Country Highlands Homeowners Ass'n v. Board of County Commissioners

August 12 2008

DA 06-0679

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 286

COUNTRY HIGHLANDS HOMEOWNERS
ASSOCIATION, INC., a Montana nonprofit
mutual benefit corporation, MARTIN GILMAN
and ALAN McNEIL,

Plaintiffs and Appellants,

v.

BOARD OF COUNTY COMMISSIONERS
OF FLATHEAD COUNTY, the governing body
of the County of Flathead, acting by and through
GARY HALL, ROBERT W. WATNE, and
HOWARD W. GIPE, and JOE BRENNEMAN,

Defendants and Appellees.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-03-534B
Honorable Katherine R. Curtis, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

David Kim Wilson, Jr.; Reynolds, Motl & Sherwood; Helena, Montana

For Appellee:

Alan F. McCormick; Garlington, Lohn & Robinson; Missoula, Montana

Submitted on Briefs: December 12, 2007

Decided: August 12, 2008

Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Appellants, Country Highlands Homeowners Association Inc., Martin Gilman, and

Alan McNeil (Country Highlands), appeal from the order of the Eleventh Judicial District

Court, Flathead County denying their motion for summary judgment and granting

summary judgment to Appellee Board of County Commissioners of Flathead County

(Board). We dismiss the appeal because the issues have been mooted.

¶2 Country Highlands raises the following issues on appeal:

¶3 1. Did the District Court err by ruling that sufficient evidence exists to

demonstrate that the Board did not abuse its discretion when adopting a 2004 amendment

to the 1987 Growth Policy?

¶4 2. Did the District Court err by ruling that the 2005 Zoning District amendment

was in compliance with the 1987 Growth Policy as amended in 2004?

¶5 The Board raises the following issue:

¶6 3. Have the issues raised on appeal by Country Highlands been mooted by the

adoption of the Flathead County 2007 Growth Policy?

¶7 For the reasons discussed herein, we do not reach Country Highlands’ issues.

FACTUAL AND PROCEDURAL BACKGROUND

¶8 This lawsuit pertains to the Board’s approval of an amendment to the 1987

Flathead County Master Plan1 (1987 Growth Policy) and an amendment to the Highway

1
Master plans are now statutorily referred to as “growth policies.” See § 76-1-106,
MCA; Citizen Advocates for a Livable Missoula Inc. v. City Council, 2006 MT 47, ¶ 20
n.1, 331 Mont. 269, ¶ 20 n.1, 130 P.3d 1259, ¶ 20 n.1.
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93 North Zoning District (Zoning District) for 215 acres of land contiguous to property

owned by Country Highlands. The land at issue is located within the Zoning District and

is on the east side of Highway 93 across from the Majestic Valley Arena and Raceway

Park. The 215 acres, owned by Granite Holdings and Ray and Pat Zinke (Granite

Holdings), was the subject of three land use designation changes resulting in the Growth

Policy and Zoning District amendments which are the subject of this appeal.

¶9 First, Granite Holdings, which initially owned only 148 acres, sought a zone

change for this property from AG-40 agricultural zoning to SAG-5 suburban agricultural

zoning. On August 21, 2003, the Board approved the request. While the first zone

change request was pending, on Apri l 23, 2003, Granite Holdings submitted an

application for the Majestic Hills Subdivision and mixed-use planned unit development

(PUD) for the property. The application sought approval of a fifty-two lot subdivision

for SAG-5 single family residential development and B-2 commercial development.

Approval of this subdivision and PUD was granted by the Board on November 24, 2003.

¶10 Then, Granite Holdings, having acquired approximately sixty-seven additional

contiguous acres, changed its plans and on July 23, 2004, requested an amendment to the

1987 Growth Policy to revise the land use designation for the 215 acres from primarily

agriculture to residential and commercial. The application requested suburban residential

designation for 166 acres and a commercial designation for forty-nine acres. The

Flathead County Planning Department evaluated the request and determined that “the

project is a potential net positive for Flathead County.” Thereafter, the Planning Board

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held a public hearing, evaluated the request, adopted the Staff Report as findings of fact,

and recommended that the Board approve the request. The Board subsequently adopted

the Planning Board’s resolution and approved the Growth Policy amendment on

November 24, 2004 (2004 Growth Policy amendment).

¶11 Thereafter, Granite Holdings submitted an application to amend the Zoning

District to rezone the 215 acres from SAG-5, SAG-10 (suburban agricultural) and AG-40

(agricultural) to R-2 (residential) and B-2 (general business). The Planning Department

considered the request pursuant to the statutory criteria set forth in § 76-2-205, MCA

(2003), conducted a public hearing, adopted the Staff Report as findings of fact, and

recommended that the Board approve the request. On March 8, 2005, the Board did so

(2005 Zoning District amendment).

¶12 In October, 2003, Country Highlands filed suit in the District Court. Country

Highlands filed an amended complaint in April, 2005, alleging in pertinent part that both

the 2004 Growth Policy and the 2005 Zoning District amendments were invalid. The

Board and Country Highlands each moved for summary judgment. The District Court

subsequently denied Country Highlands’ motion and granted the Board’s motion. The

court concluded that the “Board’s adoption of the amendment to the growth policy was

procedurally and substantively correct [as] . . . authorized by both statutory and case

law.” Moreover the court determined that “[s]ufficient evidence supports the Board’s

decision.” The court also declared the 2005 Zoning District amendment valid because

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the “proper procedures were followed and there was no abuse of discretion by the

Board.” Country Highlands then appealed.

¶13 While this case was pending on appeal, Flathead County adopted a new growth

policy (2007 Growth Policy). This policy replaced the 1987 Growth Policy. The 2007

Growth Policy reenacted the zoning at issue here by incorporating the existing zoning

districts, providing: “Land use zoning in existence at the time the Growth Policy is

adopted shall remain in place.” Flathead County Growth Policy, Res. No. 2015A,

(Mont.) Ch. 9, p.139 (Mar. 19, 2007).

STANDARD OF REVIEW

¶14 We review summary judgment rulings de novo. Yurczyk v. Yellowstone Co., 2004

MT 3, ¶ 14, 319 Mont. 169, ¶ 14, 83 P.3d 266, ¶ 14. When reviewing a district court’s

grant of summary judgment we apply the same evaluation as the district court based on

M. R. Civ. P. 56. Yurczyk, ¶ 14. Growth policy and zoning designations are legislative

acts which courts review for an abuse of discretion. North 93 Neighbors, Inc. v. Bd. of

Co. Commrs., 2006 MT 132, ¶ 18, 332 Mont. 327, ¶ 18, 137 P.3d 557, ¶ 18; Schanz v.

City of Billings, 182 Mont. 328, 335, 597 P.2d 67, 71 (1979) (explaining that “[w]hile

neither the trial court nor this Court can substitute its discretion for that of the City

Council, the judiciary does have the power to find whether or not there has been an abuse

of discretion.” (internal quotations omitted)).

DISCUSSION

¶15 Have the issues raised on appeal by Country Highlands been mooted by the
adoption of the Flathead County 2007 Growth Policy?
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¶16 The Board asserts that the issues raised by Country Highlands are now moot.

Whether an appeal is moot is a threshold issue we consider prior to deciding the matter

on appeal. A “matter is moot when, due to an event or happening, the issue has ceased to

exist and no longer presents an actual controversy.” Shamrock Motors, Inc. v. Ford

Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, ¶ 19, 974 P.2d 1150, ¶ 19. An appeal

becomes moot when the court cannot grant effective relief or the parties cannot be

restored to their original position. Shamrock, ¶ 19.

¶17 Country Highlands asserts that the issues on appeal are not moot because the 2005

Zoning District amendment still exists under the 2007 Growth Policy. Country

Highlands challenges the 2005 Zoning District amendment on two grounds, that 1) it is

inconsistent with the existing Zoning District and 2) it is inconsistent with the 1987

Growth Policy.2 Country Highlands does not argue the exception to mootness. See

Montana-Dakota Utils. Co. v. City of Billings, 2003 MT 332, ¶ 7, 318 Mont. 862, ¶ 7, 80

P.3d 1247, ¶ 7.

¶18 As the Board correctly points out, Country Highlands’ first argument, that the

Zoning District amendment is inconsistent with the existing Zoning District, has been

raised for the first time on appeal. Consistent with our well established rule of declining

to entertain issues raised for the first time on appeal, we will not consider this argument.

2
For the interplay between growth policies and zoning ordinances, see §§ 76-1-605, 76-
2-304, MCA; Citizen Advocates, ¶¶ 22-25.
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Dayberry v. City of E. Helena, 2003 MT 321, ¶ 24, 318 Mont. 301, ¶ 24, 80 P.3d 1218,

¶ 24.

¶19 Country Highlands’ second argument is two-fold. Country Highlands asserts that

the 2005 Zoning District amendment is impermissibly inconsistent with the 1987 Growth

Policy because it is premised on the 2004 Growth Policy amendment, which conflicted

with the 1987 Growth Policy. Essentially, Country Highlands asks us to invalidate the

2004 Growth Policy amendment on the basis that it was inconsistent with the 1987

Growth Policy, and then invalidate the 2005 Zoning District amendment because it was

based on the flawed 2004 Growth Policy amendment.

¶20 The Board asserts that these arguments are now mooted because the 1987 Growth

Policy has been repealed and replaced by the 2007 Growth Policy. The Board contends

that even if this Court “ruled that the Commissioners improperly amended the 1987

Growth Policy, that document no longer has any effect and no longer presents an actual

controversy.” Accordingly, the Board argues that “Country Highlands cannot be granted

effective relief, cannot be restored to its original position[,] and the matter is therefore

moot.”

¶21 Country Highlands replies that “if the 2005 zoning amendment is invalid for any

reason, including its inconsistency with the Growth Policy in place at the time of its

adoption, it is void ab initio and should be annulled and set aside.” Accordingly, Country

Highlands asserts that it “can still be ‘restored’ to its original position because if the 2005

7
zoning is annulled and set aside, the same public zoning process would be required anew

as would have been required prior to the 2007 Growth Policy . . . .” We disagree.

¶22 Even if we were to strike down the 2005 Zoning District amendment by engaging

in Country Highlands’ two-step analysis of policies which no longer have any effect in

Flathead County, the 2005 Zoning District amendment would nonetheless arguably

remain valid by virtue of the Board’s subsequent action of adopting it within the 2007

Growth Policy. The 2007 Growth Policy reenacted the 2005 Zoning District amendment

via incorporation and that action is presumed lawful and valid absent another challenge.

Schanz, 182 Mont. at 335, 597 P.2d at 71 (explaining that the policy currently in effect is

“entitled to the presumptions of validity and reasonableness.”). If we were to invalidate

the 2005 Zoning District amendment because of asserted inconsistencies with the 1987

Growth Policy, it would still exist and be presumed valid under the 2007 Growth

Policy—a later legislative enactment. North 93 Neighbors, ¶ 18. A challenge would still

be necessary to determine whether it was consistent with the 2007 Growth Policy, which

has superseded the 1987 Growth Policy. The issue of whether the 2005 Zoning District

amendment is consistent with the current 2007 Growth Policy is not before us for

consideration. Dayberry, ¶ 24.

¶23 In sum, the particular issues raised on appeal are dependent upon the 1987 Growth

Policy, which no longer has any effect in Flathead County. Therefore, any decision by

this Court in this appeal cannot grant effective relief and will not return Country

8
Highlands to its original position. Thus, we must dismiss this appeal on mootness

grounds.

/S/ JIM RICE

We concur:

/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART

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