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
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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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