No. DA 06-0285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 118
____________________________________
JENNIFER FIELDER, PAUL FIELDER, ROBERT
MANN, BETHANNE MANN, SCOTT WIESTLING,
JEANNE WIESTLING, JAMES GORDON, DARLENE
GORDON, LOREN McCLOUD, LORIS McCLOUD,
HONANI POLEQUAPTEWA and JEAN POLEQUAPTEWA,
Plaintiffs and Appellants,
v.
BOARD OF COUNTY COMMISSIONERS,
Sanders County, Montana, and DONALD OLIVER,
Defendants and Respondents.
____________________________________
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders, Cause No. DV-04-44,
The Honorable D. Kim Christopher, Presiding Judge.
COUNSEL OF RECORD:
For Appellants:
Darrel L. Moss, Sullivan, Tabaracci & Rhoades, Missoula, Montana
For Respondent Oliver:
Donald V. Snavely, Snavely Law Firm, Missoula, Montana
For Respondent County:
William T. Wagner, Garlington, Lohn & Robinson, Missoula, Montana
____________________________________
Submitted on Briefs: January 24, 2007
Decided: May 22, 2007
Filed:
_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Appellants Jennifer Fielder, Paul Fielder, and other residents of Sanders County
(collectively Fielders), filed a complaint challenging the Sanders County Commissioners’
(Commissioners) approval of the preliminary plat of the Waterfront West Major
Subdivision (Waterfront West). The District Court for the Twentieth Judicial District,
Sanders County, granted summary judgment in favor of the County and the developer,
Donald Oliver (Oliver). Fielders appeal and we reverse in part and affirm in part.
¶2 We address the following issues:
¶3 Did the District Court correctly determine that Fielders’ appeal of the
Commissioners’ decision had not been timely filed?
¶4 Did the District Court correctly determine that the Commissioners did not act
arbitrarily and capriciously by accepting a cash-in-lieu donation?
¶5 Did the District Court correctly determine that legal access existed to the parcels
in Waterfront West?
¶6 Did the District Court correctly determine that the Department of Environmental
Quality (DEQ) review of water and sanitation issues could be completed after
preliminary plat approval, but before final plat approval?
FACTS AND PROCEDURAL HISTORY
¶7 Oliver Trust owned and developed in phases four contiguous subdivisions known
as Waterfront Estates, Riverside Estates, Coveview Estates and Waterfront West. Oliver
envisioned the development of the adjoining parcels under a common development plan.
Oliver first developed Waterfront Estates. Oliver platted the access roads for all four of
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the subdivisions to lie on the outer boundaries of the subdivisions with the easements
lying one-half on each adjoining subdivision. Waterfront Circle creates the southern
boarder for Waterfront West and intersects with Coveview Lane to create the eastern
boarder for Waterfront West. Oliver designed Waterfront Circle and Coveview Lane to
be used by the adjoining subdivisions as his developments progressed. Fielders own
properties adjacent to Waterfront West in Coveview Estates.
¶8 Oliver’s attorney prepared a document titled “Second Amended Declaration of
Conditions, Covenants and Restrictions for Waterfront Estates Subdivisions, Etc.,”
(Declaration), in September 2001, to clarify the road dedications. The Declaration
provided:
The roads serving Waterfront and Coveview are hereby forever dedicated
to the use and enjoyment of the owners of all the lots within Waterfront,
Coveview, Parcels 4 and 5 of Riverside, and I.P. The Declarant shall retain
the right of use and enjoyment for as long as he lives.
¶9 The County had approved only the Waterfront Estates subdivision at the time that
Oliver executed the Declaration. Coveview Estates was still in the planning stage and
Waterfront West, called the Irregular Parcel or “I.P.” at this time, had not been platted.
Oliver sought to subdivide the Irregular Parcel under the name Waterfront West. The
County held a public hearing for Oliver’s request for approval of the preliminary plat for
Waterfront West on March 9, 2004. The Commissioners granted conditional preliminary
plat approval on March 30, 2004. The preliminary plat approval for Waterfront West
included conditions that Oliver make a cash-in-lieu donation to satisfy the park
requirement and that Oliver comply with all local and state subdivision requirements,
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including DEQ review of water and sanitation issues.
¶10 Fielders appealed the preliminary plat approval of Waterfront West to the District
Court on the grounds that the Commissioners failed to require DEQ review and approval
of the water and sanitation issues before granting preliminary plat approval, that
Waterfront West lacked proper access, and that the cash-in-lieu donation was arbitrary.
Fielders’ attorney delivered the complaint, summonses, filing fee, and a letter to the Clerk
of District Court requesting her to file the complaint, to UPS in Missoula on April 28,
2004, for overnight delivery. The UPS tracking information showed that it had delivered
the package containing the complaint on April 29, 2004. The complaint was stamped
“filed” on May 3, 2004, however, four days after the 30-day period for appeal had
expired.
¶11 Oliver moved for summary judgment on the grounds that Fielders filed the appeal
more than thirty days after the Commissioners’ decision to grant Waterfront West
preliminary plat approval. Oliver also argued that the Commissioners were not required
to review the sanitation and water issues before approval of the preliminary plat, legal
access to the new subdivision existed, and the cash-in-lieu of parks payment was
appropriate. The District Court determined that Fielders had filed the appeal late, but,
nevertheless, addressed the merits. The District Court granted Oliver’s motion for
summary judgment. We reverse in part and affirm in part.
STANDARD OF REVIEW
¶12 We review de novo a district court’s grant of summary judgment using the
standard established by M. R. Civ. P. 56. The moving party must establish the absence of
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a genuine issue of material fact and entitlement to judgment as a matter of law. Gliko v.
Permann, 2006 MT 30, ¶ 12, 331 Mont. 112, ¶ 12, 130 P.3d 155, ¶ 12. Once a moving
party has met its burden, the opposing party must present substantial evidence essential to
one or more elements of its case in order to raise a genuine issue of material fact. Gliko,
¶ 12. We review a district court’s conclusions of law to determine whether they are
correct. Gliko, ¶ 13.
ISSUE ONE
¶13 Did the District Court correctly determine that Fielders’ appeal of the
Commissioners’ decision had not been timely filed?
¶14 Fielders argue that the District Court incorrectly determined that their complaint
had not been timely filed. The Commissioners issued written findings for the conditional
preliminary plat approval for Waterfront West on March 30, 2004. Section 76-3-625(2),
MCA, provides that an aggrieved party may appeal to the district court within 30 days a
decision of the governing body to approve conditionally a preliminary plat for a proposed
subdivision. The thirty days allowed for appeal began to run when the Commissioners
signed the written findings on March 30, 2004. Section 76-3-620, MCA; Madison River
R.V. LTD. v. Town of Ennis, 2000 MT 15, ¶ 21, 298 Mont. 91, ¶ 21, 994 P.2d 1098, ¶ 21.
Fielders had until April 29, 2004, to file the Complaint. Oliver does not dispute that the
complaint arrived on April 29, 2004, but argues that the date stamped “filed” on the
complaint controls.
¶15 M. R. Civ. P. 5(e) provides that “[t]he filing of papers with the court as required
by these rules shall be made by filing them with the clerk of court.” This Court
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previously stated that unlike service by mail, which is complete on the date of mailing,
filing by mail is not complete until the pleading is placed in the custody of the clerk of
court. Schaffer v. Champion Home Builders Co., 229 Mont. 533, 536, 747 P.2d 872, 874
(1987). In Schaffer, the plaintiff claimed that he mailed the complaint three days before
the statute of limitations period expired. Schaffer, 229 Mont. at 536, 747 P.2d at 874.
The clerk of district court did not stamp the complaint “filed” until one day after the
period expired. This Court upheld summary judgment on the grounds that Schaffer had
failed to present any evidence that his complaint was in the clerk’s custody before March
1, 1983. Shaffer, 229 Mont. at 536, 747 P.2d at 874.
¶16 Here, by contrast, the undisputed evidence showed that UPS delivered Fielders’
complaint to the Clerk of District Court on April 29, 2004. Federal courts provide further
guidance in interpreting M. R. Civ. P. 5(e), which is identical in relevant part to F. R.
Civ. P. 5(e). Mohl v. Johnson, 275 Mont. 167, 171, 911 P.2d 217, 220 (1996). Federal
courts have stated that, “[p]apers and pleadings including the original complaint are
considered filed when they are placed in the possession of the clerk of court.” Cinton v.
Union Pacific R. Co., 813 F.2d 917, 920 (9th Cir. 1987) (citing C. Wright & A. Miller,
Federal Practice and Procedure § 1153 (1969)). The Ninth Circuit Court of Appeals
further stated the possession of the papers may be actual or constructive for a document
to be deemed filed. Cinton, 813 F.2d at 920 (citing United States v. Dae Rim Fishery
Co., 794 F.2d 1392, 1395 (9th Cir. 1986)). To construe the rule otherwise could lead to
jurisdiction turning on such fortuities as whether the deputy clerk left for dinner a half
hour early, or dashed off to the hospital because her child became ill. Sheviakov v. I.N.S.,
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237 F.3d 1144, 1148 (9th Cir. 2001).
¶17 In U. S. v. Nguyen, 997 F. Supp. 1281, 1287 (C.D. Cal. 1998), the clerk of court
received and lodged Nguyen’s motion on April 22, 1997, but failed to stamp the motion
“filed” until two days after the statute of limitations expired on April 23, 1997. The
federal court determined that the “filed” stamp is not conclusive in deciding that
Nguyen’s motion had been timely filed. The court held instead that a document is
deemed filed on the date that the clerk receives the document. Nguyen, 997 F. Supp. at
1288. We are persuaded by the federal court’s interpretation.
¶18 The undisputed evidence revealed that Fielder’s complaint arrived at the Clerk of
District Court’s office on April 29, 2004, and therefore, was timely filed. The District
Court incorrectly concluded that Fielders’ complaint was untimely. We now address the
merits of the Fielders’ appeal.
ISSUE TWO
¶19 Did the District Court correctly determine that the Commissioners did not act
arbitrarily and capriciously by accepting a cash-in-lieu donation?
¶20 Fielders argue that the District Court incorrectly determined that the
Commissioners did not act arbitrarily and capriciously by requesting that Oliver make a
cash-in-lieu of land donation to satisfy the parks dedication requirement. Section 76-3-
621, MCA, provides the Commissioners with the discretion to accept either a land or cash
donation to satisfy the park dedication requirement. Specifically, the Commissioners, “in
consultation with the subdivider and the planning board or park board that has
jurisdiction, . . . and, giving due weight and consideration to the expressed preference of
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the subdivider, may determine whether the park dedication must be a land donation, cash
donation, or a combination of both.” Section 76-3-621(4), MCA.
¶21 The County Park Board proposed that Oliver satisfy the park requirement with a
cash-in-lieu payment to the Sanders County Park Fund because the land proposed by
Oliver was not suitable for use as parkland. Fielders allege that Oliver made certain
inaccurate representations that private park land and open space could be used by
residents of the new subdivision. Fielders fail to point to any evidence in the record,
however, that supports their contention. The District Court correctly determined that the
Commissioners did not act arbitrarily in their decision to request a cash-in-lieu of land
donation payment.
ISSUE THREE
¶22 Did the District Court correctly determine that legal access existed to the parcels
in Waterfront West?
¶23 Fielders argue that allowing lot owners in Waterfront West to use Waterfront
Circle and Coveview Lane unilaterally expands the scope of the easements. Fielders
contend that the Waterfront West subdivision constituted a single parcel when Oliver
drafted the Declaration, and, therefore, the scope of the easement should be limited to the
use at the time of the Declaration. Oliver argues that property owners of the adjoining
parcels, including Waterfront West, own the property up to the center of the roadway and
possess reciprocal easements for use of the roads. Oliver argues that the Declaration’s
language demonstrates his intent that Waterfront Circle and Coveview Lane would
service all current and future subdivisions.
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¶24 We interpret grants in a manner similar with contracts in general. Section 70-1-
513, MCA. The interpretation and construction of a contract presents a question of law.
Van Hook v. Jennings, 1999 MT 198, ¶ 10, 295 Mont. 409, ¶ 10, 983 P.2d 995, ¶ 10. A
contract must be interpreted to give effect to the mutual intention of the parties as it
existed at the time of contracting, so far as the same is ascertainable and lawful. Section
28-3-301, MCA. When the parties reduce a contract to writing, we must ascertain the
intention of the parties from the writing alone if possible. Section 28-3-303, MCA. We
also determine the extent of the servitude by the terms of the grant or the nature of the
enjoyment by which it was acquired. Section 70-17-106, MCA. If the language of the
agreement is clear and unambiguous, we must apply the language as written. Van Hook,
¶ 11.
¶25 Oliver’s Declaration states that “it is the intent and purpose of this document to
amend and clarify: (1) the covenants, and (2) the dedications and reservations set forth on
the plats of the above-named subdivision and proposed subdivision (hereinafter
‘Waterfront’ and ‘Coveview’).” The Declaration provides that the roads serving
Waterfront and Coveview are “hereby forever dedicated to the use and enjoyment of the
owners of all of the lots within Waterfront, Coveview, Parcels 4 and 5 of Riverside, and
I.P.” The Declaration’s language establishes Oliver’s intent that Waterfront Circle and
Coveview Lane were to provide lot owners access to the various subdivisions.
¶26 Fielders argue that the language permitting “all of the owners” use of the roads
should limit access only to owners of lots that existed at the time that Oliver executed the
Declaration. The Declaration provides, however, that “the final plat of Coveview has not
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been filed.” Oliver admits that he had not subdivided the Irregular Parcel into Waterfront
West at the time that he executed the Declaration. Oliver also had not filed the final plat
that formally created the lots within the Coveview Estates subdivision. Thus, according
to Fielders’ own interpretation of the Declaration, they would be precluded from using
Waterfront Circle and Coveview Lane because their lot did not formally exist at the time
that Oliver executed the Declaration. The Declaration’s language does not support this
result. The District Court correctly concluded that the Commissioners did not act
arbitrarily in finding that legal access exists for the Waterfront West subdivision.
ISSUE FOUR
¶27 Did the District Court correctly determine that the DEQ review of water and
sanitation issues could be completed after preliminary plat approval, but before final plat
approval?
¶28 Fielders argue that DEQ must approve the water and sanitation issues before the
local government may approve a preliminary plat. Fielders rely on the Attorney
General’s opinion that provides that review for compliance with local subdivision
regulations must take place at the preliminary plat stage. 49 Mont. Op. No. 7 Atty. Gen.
(2001). Fielders interpret this opinion to require that DEQ not just review, but approve
the subdivision’s water and sanitation issues before approving a preliminary plat.
¶29 The Attorney General’s opinion addressed the question of when a proposed
subdivision must undergo review to show compliance with local subdivision regulations.
Section 76-3-608, MCA (2003), provides that preliminary plat review is designed to
ensure compliance with local and state subdivision regulations. A governing body may
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conditionally approve a preliminary plat and enumerate conditions that the developer
needs to meet to ensure approval of the final plat. Section 76-3-604, MCA (2003). The
Attorney General noted that the local government may not impose any additional
conditions as a prerequisite to a final plat approval after it has approved a preliminary
plat. Section 76-3-610(2), MCA (2003). The Attorney General concluded that “[r]eview
for compliance with water supply and sewage and solid waste disposal regulations at the
final plat stage would be rendered meaningless because the governing body could not
impose additional conditions for compliance at this stage.”
¶30 Neither the Attorney General’s opinion, nor the statutes addressing preliminary
plat approval, however, require DEQ to review and approve of water and sanitation
issues prior to preliminary plat approval. The statutes require only that the developer
comply with local subdivision requirements and obtain DEQ approval before the local
government may approve a final plat. Section 76-3-611(1)(a), MCA. Dan Miles (Miles),
the Director of Land Services for Sanders County, pointed out that DEQ review requires
that the subdivider provide “a copy of the plat, certificate of survey, deed, or other
document that is consistent with the document that will be, or has been, filed with the
county clerk and recorder for the proposed subdivision.” Admin. R. M.
17.36.103(1)(m). Miles further noted that DEQ cannot determine appropriate placements
for septic and well systems without an established lot layout.
¶31 In accordance with the regulations and normal practice in the course of the
preliminary plat review, the Commissioners approved the preliminary plat for the
Waterfront West subdivision with several conditions, including DEQ approval of water
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and sanitation systems. The final plat approval remains contingent on Oliver satisfying
the conditions required by the Commissioners, including compliance with DEQ and local
regulations regarding sanitation and water issues. Section 76-3-611(1)(a), MCA. The
District Court correctly determined that preliminary plat review “stage” did not end with
approval of the preliminary plat, but only after Oliver satisfies the mitigating conditions
imposed on the preliminary plat approval.
¶32 Although we reverse the District Court’s determination that Fielders’ appeal had
not been timely filed, we affirm the District Court’s decision to grant summary judgment
to the Commissioners and Oliver.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER
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