April 8 2009
DA 08-0192
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 120
ROBERT J. BEASLEY,
Petitioner and Appellant,
v.
FLATHEAD COUNTY BOARD OF ADJUSTMENTS,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV 07-946 B
Honorable Katherine R. Curtis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammi E. Fisher, Fisher Law Firm, Kalispell, Montana
For Appellee:
Jonathan B. Smith, Office of the County Attorney, Kalispell, Montana
Submitted on Briefs: February 19, 2009
Decided: April 8, 2009
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Robert J. Beasley (Beasley) appeals from an order of the Eleventh Judicial District
Court, Flathead County, that granted Flathead County Board of Adjustment’s (Board)
motion to dismiss. We affirm.
¶2 We review the following issues on appeal:
¶3 Did the District Court properly grant the Board’s motion to dismiss?
¶4 Did the District Court properly determine that § 76-2-227, MCA, provided Beasley an
adequate remedy?
PROCEDURAL AND FACTUAL BACKGROUND
¶5 The Flathead County Board of Commissioners (Commissioners) created the Board
pursuant to § 76-2-221, MCA. The Commissioners adopted the Flathead County Zoning
Regulations (regulations or FCZR). The regulations, in turn, established the position of
Zoning Administrator (Administrator).
¶6 The Board granted a conditional use permit (CUP) to Arthur and Dorothy Hanson (the
Hansons) on June 3, 1997. The Hansons owned real property located on Farm to Market
Road in Kalispell, Flathead County, Montana. The CUP allowed a gravel pit operation.
¶7 Beasley purchased the Hansons’ real property on Farm to Market Road on April 7,
2005. The Administrator initially determined that a valid CUP for gravel extraction
remained with the property. The Flathead Citizens for Quality Growth (Citizens) appealed
the Administrator’s decision to approve the transfer of the CUP to Beasley as the new owner.
The Board denied the transfer of the CUP to Beasley on June 6, 2006.
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¶8 Beasley appealed the Board’s decision to the District Court on June 30, 2006.
Beasley filed a petition for writ of certiorari, pursuant to § 76-2-227, MCA. Citizens
intervened to defend the Board’s decision. Beasley, through his former counsel, moved to
dismiss with prejudice the writ of certiorari on February 5, 2007, before the District Court
had issued any decision. The District Court dismissed with prejudice Beasley’s petition for
writ of certiorari on March 2, 2007.
¶9 Beasley eventually filed a petition for writ of mandamus on December 19, 2007.
Beasley alleged that the Board had denied the transfer of the CUP without providing any
grounds for its determination to deny the transfer and without authority to deny it. Beasley
contended that the Board had no record of its proceedings and that the Board had failed to
provide a record to Beasley. Beasley claimed that he had expended over $2 million in
reliance upon his ability to extract gravel from the property. Beasley alleged that he had
exhausted any and all available administrative remedies. Beasley further alleged that he had
no plain, speedy, and adequate remedy in the ordinary course of law other than the remedies
sought by his mandamus petition.
¶10 The Board filed a motion to dismiss on January 28, 2008. The Board argued that
Beasley incorrectly had used a writ of mandamus for the relief that he had requested. The
Board claimed that a mandamus petition did not lie to correct a previously made decision or
to control discretion. The Board further alleged that Beasley had a plain, speedy, and
adequate remedy available.
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¶11 The District Court granted the Board’s motion to dismiss. The court agreed with the
Board that a writ of mandamus is not an appropriate mechanism for the relief that Beasley
had requested. The court cited the fact that the Board already had denied the transfer of the
CUP to Beasley and mandamus does not lie to correct or undo an action already taken. The
District Court further pointed out that § 76-2-227, MCA, provides a remedy for the court’s
review of an alleged illegal decision by the Board. The absence of appropriate finding of
fact, or any findings of fact, in support of the Board’s decision did not preclude Beasley from
pursuing a writ of review or certiorari under this statute. The court determined that Beasley
had a plain, speedy and adequate remedy at law that rendered mandamus inapplicable.
Beasley appeals.
STANDARD OF REVIEW
¶12 We review de novo a district court’s ruling on a motion to dismiss. Doty v. Mont.
Com’r of Political Practices, 2007 MT 341, ¶ 9, 340 Mont. 276, 173 P.3d 700. Dismissal is
proper if the plaintiff would not be entitled to relief based on any set of facts that could be
proven to support the claim. Doty, ¶ 9. A determination of whether a complaint states a
claim presents a conclusion of law that we review for correctness. Doty, ¶ 9.
DISCUSSION
¶13 Did the District Court properly grant the Board’s motion to dismiss?
¶14 Beasley argues that a writ of mandamus represents the appropriate mechanism to
compel the Board to perform its clear duty to carry out the express provisions of FCZR §
2.06.060. Beasley contends that the Board’s 1997 approval of the CUP placed it in perpetual
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status pursuant to FCZR § 2.06.060(1). Beasley argues that, once granted, the CUP shall
“run with the lot, building, structure, or use and shall not be affected by change of
ownership.” FCZR § 2.06.060(1). Beasley thus claims that the CUP’s perpetual nature
made its transfer into Beasley’s name a mere ministerial task.
¶15 At the outset, we note that a writ of mandate will not lie to correct or undo an action
already taken. State ex. rel. Popham v. Hamilton City Council, 185 Mont. 26, 29, 604 P.2d
312, 314 (1979). An action already done cannot be undone by mandamus, however
erroneous it may have been. Popham, 185 Mont. at 29, 604 P.2d at 314. In Popham, the
petitioner prayed for the district court to issue a writ of mandamus directing the city, among
other things, to rescind its approval of a child care center. Popham, 185 Mont. at 27-28, 604
P.2d at 313. The district court dismissed the petition and this Court affirmed. Popham, 185
Mont. at 29, 604 P.2d at 314. The Court determined that the approval of the child care center
as a permissible use, whether accomplished by an erroneous procedure, remained a past and
completed act not reviewable by a writ of mandate. Popham, 185 Mont. at 29, 604 P.2d at
314. Popham applies here. The Board’s decision to deny the transfer of the CUP to Beasley
is a completed act that is not reviewable by a writ of mandate. Popham, 185 Mont. at 29,
604 P.2d at 314.
¶16 Beasley also has difficulty satisfying the two-part standard to qualify for the issuance
of a writ of mandate. Becky v. Butte-Silver Bow Sch. Dist. 1, 274 Mont. 131, 135, 906 P.2d
193, 195 (1995). The writ is available where the party who applies for it is entitled to the
performance of a clear legal duty by the party against whom the writ is sought. Section 27-
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26-102(1), MCA; Smith v. County of Missoula, 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d
834. The district court must grant a writ of mandate if a clear legal duty exists and no speedy
and adequate remedy is available in the ordinary course of law. Section 27-26-102(1)(2),
MCA, Smith, ¶ 28. The clear legal duty must involve, however, a ministerial act. Smith,
¶ 28.
¶17 We consider an act to be ministerial where the law prescribes and defines the duty to
be performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment. Smith, ¶ 28. Where the act to be done involves the exercise of
discretion or judgment, however, it is not deemed merely ministerial. Smith, ¶ 28. Beasley
contends that FCZR § 2.06.060, required the Board to approve his transfer. He contends,
therefore, that the Board’s approval would be a ministerial act. Our review of the regulations
shows that the Board exercised discretion in denying Beasley’s CUP transfer.
¶18 FCZR § 2.01.010, provides that the Administrator shall administer, interpret, and
enforce the zoning regulations. “Any person . . . may file an appeal when aggrieved by a
decision or interpretation by the [administrator] . . . .” FCZR § 2.04.010. “Interpretation”
implies the exercise of discretion. The regulations also specifically provide that the Board
exercise discretion. In fact, the regulations state that the “granting of a [C]UP is a matter of
grace, resting in the discretion of the [Board] and a refusal is not the denial of a right,
conditional or otherwise.” FCZR § 2.06.090. FCZR § 2.04.020(8), also allows the Board’s
sole discretion in granting a continuance. We cannot agree with Beasley that FCZR §
2.06.060, leaves the Board without the exercise of discretion or judgment. Smith, ¶ 28. The
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Board’s decision to deny the transfer of the CUP to Beasley constitutes a discretionary act.
A writ of mandate cannot be used to compel a discretionary act. Smith, ¶ 28.
¶19 Did the District Court properly determine that § 76-2-227, MCA, provided Beasley an
adequate remedy?
¶20 Beasley argues that the Board has failed to issue a “filing of decision” or findings of
fact in violation of FCZR § 2.04.020(10). Beasley contends that the Board’s failure in this
regard prevented him from invoking the review available under § 76-2-227, MCA. Section
76-2-227, MCA, allows judicial review of a board of adjustment’s alleged illegal decision in
whole, or in part, by any aggrieved person. The District Court determined that the absence
of any findings of fact in support of the Board’s decision did not preclude Beasley from
pursuing a writ of review or certiorari under § 76-2-227, MCA.
¶21 Our decision in Flathead Citizens v. Flathead County Bd., 2008 MT 1, 341 Mont. 1,
175 P.3d 282, supports the District Court’s determination. In Citizens, a number of
important questions remained unanswered following the Board’s decision to allow a gravel
pit operation under a different provision of the same zoning regulations at issue here.
Citizens, ¶ 48. The Board never directly answered the questions with the level of detail
required by principles of administrative law and the specific requirements of the regulations
themselves. Citizens, ¶ 48. The Citizen’s nonetheless petitioned for review. We remanded
for further proceedings to force the Board to come forward with findings of fact and
conclusions to support its decision. Citizens, ¶ 49.
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¶22 The lack of adequate findings of fact issued by the Board did not render § 76-2-227,
MCA, an unavailable remedy for Beasley. The Board’s lack of “filing a decision” similarly
did not insulate the Board from judicial review and the requirements under § 76-2-227(2),
MCA, to support its decision when directed by a district court. Citizens, ¶ 49. Beasley had a
plain, speedy, and adequate remedy available thus rendering a writ of mandamus
inapplicable. Section 27-26-102(2), MCA. The District Court correctly granted the Board’s
motion to dismiss. Doty, ¶ 9.
¶23 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
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