 P.2d 85, 92 (emphasis added).

Although the Court also stated “that the County Commissioners failed to substantially

comply with the Master Plan in adopting the LVP,” for the reasons set forth above, that

brief reference was technically incorrect. Ash Grove, 283 Mont. at 498, 943 P.2d at 92.

The Court should have retained the statutory distinctions and used the “consistent with”

standard throughout the discussion of that issue. 1

¶74 Even with regard to zoning decisions, which the Court addresses under Issue 1B,

we have recognized that the “substantial compliance” standard has probably been

affected by recent legislation. See Citizen Advocates for a Livable Missoula v. City

Council, 2006 MT 47, ¶¶ 20, 24-25, 331 Mont. 269, ¶¶ 20, 24-25, 130 P.3d 1259, ¶¶ 20,

24-25 (“[I]t may be assumed that the 2003 legislation was intended to reduce in some

1
Further, in apparent support of its adoption of Neighbors’ substantial compliance
test, the Court quotes from the Growth Policy that “[a] finding should then be made as to
the conformance of the identified policies to the issue.” ¶ 23. Read in context, this
suggestion in the Growth Policy for making findings is for the purpose of assessing the
compliance of a new planning proposal (see reference to “site conditions” therein) with
the Growth Policy, not assessing an amendment to the Growth Policy itself, or adoption
of neighborhood plans, matters separately addressed in the Growth Policy under a section
entitled “Continued Planning.” That section makes no suggestions about making findings
of fact or the standard by which to assess such Policy revisions.

31
fashion the reliance which local governing bodies are required to place upon growth

policies when making land use decisions. However, although alluding to the passage of

the new statute, both Appellants and Respondents have nonetheless framed their

arguments regarding the validity of [Zoning] Ordinance 3234 under Little’s ‘substantial

compliance’ standard . . . .” Thus, the Court did not address the issue further.). In sum,

under Issue 1A, a zoning issue is not presented and the substantial compliance standard is

not applicable. Under Issue 1B, the Court fails to recognize that the standard has been

adjusted by legislation, but I nonetheless concur with the Court’s conclusion that the law

was complied with. Under Issue 3, where the Court addresses the question of whether

the Wolford Amendment conflicts with the Flathead County Growth Policy, the Court

properly applies the “consistent” standard.

¶75 I turn to the merits under Issue 1A. The Court asks “[w]hether the Board

developed a factual record sufficient to overcome Neighbors’s claim that it abused its

discretion by failing to support its decisions to amend the Growth Policy and the Zoning

Regulations with independently adopted findings of fact.” ¶ 19. In this issue, the Court

considers the sufficiency of the record and reverses the District Court for essentially two

reasons. First, it holds that the Board’s “vague reference to having ‘considered the

information presented to it since the adoption of the resolution of intent’” was an

inadequate consideration of the matters raised by the more than 4,400 written public

comments. ¶ 34; see also ¶¶ 13, 35, 36, 37. Secondly, it concludes that the Board had

“an obligation” to not only consider the public comments, but to “incorporate those

comments into its decision-making process,” ¶ 36, particularly those comments which

32
raised issues which the Court envisions as being “novel.” ¶ 35; see also ¶ 71. I disagree

with these conclusions, both factually and legally.

¶76 As an issue of fact, I disagree that the Board of County Commissioners

inadequately “considered” or “addressed” the over 4,400 public comments before making

its decision to adopt the Wolford Amendment to the Growth Policy. According to the

minutes of the November 5, 2003, Board meeting:

Commissioner Hall explained that before the Board for consideration today
was a final resolution for a master plan amendment. This was not an
approval of the mall. He expressed appreciation for the over 4,400
passionate comments received from all over the area. He summarized a
disclaimer relative to the validity of all the signatures. He noted that
several of the letters encouraged a public vote of the plan change.

Commissioner Gipe thanked Clerk Eggum for all of her work in reviewing
the correspondence and preparing a calculation of the comments. He
displayed a clipping from the Daily Interlake of October 26th wherein the
Columbia Falls and Kalispell Chamber of Commerce, Flathead Business
and Industry Association, Evergreen Business and Property Owners
Association, Kalispell Business Owners Association and Jobs Now all
support the plan change along with over 600 individual names. He
speculated if you could get an accurate count it would probably end up
about 50-50. He noted that this change was also supported by the other
elected officials from Flathead County.

Commissioner Hall reviewed the resolutions: One an approval of the plan
change and another one putting the approval before a public vote.
Chairman Watne and Commissioner Gipe stated they would not support
putting the plan change on the ballot. Commissioner Hall cited the over
4,000 comments providing a good feel of where the community stands
relative to the issue. He agreed putting the matter on the ballot at this time
was not appropriate.

The resolution adopting the amendment also noted:

WHEREAS, the Board of Commissioners has considered the information
presented to it since the adoption of that resolution of intent.

33
Thus, the Commissioners had their staff review the public correspondence and prepare a

calculation of the comments, noted that 600 individual names were listed in favor of the

proposal as well as various organizations, cited the comments during the meeting, noted

and rejected the suggestion made by some comments to put the matter on the ballot,

described the public comments as “passionate” and expressed appreciation for the 4,400

comments received, noting that they came from all the surrounding area. In view of the

statute, which, at most, requires “consideration of” public comments, see § 76-1-603,

MCA, I believe the minutes, along with the final resolution, demonstrate that the

Commissioners’ actions completely satisfied the statutory obligation to “consider” public

comment. Nothing more is required under the statute.

¶77 However, the Court imposes its own judicially-created requirements upon local

governing bodies. The Court holds that the Commissioners are to engage in factfinding

that will “incorporate [public] comments into its decision-making process,” including a

duty “to flesh out the pertinent facts upon which [it relied],” particularly those public

comments which “raised novel issues,” which the Court defines as those “not addressed

by the Planning Office’s report.” In other words, the Court now imposes on the Board

the obligation to evaluate each of the 4,400 comments to determine whether the

comments were addressed in the planning report, and, if not, to make findings of fact

about how the Commissioners disposed of each of these “novel” comments, whether

favorably or not. Obviously, there is no way to know whether public comments have

raised a “novel” issue unless each comment is individually scrutinized, recorded and

compared. I submit that, not only do such obligations far exceed the “consideration”

34
required by statute, but are inconsistent with any practical understanding of the duties of

local elected officials, particularly in rural counties which have little support staff. These

officials are lay citizens elected to listen, not to document everything they have heard. 2

¶78 In my opinion, these new requirements will foster micro-management of local

governing bodies by the courts, a development inconsistent with the very nature of the

decision we are reviewing—that is, as the Court acknowledges initially, “[a]mending a

growth policy . . . constitutes a legislative act.” ¶ 18 (emphasis added). Legislating

should not require factfinding of the public opinion which influenced it. This striking

error is brought about by the authority erroneously relied upon by the Court. Despite the

express exclusion of local government units from MAPA, the Court nonetheless

concludes that Neighbors’s analogy to MAPA “proves apt to a degree,” ¶ 28, and

proceeds to impose MAPA-like requirements. This case may well illustrate why the

Legislature explicitly exempted local governments from MAPA’s application. Further,

the Court relies on Lowe and Schanz, both of which were zoning cases, not growth policy

cases, and were thus resolved by different statutes. Lastly, the Court relies on Annex

Brooks, Inc. v. City of Indianapolis, which was a constitutional challenge to a quasi-

judicial act of denying an adult entertainment license to a particular business under a city

ordinance which governed the license application process. It was this quasi-judicial act

which the federal court could not review without factfinding—not the city’s legislative

act in adopting the ordinance. Annex Brooks, 333 F.Supp.2d at 782 (“the purpose of a

2
Indeed, it would appear that any person making a public comment now has
standing to challenge the commissioners’ failure to properly consider the “novel” issue
raised in their comment.

35
quasi-judicial proceeding by an agency, in this case, the Controller, is to flesh out the

pertinent facts upon which a decision is based in order to facilitate judicial review”). I

must agree that having additional factfinding would, no doubt, be helpful to the courts

when reviewing these legislative decisions. However, convenience does not equate to a

requirement. Having imposed formal requirements upon the exercise of legislative

powers, this decision will have far-reaching and adverse ramifications for local

governments.

¶79 Turning to Issue 3, I find the Court’s decision to reach the issue of “[w]hether the

Wolford Amendment is consistent with the Flathead Growth Policy” inherently

contradictory with its decision to reverse and remand for more detailed consideration and

findings of fact under Issue 1A. If, as the Court concludes under Issue 1A, the Board

erred in not generating sufficient findings of fact to allow judicial review of the

Amendment, how can we reach the issue of whether that Amendment is consistent with

the Growth Policy and thereby satisfies the law? In doing the latter under Issue 3, the

Court impliedly concedes that there really is sufficient evidence for purposes of Issue 1A.

Of course, I agree with this conclusion, and therefore, concur with Issue 3, but dissent

from the Court’s reversal under Issue 1A.

¶80 I would affirm.

/S/ JIM RICE

36