No. 04-836
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 47
CITIZEN ADVOCATES FOR A LIVABLE
MISSOULA, INC., a Montana Nonprofit Public
Benefit Corporation; JUDY SMITH; JOHN
FLETCHER; JIM PARKER; and JOHN COUCH,
Plaintiffs and Appellants,
v.
CITY COUNCIL and MAYOR OF THE CITY OF
MISSOULA, MONTANA, Acting as the Governing
Body of the City of Missoula, a Governmental Entity,
Defendants and Respondents.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 2003-870,
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Caryn Miske, Attorney at Law, Frenchtown, Montana
For Respondents:
Jim Nugent, City Attorney; Susan A. Firth, Deputy City
Attorney, Missoula, Montana
Submitted on Briefs: August 23, 2005
Decided: March 7, 2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Citizen Advocates for a Livable Missoula, Judy Smith, John Fletcher, Jim Parker,
and John Couch (collectively, Appellants) appeal from the order of the Fourth Judicial
District Court granting summary judgment to the City Council and Mayor of the City of
Missoula, Montana (Respondents). Appellants argue that the existence of material
questions of fact precludes summary judgment, and further, that Missoula City Ordinance
3234 fails to comply with the City’s growth policy and neighborhood plan. We affirm.
¶2 We consider the following issues on appeal:
¶3 (1) Did the District Court err by granting summary judgment in favor of
Respondents?
¶4 (2) Did the District Court abuse its discretion by denying Appellants’ motion to
compel the testimony of Dale McCormick?
¶5 Because we affirm the judgment of the District Court in favor of Respondents, we
do not undertake review of Appellants’ claim for attorney fees and costs.
BACKGROUND
¶6 Offered for sale by the City of Missoula, the City properties occupying most of the
800 and 900 blocks in the West Broadway area were used primarily for heavy equipment
maintenance, storage, and fueling of City vehicles. The offered property bordered
property owned by St. Patrick’s Hospital (SPH). As a result of the proximity of the
offered lands, SPH bid on the property and was thereafter selected as the successful
bidder by the City.
2
¶7 After discussions with Safeway, Inc., regarding Safeway’s nearby grocery store in
the 600 block of West Broadway, SPH submitted a zoning proposal seeking City
approval of a zoning amendment which would allow construction of a large new Safeway
grocery store on the lands purchased from the City by SPH, and upon that approval, for
purchase of Safeway’s existing store by SPH and expansion of SPH’s current hospital
facilities therein. SPH sought to rezone the purchased City lands because that property’s
zoning classifications of C (Commerical), RH (High Rise), and P-2 (Public Lands and
Institutions), did not permit SPH and Safeway’s proposed development plans.
¶8 SPH’s zoning proposal, also known as the Broadway-Scott Gateway Special
District, or City Ordinance 3234, quickly caught the attention of the West Broadway
community, and the attention was not always positive. On December 4, 2002, the
Northside/Westside Neighborhood Council unanimously declared its opposition to the
zoning proposal. Thereafter, on January 7, 2003, Office of Planning and Grants (OPG)
city planner Dale McCormick noted OPG staff’s displeasure with the zoning proposal at
a presentation before the Missoula Consolidated Planning Board (Planning Board).
According to McCormick, OPG seriously questioned whether the zoning proposal
complied with relevant planning documents—i.e., the 1998 Missoula Urban Compre-
hensive Plan, the 2000 Joint Northside/Westside Neighborhood Plan, and the 2002
Missoula County Growth Policy. Specifically, McCormick and the OPG staff believed
that construction of a new Safeway mega-store in conjunction with the rezoning of the
former City lands (1) failed to reflect the residential and small business character of the
3
district, (2) would create traffic congestion, and (3) did not encourage the most
appropriate use of land. Ultimately, OPG recommended that the Planning Board deny
the zoning proposal.
¶9 After receiving OPG’s recommendations, the Planning Board received public
comment on the zoning proposal. While some supporting comments were received—
e.g., proponents argued expansion of SPH and a new modern Safeway store would create
much needed jobs and modernization in the area—most of the comments opposed the
proposal—e.g., residents believed that the rezone and resulting new construction would
hurt the historic character of the community, create an area unfriendly to pedestrians, and
violate the goals and objectives outlined in the 2000 Joint Northside/Westside
Neighborhood Plan.
¶10 After a hearing on January 7, 2003, and despite strong staff and public opposition,
the Planning Board voted to approve the zoning proposal. The Board noted that the
rezoning and subsequent construction of a new Safeway would (1) stabilize grocery
shopping in the area, (2) support mixed uses of the area, and (3) provide an anchor
institution which would attract more businesses to the area. In approving SPH’s zoning
proposal, the Planning Board did not recommend any changes in the proposal or
conditions for the approval thereof.
¶11 After approval by the Planning Board, the zoning proposal went before the
Missoula City Council (City Council), which held ultimate authority to approve or deny
the request. After reviewing the Planning Board’s findings and the public comment,
4
several City Council members expressed concern with aspects of the proposal.
Consequently, the City Council rejected the Planning Board’s recommendation for
unconditional approval and, instead, requested that OPG recommend conditions of
approval which would amend the zoning proposal to address the Council’s concerns.
¶12 After further OPG consideration, that office recommended the placement of
seventeen conditions on SPH’s proposal. Those conditions responded to many of the
concerns expressed by the public, including (1) the size and design of the proposed
Safeway facility, (2) the lack of mixed-use and residential character of the initial
proposal, and (3) the traffic and pedestrian problems generated by the initial proposal.
Dale McCormick, the lead OPG planner assigned to the proposal, noted that the revised
zoning proposal, with its new conditions, was “substantively different from what St.
Patrick Hospital originally proposed.” He later wrote that the revised proposal “move[d]
toward compliance” with the City Center/Mixed Use land designation aspect of the
Northside/Westside Neighborhood Plan, better integrated the proposed Safeway structure
with the current look and feel of the community, and lessened the traffic congestion
which seemed likely to arise under the original zoning proposal.
¶13 After consideration of the revised zoning proposal, the City Council approved it
on an eight to four vote on September 22, 2003. Thereafter, Appellants initiated this
action, arguing that the revised proposal violated the 2002 Missoula County Growth
Policy and the 2000 Joint Northside/Westside Neighborhood Plan.
5
¶14 Respondents filed a motion to dismiss on May 5, 2004, which the District Court
thereafter converted into a motion for summary judgment. The District Court held a
hearing on that motion on August 23, 2004, at which Appellants presented five witnesses
who testified that the zoning proposal violated the Missoula County growth policy and
related neighborhood plan. Nonetheless, the District Court granted summary judgment to
Respondents, concluding that there were no genuine issues of material fact and that the
City Council did not abuse its discretion when it adopted the zoning proposal.
¶15 Appellants appealed on October 26, 2004.
STANDARDS OF REVIEW
¶16 This case is before us on a grant of summary judgment. We review district court
grants of summary judgment de novo. Abraham v. Nelson, 2002 MT 94, ¶ 9, 309 Mont.
366, ¶ 9, 46 P.3d 628, ¶ 9. Summary judgment is “an extreme remedy, and is only
appropriate when there is no genuine issue as to any material fact such that the moving
party is entitled to judgment as a matter of law.” Patterson v. Verizon Wireless, 2005 MT
261, ¶ 9, 329 Mont. 79, ¶ 9, 122 P.3d 1193, ¶ 9. Where there are genuine issues of
material fact, summary judgment is inappropriate. Patterson, ¶ 9.
¶17 We review a district court’s conclusions of law to determine if they are correct.
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
¶18 We review a district court’s denial of a motion to compel discovery for abuse of
discretion. Circle S Seeds of Montana, Inc. v. T&M Transporting, Inc., 2006 MT 25,
¶¶ 14, 25, 331 Mont. 76, ¶¶ 14, 25, ___ P.3d ___, ¶¶ 14, 25. “A district court abuses its
6
discretion when it acts arbitrarily without employment of conscientious judgment or
exceeds the bounds of reason, resulting in substantial injustice.” State v. Riggs, 2005 MT
124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18.
DISCUSSION
1. Did the District Court err by granting summary judgment in favor of Respondents?
¶19 Appellants argue that City Ordinance 3234 (the zoning proposal) as approved by
the Missoula City Council violates both § 76-2-304, MCA (2003), and Missoula City
Ordinance § 19.72.040, and further, does not substantially comply with the Missoula
County Growth Policy and 2000 Joint Northside/Westside Neighborhood Plan.
¶20 To assist in community planning and the orderly development of its governmental
units and environs, local governments are authorized to create planning boards. Section
76-1-101, MCA (2003); see also Ash Grove Cement Co. v. Jefferson County (1997), 283
Mont. 486, 494, 943 P.2d 85, 90. Further, “[i]n 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.”1 Ash Grove, 283
Mont. at 494, 943 P.2d at 90; see also § 76-1-106, MCA (2002). A growth policy
“essentially surveys land use as it exists and makes recommendations for future planning
. . . .” Ash Grove, 283 Mont. at 494, 943 P.2d at 90. By statute, a growth policy may
include a neighborhood plan, and that plan must be consistent with the growth policy.
1
The “growth policy” was formerly known as a “master plan.” See § 76-1-106,
MCA (1997). The Legislature made the change from “master plan” to “growth policy” in
1999, though the substance and effect of the actual document is the same. See compilers
comments to § 76-1-106, MCA (1999).
7
Section 76-1-601(4)(a), MCA (2003). The statutory scheme includes § 76-1-605, MCA
(2003), entitled “Use of adopted growth policy,” which states, in pertinent part, as
follows:
Use of adopted growth policy. (1) Subject to subsection (2), after
adoption of a growth policy, the governing body within the area covered by
the growth policy pursuant to 76-1-601 must be guided by and give
consideration to the general policy and pattern of development set out in the
growth policy in the:
...
(c) adoption of zoning ordinances or resolutions.
(2)(a) A growth policy is not a regulatory document and does not
confer any authority to regulate that is not otherwise specifically authorized
by law or regulations adopted pursuant to the law.
(b) A governing body may not withhold, deny, or impose conditions
on any land use approval or other authority to act based solely on
compliance with a growth policy adopted pursuant to this chapter.
¶21 “The establishment of zoning districts is governed by statute in Montana,” Ash
Grove, 283 Mont. at 493, 943 P.2d at 89, and pursuant to those statutes, a municipality
such as the City of Missoula may create zoning districts. See § 76-2-301 et seq., MCA
(2003). Zoning regulations are to be made, among other things, “in accordance with a
growth policy . . . .” Section 76-2-304, MCA (2003).
¶22 A question we have previously resolved is again raised here, that is, how closely a
growth policy and neighborhood plan must be followed by a city when it zones lands
pursuant to the statutory scheme. The statutes noted above are somewhat contradictory.
Section 76-1-605, MCA (2003), provides that “the governing body within the area
8
covered by the growth policy pursuant to 76-1-601 must be guided by and give
consideration to the general policy and pattern of development set out in the growth
policy in the: . . . (c) adoption of zoning ordinances or resolutions.” (Emphasis added.)
On the other hand, § 76-2-304, MCA (2003), states that “[z]oning regulations must be . . .
made in accordance with a growth policy . . . .” (Emphasis added.) The confusion is
evident when one tries to reconcile these two statutes, since the former seems to require
mere consideration of a growth policy in zoning decisions, while the latter seems to
require a stricter adherence to the growth policy.
¶23 We previously reconciled this statutory incongruence in Little v. Bd. of County
Commissioners (1981), 193 Mont. 334, 349-53, 631 P.2d 1282, 1290-93. 2 There, after
struggling with the language of the statutes and considering the purposes of planning, we
reasoned:
To require strict compliance with the master plan would result in a master
plan so unworkable that it would have to be constantly changed to comply
with the realities. The master plan is, after all, a plan. On the other hand,
to require no compliance at all would defeat the whole idea of planning.
Why have a plan if the local governmental units are free to ignore it at any
time?
Little, 193 Mont. at 353, 631 P.2d at 1293. Ultimately, we concluded that the statutes
required governmental zoning bodies to “substantially comply” with the master plan or
growth policy. Little, 193 Mont. at 353, 631 P.2d at 1293. This “substantial compliance”
standard has remained unchanged since Little. See Ash Grove, 283 Mont. at 497-98, 943
2
It should be noted that Little involved the interplay between § 76-1-605, MCA,
and § 76-2-203, MCA (county zoning), and not between § 76-1-605, MCA, and § 76-2-
304, MCA (municipal zoning), as here.
9
P.2d at 92; Bridger Canyon Property Owners’ Association, Inc. v. Planning & Zoning
Commission (1995), 270 Mont. 160, 169, 890 P.2d 1268, 1273.
¶24 Recently, however, the 2003 Legislature amended § 76-1-605, MCA, adding the
following language:
(2)(a) A growth policy is not a regulatory document and does not
confer any authority to regulate that is not otherwise specifically authorized
by law or regulations adopted pursuant to the law.
(b) A governing body may not withhold, deny, or impose conditions
on any land use approval or other authority to act based solely on
compliance with a growth policy adopted pursuant to this chapter.
Section 76-1-605(2), MCA (2003). 3 The question then becomes how this new statutory
language will affect Little’s “substantial compliance” standard.
¶25 From its plain reading, it may be assumed that the 2003 legislation was intended to
reduce in some 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 Ordinance 3234 under Little’s “substantial
compliance” standard, and offer no argument in support of a change in the standard. 4
Consequently, and because the outcome is not dependent upon an interpretation of the
3
The 2003 amendments to § 76-1-605, MCA, were effective as of May 9, 2003.
See compilers comments to § 76-1-605, MCA (2003); Sec. 7, Ch. 599, L. 2003.
4
We note Respondents argue that, as a result of the 2003 legislation, the growth
policy is no longer a regulatory document. However, they assert the zoning proposal
should be upheld as substantially complying with the growth plan.
10
new statute, we will undertake the arguments as presented—pursuant to the “substantial
compliance” standard. While mindful of the statutory changes, we leave for another day
the question of what effect the 2003 legislation has had on the “substantial compliance”
standard.
¶26 Appellants argue that the zoning proposal does not substantially comply with the
Joint Northside/Westside Neighborhood Plan for the following reasons. First, the
proposal does not comport with the neighborhood plan’s goal to maintain a sense of
history and protect key landmarks. Second, the proposal, including Safeway’s new
facility, will increase traffic congestion and create a pedestrian unfriendly environment,
which they claim violate key principles of the neighborhood plan. Finally, the scale of
the proposed “big box” style Safeway facility is inconsistent with the residential and
small business character of the neighborhood, which they argue the neighborhood plan
seeks to preserve.
¶27 Respondents counter by arguing that the zoning proposal, and the resulting SPH
expansion and Safeway construction, stabilize two of the neighborhood’s most important
“anchor institutions”—Safeway and SPH, thereby fulfilling a neighborhood plan goal to
expand and enhance existing businesses. Further, Respondents argue that the seventeen
conditions attached to the proposal by the OPG and approved by the City Council
specifically address public concerns about the project, and likewise, insure that the
proposal complies with the neighborhood plan. Given the provisions of the planning
documents cited by Respondents, we concur with their argument.
11
¶28 Appellants correctly note that certain aspects of the SPH zoning proposal are not
in harmony with the neighborhood plan. For instance, language in the plan supporting a
residential and small business environment would militate against approval of a “big
box” style grocery store in the West Broadway neighborhood. Likewise, it appears as
though the historic city shop building will be razed, a strike against preservation of the
neighborhood’s history. However, at the same time, it is also apparent that SPH and
Safeway are specifically considered two of the most important of the neighborhood’s
“anchor institutions,” and it is clear that the neighborhood plan strives to support those
institutions. First, Neighborhood Economy Goal “A” of the plan generally provides:
Goal A: Encourage existing neighborhood businesses to stay in the
neighborhoods and to expand or enhance their current operations.
Further, the neighborhood plan addresses the importance of Safeway and SPH by name,
stating that:
[h]ow businesses like St. Patrick Hospital . . . and Safeway conduct
business in the neighborhoods has a significant effect on the economic
character and health of the area. Institutions and enterprises like these form
the core of the neighborhood economy and provide critical assets to both
business and residential neighbors.
Given that the plan specifically identifies Safeway and SPH as critical neighborhood
entities, Appellants faced a difficult challenge in arguing that a zoning proposal which
promotes the enhancement of these named entities is inconsistent with the planning goals
and documents.
¶29 We also note that the seventeen OPG conditions attached to the zoning proposal
substantially addressed early concerns that the proposal was not in compliance with the
12
neighborhood plan. As explained by Dale McCormick, the amended proposal dedicated
more land to residential housing, reduced the size of the proposed Safeway grocery store,
and made the proposed facility more pedestrian friendly. McCormick reiterated this
point in a memo to the Missoula City Attorney’s Office, noting that:
In contrast to the initial proposal, the current approved building plans move
toward compliance with the Goals and Action Items of the City
Center/Mixed-Use Corridor land use designation specified in the
Northside/Westside Neighborhood Plan . . . .
In response to concerns that the zoning proposal and proposed Safeway did not support
residential use, McCormick also stated that:
The [revised] proposal requires residential development for up to 32 new
dwelling units on 10.6% of the site fronting the Pine Street residential
neighborhood compatible with the neighborhood character . . . .
¶30 Appellants make much of the fact that some parts of the proposed Safeway
development—i.e., the proposed gas station and razing of the City shop building—are not
consistent with the neighborhood plan. However, it cannot be denied that the proposal is
very consistent with other parts of the plan. Surely, not every zoning proposal will be
consistent with every goal and objective expressed in a city’s growth plan documents. To
impose such a requirement would remove flexibility from a city’s review of zoning
proposals and make growth policies a rigid regulation, even exceeding the standard of
“substantial compliance.” Consequently, we conclude that the SPH zoning proposal, as
modified and approved by the Missoula City Council, substantially complies with the
growth plan.
13
¶31 Appellants make three additional arguments as to why summary judgment was
inappropriate. First, they argue that the existence of genuine issues of material fact
should have precluded summary judgment. However, we agree with the District Court.
Although Appellants claim that their witnesses created questions of material fact by
testifying to their belief that the zoning proposal did not comply with the relevant
planning documents, that question is more of a determination of law, rather than fact, and
does not preclude summary judgment.
¶32 Second, Appellants argue that the zoning proposal constitutes illegal spot zoning.
As we said in Little, “[g]enerally . . . three factors enter into determining whether spot
zoning exists in any given instance.” Little, 193 Mont. at 346, 631 P.2d at 1289. Those
factors are (1) whether the requested use is significantly different from the prevailing use
in the area, (2) whether the area which is being rezoned is rather small, and looks to
benefit a small number of persons, and (3) whether the rezone appears to be more in the
nature of special legislation, designed to benefit a few landowners at the expense of the
surrounding landowners or the general public. Little, 193 Mont. at 346, 631 P.2d at 1289.
Finally, we noted in Little that, “[i]f spot zoning is invalid, usually all three elements are
present . . . .” Little, 193 Mont. at 346, 631 P.2d at 1289.
¶33 Here, the zoning proposal and proposed Safeway facility are not significantly
different from prior uses and zoning within the 800 and 900 blocks of the West
Broadway community. Similar to the former zoning classifications of C (Commerical),
RH (High Rise), and P-2 (Public Lands and Institutions), the current zoning proposal
14
continues to provide for a mixed use of residential and business uses. Furthermore, the
Planning Board noted that other “big box” grocery stores have historically used the area,
specifically “the Big Broadway,” illustrating that the proposed Safeway is not
“significantly different” from past uses.
¶34 Finally, while the zoning proposal certainly benefits Safeway and SPH, we cannot
conclude that the benefit is conferred at the expense of the general public. To the
contrary, as a matter of adopted policy under the neighborhood plans, the health of
Safeway and SPH is deemed to be in the public’s interest. For that reason, and for the
others listed above, we agree with the District Court that the zoning proposal does not
constitute illegal spot zoning.
¶35 Appellants also offer an argument that the City Council violated Missoula City
Ordinance § 19.72.040 by not adopting findings of fact when it evaluated the zoning
proposal. However, Appellants have made this procedural argument for the first time on
appeal, which may be the reason this issue was not addressed by the District Court.
Although Appellants asserted in their Amended Complaint that the City Council had
violated Ordinance § 19.72.040, their claim in that regard was that the ordinance required
the Council to ensure satisfaction of the twelve substantive requirements listed in the
ordinance, and that this proposal “does not comply with at least three of the twelve
criteria.” Appellants did not assert that the Council had violated the ordinance by failing
to adopt findings of fact. “It is well established that this Court will not review an issue
that was not raised in the district court. ‘It is fundamentally unfair to fault the trial court
15
for failing to rule correctly on an issue it was never given the opportunity to consider.’”
Paulsen v. Flathead Conservation District, 2004 MT 136, ¶ 37, 321 Mont. 364, ¶ 37, 91
P.3d 569, ¶ 37 (quoting Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866).
Therefore, we decline to reach the issue.
2. Did the District Court abuse its discretion by denying Appellants’ motion to compel
the testimony of Dale McCormick?
¶36 In preparation for the September 7, 2004, hearing, Appellants’ attorney deposed
Dale McCormick on September 2, 2004, because McCormick could not attend the
hearing. Shortly after the deposition, because McCormick did not answer questions to
Appellants’ counsel’s satisfaction, Appellants filed a motion to compel McCormick’s
testimony during the hearing. The District Court denied that motion in its order of
September 27, 2004, citing the motion’s vagueness as the basis for its denial.
¶37 As noted above, we review a district court’s denial of a motion to compel
discovery for abuse of discretion. Circle S Seeds, ¶¶ 14, 25. Here, in moving to compel
McCormick’s testimony, Appellants did not cite to any particular questions which were
unsatisfactorily answered, and only vaguely referenced the subject matter they sought to
explore more fully. On the basis of these assertions, the District Court concluded that:
As the motion is too vague for either the City Council’s attorney or this
Court to respond in any intelligent substantive manner, the motion fails on
its face as a matter of law.
We conclude that the District Court did not abuse its discretion in determining that the
motion was too vague and lacked the specificity needed to rule upon it. As such, it
committed no error.
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¶38 The District Court is affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
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