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
2
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
3
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
4
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,
5
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
6
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
7
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).
8
¶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
11
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.
12
¶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.
14
¶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:
16
¶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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Flathead Citizens for Quality Growth, Inc. v. Flathead County Board of Adjustment
Combined Opinion