Flathead Citizens for Quality Growth, Inc. v. Flathead County Board of Adjustment

January 3 2008

DA 06-0173

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 1

FLATHEAD CITIZENS FOR QUALITY GROWTH, INC.,

Plaintiff and Appellant,

v.

FLATHEAD COUNTY BOARD OF ADJUSTMENT,

Defendant and Appellee,
____________________

TUTVEDT FAMILY PARTNERSHIP,

Plaintiff and Appellant,

v.

FLATHEAD COUNTY BOARD OF ADJUSTMENT,

Defendant and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-2005-503(A)
Honorable Stewart E. Stadler, Presiding Judge

COUNSEL OF RECORD:

For Appellant Flathead Citizens for Quality Growth, Inc.:

Jack R. Tuholske, Tuholske Law Office, P.C., Missoula, Montana

For Appellant Tutvedt Family Partnership:

Paul A. Sandry, Johnson, Berg, McEvoy & Bostock, PLLP, Kalispell,
Montana

For Appellee:

Jonathan B. Smith, Deputy County Attorney, Kalispell, Montana
 Submitted on Briefs: February 28, 2007

Decided: January 3, 2008

Filed:

__________________________________________
Clerk

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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 On July 13, 2005, Flathead Citizens for Quality Growth, Inc. (Citizens) filed suit

against the Flathead County Board of Adjustment (Board) in the Eleventh Judicial

District, Flathead County. The suit challenged a decision by the Board issuing a

Conditional Use Permit (CUP) to Tutvedt Family Partnership (Tuvedt). The CUP

allowed Tutvedt to extract and crush gravel on a 320-acre parcel of land it owned in the

West Valley area of Flathead County. Citizens argued the issuance of the CUP violated

the zoning regulations of the West Valley Zoning District (District) because it permitted

Tutvedt to operate a gravel crushing operation which was not accessory to normal farm

operations. Subsequently, Tutvedt intervened in the suit and also challenged the Board’s

decision. Tutvedt, however, argued that the CUP was too narrow in scope because it

prohibited Tutvedt from establishing asphalt and concrete batching operations on its land

within the West Valley. The District Court ultimately granted summary judgment to the

Board, denied motions for summary judgment filed by Tutvedt and Citizens, and upheld

the lawfulness of the Board’s decision to issue the CUP. Both Tutvedt and Citizens

appealed. We affirm in part, reverse in part, and remand to the District Court for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 From September 1995 to October 1996, residents of the West Valley, an area

northwest of Kalispell in Flathead County, began a major overhaul of the zoning

regulations governing the District. The initial impetus for this process was a proposal to

establish a neighborhood convenience store near a local school in the West Valley. The

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residents held a series of monthly meetings in which they evaluated existing land uses,

generated input about concerns and issues surrounding future land use, and ultimately

developed a set of goals and a plan to guide land use and development in the District.

Their efforts culminated in the West Valley Neighborhood Plan (Plan), a document

which “examines the various physical, biological, and social elements of the area to

establish a benchmark from which all future land use proposals can be measured. More

importantly, the Plan presents a future vision for West Valley.”

¶3 Initially, the West Valley was classified primarily for silvicultural and agricultural

uses. But as the Plan notes, “[t]he uniform application of a single zoning district to such

a large area fails to recognize the variability of land features throughout the district. Not

all the land can easily be classified as either ‘timber’ or ‘agriculture’, especially when

considering how the land use character of the area has changed dramatically, even with

zoning in place. The liberal use of subdivision exemptions (family transfers, occasional

sales) over the past 17+ years has created a suburban development pattern in many

locations.”

¶4 To respond to changing uses in the West Valley area, the residents formulated four

land use goals, and accompanying policies, to guide the development of new zoning

regulations. These goals include: (1) planning for wise use of the land in the West

Valley; (2) maintaining the rural and scenic quality of the valley; (3) protecting air and

water quality; and (4) protecting private property rights. The accompanying policies

address the following major areas: agriculture/forestry, residential, commercial/industrial,

open space, and public services. Within each policy area, the Plan makes specific

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recommendations consistent with the four major goals. Further, the Plan recommends

that subdivision and zoning regulations be utilized to practically implement these policy

recommendations. “Subdivision and zoning regulations are the primary tools of plan

implementation. Subdivision regulations can assess compliance of proposed land

divisions with the Neighborhood Plan and zoning regulations and require mitigation

measures as appropriate . . . . Land use regulations generally establish allowable uses, set

minimum lot sizes, and identify performance standards for new development.”

¶5 In April of 1997, the Flathead County Board of County Commissioners

(Commissioners) adopted the Plan as the basis for a new set of zoning regulations

governing land use in the District. The Flathead County Zoning Regulations (FCZR, or

Regulations) define the District as “[a] district to promote orderly growth and

development in the West Valley area consistent with the community vision statements as

expressed by the text and map exhibits of the West Valley Neighborhood Plan, County

Resolution #1226-A.” FCZR § 3.34.010. In addition to citing directly to the Plan in its

definition of the District, the Regulations also directly incorporate provisions of the Plan

into the Regulations themselves. “In cases where a neighborhood plan, addendum to a

Master Plan, or other adopted document contains aspects related to zoning and is under

the jurisdiction of these regulations, the provisions that are more restrictive shall control.”

FCZR § 1.04.020.

¶6 In March 2005, Tutvedt applied to the Board for a CUP to operate a gravel pit on a

320-acre parcel of land it owned within the District. Tutvedt sought permission to extract

and process gravel and sand, conduct limited retail gravel sales, use a crushing machine,

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and operate an asphalt batch plant. Under FCZR § 2.03, the Board has the authority and

responsibility to approve or deny such permits. FCZR § 2.06 outlines the process which

the Board must follow when considering an application for a CUP. One of the steps in

this process requires the Board to evaluate the CUP under a specific set of criteria listed

at FCZR § 2.06.080. These criteria cover four major areas: Site Suitability,

Appropriateness of Design, Availability of Public Services and Facilities, and Immediate

Neighborhood Impact. Further, under FCZR § 2.06.090, the applicant has the burden of

proof to show the criteria have been satisfied. Because Tutvedt’s initial application

lacked the necessary information to satisfy these criteria, the Board tabled it until Tutvedt

could provide further information.

¶7 After Tutvedt supplied the required information, the Flathead County Planning

and Zoning Department prepared a Staff Report (Report) which thoroughly evaluated the

application. The Report provides background information on Tutvedt’s proposed

operation and the existing land use in the District. The Report also considers and applies

the relevant Regulations and state laws to the CUP application, makes specific findings of

fact, and concludes with a series of recommendations to the Board. Because the Board

ultimately adopted it as the basis for its decision, aspects of the Report which bear

significantly on the issues raised in this appeal must be discussed in some detail.

¶8 One significant issue which the Report addresses concerns the zoned status of the

District itself. The Report begins by stating the definition of the District from the

Regulations themselves. See ¶ 5. The Report goes on to note that while the Plan

acknowledges an “increase in residential lots in the West Valley zone,” the Plan also

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states that residential uses, along with agricultural and silvicultural, “comprise a third

major land use component of the West Valley area.” From this, the Report determines

that “[t]here is no clear indication in the planning documents that the West Valley Zoning

District is an exclusively residential zone.” This observation is repeated in the “Findings

of Fact” section later in the Report:

The West Valley Zoning District is not strictly defined as residential or
agricultural. The Flathead County Zoning regulations and West Valley
Neighborhood Plan indicate the district is intended for a variety of uses,
including agricultural and silvicultural, while recognizing that areas of West
Valley are becoming increasingly residential.

¶9 A second significant issue discussed by the Report concerns the nature of

Tutvedt’s proposed operation, and whether it qualifies as an “extractive industry.” The

Report describes Tutvedt’s proposed operation as consisting of the “extraction and

processing of gravel, limited retail gravel sales, a crushing machine, and an asphalt batch

plant . . . .” The Report observes that “gravel extraction” is listed as a conditional use at

FCZR § 3.34.080(8), and that the Plan itself states that opportunities for gravel extraction

should be allowed. The Report also notes that the term “gravel extraction,” and the range

of activities included in this term, are nowhere defined in the Regulations. “Extractive

industries,” however, are defined as “[c]ommercial or industrial operations involving the

removal and processing of sand, rock, soil, gravel, or any mineral.” FCZR § 7.060.040.

Yet “extractive industries” per se are not listed as permitted or conditional uses in the

District. In other words, “gravel extraction” is permitted but not defined, and “extractive

industries” are not permitted in the District but are defined elsewhere in the Regulations.

As a result, it is not clear whether the type of “gravel extraction” allowed in the District is

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synonymous with “extractive industries,” or whether “gravel extraction” has a more

limited meaning. The Report sums up this ambiguity as follows:

Disagreement exists among founding members of the West Valley Land
Use Advisory Committee as to what was intended by the term “gravel
extraction” and if it was meant to limit gravel operations to small “mom
and pop” removal of gravel for personal or limited retail use, or if it is
intended to be synonymous with “extractive industries”, including
crushing, batch plant operations, and other associated activities. Review
of historical documents related to the creation of the West Valley Zoning
District offers no clarification. . . . [T]he intent of the West Valley
Neighborhood Plan is subject to debate. The fact that “gravel extraction”
is not defined in the Flathead County Zoning Regulations cannot be
construed to mean it is synonymous with “extractive industries.” No
definition exists, however, in either document to clarify exactly what is
meant by “gravel operations” and “gravel extraction.”

¶10 Unable to determine the precise meaning of “gravel extraction” and unsure about

the appropriate standards under which to evaluate the CUP, the Report evaluates

Tutvedt’s application as if it were a request to establish an “extractive industry.”

However, the Report makes clear that the final determination as to whether “gravel

extraction” is synonymous with “extractive industries” rests with the Board itself.

Notably, the Report explicitly conditions acceptance of its recommendation to issue a

CUP on a determination by the Board that “gravel extraction” and “extractive industries”

are synonymous terms.

It is recommended that the Flathead County Board of Adjustment adopt
staff report #FCU-05-07 as findings of fact and, if it is determined that the
terms “Gravel Extraction” and “Extractive Industries” are synonymous
and that it is the intent of the West Valley Neighborhood Plan and the
Flathead County Zoning Regulations to allow Extractive Industries in the
West Valley District, grant a Conditional Use Permit subject to the
following conditions . . . . (Emphasis added).

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¶11 A third relevant aspect of the Report concerns an evaluation of the application

under the required criteria at FCZR § 2.060.080. While the Report analyzes Tutvedt’s

application under all the required criteria, only those criteria bearing on the appealed

issues are excerpted below.

2.06.080 Criteria Required for Consideration of a Conditional Use Permit

1. A Conditional Use Permit may be granted only if the proposal, as
submitted, conforms to all of the following general Conditional Use Permit
criteria, as well as to all other applicable criteria that may be requested.

A. Site Suitability.

That the site is suitable for use. This includes . . .
(2). adequate access, and
(3). absence of environmental constraints

....

C. Availability of Public Services and Facilities.

The following services and facilities are to be available and
adequate to serve the needs of the use as designed and
proposed . . .
(6). streets.

D. Immediate Neighborhood Impact.

That the proposed use will not be detrimental to
surrounding neighborhoods in general. Typical negative
impacts which extend beyond the proposed site include:
(1). excessive traffic generation . . . .

¶12 Two major aspects of Tutvedt’s operation discussed in the Report are the potential

impacts from increased traffic and impacts on water quality in the District. Under criteria

A(2), the Report notes that three neighboring roads will see an increase in traffic as a

result of Tutvedt’s operation: Farm to Market Road, Church Drive, and West Reserve

9
Drive. Farm to Market Road will provide primary access to the site and is capable of

handling the increased use. Another road, Church Drive, will also be impacted but is

described by the Report as “substandard, with a narrow hard drive surface and minimal or

no shoulder in some locations.” A third road, West Reserve Drive, “currently has

significant traffic volume and will be impacted by this use.” These factors led the Report

to conclude that “impacts to Church Drive and increased traffic volume on Farm to

Market Road and West Reserve Drive are cause for consideration.” These concerns are

reiterated under the “Availability of Public Services and Facilities” criteria, with the

Report again noting that “[s]ignificant additional traffic will be generated as a result of

this use. . . . Church Drive is substandard and will not accommodate an industrial

approach.” Lastly, these concerns are repeated again under criteria D(1). “Increased

travel on Church Drive is cause for consideration due to the substandard nature of the

road, as is increased travel on West Reserve due to its proximity to the West Valley

Elementary School.” In its “Findings of Fact” section, the Report concludes as follows:

The location of the site is cause for consideration. While Farm to Market
Road is built to State standards and the access point has adequate visibility,
Church Drive, West Reserve Drive, and Stillwater Drive, are either heavily
traveled or below the standard for the volume of traffic that could be
generated by this use.

¶13 The Report discusses impacts on water quality under criteria A(3), “environmental

constraints.” The Report states that “[p]ublic concerns about water quality and the

shallow aquifer are valid, however according to DEQ, extractive industries operated in

accordance with department regulations have little to no impact on water quality.” As a

result, the Report makes no particular findings respecting water quality impacts of the

10
operation, concluding simply that “[r]eview of water quality impacts from this use is

under the jurisdiction of the DEQ.”

¶14 In conclusion, the Report recommends 27 conditions be attached to Tutvedt’s CUP

if approved by the Board. While it is not necessary to discuss all of these conditions,

several merit consideration because of their bearing on the areas of the Report

highlighted above. For instance, conditions numbered 8, 16, and 27 all relate in some

manner to the increased traffic impacts. Condition 8 mandates that two-hundred feet of

the approach to the operation from Farm to Market Road be paved. Condition 16

requires that signage be erected to alert vehicular and pedestrian traffic of the increase in

heavy truck traffic along Farm to Market Road, Church Drive, West Reserve Drive,

Stillwater Drive, and West Valley Drive. Condition 27 limits the hours for heavy truck

traffic within one mile of West Valley School while school is in session. Notably absent

from these conditions, however, is any attempt to address or mitigate what the Report

itself repeatedly refers to as the “substandard” condition of Church Road and West

Reserve Drive.

¶15 Additionally, condition 15 seemingly addresses the water quality issue noted

above by stating that the operation “shall comply with the Montana Opencut Mining Act,

as administered by the Montana Department of Environmental Quality.”

¶16 On June 14, 2005, the Board held a hearing on Tutvedt’s application. The meeting

began with a review of the above-mentioned Report by the county planner. After a brief

discussion, the Board took oral testimony from proponents and opponents of the

operation, including presentations by attorneys from both sides. Many issues and

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concerns were raised in the course of this hearing. One issue concerned the operation of

State law to limit the authority of the Board to deny or modify Tutvedt’s application.

Proponents of the operation argued that the District was not zoned “residential” and that

§ 76-2-209, MCA,1 prevented the Board from denying or limiting Tutvedt’s CUP.

Opponents of Tutvedt’s application disputed this claim, arguing the District was

“residential” and that the Board did have authority to limit or deny Tutvedt’s CUP under

§ 209(2).

¶17 Another issue raised in the course of the testimony was whether the Regulations

and the Plan allowed for “extractive industries,” and whether Tutvedt’s proposed

operation was permissible under the Regulations and the Plan. Other individuals recited

concerns about traffic impacts and water quality issues. Some individuals testified as to

the poor quality of the surrounding roads, and questioned how they would be affected by

heavy truck traffic. Others, including an expert hydrologist, testified about the potential

impacts of Tutvedt’s operation on the Lost Creek Fan, an aquifer located in West Valley,

and requested that the Board study the matter further before issuing the CUP. There was

also discussion about whether the Board could issue a CUP before Tutvedt obtained a

reclamation plan from the State. The attorney for Citizens argued that the Regulations

required a reclamation plan prior to approval of a CUP, and that the Board had to table

the application until the plan had been approved. Many other issues were discussed as

well. In all, the testimony lasted over two hours with both sides having ample time to air

their views and concerns before the Board.

1
Reproduced infra at ¶ 70.

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¶18 After public comment was concluded, the Board heard testimony again from the

county planner and then began public deliberations. The Board members discussed

almost all of the issues raised by the Report and the public testimony, including how the

impacts from increased traffic would be handled, whether the District was zoned

“residential,” whether the Board could consider data and science on water quality

impacts, and whether the Board was prohibited from denying Tutvedt’s application under

§ 76-2-209, MCA. The Board also discussed whether the Plan and the Regulations

permitted extractive industries in the District, and in particular whether Tutvedt could

establish asphalt batch plants in its operations. After discussion was concluded, the

Board denied Tutvedt’s application for a CUP by a vote of 2 to 2.

¶19 After the vote, the Board members discussed whether they could entertain a

motion to amend the CUP and attach an additional condition prohibiting asphalt and

concrete batch plant operations. Although not directly consulted, the county attorney

volunteered to the Board that it could make such a motion. After this, the Board

members spent several minutes formulating the language to be inserted as an additional

condition in the CUP. After consensus as to the exact wording, the members passed, by a

3 to 1 majority, a motion to amend the CUP with the additional condition. That

amendment became Condition No. 28, which prohibited asphalt and concrete batch plant

operations.

¶20 On July 13, 2005, Citizens filed suit against the Board in the Eleventh Judicial

District, Flathead County. In their complaint, Citizens alleged the Board’s decision

violated the Regulations, was arbitrary and capricious, and adversely affected the rights

13
and the health, safety, and well-being of Citizens’ members. In particular, Citizens

alleged the Board’s decision failed to properly determine the District was a residential

zone, permitted an unlawful use under the District’s Regulations, and was arbitrary and

capricious for failing to address the adverse impacts of Tutvedt’s operation. Further,

Citizens alleged the approval of the CUP violated their right to a clean and healthful

environment under Articles II and IX of the Montana Constitution. Based on these

allegations, Citizens sought a determination that the CUP issued to Tutvedt was unlawful

and that the District is a residential zone, or, in the alternative, for a determination that

§ 76-2-209, MCA, is unconstitutional as applied to the facts in this case. Citizens

subsequently moved for summary judgment on all these issues.

¶21 Tutvedt also intervened in this matter and challenged the Board’s decision, albeit

on different grounds. Tutvedt argued the Board’s prohibition against asphalt and

concrete batching was in violation of § 76-2-209, MCA. Tutvedt maintained that the

District was not zoned residential and that § 209(3) allowed the Board to reasonably

condition, but not prohibit, the complete use, development, and recovery of its gravel

resources. Accordingly, the Board could not deny Tutvedt the right to operate asphalt

batching plants because this processing was necessary for it to make complete use of its

gravel resources. Tutvedt sought a declaration from the District Court that the Board

improperly imposed the prohibition on asphalt and concrete batching in the CUP.

Additionally, Tutvedt opposed Citizens’ arguments seeking to reverse the Board’s

decision on the grounds discussed directly above.

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¶22 The Board opposed both parties, and moved for summary judgment to affirm the

lawfulness of the Board’s decision in all its particulars and the CUP issued to Tutvedt. In

opposing Tutvedt’s motion, the Board asserted § 76-2-209(2), MCA, allows for the

prohibition of gravel operations “within an area zoned as residential,” and that the

District meets this definition because it was zoned for residential use, even though it is

not exclusively a residential zone. Accordingly, the Board was within its authority to

allow gravel extraction, a conditional use, while prohibiting asphalt and concrete batch

plants, an extractive industry.

¶23 In opposing Citizens, the Board argued its decision was not arbitrary and

capricious because it considered and addressed all the required criteria under FCZR

§ 2.06.080, including traffic safety and water quality impacts. It maintained the CUP

allowing extraction and crushing on-site complied with FCZR § 3.34.030(8), which lists

“gravel extraction” as a conditioned use. The Board asserted the Regulations, not the

Plan, controlled pursuant to § 76-1-605(2), MCA,2 and since the Regulations did not

place any limitations on the extraction of gravel, the CUP issued by the Board was

appropriate. The Board also disputed Citizens’ claims that Tutvedt’s failure to obtain a

State-approved reclamation contract prior the Board’s approval of the CUP rendered its

decision unlawful. The Board noted that under the Opencut Mining Act,

§§ 82-4-401-446, MCA, a reclamation permit could not be obtained, and a plan

approved, until the Board certified that Tutvedt’s operation complied with the

Regulations. However, the Board could not make this certification until the CUP was

2
Reproduced infra at ¶ 39.

15
approved. Because of this, it was permissible for the Board to first issue the CUP and

certify that Tutvedt’s operation complied with the Regulations so that regulators with the

Department of Environmental Quality (DEQ) could then approve the reclamation plan.

Further, the Board countered assertions that its decision violated Citizens’ right to a clean

and healthful environment. The Board maintained it considered all the pertinent criteria

in evaluating Tutvedt’s application and attached conditions aimed at mitigating adverse

impacts. The Board also argued that the Legislature charged the DEQ, not the counties,

with protecting the right to a clean and healthful environment. By requiring Tutvedt to

comply with applicable statutes and DEQ regulations, the Board adequately discharged

its duty to Citizens’ members.

¶24 The District Court granted summary judgment to the Board and denied both

Citizens’ and Tutvedt’s motions for summary judgment. The District Court concluded

the Board’s decision was not arbitrary and capricious, but that it “was correct both

procedurally and substantively.” The District Court found the Board correctly

determined the District was a residential area, that it considered all the necessary factors

in its decision, and that it was within its authority under § 76-2-209, MCA, to prohibit

asphalt and concrete batch plants, but allow Tutvedt to extract and crush gravel on site.

Both Tutvedt and Citizens timely appealed the District Court’s grant of summary

judgment to this Court.

ISSUES

¶25 We restate the issues on appeal as follows:

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¶26 Issue One: Did the District Court err in concluding the issuance of the CUP was

lawful under the District’s Regulations?

¶27 Issue Two: Did the District Court err in concluding the Board’s issuance of the

CUP was not arbitrary and capricious?

¶28 Issue Three: Did the District Court err in concluding the Board had the authority

to approve the CUP prior to Tutvedt obtaining a State-approved reclamation contract?

¶29 Issue Four: Did the District Court err in concluding that under § 76-2-209, MCA,

the Board could issue Tutvedt a CUP which prohibited asphalt and concrete batch

operations?

¶30 Issue Five: Is § 76-2-209, MCA, unconstitutional as applied in this case?

STANDARD OF REVIEW

¶31 We review de novo appeals from a district court’s grant of summary judgment.

Wendell v. State Farm Mut. Auto. Ins. Co., 1999 MT 17, ¶ 9, 293 Mont. 140, ¶9, 974 P.2d

623, ¶ 9. We apply the standards established in M. R. Civ. P. 56(c), meaning the moving

party must establish “ ‘there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’ ” Hughes v. Pullman, 2001

MT 216, ¶ 20, 306 Mont. 420, ¶ 20, 36 P.3d 339, ¶ 20 (quoting M. R. Civ. P. 56(c)).

Once this burden has been satisfied, the non-moving party may raise a genuine issue of

material fact by presenting substantial evidence essential to one or more elements in the

case. Russell v. Masonic Home of Mont., Inc., 2006 MT 286, ¶ 9, 334 Mont. 351, ¶ 9,

147 P.3d 216, ¶ 9. We review a district court’s conclusions of law to determine whether

or not they are correct. Russell, ¶ 9.

17
¶32 “Section 76-2-227, MCA, authorizes the reviewing court to hold a hearing and

reverse, affirm, or modify a decision made by a board of adjustment. A district court is

thus bound to review a board of adjustment's decision for an abuse of discretion.” Arkell

v. Middle Cottonwood Bd. Of Zoning Adjustment, 2007 MT 160, ¶ 24, 338 Mont. 77,

¶ 24, 162 P.3d 856, ¶ 24. To determine whether an abuse of discretion has occurred, we

examine “whether the information upon which the Board based its decision is so lacking

in fact and foundation that i t is clearly unreasonable and constitutes an abuse of

discretion.” North 93 Neighbors, Inc. v. Bd. of Co. Commissioners of Flathead County,

2006 MT 132, ¶ 44, 332 Mont. 327, ¶ 44, 137 P.3d 557, ¶ 44 (quotation omitted).

DISCUSSION

¶33 Issue One: Did the District Court err in concluding the issuance of the CUP was

lawful under the District’s Regulations?

¶34 The District Court concluded that the Board acted within its authority under the

Regulations when it issued the CUP to Tutvedt. Citizens assert this was error. Citizens

point out that the Board issued Tutvedt a CUP for what it termed an “extractive industry,”

which is neither a permitted nor conditional use in the District’s Regulations. The CUP

allows Tutvedt to extract and crush gravel as part of its gravel extraction operation.

Citizens argue that such operations go beyond simple gravel extraction and constitute an

“extractive industry” in violation of the Regulations. Additionally, Citizens assert that

under FCZR § 1.04.020 the Board was required to give effect to certain provisions in the

Plan, yet failed to do this. Citizens note the Plan specifically states that “new industrial

uses are not to be encouraged but some allowance for limited retail commercial may be

18
OK, with restrictions . . . .” Further the Plan states that, “[i]ndustrial uses should not be

permitted except those accessory to normal farm operations.” Citizens argue the Tutvedt

operation is a significant commercial undertaking and is not accessory to normal farm

operations. Since FCZR § 1.04.020 states that more restrictive provisions in a

neighborhood plan should control in such instances, these provisions in the Plan should

preclude Tutvedt’s operation.

¶35 The Board counters Citizens’ claims and argues its decision to allow gravel

extraction did not violate the Regulations. It notes that “gravel extraction” is a

conditional use under the District’s Regulations. Since this term is not explicitly defined

in the Regulations, the common definition of extraction should be used. Because the verb

“to extract” means “to draw out or forth; to pull from a fixed position,” Tutvedt should be

allowed to operate a crusher because “[i]n order to extract gravel, not just earth and

rocks, crushing is necessary.” Further, the Board argues i t did not equate gravel

extraction with extractive industries, but only evaluated Tutvedt’s operation as an

“extractive industry” because no other standard was provided in the Regulations. The

Board points out that it allowed only “gravel extraction” as evidenced by the fact the

CUP allowed Tutvedt to crush gravel as part of gravel extraction, but denied it the

opportunity to engage in concrete and asphalt batching.

¶36 The Board also disputes Citizens’ contention that more restrictive provisions in the

Plan are controlling in this case. The Board argues that § 76-1-605(2), MCA, operates to

specifically prohibit provisions in the Plan from controlling land use in the District. The

19
Board argues that Section 605 only permits duly enacted zoning regulations, not a growth

policy such as the Plan, to control land use decisions.

¶37 To resolve this dispute, we must first look to the Regulations themselves. As a

general rule, the Board is bound to apply the zoning regulations as promulgated by the

Commissioners. See FCZR § 2.03.040; § 76-2-223, MCA.3 “[A] board cannot . . .

disregard the provisions of, nor exceed the powers conferred by, a zoning ordinance and

must act in accordance with the law.” 101A C.J.S. Zoning and Land Planning § 232

(2007) (footnotes omitted). In interpreting zoning ordinances, we apply the basic rules of

statutory construction. Schanz v. City of Billings, 182 Mont. 328, 332, 597 P.2d 67, 69

(1979). “If the language of an ordinance is plain and unambiguous, it is not subject to

interpretation or open to construction but must be accepted and enforced as written.”

Schanz, 182 Mont. at 332, 597 P.2d at 69. Our first task, then, is to interpret the zoning

ordinances according to their plain meaning in order to give effect to the intent of the

boards of county commissioners which have enacted them. Missoula Co. v. Am. Asphalt

Inc., 216 Mont. 423, 426, 701 P.2d 990, 992 (1985). If a plain meaning analysis does not

reveal the intent of the board, we may resort to other rules of statutory construction. Am.

Asphalt, 216 Mont. at 426, 701 P.2d at 992. Moreover, when examining zoning

“ordinances [we] will not . . . read [them] so narrowly as to restrict the plain meaning of

the whole law . . . [but will] construe [them] in a manner that will give effect to them

3
We note that the Board does have the power to grant a variance in situations where the literal
enforcement of zoning regulations would result in “unnecessary hardship.” Section 76-2-
223(1)(c), MCA. Tutvedt never sought a zoning variance in this case, so the Board is bound to
follow the Regulations.

20
all . . . .” Schendel v. Bd. of Adjustment of the City of Bozeman, 237 Mont. 278, 284, 774

P.2d 379, 383 (1989) (quotations and citations omitted).

¶38 Citizens and the Board both agree that the District’s Regulations do not permit

extractive industries. They disagree, however, on whether the operation allowed by the

CUP in this case constitutes an “extractive industry.” At the outset, we agree with

Citizens that the Board’s position in this matter seems somewhat inconsistent. On the

one hand, the Board acknowledges that “extractive industries” are not permitted or

conditional uses in the District. On the other hand, the Board seems to have approved

what it itself considers to be an “extractive industry.” The Report evaluates Tutvedt’s

operation as if it were an extractive industry, and is entitled “Staff Report #FCU-05-

07(a), Tutvedt Family Partnership, Extractive Industry.” Moreover, the Report explicitly

states that the Board should issue a CUP only if it determines that “the terms ‘Gravel

Extraction’ and ‘Extractive Industries’ are synonymous and that it is the intent of the

West Valley Neighborhood Plan and the Flathead County Zoning Regulations . . . to

allow Extractive Industries in the West Valley District . . . .” See ¶ 10. By approving the

CUP, the Board seems to have implicitly assented to the notion that these terms are in

fact synonymous. Moreover, in a letter sent to Tutvedt by the Board on June 15, 2005, it

specifically states that “[t]he Board made a motion to approve your request for an

extractive industry with amended conditions. The amended conditions are attached with

your permit.” While we understand that the Report evaluated the application under the

“extractive industry” standard simply because no other standard was provided, these facts

21
nonetheless suggest that, from the Board’s perspective at least, it issued a CUP for an

extractive industry. This position is at odds with its current argument before the Court.

¶39 Another factor complicates the Board’s position here. We disagree with the

Board’s assertion that the Plan is not applicable to the Board’s decisions by virtue of

§ 76-1-605(2), MCA. In fact, the opposite is true. Section 76-1-605(2), MCA, provides

as follows:

(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.

¶40 Contrary to the Board’s contention, this statute does not prohibit the enforcement

of growth policies in all circumstances but simply states that a growth policy or master

plan only acquires legal force by virtue of another law or regulation. Section 1.040.020

of the Regulations provides the type of authority contemplated by this statute by stating

“where a neighborhood plan . . . contains aspects related to zoning and is under the

jurisdiction of these regulations, the provisions that are more restrictive shall control.”

Because the Plan is “specifically authorized by law or regulations adopted pursuant to the

law” by virtue of FCZR § 1.040.20, it does confer authority to regulate and therefore the

provisions of the Plan that are more restrictive must indeed control.

¶41 In this case, the Plan “[a]llow[s] opportunities for gravel extraction” but also states

that “[i]ndustrial uses should not be permitted except those accessory to normal farm

operations.” These two provisions relate to zoning, are under the jurisdiction of the

22
Regulations, and are applicable in the instant case. On the surface, Tutvedt’s operation

cannot be reconciled with the plain language of these provisions. On the one hand, it

could be seen as a limited gravel extraction operation in that concrete and asphalt

batching is prohibited. On the other, Tutvedt has never alleged that its proposed gravel

operation is intended to be “accessory to normal farm operations.”

¶42 Because Tutvedt is the applicant in this case, it bears the burden of proving the

operation complies with the requirements of the Regulations. “The burden of proof for

satisfying the aforementioned criteria shall rest with the applicant and not the Board of

Adjustment. The granting of a Conditional Use Permit is a matter of grace, resting in the

discretion of the Board of Adjustment and a refusal is not the denial of a right,

conditional or otherwise.” FCZR § 2.06.090. One of the threshold determinations which

must be met is that the use itself is permitted under the Regulations. See FCZR

§ 2.06.020. Given the uncertainty as to the meaning of “gravel extraction” as a

conditional use in this case, it rests with Tutvedt to demonstrate that its proposed

operation is consistent with the District’s Regulations and the Plan. However, Tutvedt’s

application does not make this showing. In the first instance, Tutvedt does not show that

its proposed operation is consistent with the type of gravel extraction allowed under the

Plan and the District’s Regulations, and is distinguishable from an extractive industry per

se. Second, Tutvedt does not demonstrate that its operation is “an industrial use [which

is] accessory to normal farm operations,” or that its proposed operation does not run afoul

of any controlling provisions in the Plan. By failing to make this showing, Tutvedt does

23
not prove its proposed operation is a permitted or conditional use under the Regulations

and the Plan.

¶43 Further, the Board itself failed to make any determinations on these issues as well.

Although the question arose as to how Tutvedt’s operation was accessory to normal farm

operations, an answer was never provided and factual findings were never made. There

is no indication in this record that the Board looked at the relevant provisions of the Plan

in light of FCZR § 1.04.020 and made an attempt to reconcile those controlling

provisions of the Plan with Tutvedt’s operation. Nor were there any findings that “gravel

extraction” includes extraction of gravel and on-site crushing. While the Board members

obviously believed crushing was a part of gravel extraction, they provide no factual

foundation for their position.

¶44 There are important reasons why the Board should have made determinations on

these issues prior to approving Tutvedt’s CUP. First, such findings were required by the

Report itself as a pre-condition to adopting its recommendations to the Board. The

Report stated that its recommendations should only be adopted if it was determined that

“gravel extraction” and “extractive industries” were synonymous. See ¶ 10. In light of

the circumstances, the Board should have either found that the Regulations allow for

“extractive industries” in the District, or should have distinguished Tutvedt’s proposed

operation from an “extractive industry” as that term is defined at FCZR § 7.06.040.

Because a determination on this issue was central to an acceptance of the Report’s

recommendation to approve the CUP, failure to make this determination leaves it unclear

24
as to how much of the Report’s reasoning and conclusions were actually adopted by the

Board in its final decision.

¶45 While it appears that members of the Board believed an extraction and crushing

operation did not constitute an “extractive industry” as defined in the Regulations,

nothing in the record indicates the factual basis for their decision. On-site crushing may

be contemplated by the term “gravel extraction” as used in the Regulations, but the

opposite could be true as well. The addition of crushing operations to the extraction of

gravel could be viewed as an aspect of “processing” as that term is used in FCZR

§ 7.06.040, and thus constitute an “extractive industry.” Other courts have drawn a

distinction between “gravel extraction” itself and aspects of processing gravel such as

crushing, washing and screening. E.g., Am. Ashpalt, 216 Mont. at 427-8, 701 P.2d at 993

(stating that “gravel processing on site includes washing, crushing, screening, and

concrete and asphalt batching . . . .”); Kuhl v. Zoning Hearing Bd. of Greene Tp., 415

A.2d 954, 956-7 (Pa. 1980) (noting that cessation of gravel crushing and washing

operations did not constitute abandonment of a gravel pit while extraction continued); In

Re Barlow, 631 A.2d 853, 855-56 (Vt. 1993) (discussing gravel extraction separate and

apart from operating a gravel crusher). Given the importance of this distinction, the

Board should have provided a factual foundation for its implicit conclusion that crushing

on-site does not constitute an “extractive industry,” while on-site asphalt and concrete

batch operations do.

¶46 Second, the Regulations themselves require the Board to make specific findings on

these issues. “Every decision of the Board of Adjustment pertaining to the granting,

25
denial, or amendment of a request for a Conditional Use Permit shall be based upon

‘Findings of Fact’, and every finding of fact shall be supported in the records of its

proceedings.” FCZR § 2.06.100. An implicit decision that Tutvedt’s operations are

consistent with the Regulations and the Plan pertains directly to the granting and

amendment of Tutvedt’s CUP. Yet, the Board never issued any findings on whether the

Plan and the Regulations would permit on-site extraction and crushing of gravel where

such operations are not incident to normal farm operations. As such, the Board’s

decision was not supported by the specific findings of fact required under FCZR

§ 2.06.100.

¶47 Lastly, basic principles of administrative and zoning law require these findings in

order to develop an adequate administrative record. As we have stated previously, it is a

“general principle of administrative law . . . [that] the record developed by an agency . . .

serves to flesh out the pertinent facts upon which a decision is based in order to facilitate

judicial review.” North 93 Neighbors, ¶ 30 (quotation omitted). “The record made before

a board of adjustment is essential to an enlightened determination of its action by a

governing body or by a court on review.” E.C. Yorkley, Zoning Law and Practice vol. 3,

§ 18-9(f), 18-62 (Douglas Scott MacGregor ed., 4th ed. Lexis 2007). The absence of a

developed record in this case places the Court “in the untenable position of having to

substitute its own judgment for the Board’s judgment.” North 93 Neighbors, ¶ 30.

¶48 Here, a number of important questions remain unanswered following our review

of the Board’s proceedings. We do not know what is meant by “gravel extraction” as

used in the Regulations, or whether the Plan allows only gravel extraction when it

26
supports normal farm operations. Similarly, we have no factual basis upon which to

determine when “gravel extraction” stops, and at what point various forms of gravel

processing turn “gravel extraction” into an “extractive industry.” The Report notes

significant ambiguity on these questions, but declines to provide any answers, leaving

that task to the Board itself. See ¶¶ 9-10. The Board, however, never directly answers

these questions with the level of factual findings required by principles of administrative

law and the specific requirements of the Regulations themselves.

¶49 Accordingly, we reverse the District Court and remand this issue for further

proceedings. The District Court may exercise its broad powers of review under

§ 76-2-227, MCA. However, the primary purpose of a remand in this situation is to have

the Board come forward with some findings of fact and conclusions to support its

decision on the issues discussed directly above. See Arden H. Rathkopf, The Law of

Zoning and Planning vol. 4., § 42.07, 42-108[b] (Edward H. Ziegler, Jr. ed., 4th ed. West

1996) (discussing purpose of remanding decisions from a board of adjustment). In

particular, there must be findings and related conclusions of law as to the following

issues: (1) whether the Regulations and the Plan permit a gravel extraction operation that

is not accessory to normal farm operations, and (2) whether on-site crushing operations

are a part of “gravel extraction” as that term is used in the Regulations, or whether the use

of on-site crushing operations constitutes an “extractive industry” under FCZR

§ 7.06.040.

¶50 While a remand for further findings of fact and conclusions of law would normally

render further appellate issues temporarily moot, we conclude it is appropriate to address

27
the remaining issues stemming from the granting of the CUP in this case so as to provide

further guidance thereon following remand.

¶51 Issue Two: Did the District Court err in concluding the Board’s issuance of the

CUP was not arbitrary and capricious?

¶52 The District Court found that the Board’s action was not arbitrary and capricious,

and that its final decision “was correct both procedurally and substantively.” Citizens

contend the District Court erred because the Board’s decision did not adequately address

either the impacts from increased traffic on affected roads in the West Valley, or the

impacts on water quality from Tutvedt’s operation on the Lost Creek Fan. Citizens note

that under FCZR § 2.06.090, Tutvedt has the burden of proving his application satisfies

all the required criteria listed at § 2.06.080. See ¶ 11. Citizens maintain Tutvedt’s

application was “woefully deficient” by failing to address water quality and traffic

impacts, and that it therefore failed to satisfy these criteria. Citizens point out that the

Board repeatedly noted the substandard conditions of the roads to be utilized by

Tutvedt’s operation, but that neither the application nor the conditions attached to the

CUP show how these impacts will be addressed. Further, Citizens note that expert and

citizen testimony was given about existing water quality issues in the Lost Creek Fan,

and that the Report observed water quality concerns were “valid.” Nevertheless,

Tutvedt’s application provided no water quality information about the impacts its

operation would have on ground water. The Report simply assumed that compliance

with DEQ regulations would be sufficient to protect water quality in the West Valley.

28
Citizens maintain the Regulations require the Board to do more to address these issues,

and that its failure to do so renders its decision arbitrary and capricious.

¶53 The Board argues its decision was not arbitrary and capricious because it did

consider all the impacts as required by the Regulations. The Board notes that it imposed

28 conditions on Tutvedt’s CUP, and that, in its Report and in public testimony, it

properly considered all the impacts from Tutvedt’s operation. The Board therefore

asserts that Citizens’ contentions are without merit.

¶54 Once again the plain language of the Regulations must first be considered in order

to resolve this dispute. FCZR § 2.06.090 clearly places the burden of proof on the

applicant, not the Board, to show that the criteria listed in § 2.06.080 have been satisfied.

Moreover, the Regulations require the Board to make specific findings of fact to support

its decision, and further state that “[a] mere finding or recitation of the enumerated

conditions, unaccompanied by findings of specific fact, shall not be deemed in

compliance with these regulations.” FCZR § 2.06.100. Accordingly, when water quality

and traffic impacts have been identified, the CUP application must show how those

impacts are addressed, and the Board must make specific findings of fact showing that

the criteria have been satisfied. While we may not substitute our discretion in this matter

for that of the Board, we must evaluate the Board’s decision in light of these criteria in

order to determine whether the Board’s “decision is so lacking in fact and foundation that

it is clearly unreasonable and constitutes an abuse of discretion.” North 93 Neighbors,

¶ 44 (quotation omitted).

29
¶55 In light of the plain language of FCZR § 2.06, we agree with Citizens that the

District Court erred, and that the Board abused its discretion in issuing the CUP. The

Board’s own findings show that substandard roads will see an increase in traffic due to

Tutvedt’s operation, yet its decision is devoid of any factual findings or foundation to

show how the conditions it attached to the CUP will address those impacts. The

Regulations specifically require the Board to ensure that there are available and adequate

streets and access to support Tutvedt’s operation. FCZR §§ 2.06.080(1)(A)(2) and

(1)(C)(6). The Regulations also require the Board to ensure that “the proposed use will

not be detrimental to surrounding neighborhoods . . . [with respect to] excessive traffic

generation . . . .” FZCR § 2.06.080(1)(D)(1). If anything, the relevant findings in the

Report suggest that Tutvedt’s operation will not satisfy these criteria. See ¶ 12.

¶56 Here, there are repeated findings that the roads are “substandard” and that the

impacts from increased traffic are a “cause for concern.” The Board notes that it imposed

conditions to limit the hours of traffic, to increase signage, and to conduct actions to

abate the dust (See ¶ 14), but neither Tutvedt’s application nor the Board’s decision

contain any factual foundation showing how the imposed conditions will address the

impacts on the substandard roads. While it is possible conditions could be imposed to

mitigate the traffic impacts from Tutvedt’s operation—e.g., improving the conditions of

the roads themselves—Tutvedt’s application fails to propose them and the Board failed to

address this issue. Given these unresolved issues, the issuance of the CUP was

unreasonable and constitutes an abuse of discretion.

30
¶57 Similarly, we agree with Citizens that the Board abused its discretion when it

failed to issue any findings of fact whatsoever on water quality impacts, and simply

entrusted its obligation to the DEQ. Section 2.06.080(1)(A)(3) specifically requires the

Board to making findings as to the “absence of environmental constraints” with respect to

the suitability of the proposed site. Yet the Board issued no findings on this point,

instead opining that compliance with DEQ permitting regulations would assure the

criteria would be satisfied. While this may turn out to be the case, without any specific

findings of fact it is either an opinion or a belief, and does not meet the requirements

contained the Regulations. “A mere finding or recitation of the enumerated conditions,

unaccompanied by findings of specific fact, shall not be deemed in compliance with these

regulations.” FCZR § 2.06.100. At a minimum, the Board must provide some reasoning

or factual foundation for its belief that compliance with DEQ regulations would be

sufficient to discharge its obligation under the Regulations.

¶58 While Board members are not required to be expert hydrologists in order to

comply with the Regulations, they must make some type of findings on these issues. It is

not outside the ken of the informed citizen to receive and process basic information on

impacts relating to water quality, as evidenced by citizen testimony on water quality

issues given to the Board during the hearing. Moreover, it should be remembered that the

burden in this case is on Tutvedt to show its operation is in compliance with the

Regulations. Yet nothing in the application, or the Board’s proceedings, provides any

facts, studies, or information to show that the proposed site has an absence of the

environmental concerns raised by Citizens in reference to the Lost Creek Fan.

31
¶59 The Board is bound by the District’s Regulations and may not hand off its

obligations thereunder to the DEQ. “Boards of appeal or adjustment are statutory

creations entrusted with the duty of enforcing the provisions of the zoning ordinance and

generally adjusting difficulties arising in the application of such ordinances in the public

interest.” 101A C.J.S. Zoning and Land Planning, § 219 (footnotes omitted). While it is

not necessary for us to precisely define the Board’s duty to address this issue, at a

minimum the Regulations require Tutvedt adequately address the impacts its proposed

operations may have on water quality in the West Valley. While compliance with DEQ

regulations might be sufficient to protect water quality in the West Valley, it is still

incumbent upon the Board to provide some level of factual foundation for this position.

In this case, the Board abused its discretion by failing to provide such a factual

foundation for its decision, other than a belief that compliance with unspecified DEQ

regulations will automatically be sufficient to discharge its duties under the FCZR.

¶60 In concluding the Board abused its discretion, we do not in any way impugn the

Board members’ conduct in this matter. A review of the proceedings demonstrates that

Board members were faced with difficult choices, conflicting information, and a

considerable degree of social pressure. In spite of these challenges, Board members

handled themselves in a professional and thoughtful manner, and gave residents of the

West Valley an open forum in which to debate and discuss these matters. Nonetheless,

the District’s Regulations are specific in describing the procedure to be followed by the

Board when issuing a CUP. The Board’s decision in this case was not in compliance

32
with these legal requirements and did not adhere to the general principles of

administrative law.

¶61 We reverse the District Court grant of summary judgment to the Board and

remand this issue for further proceedings. As noted above at ¶ 49, the District Court has

broad powers to review the Board’s decision under § 76-2-227, MCA. Further, in the

event the District Court vacates the Board’s decision, Tutvedt is not without a remedy; it

may reapply for a CUP pursuant to FCZR § 2.06.070 after one year, or sooner if

“sufficient new evidence or conditions are offered to the Zoning Administrator to

demonstrate to him that circumstances have altered and that further consideration of the

application is warranted.”

¶62 Issue Three: Did the District Court err in concluding the Board had the authority

to approve the CUP prior to Tutvedt obtaining a State-approved reclamation contract?

¶63 The District Court concluded that the Board did not err when it approved the CUP

prior to Tutvedt obtaining an approved reclamation contract from the State because “[n]o

reclamation plan could be developed until the CUP was approved.” Citizens contend this

was error, because the Regulations clearly require that a reclamation contract be signed

and approved by the State prior to the issuance of a conditional use permit. FCZR

§ 4.10.10.4 However, as the Board points out, the Opencut Mining Act, §§ 82-4-401-446,

4
FCZR § 4.10.10 states as follows: “Requirements contained in this section shall not exempt the
owner or operator of an extractive industry from compliance with the Montana Opencut Mining
Act . . . but shall be in addition to the requirements of said act. Prior to the approval by the
Board of a conditional use permit, a reclamation contract shall be signed and approved by the
owner or operator and the Montana Department of Natural Resources.” Under the applicable

33
MCA, requires an application for an open cut mine permit to contain a statement from the

Board certifying that the proposed operation complies with applicable zoning regulations.

§ 82-4-432(2)(c), MCA. However, the Board cannot issue this certification until it has

approved the CUP, because only after the CUP has been approved is the operation

officially certified as in compliance with the Regulations. In other words, while the

Regulations require a finalized reclamation contract prior to approval of a conditioned

use permit, the State cannot approve a permit and finalize such a contract until the Board

can certify that the operation is in compliance with zoning regulations; an act which the

Board cannot do until it has approved the CUP.

¶64 In essence, the Board is caught in a classic Catch-22 situation: it cannot issue a

CUP until a reclamation contract has been approved, and a reclamation contract cannot

be approved until a CUP has been issued. The Board urges us to ameliorate this situation

by affirming its decision to issue “a conditional use permit, with appropriate conditions,

to enable the State regulators to proceed.” Citizens, on the other hand, assert we should

find the Board’s decision unlawful, because only the Commissioners and State regulators

have the power to harmonize the statutes and the Regulations. Citizens note that prior

approval of the reclamation contract is not simply “another bureaucratic step. Requiring

a potential pit operator to submit a detailed reclamation plan before the CUP process is

complete ensures that both the Board and the public will understand the impacts of the

version of the statute, the DEQ administers such contracts. §§ 82-4-403(3) and 421, MCA
(2005).

34
proposed operation before the Board makes a decision whether to allow the pit, condition

it, or deny it.”

¶65 Resolution of this issue turns squarely upon the Board’s authority to modify or

simply ignore the clear provisions of FCZR § 4.10.10. The powers of boards of

adjustment are described at § 76-2-223, MCA. This statute provides as follows:

Powers of board of adjustment. (1) The board of adjustment shall have
the following powers:
(a) to hear and decide appeals where it is alleged there is error in
any order, requirement, decision, or determination made by an
administrative official in the enforcement of this part or of any resolution
adopted pursuant thereto;
(b) to hear and decide special exceptions to the terms of the zoning
resolution upon which said board is required to pass under such resolution;
(c) to authorize upon appeal in specific cases such variance from
the terms of the resolution as will not be contrary to the public interest and
where, owing to special conditions, a literal enforcement of the provisions
of the resolution will result in unnecessary hardship and so that the spirit
of the resolution shall be observed and substantial justice done.
(2) In exercising the above-mentioned powers, the board of
adjustment may, in conformity with the provisions of this part, reverse or
affirm, wholly or partly, or modify the order, requirement, decision, or
determination appealed from and may make such order, requirement,
decision, or determination as ought to be made and to that end shall have
all the powers of the officer from whom the appeal is taken.

¶66 While the statute does grant the Board the ability to authorize zoning variances in

situations where a literal enforcement would result in unnecessary hardship, nowhere

does it grant the Board the authority to ignore, alter, or nullify duly enacted zoning

ordinances. Because the Board’s authority is constrained by the statute, unless the statute

authorizes the Board to ignore or reinterpret the Regulations, it has no power to do so. “It

is beyond debate that a board may not exceed the powers placed in its hands by statute.”

35
E.C. Yorkley, Zoning Law and Practice vol. 3, § 19.2, 19-10 (collecting authorities); See

also 101A C.J.S. Zoning and Land Planning, § 224.

¶67 We appreciate the difficult situation in which the Board is placed by the

conflicting statutes and zoning regulations governing its conduct here. However, the

Board does not cite to any legal authority in support of its argument to ignore the

Regulations in this case. Yet the simple fact remains that the Board has no power or

authority to alter or ignore the District’s Regulations, even if the Regulations effectively

tie the Board’s hands. Moreover, it is not the Court’s province to rewrite the Regulations

to allow the Board to issue a CUP prior to obtaining an approved reclamation contract

with the State. That obligation lies with either the Commissioners, the Legislature, or the

State, and it is up to those bodies to reconcile those differences.

¶68 For these reasons, we reverse the decision of the District Court finding that the

issuance of the CUP was lawful despite its non-compliance with FCZR § 4.10.10.

¶69 Issue Four: Did the District Court err in concluding that under § 76-2-209, MCA,

the Board could issue Tutvedt a CUP which prohibited asphalt and concrete batch

operations?

¶70 Tutvedt faults the Board for not giving it a broader CUP which would allow it to

operate concrete and asphalt batch plants. The District Court determined the Board was

within its statutory authority to issue Tutvedt a CUP which prohibited asphalt and

concrete batching, and consequently denied Tutvedt’s motion for summary judgment

challenging the lawfulness of the Board’s decision under § 76-2-209, MCA. The relevant

provisions of § 209 provide as follows:

36
 (2) The complete use, development, or recovery of a mineral by an
operation that mines sand and gravel or an operation that mixes concrete
or batches asphalt may be reasonably conditioned or prohibited on a site
that is located within a geographic area zoned as residential, as defined
by the board of county commissioners.

(3) Zoning regulations adopted under this chapter may reasonably
condition, but not prohibit, the complete use, development, or recovery of
a mineral by an operation that mines sand and gravel and may condition
an operation that mixes concrete or batches asphalt in all zones other than
residential.

Sections 76-2-209(2) and (3), MCA (emphasis added).

¶71 The District Court reviewed this statute and determined it “does not require that

the zone in which the property is located be denominated ‘Residential.’ ” The District

Court further found the Board correctly determined Tutvedt’s property was

“residential. . . [and] located in a zone classification which permits, and in which there

exists, substantial residential use.” Accordingly, the District Court concluded Tutvedt’s

property was “within a geographic area zoned as residential,” and that the condition in

the CUP was properly imposed under the authority granted the Board by virtue of

§ 76-2-209(2), MCA.

¶72 The kernel of Tutvedt’s argument is that the District is not zoned “residential,” and

should be considered zoned “other than residential” within the meaning of § 209(3).

Tutvedt asserts the Board never determined that its property is residential or in a

residentially zoned area but in fact concluded the District was not zoned “strictly

residential.” Because of this, Tutvedt argues, § 209(3) applies. Under § 209(3), “in all

zones other than residential” the Board “may reasonably condition, but not prohibit, the

complete use, development, or recovery of” Tutvedt’s mineral resources. Section

37
76-2-209(3), MCA. Tutvedt maintains the prohibition on concrete and asphalt batch

plants in Condition No. 28 of the CUP denies it the ability to make complete use of its

gravel resources because it is too cost-prohibitive to extract the gravel and then transport

it to another location for processing.

¶73 Accordingly, Tutvedt contends the District Court erred in denying its summary

judgment motion. Tutvedt argues the District Court incorrectly concluded that the Board

correctly determined the area was a residential area, because no evidence existed in the

record to support this finding. Tutvedt maintains it showed an absence of any genuine

issue of material of fact as to whether the District was zoned “other than residential,” and

that Citizens and the Board failed to counter this point.

¶74 Citizens and the Board urge us to affirm the District Court’s decision. They assert

the District Court correctly concluded that the Board determined the District to be zoned

“residential,” and that the Board was within its statutory authority under § 76-2-209(2),

MCA, in issuing a CUP which prohibited concrete and asphalt batch plants. Both

Citizens and the Board point to evidence in the Report and before the Board which

supports their contention that the District is zoned “residential.” Citizens assert that

Tutvedt asks this Court to read the word “exclusively” into § 76-2-209(2), MCA,

meaning that § 209(2) applies only to zones with solely residential use. The Board

argues that in adopting § 76-2-209, MCA, the Legislature did not require the use of any

special terminology by boards of county commissioners, and that the District, because it

is zoned for residential use, is exactly the type of zoning district contemplated by

§ 209(2). Accordingly, the Board had the power to completely prohibit any gravel

38
development, and did not exceed its authority in prohibiting asphalt and concrete batch

plants as a condition to the CUP.

¶75 Resolution of this issue turns on the intent of the Legislature in passing § 209(2)

and (3), and the meaning of the term “residential” a used in the statute. As we have

stated before, our primary purpose in construing statutes is to give controlling effect to

the legislative intent, looking first to the plain meaning of the words used in the statute.

Merlin Myers Revocable Trust v. Yellowstone Co., 2002 MT 201, ¶ 19, 311 Mont. 194,

¶ 19, 53 P.3d 1268, ¶ 19. Section 76-2-209(2), MCA, states that the Board may

reasonably condition or prohibit concrete and asphalt batching operations “on a site that

is located within a geographic area zoned as residential, as defined by the board of county

commissioners.” Under § 209(3), “in all zones other than residential” the Board “may

reasonably condition, but not prohibit” such operations. In other words, if the District is

considered zoned “other than residential,” under § 209(3) the Board may only reasonably

condition Tutvedt’s operation. In this case that would mean that the Board must allow

Tutvedt to operate concrete and asphalt batch plants. On the other hand, if the District is

considered “residential” within the meaning of § 209(2), the Board has the authority to

prohibit Tutvedt’s operation outright. In that case, a limited gravel extraction with a

prohibition on asphalt and batch plants would be within the Board’s lawful authority.

¶76 The American Heritage Dictionary defines “residential” as “[o]f, suitable for, or

limited to residences: residential zoning.” American Heritage Dictionary of the English

Language 1483 (4th ed. Houghton Mifflin 2000). In light of the dispute before the Court,

this definition is of little help. In fact, it reproduces precisely the opposing arguments

39
before the Court. On the one hand, Citizens and the Board argue that “residential” refers

to an area that is “[o]f, [or] suitable for” residences. On the other hand, Tutvedt argues

that “residential” refers to areas that are “limited to residences.” The plain meaning of

the term “residential” could reasonably support the arguments of both parties.

¶77 However, the lack of a conclusive definition of “residential” here does not

necessarily compel us to go beyond the plain meaning of the statute. Here, the statute

conditions whether a geographical area is zoned “residential” on the definition given that

zone by the board of county commissioners. In other words, if the Commissioners have

indicated that the District is “residential,” we need not go beyond the plain language of

the statute.

¶78 A review of the Regulations and the Plan itself shows that the Commissioners

have zoned the District as “residential” within the meaning of § 209(2). Even though the

District embraces residential, agricultural, and silvicultural uses, both the Plan and the

Regulations themselves show that the primary purpose in rezoning the District was to

regulate residential development and to maintain the suitability of residences, alongside

other uses which have been traditionally practiced in the West Valley area. We agree

with the District Court that § 209 does not require a zone be denominated solely

“Residential,” for § 209(2) to apply. Since Tutvedt produces no evidence beyond the

plain language of the statute in support of its argument concerning its interpretation of

§ 209, we decline to adopt Tutvedt’s construction of that statute.

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¶79 In cases such as this where non-traditional,5 uniquely zoned, multi-use

geographical areas like the District are under consideration, a determination of whether a

geographic area is zoned “residential” for purposes of § 209 must be based on facts and

circumstances. Here, the regulations and the Plan demonstrate that the District has been

specifically zoned to promote and regulate residential use, and is a “residential” district

for purposes of § 209.

¶80 As noted above at ¶ 5, the Regulations define the District as “[a] district to

promote orderly growth and development in the West Valley area consistent with the

community vision statements as expressed by the text and map exhibits of the West

Valley Neighborhood Plan, County Resolution #1226-A.” We agree with Citizens that

the “growth and development” in this definition refers primarily to residential

development. A review of the Plan itself confirms this view.6 In the first instance, it is

difficult to overlook the significance of calling the Plan a “neighborhood” plan, and by

referencing this “neighborhood” plan in the definition of the District itself. Further, as

noted above at ¶ 3, a simple “Residential” designation was not placed on the District

because such a designation would not capture the unique residential qualities of the

District itself. As the Plan itself notes, “[t]he uniform application of a single zoning

district to such a large area fails to recognize the variability of land features throughout

5
An example of a more traditional designation for a residential zone would be “R-1 Suburban
Residential.” See FCZR § 3.09.
6
Consideration of a growth policy or a master plan may not be appropriate in all cases to
determine whether a zoning district is “residential.” In this case it is because the Regulations
specifically define the District with reference to the community vision statements provided in the
Plan.

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the district. Not all the land can easily be classified as either ‘timber’ or ‘agriculture’,

especially when considering how the land use character of the area has changed

dramatically, even with zoning in place. The liberal use of subdivision exemptions

(family transfers, occasional sales) over the past 17+ years has created a suburban

development pattern in many locations.”

¶81 That residential development is at the center of the Plan and the definition of the

District itself, is confirmed by considering the vision statements, goals, and policies

contained with the Plan itself. All of the goals and policies are centered primarily around

residential concerns. See ¶ 4. The “Implementation” section of the Plan further

demonstrates that the overarching goals in devising a land use strategy in the District

were primarily residential. As the Plan states, “[t]he top four reasons for choosing to live

or own property in the West Valley are: rural setting; lots of open space; low crime rate;

and easy commute.” Clearly, then, the central focus of the Plan is the maintenance of a

livable, residential area. Indeed, although agricultural and silvicultural uses are discussed

in the Plan, and their preservation is encouraged, the Plan also recognizes these uses may

be subordinated to residential demands at some point in the future. For instance, under

the “Agriculture/Forestry Policies” section of the Plan, it specifically encourages the

development of residential uses on “ ‘poor soils’ within a larger agricultural district,

farm, or forest land or when public pressures no longer make farming or forestry

feasible.” In total, roughly five pages of the Plan are devoted to either agricultural or

silvicultural issues, while roughly twenty pages of the Plan discuss issues related to

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“residential” concerns, including residential development, limiting industrial and

commercial uses, open space, transportation, utilities, emergency services, and schools.

¶82 Also instructive in this regard are the Regulations themselves. A review of the

Regulations in § 3.34 shows an almost exclusive concern for the orderly development of

residential uses throughout the West Valley. As Citizens point out, § 3.34 regulates a

variety of aspects pertaining to residential use such as standards relating to: the

construction of dwellings; future subdivision development; residential clustering;

operation of a neighborhood convenience store; and the operation of home-based

businesses. Although it is true that strictly residential uses are not the only ones

permitted in the District, that is true even in those zoning districts designated explicitly

“Residential.” We agree with Citizens that a reading of the District’s Regulations shows

that they were designed primarily to effectuate a residential zone.

¶83 The case at bar is distinguishable from Merlin Myers on which Tutvedt relies. In

that case, there was an area zoned Agricultural-Open Space in which residences, a school,

and a public park were located. A property owner within that area sought to establish a

gravel mining operation, similar to the one Tutvedt applied for here. A report prepared

for the Yellowstone County Board of County Commissioners indicated that the county

could not prohibit such operations under Montana law. Ultimately, the Yellowstone

Commissioners rejected the property owner’s application stating that “permitting the

application would violate the Montana Constitutional rights of students at [a neighboring

school] to a clean, healthful and safe environment.” Merlin Myers, ¶ 8 (alteration in

original).

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¶84 The applicant challenged the Yellowstone Commissioners decision to the District

Court, advancing an argument very similar to the one here. The applicant argued “that

under §§ 76-1-113 and 76-2-209, MCA, local planning boards may not prevent the

operation of a gravel facility in a nonresidential area.” Merlin Myers, ¶ 14. The District

Court agreed with the applicant, and overturned the decision of the Yellowstone

Commissioners. On appeal, we affirmed the District Court. We held that the

Yellowstone Commissioners could not ignore the plain language of § 209, and refuse to

comply with its requirements simply because they thought it violated the right to a clean

and healthful environment under Art. II, § 3 and Art. IX, § 1 of the Montana Constitution.

Merlin Myers, ¶ 22. In that case, the zoned character of the area was never in dispute.

The issue instead was whether the Yellowstone Commissioners could ignore the plain

language of the statute when they thought it violated the Montana Constitution. We held

they could not.

¶85 Tutvedt’s attempts to apply Merlin Myers in the instant case are unavailing. Here,

the dispute centers upon whether the District is residential for purposes of § 209; an issue

not raised or discussed in Merlin Myers. Moreover, the statutes in the two cases differ

considerably. In Merlin Myers, we considered the pre-2005 version of § 209, which

simply stated that gravel mining in residential areas could be subject to county zoning

regulations, while gravel mining in non-residential areas could not. Merlin Myers,

¶¶ 15-16. The controlling version of § 209 in the case at bar subjects all gravel

operations to zoning regulations, but gives counties the authority to actually prohibit

gravel operations “within a geographic area zoned as residential, as defined by the board

44
of county commissioners.” Section 76-2-209(2), MCA. The current version of § 209

clearly instructs boards and reviewing courts to look to the definitions given by the

boards of county commissioners in making the threshold determination as to whether a

geographic area is zoned residential.

¶86 Although we agree with Tutvedt that the Board never made a specific

determination that the District was “residential,” we affirm the District Court’s grant of

summary judgment in this case because an explicit finding on this matter by the Board

was not required as a matter of law. In fact, a determination by the Board one way or the

other on this issue was immaterial, because under the plain language of the statute, only

the definition given to the zoning district by the Commissioners is dispositive.

¶87 We decline Tutvedt’s invitation to read § 209(2) in a manner requiring an area be

zoned “Residential” with a capital “R” in order for § 209(2) to apply, as to do so would

ignore the statute’s directive to look primarily towards the definition given to a

geographic area by the board of country commissioners. While there may be cases in

which the definition given by the board of county commissioners is hard to discern, this

is not one of them. The Regulations and the Plan speak for themselves in this case, and

demonstrate convincingly that the District was defined as “residential” by the

Commissioners, even though the District permits other uses. Accordingly, the authority

of the Board falls within the § 209(2), and it may completely prohibit concrete and

asphalt batching operations in the District.

45
¶88 Because we find that the Board had the authority to prohibit asphalt and concrete

batch plant operations, we do not reach Citizens’ argument that § 76-2-209, MCA, is

unconstitutional as applied in this case.

CONCLUSION

¶89 For the foregoing reasons, we affirm the District Court’s conclusion that the Board

had the power to prohibit asphalt and concrete batch plant operations under § 76-2-209,

MCA. We reverse the District Court’s conclusion that the Board did not abuse its

discretion in issuing the CUP, and remand this case to the District Court for further

proceedings consistent with this opinion.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

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