November 10 2009
DA 09-0183
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 377
LIBERTY COVE, INC.,
Plaintiff and Appellant,
v.
MISSOULA COUNTY,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-08-805
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Cory R. Gangle; Milodragovich, Dale, Steinbrenner & Nygren, P.C.,
Missoula, Montana
For Appellee:
Fred Van Valkenburg, Missoula County Attorney; D. James McCubbin,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 23, 2009
Decided: November 10, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Liberty Cove, Inc. (Liberty Cove) appeals from an order of the Fourth Judicial
District Court, Missoula County, affirming the Missoula County Board of County
Commissioners’ (County Commissioners) decision to adopt interim zoning banning, for
one year, development of gravel pits on Liberty Cove’s property. We affirm.
¶2 Liberty Cove argues that Missoula County’s decision to enact interim zoning was
arbitrary and capricious, and violated Montana law. Specifically, Liberty Cove
challenges the zoning decision by raising the following issues for review:
¶3 Whether the District Court erred in concluding there was an emergency to justify
interim zoning.
¶4 Whether the District Court erred in concluding that Missoula County gave proper
notice before adopting interim zoning.
¶5 Whether the District Court erred in concluding that the interim zoning adopted by
Missoula County did not constitute illegal reverse spot zoning.
BACKGROUND
¶6 Liberty Cove appeals an interim zoning decision by the Missoula County
Commissioners for an area north of Lolo. The Missoula County Board of County
Commissioners enacted interim zoning to address public health and safety concerns
regarding a proposal to establish a gravel mining, crushing, and asphalt production
operation on property owned by Liberty Cove. The concerns arose from the possibility
that the mining applicant would receive a mining permit without any substantive
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environmental review by the Montana Department of Environmental Quality (DEQ) and
because the mining applicant indicated that they could avoid oversight of traffic impacts
by the Montana Department of Transportation (MDT).
¶7 On April 28, 2006, Liberty Cove entered into a purchase agreement with JTL
Group, Inc. (JTL) (now Knife River) for “construction of a lake” on Liberty Cove’s
property. JTL contracted for the gravel mining operations. An open-cut mining permit
from DEQ was required in order to dig the lake and remove gravel. JTL requested a
zoning compliance permit from Missoula County as part of the mining permit application
process. The County granted the zoning compliance permit on March 8, 2006, noting
that the site location was not zoned. DEQ deemed the mining permit application
complete in January 2007.
¶8 Missoula County received complaints from Lolo residents requesting the County
enact interim zoning to address environmental and traffic concerns at the site. The
County held a public meeting on December 19, 2007, to discuss imposing interim zoning
to preclude mining operations. At that time, the County Commissioners did not find an
emergency to justify interim zoning, because environmental concerns would be subject to
DEQ review of the mining permit application, and traffic concerns would be addressed
by MDT review of the application for a permit to access Highway 93, then the only
access to the gravel pit proposed.
¶9 On May 23, 2008, JTL sued DEQ seeking a court order that DEQ issue a permit
for the proposed mining operation. Since other district court orders had granted this
relief, the County Commissioners were concerned that DEQ could issue a permit without
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substantive environmental review. The County also learned that JTL might pursue a
different access to the gravel pit that would not require a MDT permit and thus would not
be subject to any regulatory review regarding public health and safety.
¶10 The County Commissioners scheduled a public meeting for May 30, 2008, to
address these issues and the possibility of enacting interim zoning. The County posted
notice of the meeting on its website and issued a press release announcing the meeting,
which resulted in a prominent front page article in the Missoulian. The County
Commissioners received significant public comment prior to making a decision,
including comment from JTL and Liberty Cove. The County Commissioners then
determined that an emergency existed due to changed circumstances caused by JTL and
enacted interim zoning to address the emergency. The interim zoning placed various
residential designations on the area where Liberty Cove’s property is located.
¶11 Liberty Cove challenged the County’s interim zoning on June 26, 2008, and the
District Court affirmed the County’s action on March 3, 2009. Liberty Cove now
appeals.
STANDARD OF REVIEW
¶12 A local government’s zoning designation constitutes a legislative act, which courts
review for abuse of discretion. North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of
Flathead Co., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557. A zoning ordinance is
entitled to a presumption of validity and reasonableness. Schanz v. City of Billings, 182
Mont. 328, 335, 597 P.2d 67, 71 (1979). This Court reviews a district court’s
conclusions of law to determine if they are correct. North 93 Neighbors, ¶ 17. We
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review de novo a district court’s interpretation of statutes. Fasbender v. Lewis and Clark
Co. Bd. of Co. Commrs., 2009 MT 323, ¶ 11, 352 Mont. 505, ___ P.3d ___.
DISCUSSION
¶13 Whether the District Court erred in concluding there was an emergency to justify
interim zoning.
¶14 Interim zoning is provided for by § 76-2-206, MCA (2007):
(1) The board of county commissioners may adopt an interim zoning map
or regulation as an emergency measure in order to promote the public
health, safety, morals, and general welfare if:
(a) the purpose of the interim zoning map or regulation is to classify
and regulate those uses and related matters that constitute the emergency;
and
(b) the county:
(i) is conducting or in good faith intends to conduct studies within a
reasonable time; or
(ii) has held or is holding a hearing for the purpose of considering
any of the following:
(A) a growth policy;
(B) zoning regulations; or
(C) a revision to a growth policy, to a master plan, as provided for in
76-1-604(6) and 76-2-201(2), or to zoning regulations pursuant to this part.
(2) An interim resolution must be limited to 1 year from the date it
becomes effective. The board of county commissioners may extend the
interim resolution for 1 year, but not more than one extension may be
made.
In 2002, the Montana Attorney General issued an opinion on this statute concluding that
“both ‘emergency’ and ‘urgency’ measures exist if there is some exigent circumstance
impacting the public health, safety and welfare, and zoning is required to address the
exigency. ” 49 Mont. Op. Atty. Gen. No. 23, § IV, http://www.doj.mt.gov/
resources/opinions2002/49-023.pdf (Sept. 26, 2002). “The question of what constitutes an
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‘exigency’ is necessarily fact-bound, and under the law it is left largely to the discretion
of the local governing body.” 49 Mont. Op. Atty. Gen. No. 23, § IV.
¶15 Liberty Cove primarily argues that there was no emergency to justify interim
zoning. Liberty Cove claims that the sole basis for the emergency was the fact that DEQ
had failed to timely issue a permit. Liberty Cove contends that DEQ already reviewed
the mining permit application and deemed it complete, that DEQ would retain regulatory
responsibilities after issuing a permit, and that Missoula County found that no emergency
existed in December 2007. Liberty Cove maintains that no facts or expert testimony
support finding an emergency in these circumstances.
¶16 At the May 30, 2008, public meeting, the County Commissioners found that:
the application of a permit from the JTL Group, also known as Knife River,
constitutes an emergency related to issues of public health, welfare and
safety, because the Board of County Commissioners find a deficiency, or
failure, of the regulatory process regarding these issues as promulgated by
the State of Montana Department of Environmental Quality and the State of
Montana Department of Transportation.
More specifically, the interim zoning resolution included findings that “recent legal
decisions in the State of Montana may compel DEQ to issue a permit without the review
that is normally carried out by DEQ” and “MDT will not be able to require traffic control
measures during the operation of the pit that will adequately protect public health and
safety.” The District Court referenced these findings in concluding that “the Board
validly exercised its discretion in enacting interim zoning as they determined based on
the facts before them that an interim measure was needed to resolve an exigent
circumstance impacting the public health, safety, and general welfare.”
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¶17 We agree with the District Court that “a reasonable emergency existed to enact the
interim zoning.” In December 2007, the County Commissioners found that no
emergency existed because they understood that DEQ would conduct additional
environmental review and MDT would address traffic concerns related to the proposed
gravel mine. However, by May of 2008, the County Commissioners realized that DEQ
could issue a mining permit without additional environmental review and that changes in
access to the gravel mine would not require a MDT permit. Since the County
Commissioners’ earlier findings were based on facts that were no longer applicable, the
Board was justified in finding an emergency related to issues of public health, safety, and
welfare due to regulatory deficiencies. The County Commissioners were within their
discretion as the local governing body in finding an emergency justifying adoption of
interim zoning.
¶18 Whether the District Court erred in concluding that Missoula County gave proper
notice before adopting interim zoning.
¶19 Liberty Cove asserts that notice for interim zoning under § 76-2-206, MCA
(2007), is governed by the procedural requirements outlined in § 76-2-205, MCA.
Because Missoula County did not give notice of the interim zoning hearing according to
the procedural requirements for standard zoning set out in § 76-2-205, MCA, Liberty
Cove claims that the interim zoning is invalid. Missoula County notes that a plain
reading of § 76-2-206, MCA (2007), imposes no such procedural requirements, and is
actually silent as to any required notice or hearing. Missoula County further argues that
requiring the County to follow the same procedure to enact interim zoning as required to
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enact standard zoning under § 76-2-205, MCA, would render the interim zoning statute
superfluous.
¶20 Liberty Cove cites cases from this Court holding that § 76-2-206, MCA, is
governed by the notice and hearing provisions of § 76-2-205, MCA, thereby voiding
temporary interim resolutions enacted in emergency sessions to stop completion of
particular buildings. Bryant Dev. Assn. v. Dagel, 166 Mont. 252, 258, 531 P.2d 1320,
1324 (1975); State ex rel. Christian, Spring, Sielbach & Assocs. v. Miller, 169 Mont. 242,
245, 545 P.2d 660, 662 (1976).1 This Court recently clarified that Bryant and Christian
held that due process requires that the notice and hearing procedures of standard zoning
apply to interim zoning. Fasbender, ¶ 17. However, in those cases the affected
landowners received no notice of the emergency sessions that adopted interim zoning.
Fasbender, ¶¶ 15-16; Bryant, 166 Mont. at 254, 258, 531 P.2d at 1322, 1324; Christian,
169 Mont. at 244-45, 545 P.2d at 661-62.
¶21 Liberty Cove received actual notice and in fact commented at the hearings
contemplating interim zoning. The law has long recognized that actual attendance and
participation may constitute a waiver of alleged deficiencies of notice. See e.g. Knode v.
Williamson, 8 4 U . S . 5 8 6, 589 (1873). Furthermore, the Montana Constitution’s
fundamental right of citizen participation guaranteed by Art. II, § 8, has been interpreted
by statute as requiring notice and an opportunity to be heard. Sections 2-3-101 through
-114, MCA. Liberty Cove received notice and had an opportunity to comment at the
1
The Legislature recently amended § 76-2-206, MCA (2009), to provide express notice
requirements for adopting interim zoning. While these provisions are not applicable to
this appeal, they will supersede the rule from Bryant and Christian in the future.
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public meeting considering interim zoning. This Court’s harmless error doctrine provides
that “[t]he court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.” M. R. Civ. P. 61.
Thus, since Liberty Cove received notice and had an opportunity to be heard, any error in
Missoula County’s notice was harmless.
¶22 Whether the District Court erred in concluding that the interim zoning adopted by
Missoula County did not constitute illegal reverse spot zoning.
¶23 Liberty Cove argues that the interim zoning of its property constitutes illegal
“reverse” spot zoning. Liberty Cove alleges its land was improperly singled out to
receive detrimental treatment. Liberty Cove notes that the interim zoning restricts the use
of its property more than other properties in the area. Liberty Cove suggests that the
zoning compliance permit and a previous denial of a residential subdivision on the
property is further evidence of spot zoning.
¶24 This Court has addressed spot zoning issues in multiple cases. Lake Co. First v.
Polson City Council, 2009 MT 322, ¶¶ 49-52, 352 Mont. 489, ___P.3d ___; North 93
Neighbors, ¶¶ 65-70; Citizen Advocates For A Livable Missoula, Inc. v. City Council of
City of Missoula, 2006 MT 47, ¶¶ 32-34, 331 Mont. 269, 130 P.3d 1259; Greater
Yellowstone Coalition, Inc. v. Bd. of Co. Commrs. of Gallatin Co., 2001 MT 99, ¶¶ 19-
37, 305 Mont. 232, 25 P.3d 168; Boland v. City of Great Falls, 275 Mont. 128, 132-35,
910 P.2d 890, 893-95 (1996); Little v. Bd. of Co. Commrs. of Flathead Co., 193 Mont.
334, 345-48, 631 P.2d 1282, 1289-90 (1981); Mont. Wildlife Fedn. v. Sager, 190 Mont.
247, 263-64, 620 P.2d 1189, 1198-99 (1980); State ex rel. Gutkoski v. Langhor, 160
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Mont. 351, 353-54, 502 P.2d 1144, 1145-46 (1972). Our review of this well-developed
precedent yields two important conclusions: this Court has never considered or adopted a
“reverse” spot zoning analysis, and this Court has never applied its spot zoning analysis
to interim zoning. We decline to do so here.
¶25 This Court’s three-part spot zoning test adopted in Little requires consideration of
factors that may not apply to interim zoning. In particular, the third part of the spot
zoning test considers whether “the requested change is more in the nature of special
legislation.” Little, 193 Mont. at 346, 631 P.2d at 1289. In its discussion of this factor,
the Court noted that “the inquiry should involve whether the requested use ‘is in accord
with a comprehensive plan.’” Little, 193 Mont. at 347, 631 P.2d at 1290. The Court’s
review of other jurisdictions’ spot zoning analysis reinforced this point: “zoning has
been held invalid as spot zoning when it is not in accordance with a comprehensive plan.
We cannot ignore this test when our zoning statutes place great weight on the
comprehensive plan as a guide in zoning.” Little, 193 Mont. at 347, 631 P.2d at 1290
(internal citations omitted). However, a local government may adopt interim zoning
without a comprehensive plan (now designated a growth policy) to address an emergency
of public health, safety, or welfare, while developing a growth policy. Section 76-2-
206(1), MCA (2007); 49 Mont. Op. Atty. Gen. No. 23, § IV. Indeed, interim zoning
allows a local government to enact temporary zoning to avoid suffering serious detriment
while pursuing the necessary planning efforts to adopt a growth policy as a condition
precedent to enacting standard zoning. Allen v. Flathead Co., 184 Mont. 58, 63, 601 P.2d
399, 402 (1979) (§ 76-2-206, MCA, “provides a method by which Flathead County may
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begin developing a master plan [now growth policy] that will comply with the terms of
the statute without suffering any serious detriment” in light of the Court invalidating the
challenged zoning regulations). Since interim zoning is effective for only one year (with
authority to extend it for another year) and may be implemented without a growth policy
in place, our spot zoning test is not applicable to interim zoning. Spot zoning challenges
to interim zoning measures would serve only to distract local governments from the
important planning efforts required to implement standard zoning and would be of
limited utility since interim zoning will terminate within a year or two. Therefore, we
hold that spot zoning challenges are not applicable to interim zoning measures adopted
pursuant to § 76-2-206, MCA.
¶26 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
Justice James C. Nelson, specially concurring.
¶27 I agree with the Court’s Opinion, but I also reincorporate here my special
concurrence in Fasbender v. Lewis and Clark County Bd. of County Commrs., 2009 MT
323, ¶¶ 29-30, 352 Mont. 505, ___ P.3d ___ (Nelson, J., specially concurring).
/S/ JAMES C. NELSON
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