March 11 2009
DA 07-0448
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 72
TOWN & COUNTRY FOODS, INC.,
Plaintiff and Appellant,
v.
CITY OF BOZEMAN,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 05-522
Honorable Wm. Nels Swandal, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Arthur V. Wittich and Margot E. Barg, Wittich Law Firm, Bozeman, Montana
For Appellee:
Philip F. Walsh, Walsh & McKenna, Bozeman, Montana
Submitted on Briefs: May 28, 2008
Decided: March 10, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 The Eighteenth Judicial District Court, Gallatin County, granted summary judgment
in favor of the City of Bozeman (the City), affirming the city commission’s denial of the
application for approval of a site plan proposed by Town and Country Foods, Inc. (T&C).
¶2 We restate the issues as follows:
¶3 Issue 1: Did the Bozeman city commission violate T&C’s constitutional rights to
substantive due process and equal protection of the law by denying its application for
approval of a site plan?
¶4 Issue 2: Was the Bozeman city commission’s decision to deny T&C’s application an
abuse of discretion?
BACKGROUND
¶5 T&C desires to build on land it owns in a district zoned B-1 according to the
Bozeman Unified Development Ordinance (UDO or Zoning Ordinance). The B-1 zone is a
“neighborhood business district” and the size of buildings in the B-1 zone is limited to 5,000
square feet. The intent of the B-1 zone is,
to provide for smaller scale retail and service activities frequently required by
neighborhood residents on a day to day basis, as well as residential
development as a secondary purpose, while still maintaining compatibility
with adjacent residential land uses. Development scale and pedestrian
orientation are important elements of this district.
Section 18.18.010(A), UDO.
¶6 In 2005, after the City rejected an initial proposal to build a 32,000 square foot store
on the subject property, and following several meetings with the planning director and his
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staff, T&C applied for approval of a new site plan. In its new plan, T&C proposed to build
six mini-stores, each serving a different purpose, e.g., a separate pharmacy, bakery, produce
market, etc. In an attempt to meet the B-1 size requirement, the plan proposed each mini-
store to be under 5,000 square feet in size. The planning director and his staff told T&C its
plans complied with the letter of the zoning regulations and that the office of the planning
director would recommend approval, but the city commission “may see it differently, and
that’s their prerogative, it’s their discretion to do so . . . .”
¶7 In May 2005 at a public meeting, the city commission voted unanimously to
“reclaim” T&C’s application, rather than leave the decision to the office of the planning
director. At this meeting, Jerry Perlinski, the owner of T&C, said he agreed the project
belonged with the commission rather than going through the regular channels in the
administrative review process.
¶8 Two months later, the city commission voted four to one to deny T&C’s application.
The record reflects that members of the commission verbally stated reasons for the denial at
a public meeting and also informed T&C of their reasons for the denial in a letter, the details
of which are discussed below. The record indicates that, although each of the mini-stores
proposed by T&C complied with the building size requirements of the B-1 zone, the city
commission decided the overall aggregate impact of the proposal did not harmonize with the
intent of the B-1 zone.
¶9 T&C commenced this action, claiming the city commission violated its constitutional
right to due process by arbitrarily and capriciously deciding to consider its application itself,
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rather than allowing the decision to be made by the planning director, and denying the site
plan approval application. T&C also alleged that the city commission violated its
constitutional right to equal protection of the law because it treated T&C differently from
other similarly situated applicants.
¶10 The City moved for summary judgment, asserting that because the Zoning Ordinance
gave the city commission broad discretion in granting applications for site plan approval,
T&C did not have a protected interest in its application, which prevented T&C from
establishing its substantive due process and equal protection of the law claims. The District
Court granted summary judgment in favor of the City, concluding that because the Zoning
Ordinance granted the city commission broad authority and significant discretion in
rendering its decision to approve or reject T&C’s site plan, T&C did not have a protected
property interest in having its application granted. The District Court concluded no material
facts were in dispute and the city commission followed proper procedure by stating its
findings at the public hearing and reducing its reasons to writing in the denial letter sent to
T&C.
¶11 T&C appeals, arguing the District Court relied on disputed facts to determine the
Zoning Ordinance granted the city commission broad discretion and that the city commission
acted arbitrarily and capriciously in reclaiming and denying its application.
STANDARDS OF REVIEW
¶12 The standard of review in appeals from summary judgment rulings is de novo. Erler
v. Creative Finance & Investments, L.L.C., 2009 MT 36, ¶ 16, ___ Mont. ___, ___ P.3d ___.
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Summary judgment is appropriate only when there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of law. Erler, ¶ 16 (citing M. R. Civ. P.
56). We review questions of law to determine whether the district court’s legal conclusions
are correct. Erler, ¶ 16.
¶13 Section 76-2-327, MCA, authorizes a court reviewing a zoning decision made by a
board of adjustment or any officer, department, board, or bureau of the municipality to hold a
hearing and reverse, affirm, or modify a zoning decision. In Montana, a district court
reviews the zoning authority’s decision for an abuse of discretion. Flathead Citizens v.
Flathead County Bd., 2008 MT 1, ¶ 32, 341 Mont. 1, 175 P.3d 282; Arkell v. Middle
Cottonwood Bd., 2007 MT 160, ¶ 24, 338 Mont. 77, 162 P.3d 856. An abuse of discretion
occurs when the information upon which the municipal entity based its decision is so lacking
in fact and foundation that it is clearly unreasonable. Flathead Citizens, ¶ 32; North 93
Neighbors, Inc. v. Bd. of Co. Com’rs, 2006 MT 132, ¶ 44, 332 Mont. 327, 137 P.3d 557
(quotation omitted).
¶14 This Court does not sit as a super-legislature or super-zoning board. Englin v. Board
of County Com’rs, 2002 MT 115, ¶ 16, 310 Mont. 1, 48 P.3d 39; Anderson Ins. v. City of
Belgrade, 246 Mont. 112, 120, 803 P.2d 648, 653 (1990). The courts give deference to the
decisions of the local board. 83 Am. Jur. 2d Zoning and Planning § 677 (2003) (citing
Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Tp., 181 F.3d 403 (3rd Cir. 1999)).
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¶15 The record shows the material facts of the instant case—the contents of T&C’s
application, the process of approval, and the city commission’s stated reasons for denial—are
not in dispute. Thus, only questions of law remain.
DISCUSSION
¶16 Issue 1: Did the Bozeman city commission violate T&C’s constitutional rights to
substantive due process and equal protection of the law when it denied T&C’s application
for approval of a site plan?
¶17 T&C is challenging the action of the city commission in denying its application. It
does not challenge Bozeman’s Zoning Ordinance. Under these circumstances, whether the
Bozeman city commission acted illegally when it denied T&C’s application does not present
a constitutional question. In examining a substantive due process claim, a court is concerned
with the constitutionality of the underlying rule rather than with the fairness of the process
by which the government applies the rule to an individual. Rotunda & Nowak, 2 Treatise on
Constitutional Law: Substance and Procedure § 14.6 (2nd ed. 1992). This Court has set
forth the analysis for evaluating a substantive due process claim:
Substantive due process analysis requires a test of reasonableness of a statute
in relation to the State’s power to enact such legislation. The essence of
substantive due process is that the State cannot use its police power to take
unreasonable, arbitrary or capricious action against an individual. In order to
satisfy substantive due process guarantees, a statute enacted under a state’s
police power must be reasonably related to a permissible legislative objective.
Raisler v. Burlington N. R. Co., 219 Mont. 254, 263, 717 P.2d 535, 541 (1985) (citations and
internal quotations omitted) (followed in State v. Webb, 2005 MT 5, ¶ 22, 325 Mont. 317,
106 P.3d 521); State v. Egdorf, 2003 MT 264, ¶ 21, 317 Mont. 436, 77 P.3d 517).
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Substantive due process primarily examines underlying substantive rights and remedies to
determine whether restrictions are unreasonable or arbitrary when balanced against the
purpose of a government body in enacting a statute, ordinance or regulation. Webb, ¶ 21;
Egdorf, ¶ 19. In other words, the test of whether the government denied a party
constitutional substantive due process concerns an examination of whether the government,
by enacting a piece of legislation, acted in an unreasonable, arbitrary, or capricious fashion.
¶18 A constitutional substantive due process analysis is inapplicable under the facts of this
case because T&C does not allege Bozeman’s Zoning Ordinance is unconstitutional. T&C
essentially argues the city commission failed to follow its own ordinance in denying its
application and therefore acted arbitrarily and capriciously. We address this argument in
Issue 2.
¶19 T&C also claims the city commission violated its constitutional right to equal
protection of the law when it denied its application. The Fourteenth Amendment to the
United States Constitution, and Article II, Section 4, of the Montana Constitution guarantee
equal protection of the law. Egdorf, ¶ 15; State v. Davison, 2003 MT 64, ¶ 10, 314 Mont.
427, 67 P.3d 203. The basic rule of equal protection is that the law must treat similarly-
situated individuals in a similar manner. Farrier v. Teacher’s Retirement Bd., 2005 MT 229,
¶ 14, 328 Mont. 375, 120 P.3d 390. To prevail on an equal protection challenge, the injured
party must demonstrate that the law at issue discriminates by impermissibly classifying
individuals or entities and treating them differently on the basis of that classification.
Davison, ¶ 10.
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¶20 T&C does not allege that the law, in this case Bozeman’s Zoning Ordinance,
discriminated against it by classifying its property differently than other similarly situated
property. T&C simply claims that the city commission denied its application, and thus
treated it differently than others owning property in B-1 zoned areas whose site plan
applications were granted. Again, T&C’s complaint challenges the city commission’s
decision, rather than the Zoning Ordinance, and does not present a constitutional denial of
equal protection claim.
¶21 Issue 2: Was the Bozeman city commission’s decision to deny T&C’s application an
abuse of discretion?
¶22 Generally, if a decision by a zoning authority adversely affects the owner of land in
the use of property, that owner is an aggrieved party and may challenge the decision.
Eugene McQuillin, Municipal Corporations § 25.318 (3rd ed. West 2003). Aggrieved
parties may challenge a zoning authority’s decision as unreasonable, arbitrary, capricious,
unfair, or discriminatory. McQuillin, Municipal Corporations § 25.309.
¶23 In Montana, municipalities may regulate, inter alia, the size of buildings and the
location and use of buildings, structures, and land for trade, industry, residence or other
purposes to promote health, safety, morals, or the general welfare of the community. Section
76-2-301, MCA. Bozeman adopted its Zoning Ordinance pursuant to § 76-2-301, MCA, and
the ordinance requires all development proposals to be subject to site plan approval by the
city commission or the planning director. Sections 18.02.020, 18.34.010(A), 18.64.010,
UDO. The requirements for denial of a site plan approval application are if “the conditions
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required for approval do not exist” and that the denial must be in writing. Section
18.34.090(D), UDO.
¶24 In Bozeman, the planning director generally grants or denies site plan approval
applications. However, the city commission, upon a vote of four out of five of its members,
may reclaim the final approval of an application from the planning director if it does so
before the planning director makes an official decision. Section 18.64.010(B)(1), UDO. If
an aggrieved party wishes to appeal a zoning decision made by the city commission, they
may present “to a court of record a petition, duly verified, setting forth that such decision is
illegal in whole or in part and specifying the grounds of illegality.” Section 18.66.080(B),
Bozeman Municipal Code (BMC).
¶25 T&C appealed to the District Court, alleging the city commission’s decision in
denying the site plan application was arbitrary, irrational, and in bad faith. As discussed
above, we review the city commission’s decision for an abuse of discretion. That is, whether
the city commission’s zoning decision was soundly based in fact. See Flathead Citizens,
¶ 32.
¶26 T&C’s argument on appeal is that the District Court relied on highly disputed facts to
determine that the city commission did not act arbitrarily and capriciously in three ways.
First, T&C presented evidence it complied with the size requirements of the Zoning
Ordinance, the Zoning Ordinance allowed the mini-stores to share common walls, and the
planning department recommended approval. Thus, T&C claims disputed facts exist
regarding whether its site plan conflicts with the Zoning Ordinance. Second, T&C asserts
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whether the city commission “carefully weighed” the criteria listed in the Zoning Ordinance
is disputed because the record shows the city commission did not consider all 20 criteria
which, according to T&C, is mandated. Finally, T&C claims whether the city commission
had any legitimate reason to reclaim its application from the planning director is disputed.
¶27 Essentially, T&C is arguing the District Court erred because it failed to re-weigh the
evidence, sit as a fact finder, and determine if T&C’s plan comported with the Zoning
Ordinance. However, pursuant to Bozeman’s Zoning Ordinance, the city commission is the
appropriate fact-finder, and it decided T&C’s site plan did not comply with requirements of
the B-1 zoning district. The District Court’s job is not to re-try the facts, but to review the
city commission’s decision for an abuse of discretion. Flathead Citizens, ¶ 32. In turn, this
Court reviews whether the District Court erred in concluding the city commission did not
abuse its discretion. See Flathead Citizens, ¶ 55. If the record contains sufficient evidence
showing the city commission’s decision to deny T&C’s application was reasonable and
based in fact, we will not disturb the District Court’s conclusion.
¶28 Section 18.34.090, UDO, lists 20 criteria for the city commission to consider when
reviewing a site plan application. The 20 enumerated criteria include, inter alia,
conformance with the growth policy, conformance with the Zoning Ordinance and other
applicable laws, impact on existing and anticipated traffic and parking, pedestrian and
vehicular traffic, setbacks and wetlands, and comment from affected parties. Additionally,
the city commission considers the relationship of the site plan elements to conditions both on
and off the property, including compatibility with the adjacent neighborhoods, and whether
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the design produced an efficient, functionally organized and cohesive development. Section
18.34.090(A)(20), UDO.
¶29 The record shows the city commission considered the relevant criteria listed in
§ 18.34.090(A), UDO, and stated its reasons for deciding that T&C’s site plan did not
conform to the B-1 zone. At the public meeting the city commissioners heard from the
associate planner, a project engineer, and several members of the community. The associate
planner discussed setbacks, wetlands, floodplains, and parking issues then recommended
approval of T&C’s application. The project engineer addressed issues relating to traffic and
rates of development. Jerry Perlinski addressed some of the traffic concerns regarding this
kind of store being located close to a residential area. Community members, affected by the
development, made both positive and negative comments about T&C’s site plan.
¶30 Finally, each commissioner commented on the proposal. One supported approving
the site plan because he thought it adequately addressed and mitigated traffic issues and
because the size of the buildings complied with the requirements of the zone. The other
commissioners, voting to deny T&C’s application, stated their reasons for denial were:
“shoehorning” the development into the proposed site; the distance of the development from
controlled intersections; a traffic study showing traffic degradation; setting an undesirable
precedent for the B-1 zone; negative neighborhood feedback; historic preservation; parking
problems; and, meeting the character of the B-1 zone and neighborhood. In its letter, the city
commission told T&C its application was denied because it was “not in keeping with the
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character of the neighborhood or the intent of the B-1 Neighborhood Business zoning
district.”
¶31 We cannot conclude that the information relied on by the city commission to make its
decision lacked foundation or that its decision was unreasonable. The city commission
addressed relevant criteria—vehicle and pedestrian traffic, parking, wetlands, setbacks, and
conformity with the neighborhood. The city commission complied with its Zoning
Ordinance and gave reasons for its denial of T&C’s site plan. The city commission did not
abuse its discretion.
¶32 Further, the city commission did not abuse its discretion when it reclaimed T&C’s
application. The Zoning Ordinance provides that the city commission may make the final
decision on an application--either on appeal from the planning director, or after its own
consideration. Section 18.66.010(B), BMC; § 18.64.010(B)(1), UDO. Although the
planning director said he would recommend approval, he warned T&C that the city
commission had the prerogative to disagree, thus his decision was not final. The city
commission held a public meeting and unanimously voted to reclaim T&C’s application
from the planning director, giving as their reasons the heading off of an eventual appeal and
protecting public interest and safety. The city commission followed its ordinance in
reclaiming and passing on T&C’s application. We do not determine it abused its discretion
in doing so.
CONCLUSION
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¶33 The record shows that the Bozeman city commissioners did not abuse their discretion
in reclaiming and denying T&C’s application for site plan approval.
¶34 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
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