Heffernan v. Missoula City Council

May 3 2011

DA 10-0142

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 91

KATHY HEFFERNAN, ROBIN CAREY,
DAVID HARMON, and NORTH DUNCAN
DRIVE NEIGHBORHOOD ASSOCIATION, INC.,

Plaintiffs and Appellees,

v.

MISSOULA CITY COUNCIL, CITY OF MISSOULA,
and JOHN ENGEN, Mayor,

Defendants and Appellants,

and

MUTH-HILLBERRY, LLC,

Intervenor-Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 08-84
Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellants Missoula City Council, City of Missoula, and John Engen, Mayor:

James P. Nugent, City Attorney, Susan A. Firth, Missoula City Attorney’s
Office, Missoula, Montana

For Intervenor-Defendant and Appellant Muth-Hillberry, LLC:

Donald V. Snavely, Snavely Law Firm, Missoula, Montana

For Appellees:

David K. W. Wilson, Jr., Morrison, Motl & Sherwood, PLLP,
Helena, Montana
 For Amicus Curiae Montana Association of Realtors, Inc.:

William K. VanCanagan, J.R. Casillas, Datsopoulos, MacDonald
& Lind, P.C., Missoula, Montana

For Amicus Curiae MEIC and Citizens for a Better Flathead:

Sarah K. McMillan, Matthew Bishop, Western Environmental
Law Center, Missoula, Montana

Submitted on Briefs: November 17, 2010

Decided: May 3, 2011

Filed:

__________________________________________
Clerk

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Justice James C. Nelson delivered the Opinion of the Court.

¶1 In December 2007, the Missoula City Council approved zoning and a preliminary

plat for a 37-lot subdivision known as Sonata Park. Several parties opposed to the

subdivision (Neighbors1) then filed a petition for judicial review in the Fourth Judicial

District Court, Missoula County. The District Court found that the City was arbitrary and

capricious in reaching its zoning and subdivision decisions, and the court accordingly set

those decisions aside. The City and the owner/developer of Sonata Park (Muth-Hillberry,

LLC) now appeal that determination and several underlying rulings. We affirm.

ISSUES

¶2 The City and Muth-Hillberry raise several issues, which we restate as follows:

1. Do Neighbors have standing?

2. Did the District Court err in striking affidavits filed by Muth-Hillberry and the
City in connection with their motions for summary judgment?

3. Does the 1989 agreement between the City and Muth-Hillberry’s predecessor
in interest supersede the City’s growth policy?

4. Was the City’s decision on Sonata Park arbitrary, capricious, or unlawful?

Resolution of these questions moots other issues raised by the parties.

BACKGROUND

Rattlesnake Valley

¶3 The proposed Sonata Park subdivision is located on the north side of Missoula in

an area of the city known as Rattlesnake Valley. The following diagram (included in the

1
Kathy Heffernan, Robin Carey, David Harmon, and North Duncan Drive
Neighborhood Association, Inc.

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record) shows the subdivision’s location (labeled “SITE”). The bold line, which has been

added to the diagram, represents the western, southern, and eastern boundaries of the

Rattlesnake Valley neighborhood growth plan at issue in this case.

¶4 Rattlesnake Valley lies at the southern end of the 82-square-mile Rattlesnake

Watershed. Rattlesnake Creek begins near McLeod Peak (17 miles to the north) and

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proceeds in a southerly direction, ultimately flowing into the Clark Fork River on the east

side of downtown Missoula. The creek has been an important source of water for

Missoula residents. A water system was established in Rattlesnake Valley in the 1870s,

and an intake dam was built in 1901. Montana Power Company operated the system

from 1930 to 1979. In an effort to protect its investment in the water supply, Montana

Power purchased most of the private lands above the intake dam in 1934 and 1935, which

in turn helped to reduce contamination of potable water by domestic animals. As a result,

the upper portion of Rattlesnake Valley was mostly limited to resource management and

recreational use, and development occurred primarily in the lower (southern) six square

miles of the valley. That area has evolved over the last century from a sparsely settled

rural community to a set of interconnected residential neighborhoods.

¶5 Rattlesnake Valley serves as the gateway to the Rattlesnake National Recreation

Area and Wilderness, which was established by act of Congress in 1980. The valley also

is an important habitat for numerous big game animals, including elk, white-tailed deer,

mule deer, black bear, mountain lions, and mountain goats. Two areas in the valley serve

as critical winter/spring range for big game, and the remaining open hillsides provide

winter feeding areas for deer and elk. In addition, bald eagles, beaver, and blue heron

have been sighted frequently in the area around the intake dam.

¶6 The City annexed nearly 1,500 acres of Rattlesnake Valley in 1989, including the

land on which Muth-Hillberry proposes to develop Sonata Park. The City adopted

interim zoning for the area, but the zoning expired in 1992 and the land became unzoned.

Between 1989 and 1992, the City also purchased 418 acres of land in the middle valley

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for the purpose of preserving the acquired area as open space. This land encompasses

hillsides and a creek corridor and is valuable for wildlife habitat and recreational uses

such as walking, biking, jogging, horseback riding, and cross-country skiing.

Growth Policies and Neighborhood Plans

¶7 At this juncture, it is useful to explain the function of a growth policy. It is the

policy of Montana

to encourage local units of government to improve the present health,
safety, convenience, and welfare of their citizens and to plan for the future
development of their communities to the end that highway systems be
carefully planned; that new community centers grow only with adequate
highway, utility, health, educational, and recreational facilities; that the
needs of agriculture, industry, and business be recognized in future growth;
that residential areas provide healthy surroundings for family life; and that
the growth of the community be commensurate with and promotive of the
efficient and economical use of public funds.

Section 76-1-102(1), MCA.

¶8 To that end, the governing body of any city, town, or county (or the governing

bodies of any combination thereof) is authorized to create a planning board “in order to

promote the orderly development of its governmental units and its environs.” Section

76-1-101, MCA. Among other things, a planning board is authorized to prepare a growth

policy.2 Section 76-1-106(1), MCA. The required contents of a growth policy are set out

in § 76-1-601(3)(a)-(j), MCA. They include maps and text describing the characteristics

and features of the jurisdictional area; community goals and objectives; and a description

of measures to be implemented in order to achieve those goals and objectives. See id. A

2
The terms “master plan,” “comprehensive plan,” and “comprehensive
development plan” were changed to “growth policy” in 1999. See Laws of Montana,
1999, ch. 582, § 4; § 76-1-103(4), MCA.

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growth policy may also include “neighborhood plans,” which must be consistent with the

growth policy. Section 76-1-601(4)(a), MCA. A neighborhood plan is “a plan for a

geographic area within the boundaries of the jurisdictional area that addresses one or

more of the elements of the growth policy in more detail.” Section 76-1-103(8), MCA.

¶9 Before submitting a proposed growth policy to the governing body, the planning

board must hold a public hearing. Section 76-1-602(1), MCA. After consideration of the

information elicited at the public hearing, the board must then recommend that the

growth policy be adopted, that a growth policy not be adopted, or that the governing body

take some other action. Section 76-1-603, MCA. The governing body, in turn, may

adopt or reject a proposed growth policy. Section 76-1-604(1), MCA.

¶10 An adopted growth policy is not a regulatory document. Section 76-1-605(2)(a),

MCA. Nevertheless, the governing body still “must be guided by and give consideration

to the general policy and pattern of development set out in the growth policy” in the

authorization, construction, alteration, or abandonment of public ways, public places,

public structures, or public utilities; in the authorization, acceptance, or construction of

water mains, sewers, connections, facilities, or utilities; and in the adoption of zoning

ordinances or resolutions. Section 76-1-605(1), MCA. A governing body may not

withhold, deny, or impose conditions on a land-use approval based solely on compliance

with an adopted growth policy. Section 76-1-605(2)(b), MCA.

Rattlesnake Valley Plan

¶11 There is a long tradition of coordinated planning endeavors between Missoula

County and the City of Missoula, particularly in the Missoula urban area. In 1961, the

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Missoula City-County Planning Board completed a master plan for the area. In 1975, the

City and County collaborated again to create two sets of land-use planning guidelines,

one for the Missoula urban area and the other for rural areas. These guidelines were

broad in scope and general in application. To address the unique characteristics of

individual areas and provide more specific guidance for particular regions, the County

and the City adopted various neighborhood plans over the years. These plans were

subsequently added as amendments to the general growth policies.

¶12 One such neighborhood plan is the Rattlesnake Valley Comprehensive Plan,

which applies to a 12-square-mile area of the Rattlesnake Valley consisting of County

land and City land. The area covered by the plan is shown on the map included as an

appendix to this Opinion. The proposed Sonata Park subdivision is labeled “SITE” on

this map. The County and the City adopted the Rattlesnake Valley plan in 1988 and then

adopted an updated version of it in 1995. The County and the City incorporated the 1995

version into the Missoula County Growth Policy in 2002, and reaffirmed it four years

later in an update to the Missoula County Growth Policy. The 1995 version of the

Rattlesnake Valley plan “thus continue[s] to have full force and effect.”

¶13 The Rattlesnake Valley plan was drafted through a public planning process. The

1995 update itself received extensive public review, including five public hearings.

Numerous citizens participated in the process. By its terms, the plan is intended “to

reduce the problems associated with unplanned and uncoordinated growth.” The plan is a

“policy document” which provides the City, the County, other agencies and districts, and

citizens with “a coordinated guide for change over a long period of time.” It addresses a

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number of questions that had been “the focus of much community discussion for several

years,” including which areas are best suited for future development, which areas are best

suited to remain relatively unchanged, and what role and responsibilities Rattlesnake

Valley shares as part of the larger Missoula community. The plan lists various goals and

guiding principles under the categories of air and water quality, open space and natural

resources, transportation, and neighborhood character and quality of life. The plan then

lists the recommended policies and actions with respect to each of these categories.

¶14 On the subject of land use, the plan explains that Rattlesnake Valley ranges from

rural to urban. The upper valley is comprised of heavily forested lands and limited

residential development, including some small-scale ranches. The middle valley contains

some established neighborhoods, with densities ranging from two to six dwelling units

per acre. But more than half of this area is sparsely settled or used as pasture land. The

lower valley is occupied primarily by residential construction. This area contains the

highest densities in the valley (six to eight dwelling units per acre) and is closest to

services and existing roadway and pedestrian networks.

¶15 Given these features, the plan does not recommend one development density

threshold for the entire valley. Rather, it states that “development should be at a scale

which is compatible with the development patterns of existing Rattlesnake neighborhoods

and the natural ecosystem which underlies and surrounds the entire study area.” To that

end, the plan recommends different densities for different parts of the valley. The desired

densities range from six to eight dwelling units per one acre (in the very southern portion

of the valley) to one dwelling unit per five to ten acres (on the west and east hillsides).

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Of relevance to the present case, the Sonata Park land—consisting of 34.08 acres on the

west hillside—straddles two density zones: one dwelling unit per five to ten acres, and

one dwelling unit per two acres. This translates to seven or eight units on the 34.08 acres.

The plan states that “[a]ll subdivision, zoning and rezoning requests should substantially

comply with the land use recommendations of this Plan.”

Proceedings on the Sonata Park Proposal

¶16 In 2006, Muth-Hillberry proposed to develop Sonata Park as a 41-lot subdivision.

The Missoula Office of Planning and Grants (OPG), however, determined that such

development was not consistent with the densities recommended in the Rattlesnake

Valley plan. In this regard, OPG observed that the recommended densities

are a mechanism that can help ensure that goals and objectives for the plan
area are met. Development at densities higher than what is recommended
in the applicable plan can have a significant negative impact on the natural
resources, neighborhood character, and transportation capacity of the plan
area as well as the health, safety and welfare of the . . . residents.

OPG also noted that the subdivision was located outside the areas identified in the plan

for greater concentration of development and was not compatible with 50 percent or more

of the land uses in the immediate vicinity. Surrounding land uses include residential lots

(ranging from one to five acres in size) to the east and south, vacant land (also proposed

as a subdivision) to the north, and large public open space (Waterworks Hill) to the west.

OPG thus denied a zoning compliance permit.

¶17 The following year, Muth-Hillberry submitted a proposal for a 38-lot subdivision.

In its application, Muth-Hillberry asserted that under a 1989 agreement between the City

and Sunlight Development Company (Muth-Hillberry’s predecessor in interest), it was

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entitled to develop Sonata Park at a higher density than recommended in the Rattlesnake

Valley plan. In fact, Muth-Hillberry claimed that “Sonata Park, as proposed for 38 lots,

is using only 70% . . . of the single-family density rights allocated to this property under

the 1989 Agreement.” Since the interim zoning had expired in 1992 and the site was now

unzoned, Muth-Hillberry requested that Sonata Park be zoned at two dwelling units per

acre, versus the recommended densities of one unit per two acres and one unit per five to

ten acres.

¶18 OPG again determined that this request “does not substantially comply with the

land use recommendation in the Comprehensive Plan/Growth Policy regarding residential

density.” Nevertheless, OPG staff recommended approval. At the December 4, 2007

meeting of the Missoula Consolidated Planning Board, the OPG case planner explained

that she had balanced many factors in making her recommendation, but one that she had

considered especially “important” was the fact that a density of four units per acre is,

according to the city engineer, the minimum needed to recoup the cost of providing sewer

service to a given area. She acknowledged, though, that “not every area within the city’s

wastewater treatment facilities area is appropriate at four per acre or greater.”

¶19 Proponents and opponents of Sonata Park attended the Planning Board meeting.

Representatives of Muth-Hillberry spoke in favor of the project, while Neighbors and

other members of the public spoke against it. Their objections included the alleged

failure of the proposed subdivision and zoning to comply with the Rattlesnake Valley

plan, the alleged instability of the land and soils, and the high density of the development

relative to neighboring developments. One of the Neighbors clarified that they were not

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opposed to any and all development, but only to development that did not substantially

comply with the growth policy. He argued that the law required such compliance and

that this project “is not even close.” Another resident said that she had read the growth

policy before buying her land on the west side of the valley and “everything in it led me

to believe that future development would be mindful of the unique rural character of the

neighborhood.” She noted that development in the area thus far had been consistent with

the Rattlesnake Valley plan. Nevertheless, the Planning Board voted to recommend

approval of Muth-Hillberry’s application. During the debate, one of the board members

indicated that he did not “put a lot of weight” on the growth policy argument. In his

view, the process of creating a growth policy “wastes people’s time. It makes them think

they are being involved [but] when it comes right down to it they’re really not.” Two

other board members expressed the view that Rattlesnake Valley needed to do its part in

providing new homes for Missoula. Another opined that the “original framers” of the

Rattlesnake Valley plan “had this land envisioned to be developed more densely.”

¶20 The City Council’s Plat, Annexation, and Zoning (PAZ) Committee considered

Sonata Park at its December 5 meeting. Members of the public, including Neighbors,

appeared and expressed their concerns relating to bicycle and pedestrian safety, fire risks,

soil stability, doubling the size of the neighborhood if the subdivision were approved, and

lack of substantial compliance with the growth policy. Neighbors reiterated these points

at a meeting of the City Council on December 10.

¶21 The issue was then sent back to the PAZ Committee, which held another meeting

on December 12. Neighbors again appeared and voiced their concerns and objections.

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The committee reconvened on December 14, at which time a motion was made to zone

the property at the requested two dwelling units per acre. One of the committee members

who opposed this motion observed that in the recent use of neighborhood plans, the call

for lower densities was being ignored. He stated that when the applicable growth policy

is disregarded, it sends a message to the public that the City does not value their input. In

contrast, another committee member argued that Sonata Park fit the development pattern

of the area. Still another committee member argued that every part of the city should

share in its growth. Ultimately, a majority voted in favor of the motion.

¶22 Finally, on December 17, the City Council voted on the zoning and subdivision.

Again, members of the public, including Neighbors, commented extensively. Among

other things, they stated that it had been “discouraging to hear city employees and

officials and advisors downplay the value of our Rattlesnake Comprehensive Plan as the

Sonata Park Subdivision proposal has been discussed.” Similarly, one of the council

members voiced opposition to the project because “it doesn’t honor the 1995 Rattlesnake

Valley Plan.” She stated that she would be open to a compromise of 17 to 20 dwelling

units, but a density of more than three times the recommended density is “too much.”

Similarly, another council member expressed concern that they were “turning a blind

eye” to the extensive work that had gone into the Rattlesnake Valley plan. In addition, he

countered the notion that Rattlesnake Valley residents saw themselves as exclusive or

exempt from the pressures of growth. He argued that the hills north of Missoula were

ecologically unique and that it was important to preserve the “ecological integrity” of the

area. Conversely, other council members argued that a property owner should have

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“considerable say” in how his property is developed. They also noted that the

Rattlesnake area had been zoned at two dwelling units per acre prior to annexation by the

City in 1989. As before, the need for more housing due to the City’s ongoing growth was

cited as further reason to approve the subdivision. The City Council then voted (10 to 2)

to grant the zoning request and to approve the subdivision with 37 lots. The next day, the

City sent a letter to Muth-Hillberry apprising the developer that Sonata Park had been

approved, subject to 34 listed conditions.

District Court Proceedings

¶23 On January 16, 2008, Neighbors sought review of the City’s decisions by the

District Court. They alleged that the City had violated subdivision and zoning laws; that

the City’s approval of Sonata Park was arbitrary, capricious, and unlawful because the

subdivision is not in substantial compliance with the Rattlesnake Valley plan; and that the

City had violated their right to participate under Article II, Section 8 of the Montana

Constitution. They requested that the court void the City’s decisions and enjoin the City

from granting final plat approval of the subdivision.

¶24 Muth-Hillberry intervened as a party-defendant. The City then filed a motion to

dismiss on the ground that Neighbors did not have standing under § 76-3-625, MCA, to

appeal a subdivision decision. The District Court concluded, however, that Neighbors

met the requirements of the statute. The parties then filed cross-motions for summary

judgment based on their various interpretations of the record, but the District Court

denied those motions on the ground that there were “disputed material factual issues

regarding whether the City was, in the very least, ‘guided by’ the Growth Plan, much less

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whether it ‘substantially complied’ with it when it approved 37 lots for development.”

The parties thereafter reached an agreement regarding the record and filed a stipulation as

to the contents of “ ‘the record’ of the proceedings from which this appeal was taken.” In

the meantime, the City and Muth-Hillberry filed six affidavits in connection with their

motions for summary judgment. However, pursuant to Neighbors’ motions to strike, the

District Court struck most of these affidavits as irrelevant or because they contained

information outside the record on which the City Council’s decision had been based.

¶25 Although the City Council had not issued written findings of fact with its Sonata

Park decision, see § 76-3-608(2), MCA, the City argued to the District Court that the

proposed findings in OPG’s Executive Summary were sufficient. The court disagreed,

noting that this summary had been prepared before the public hearings and had not been

formally adopted by the City Council. The court thus ordered the City to provide written

findings of fact with corresponding citations to the stipulated record. The City eventually

did so, though the District Court later expressed dissatisfaction with the City’s

“minimal”—and in some instances inaccurate—citations to the record.

¶26 On February 24, 2010, the District Court entered an opinion and order granting

summary judgment to Neighbors. The court determined that “the City’s approval of the

Sonata Park subdivision is a significant deviation from the Rattlesnake Plan and therefore

arbitrary and capricious.” First, the court observed that the City had “essentially ignored

the central component of the Rattlesnake Plan, the land use recommendations, when it

approved a subdivision with over four-times the recommended density.” The court then

detailed, over the course of 18 pages, how the City had “ignored or failed to substantiate

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its findings on a number of other components of the Plan as well.” Having concluded

that the City “failed to substantially comply with the density recommendations, and with

many other recommendations, of the Rattlesnake Plan,” the court set the zoning and

subdivision decisions aside and entered judgment in favor of Neighbors.

DISCUSSION

¶27 Issue 1. Do Neighbors have standing?

¶28 The determination of a party’s standing to maintain an action is a question of law,

as is the interpretation of a statute. We review such questions de novo. Druffel v. Bd. of

Adjustment, 2007 MT 220, ¶ 9, 339 Mont. 57, 168 P.3d 640; State v. Weaver, 2008 MT

86, ¶ 10, 342 Mont. 196, 179 P.3d 534.

¶29 Standing is one of several justiciability doctrines which limit Montana courts, like

federal courts, to deciding only “cases” and “controversies.” See Plan Helena, Inc. v.

Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶¶ 6-8, 355 Mont. 142, 226 P.3d 567. A

court lacks power to resolve a case brought by a party without standing—i.e., a personal

stake in the outcome—because such a party presents no actual case or controversy.

Ballas v. Missoula City Bd. of Adjustment, 2007 MT 299, ¶¶ 14-16, 340 Mont. 56, 172

P.3d 1232. Hence, standing is a threshold, jurisdictional requirement in every case.

Bryan v. Yellowstone County Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 19, 312 Mont.

257, 60 P.3d 381. The parties cannot waive objections to standing, and a court may

address the standing requirement sua sponte. Jones v. Montana U. Sys., 2007 MT 82,

¶ 48, 337 Mont. 1, 155 P.3d 1247. In the present case, the City has expressly challenged

Neighbors’ standing.

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 Background Principles

¶30 The question of standing is whether the litigant is entitled to have the court decide

the merits of the dispute. Helena Parents Commn. v. Lewis and Clark County Commrs.,

277 Mont. 367, 371, 922 P.2d 1140, 1142 (1996). Standing is determined as of the time

the action is brought. Becker v. Fed. Election Commn., 230 F.3d 381, 386 n. 3 (1st Cir.

2000); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154-55 (10th Cir. 2005).3 In this

regard, standing must not be confused with mootness. Standing requires the plaintiff to

have a personal stake in the outcome of the controversy at the commencement of the

litigation, whereas mootness doctrine requires this personal stake to continue throughout

the litigation. Greater Missoula Area Fedn. of Early Childhood Educators v. Child Start,

Inc., 2009 MT 362, ¶ 23, 353 Mont. 201, 219 P.3d 881; Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708-09 (2000).

¶31 Although we have not always made the distinction explicit, there are in fact two

strands to standing: the case-or-controversy requirement imposed by the Constitution,

and judicially self-imposed prudential limitations.4 Olson v. Dept. of Revenue, 223 Mont.

464, 469-70, 726 P.2d 1162, 1166 (1986); Elk Grove Unified Sch. Dist. v. Newdow, 542

3
Because the “cases at law and in equity” language of Article VII, Section 4(1) of
the Montana Constitution embodies the same limitations as are imposed by the “case or
controversy” language of Article III, Section 2 of the United States Constitution, we have
said that federal precedents interpreting Article III, Section 2 are persuasive authority for
interpreting the justiciability requirements of Article VII, Section 4(1). Plan Helena, ¶ 6.
4
The Supreme Court likewise “has not always been clear . . . whether particular
features of the ‘standing’ requirement have been required by Art. III ex proprio vigore, or
whether they are requirements that the Court itself has erected and which were not
compelled by the language of the Constitution.” Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct.
752, 758 (1982).

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U.S. 1, 11-12, 124 S. Ct. 2301, 2308 (2004). For reasons explained below, it is important

to distinguish between these two strands.

¶32 In federal jurisprudence, “the irreducible constitutional minimum of standing” has

three elements: injury in fact (a concrete harm that is actual or imminent, not conjectural

or hypothetical), causation (a fairly traceable connection between the injury and the

conduct complained of), and redressability (a likelihood that the requested relief will

redress the alleged injury). Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112

S. Ct. 2130, 2136 (1992); Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 103, 118

S. Ct. 1003, 1016-17 (1998). Beyond these minimum constitutional requirements, the

Supreme Court has adopted several prudential limits: the plaintiff generally must assert

her own legal rights and interests; the courts will not adjudicate generalized grievances

more appropriately addressed in the representative branches; and the plaintiff’s complaint

must fall within the zone of interests protected by the law invoked. Newdow, 542 U.S. at

12, 124 S. Ct. at 2309. These rules are “closely related to Art. III concerns but essentially

matters of judicial self-governance.” Warth v. Seldin, 422 U.S. 490, 499-500, 95 S. Ct.

2197, 2205 (1975). Hence, they are subject to exceptions. See e.g. Powers v. Ohio, 499

U.S. 400, 410, 111 S. Ct. 1364, 1370 (1991) (the requirement that a litigant assert her

own legal rights and interests “admits of certain, limited exceptions”).

¶33 Similarly, in Montana, to meet the constitutional case-or-controversy requirement,

the plaintiff must clearly allege a past, present, or threatened injury to a property or civil

right. Olson, 223 Mont. at 470, 726 P.2d at 1166; Bd. of Trustees v. Cut Bank Pioneer

Press, 2007 MT 115, ¶ 15, 337 Mont. 229, 160 P.3d 482. Furthermore, the injury must

18
be one that would be alleviated by successfully maintaining the action. Jones, ¶ 48; In re

Vainio, 284 Mont. 229, 235, 943 P.2d 1282, 1286 (1997). As for prudential

requirements, we have observed that discretionary limits on the exercise of judicial power

“cannot be defined by hard and fast rules.” Missoula City-County Air Pollution Control

Bd. v. Bd. of Envtl. Rev., 282 Mont. 255, 260, 937 P.2d 463, 466 (1997). Nevertheless,

we have recognized the prudential rule that a litigant may only assert her own

constitutional rights or immunities. Jones, ¶ 48; In re B.F., 2004 MT 61, ¶ 16, 320 Mont.

261, 87 P.3d 427. We have also required the alleged injury to be distinguishable from the

injury to the public generally, though not necessarily exclusive to the plaintiff. Cut Bank

Pioneer Press, ¶ 15. Conversely, a countervailing factor weighing against these

prudential restrictions is “the importance of the question to the public.” Air Pollution

Control Bd., 282 Mont. at 260, 937 P.2d at 466. Another is whether the statute at issue

would effectively be immunized from review if the plaintiff were denied standing. See

e.g. Gryczan v. State, 283 Mont. 433, 446, 942 P.2d 112, 120 (1997).

¶34 Importantly, the legislative branch “may enact statutes creating legal rights, the

invasion of which creates standing, even though no injury would exist without the

statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S. Ct. 1146, 1148 n. 3

(1973); see also Defenders of Wildlife, 504 U.S. at 578, 112 S. Ct. at 2145-46. Similarly,

the legislative branch may expand standing by expressly modifying or abrogating

prudential standing rules. Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161

(1997) (“[U]nlike their constitutional counterparts, [prudential requirements] can be

modified or abrogated by Congress.”); Gladstone Realtors v. Village of Bellwood, 441

19
U.S. 91, 100, 99 S. Ct. 1601, 1608 (1979) (“Congress may, by legislation, expand

standing to the full extent permitted by Art. III, thus permitting litigation by one who

otherwise would be barred by prudential standing rules.” (internal quotation marks

omitted)); Warth, 422 U.S. at 501, 95 S. Ct. at 2206 (“Congress may grant an express

right of action to persons who otherwise would be barred by prudential standing rules.”);

In re Conservatorship of Kloss, 2005 MT 39, ¶ 10, 326 Mont. 117, 109 P.3d 205

(concluding that the Legislature had broadly defined those who have standing to petition

a court on behalf of a protected person). When the legislative branch augments standing,

it may simultaneously limit it to certain parties. See e.g. Bread PAC v. Fed. Election

Commn., 455 U.S. 577, 102 S. Ct. 1235 (1982). But in all events, the standing

requirements imposed by the Constitution must always be met. Vainio, 284 Mont. at 235,

943 P.2d at 1286 (“The mere fact that a person is entitled to bring an action under a given

statute is insufficient to establish standing; the party must allege some past, present or

threatened injury which would be alleviated by successfully maintaining the action.”);

Gollust v. Mendell, 501 U.S. 115, 126, 111 S. Ct. 2173, 2180 (1991).

Neighbors’ Standing

¶35 As noted, a plaintiff must clearly allege a past, present, or threatened injury to a

property or civil right—i.e., an invasion of a legally protected interest. Thus, standing

often turns on the source of the plaintiff’s claim, since the actual or threatened injury

required by the Constitution might exist solely by virtue of statutes creating legal rights.

Warth, 422 U.S. at 500, 95 S. Ct. at 2206. Such is the case here. Under Sourdough

Protective Assn., Inc. v. Bd. of County Commrs., 253 Mont. 325, 833 P.2d 207 (1992),

20
and City of Kalispell v. Flathead County, 260 Mont. 258, 859 P.2d 458 (1993), there is no

right to appeal a governing board’s approval of a preliminary subdivision plat, except as

provided by statute. Responding to these two decisions, the Legislature created the

appeal mechanism set forth in § 76-3-625, MCA, which Neighbors invoked in bringing

the present action. See Laws of Montana, 1995, ch. 468, § 10. Where the Legislature

“ ‘has authorized public officials to perform certain functions according to law, and has

provided by statute for judicial review of those actions under certain circumstances, the

inquiry as to standing must begin with a determination of whether the statute in question

authorizes review at the behest of the plaintiff.’ ” Druffel, ¶ 15 (quoting Sierra Club v.

Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 1364-65 (1972)).

¶36 Section 76-3-625(2), MCA, provides that certain parties who are “aggrieved” by a

decision of the governing body to approve, conditionally approve, or deny an application

and preliminary plat for a proposed subdivision or a final subdivision plat may appeal to

the district court in the county in which the property involved is located. The parties who

may appeal under this provision are the subdivider, the county commissioners, certain

municipalities, and “a landowner with a property boundary contiguous to the proposed

subdivision or a private landowner with property within the county or municipality where

the subdivision is proposed if that landowner can show a likelihood of material injury to

the landowner’s property or its value.” Section 76-3-625(3), MCA. The statute defines

“aggrieved” as “a person who can demonstrate a specific personal and legal interest, as

distinguished from a general interest, who has been or is likely to be specially and

injuriously affected by the decision.” Section 76-3-625(4), MCA.

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¶37 In its motion to dismiss, the City argued that Neighbors had not met these

requirements—specifically, that none of them had alleged or shown a material injury to

their property or its value, a specific personal and legal interest, and a special and

injurious effect flowing from the subdivision approval. The District Court concluded

otherwise, reasoning that the adverse impacts cited by Neighbors (such as increased

traffic, noise, and pollution, and disruption of wildlife in the area) could materially injure

their properties or the value of their properties. The court observed that it was not

necessary “for the Plaintiffs to allege specific physical property damage or dollar

amounts for injuries to property values in order to bring a suit under § 76-3-625, MCA.”

On appeal, the City correctly acknowledges that adverse impacts do not have to be

monetary. Rather, the City contends that Neighbors’ alleged injuries “could apply to any

new residence” and “are ambiguous and too general” to meet the standard set out in

§ 76-3-625, MCA. We disagree.

¶38 One of the purposes of the Montana Subdivision and Platting Act is to “promote

the public health, safety, and general welfare by regulating the subdivision of land.”

Section 76-3-102(1), MCA. “Legislation enacted for the promotion of public health,

safety, and general welfare, is entitled to liberal construction with a view towards the

accomplishment of its highly beneficent objectives.” State ex rel. Florence-Carlton Sch.

Dist. No. 15-16 v. Bd. of County Commrs., 180 Mont. 285, 291, 590 P.2d 602, 605 (1978)

(internal quotation marks omitted). With this principle in mind, we first consider

Heffernan’s affidavit filed in response to the City’s motion to dismiss. It states that the

western boundary of her property shares the northeastern boundary of Sonata Park. In

22
other words, she is “a landowner with a property boundary contiguous to the proposed

subdivision” and, as such, satisfies § 76-3-625(3)(b), MCA.5 As to whether she is

“aggrieved,” Heffernan states that she and her family have resided on the west side of

Rattlesnake Valley for 18 years. She explains that their neighborhood reflects a transition

from city to wilderness, and she identifies numerous animals that frequent her property

and the surrounding area. She says the presence of this wildlife is “an important value to

us” and “one of the reasons that we chose to live here.” She also discusses the value of

the neighborhood’s low density and states that “dense development adjacent to our

property will diminish this [rural] quality for my family and myself, and diminish the

value of our property in the future.” She notes that the impact of 37 new homes—

including 259 to 370 additional vehicle trips per day (as estimated by the developer),

increased noise, more pets, and less wildlife—will “significantly alter” the neighborhood

for the worse. She states that when she moved to her property, she “believed that the

recommendations of the Rattlesnake Comprehensive Plan would be considered for any

future development.” She and her husband expressed their concerns about Sonata Park in

letters to the Planning Board and the City Council and at the various public meetings on

5
The City asserts that Heffernan must also show a likelihood of material injury to
her property or its value. See § 76-3-625(3)(b), MCA (authorizing an appeal by “a
landowner with a property boundary contiguous to the proposed subdivision or a private
landowner with property within the county or municipality where the subdivision is
proposed if that landowner can show a likelihood of material injury to the landowner’s
property or its value” (emphasis added)). We agree with Neighbors, however, that the
language requiring “that landowner” to show a likelihood of material injury refers to a
private landowner with property elsewhere in the county or municipality. The owner of
property contiguous to the subdivision has standing without this additional showing, so
long as the contiguous landowner is “aggrieved” under subsection (4) of the statute.

23
the subdivision. We hold that these averments are sufficient to establish that Heffernan

has a specific personal and legal interest and is likely to be specially and injuriously

affected by the subdivision. Section 76-3-625(4), MCA; cf. Aspen Trails Ranch, LLC v.

Simmons, 2010 MT 79, ¶¶ 41-43, 356 Mont. 41, 230 P.3d 808 (contiguous landowner’s

allegations that the subdivision would affect the enjoyment of his property, adversely

impact the quality of his water supply, impact wildlife habitat and wetlands, increase

noise, traffic, and light pollution, and decrease the value of his property were sufficient to

establish standing); Little v. Bd. of County Commrs., 193 Mont. 334, 355, 631 P.2d 1282,

1294 (1981) (“the increased traffic alone was sufficient to show that plaintiffs, as

adjacent owners, would be injured in a manner that the general public would not”).

¶39 Carey and Harmon also filed affidavits on the issue of standing. Carey’s property,

which he bought in 2001, is located within 150 feet of Sonata Park. It is adjacent to the

sole access road to the subdivision and, as a result, will be directly affected by the

increased traffic. In fact, Carey avers that “the combined noise, dust, and steady intrusion

very close to our living space (about 100 feet from living and dining room view

windows) will negatively affect our ability to enjoy the natural rural values of our home.”

Carey states that before he bought his property, he “read the Rattlesnake Comprehensive

Plan and believed that its goals and guidelines would be the dominant roadmap of

development in our neighborhood.” He explains that the viewshed, the rural character of

the area, and the wildlife—all of which the Rattlesnake Valley plan endorses—are

valuable to him and his family. He alleges that Sonata Park will destroy or degrade these

aspects of the neighborhood which, in turn, will erode the value of his property. Carey

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also alleges that the development poses a danger of injury to his family and damage to his

property due to soil issues and the potential for a landslide. He notes that he expressed

his concerns to city officials but received “no meaningful response.”

¶40 Harmon’s property, which he bought in 1991, is within 600 feet of Sonata Park. It

too lies along the access road and, thus, will be directly affected by the increased traffic.

Harmon cites most of the same adverse impacts alleged by Heffernan and Carey (traffic,

noise, detrimental effects on wildlife). In addition, he asserts that allowing Sonata Park’s

density of development will create “light pollution” and greatly increase the danger to

pedestrians and bicyclists using the neighborhood streets, which do not have sidewalks,

curbs, or designated bike lanes. He alleges that the effects of the subdivision will result

in a decrease in his property’s value. We hold that these allegations by Harmon and

Carey are sufficient to establish a likelihood of material injury to each one’s property or

its value, a specific personal and legal interest, and a likelihood of being specially and

injuriously affected by the subdivision. Section 76-3-625(3)(b), (4), MCA.

¶41 Heffernan, Carey, and Harmon therefore have statutory standing. However, as

noted, “[t]he mere fact that a person is entitled to bring an action under a given statute is

insufficient to establish standing; the party must allege some past, present or threatened

injury which would be alleviated by successfully maintaining the action.” Vainio, 284

Mont. at 235, 943 P.2d at 1286; see also e.g. Bennett, 520 U.S. 154, 117 S. Ct. 1154

(addressing constitutional standing after determining that standing existed under the

statute). Yet, unlike the statute involved in Vainio, which allowed “any interested party”

to bring a paternity action, the statute involved in the present case requires the plaintiff to

25
demonstrate “a specific personal and legal interest” and that she “has been or is likely to

be specially and injuriously affected by the decision [of the governing body].” Section

76-3-625(4), MCA. Satisfaction of these criteria, we conclude, is sufficient to establish

the existence of a case or controversy. Accordingly, we hold that Heffernan, Carey, and

Harmon have constitutional standing as well.

¶42 As a final matter, the City contends that “North Duncan Drive Neighborhood

Association is not pled as a landowner” and “is therefore not eligible” to appeal under

§ 76-3-625, MCA. If the Association were claiming injuries to itself, we would agree.

But that is not the case. An organization may have standing in either of two ways: it

may file suit on its own behalf to seek judicial relief from injury to itself and to vindicate

whatever rights and immunities the association itself may enjoy, or it may assert the

rights of its members under the doctrine of associational standing. Irish Lesbian and Gay

Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998). In the latter situation, the association

and its members are “in every practical sense identical.” United Food and Com. Workers

v. Brown Group, Inc., 517 U.S. 544, 552, 116 S. Ct. 1529, 1534 (1996) (internal

quotation marks omitted). Here, the Association does not seek judicial relief from an

injury to itself; rather, it seeks to represent the legal interests of its members.

¶43 It is well established that an association has standing to bring suit on behalf of its

members, even without a showing of injury to the association itself, when (a) at least one

of its members would have standing to sue in his or her own right, (b) the interests the

association seeks to protect are germane to its purpose, and (c) neither the claim asserted

nor the relief requested requires the individual participation of each allegedly injured

26
party in the lawsuit. Warth, 422 U.S. at 511, 95 S. Ct. at 2211-12; Hunt v. Washington

State Apple Advertising Commn., 432 U.S. 333, 343, 97 S. Ct. 2434, 2441 (1977). The

first two prongs of this test are grounded in the constitutional requirement of a case or

controversy, while the third prong focuses on “matters of administrative convenience and

efficiency, not on elements of a case or controversy,” and thus is prudential. United

Food, 517 U.S. at 554-57, 116 S. Ct. at 1535-36.

¶44 Associational standing is an exception to the general prohibition on a litigant’s

raising a third party’s legal rights. Id. at 557, 116 S. Ct. at 1536; Retired Chicago Police

Assn. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). The doctrine of associational

standing “recognizes that the primary reason people join an organization is often to create

an effective vehicle for vindicating interests that they share with others.” United

Automobile Workers v. Brock, 477 U.S. 274, 290, 106 S. Ct. 2523, 2533 (1986).

[A]n association suing to vindicate the interests of its members can draw
upon a pre-existing reservoir of expertise and capital. Besides financial
resources, organizations often have specialized expertise and research
resources relating to the subject matter of the lawsuit that individual
plaintiffs lack. These resources can assist both courts and plaintiffs.

Id. at 289, 106 S. Ct. at 2532 (citation and internal quotation marks omitted).

¶45 Consistent with these principles, this Court has recognized standing on the part of

organizations that were proceeding on behalf of their members, based on considerations

substantially equivalent to those articulated in Hunt. See e.g. Geil v. Missoula Irrigation

Dist., 2002 MT 269, ¶¶ 28-32, 312 Mont. 320, 59 P.3d 398 (finding standing where the

organization had demonstrated potential economic injury to its members resulting from

enforcement of the statutes, the organization was the only entity authorized by the

27
statutes to object to their enforcement, the alleged injury to the organization’s members

was not shared by the public generally, and denying standing would effectively immunize

the statutes from review); Montana Envtl. Info. Ctr. v. Dept. of Envtl. Quality, 1999 MT

248, ¶¶ 4, 41-45, 296 Mont. 207, 988 P.2d 1236 (finding standing based on the injuries

allegedly suffered by the organizations’ members).

¶46 In the present case, therefore, the Association has standing to proceed on behalf of

its members if (a) at least one of its members would have standing to sue in his or her

own right, (b) the interests the Association seeks to protect are germane to its purpose,

and (c) neither the claim asserted nor the relief requested requires the individual

participation of each allegedly injured party in the lawsuit. First, Heffernan, Carey, and

Harmon are members of the Association, and, as explained above, they have standing to

sue in their own right. Second, the Association’s purpose (according to Harmon’s and

Carey’s affidavits) is “to deal with land use issues and densities in our mostly unzoned

neighborhood” and “to advocate for the Rattlesnake Valley Growth Plan and its

underlying principles.” The interests the Association seeks to protect in the instant suit

(its members’ claims that Sonata Park is contrary to the Rattlesnake Valley plan) are

germane to this purpose. See Bldg. and Constr. Trades Council v. Downtown Dev., Inc.,

448 F.3d 138, 149 (2d Cir. 2006). And nothing in the record suggests a “profound”

conflict of interest among the Association and its members. See Retired Chicago Police,

76 F.3d at 864-65, 867. Third, Neighbors alleged that the City’s approval of Sonata Park

was arbitrary, capricious, and unlawful, and they requested declaratory and injunctive

relief. Adjudication of this claim does not require participation by each allegedly injured

28
member of the Association. See Hosp. Council v. City of Pittsburgh, 949 F.2d 83, 89-90

(3d Cir. 1991). Likewise, a request for declaratory and injunctive relief does not require

participation by individual association members. Id. at 89; cf. United Union of Roofers v.

Ins. Corp. of America, 919 F.2d 1398, 1400 (9th Cir. 1990) (claims for monetary relief

necessarily involve individualized proof and thus the individual participation of

association members). And there is no risk that the relief requested would fail to inure to

the benefit of the members on whose behalf injury is claimed. See United Food, 517 U.S.

at 556, 116 S. Ct. at 1536; Warth, 422 U.S. at 515, 95 S. Ct. at 2213. Accordingly, the

Association has standing to assert the rights of its members.

¶47 In sum, we hold that Heffernan, Carey, and Harmon have demonstrated statutory

and constitutional standing and that the Association has associational standing to proceed

on behalf of its members. We reject the City’s arguments to the contrary.

¶48 Issue 2. Did the District Court err in striking affidavits filed by Muth-Hillberry
and the City in connection with their motions for summary judgment?

¶49 The City and Muth-Hillberry filed six affidavits in connection with their summary

judgment motions. Neighbors then filed two motions to strike these affidavits, which the

District Court granted in part and denied in part. The City and Muth-Hillberry now

challenge the District Court’s rulings. We begin with the City’s arguments.

¶50 The City filed the affidavits of John Engen (Missoula City Mayor), Jack Reidy

(member of the City Council from 1986 through 2007), and Denise Alexander (OPG

Principal Planner). These affidavits contain explanations of the City Council’s “common

practice” for reviewing and voting on subdivision applications. The evident purpose of

29
the affidavits was to explain why the City believed it had satisfied § 76-3-608(2), MCA,

which requires a governing body to issue written findings of fact in conjunction with its

decision to approve, conditionally approve, or deny a proposed subdivision. The District

Court concluded, however, that this information was irrelevant and had no bearing on the

issue before the court. Accordingly, the court struck the affidavits. On appeal, the City

offers the blanket assertion that the District Court erred in granting Neighbors’ motion to

strike. Yet, the City provides no explanation as to why the court’s ruling vis-à-vis the

Engen, Reidy, and Alexander affidavits was incorrect.

¶51 The City also filed the affidavits of Martha Rehbein (Missoula City Clerk) and

Mary McCrea (OPG Senior Planner). Rehbein’s affidavit and the first part of McCrea’s

affidavit concern the Rattlesnake Valley Planned District Overlay Zone. Both Rehbein

and McCrea state what appears to be an undisputed fact: that the City Council has never

applied the Rattlesnake Overlay to the land included in the Sonata Park subdivision. The

District Court found this fact to be potentially relevant to its decision on the parties’

motions for summary judgment. Thus, the court denied the motion to strike Rehbein’s

affidavit and denied the motion to strike the first part of McCrea’s affidavit. The

remainder of McCrea’s affidavit, however, summarizes the City Council’s process in

addressing the issues raised by Neighbors concerning Sonata Park. The District Court

struck this part of the affidavit, aptly stating that it would “rely on the stipulated record

directly rather than on Defendants’ summaries.”

¶52 On appeal, the City argues that it was “entitled to prove by affidavit pursuant to

[M. R. Civ. P. 56] the Rattlesnake Overlay was never implemented by the City Council.”

30
The City contends that Rehbein’s and McCrea’s affidavits were necessary for this

purpose and that the District Court “erred in striking the affidavits and in allowing

[Neighbors] to continue an erroneous zoning district argument.” Yet, as Neighbors point

out, they acknowledged during the District Court proceedings that the overlay had never

been implemented. Furthermore, as noted, the District Court DENIED the motions to

strike Rehbein’s affidavit and the first part of McCrea’s affidavit, both of which state that

the Rattlesnake Overlay has never been applied to Sonata Park land. It is thus a mystery

why the City has raised this as an issue on appeal. Accordingly, the District Court’s

rulings as to the five affidavits filed by the City are affirmed.

¶53 Muth-Hillberry filed the affidavit of Frank Muth, who is the managing member of

Muth-Hillberry. Muth’s affidavit deals exclusively with the “Sunlight Agreement,” the

above-mentioned 1989 agreement between the City and Sunlight Development Company

(Muth-Hillberry’s predecessor in interest). Relying on Skyline Sportsmen’s Assn. v. Bd.

of Land Commrs., 286 Mont. 108, 113, 951 P.2d 29, 32 (1997), and Asarco, Inc. v. U.S.

EPA, 616 F.2d 1153, 1159-60 (9th Cir. 1980), the District Court struck the affidavit on

the ground that it contained extra-record evidence which the court was not allowed to

consider in deciding the issue raised by Neighbors—namely, whether the approval of

Sonata Park was arbitrary, capricious, or unlawful in light of the administrative record the

City had at the time of its decision. The court noted that Neighbors had not challenged

the Sunlight Agreement or sought any relief related to the agreement.

¶54 On appeal, Muth-Hillberry points out that the Muth affidavit was not offered for

purposes of determining whether the City’s action was arbitrary, capricious, or unlawful.

31
In addition to answering Neighbors’ First Amended Complaint, Muth-Hillberry

counterclaimed for declaratory relief. It asked the court to adjudicate and declare all

rights and obligations of the parties with respect to this controversy and the subdivision.

More specifically, in its motion for summary judgment, Muth-Hillberry asked the court to

determine, as a matter of law, that the Sunlight Agreement overrides the density

recommendations in the Rattlesnake Valley plan insofar as they apply to Sonata Park.

The Muth affidavit was filed in support of this claim. Muth-Hillberry observes that a

ruling in its favor on this issue—i.e., that the Sunlight Agreement “superseded and

rendered irrelevant the 1995 Growth Policy”—would have mooted Neighbors’ claim that

the City’s action was arbitrary, capricious, or unlawful. Thus, Muth-Hillberry argues that

“[i]n striking the Muth Affidavit, the District Court erred by preventing [Muth-Hillberry]

from submitting admissible evidence to support its motion under [M. R. Civ. P. 56].”

¶55 This Court reviews evidentiary rulings going directly towards the propriety of

summary judgment de novo, in order to determine whether the evidentiary requirements

for summary judgment have been satisfied. PPL Mont., LLC v. State, 2010 MT 64, ¶ 85,

355 Mont. 402, 229 P.3d 421. Doing so here, we agree with Muth-Hillberry that the

District Court’s rationale for striking Muth’s affidavit was misplaced. A party is entitled

to support its motion for summary judgment with an affidavit, M. R. Civ. P. 56(a), (b), so

long as the affidavit is made on personal knowledge, sets forth such facts as would be

admissible in evidence, and shows affirmatively that the affiant is competent to testify to

the matters stated therein, M. R. Civ. P. 56(e). Muth-Hillberry filed the Muth affidavit in

support of its legal theory that the Sunlight Agreement supersedes the Rattlesnake Valley

32
plan. This theory (which Muth-Hillberry asserted in its subdivision application and has

maintained ever since) is related to, but distinct from, the question whether the City

Council’s decision was arbitrary, capricious, or unlawful. Accordingly, to the extent the

Muth affidavit otherwise satisfies Rule 56(e), it should not have been stricken.

Nevertheless, because the Sunlight Agreement does not supersede the Rattlesnake Valley

plan (see Issue 3, infra), the error was harmless. M. R. Civ. P. 61.

¶56 Issue 3. Does the Sunlight Agreement supersede the City’s growth policy?

¶57 The construction and interpretation of a contract is a question of law for the court

to decide, and one that we review for correctness. Kruer v. Three Creeks Ranch of

Wyoming, LLC, 2008 MT 315, ¶ 37, 346 Mont. 66, 194 P.3d 634.

¶58 Muth-Hillberry acquired the property on which Sonata Park is situated in 1992.

This property had been part of a larger, 939-acre parcel owned by Sunlight Development

Company. In March 1989, the City and Sunlight entered into the Sunlight Agreement,

pursuant to which the City agreed to furnish sanitary sewage services to Sunlight’s land

under § 7-13-4312, MCA. Sunlight contributed $335,000 to the project through a rural

special improvement district (RSID), and its property was allocated 2,625 sewer loading

units. At the time, the 1975 Urban Area Comprehensive Plan allowed for a base density

of 2,500 dwelling units on Sunlight’s property, and the 1976 county zoning allowed for a

base density of 1,900 dwelling units on the property. These densities are noted in the

Sunlight Agreement.

¶59 Of relevance to the present case, the Sunlight Agreement gives the City “the

option to acquire public parklands, restrictive easements, covenants, reservations, sewer

33
density units, land development rights, and other rights as specifically designated in the

Option To Purchase attached hereto.” The Option To Purchase, in turn, lists the

following which the City has the option to purchase from Sunlight:

• fee title to 85.7 acres for use as parklands, natural areas, and riparian zone;

• fee title or conservation easement rights in 260.7 acres for use as open space;

• Sunlight’s “right, title and interest in and to all density units in excess of 1,432
on its lands in the Rattlesnake Valley”; and

• “transfer of all assessment sewer rights from and under [the RSID] presently
existing on the property in excess of 1,432 units.”

Furthermore, the City is given the additional option to purchase:

• Sunlight’s “right, title and interest in and to an additional 432 density units so as
to limit the same to 1,000 on its lands in the Rattlesnake Valley”; and

• “transfer of an additional 432 units of assessment sewer rights from and under
[the RSID].”

¶60 According to Muth’s affidavit, the City exercised its option in 1991 and acquired

the 346.4 acres, which it dedicated to public parks and open space. In addition, the City

“bought down” the density units and sewer rights such that Sunlight was left with 1,000

of each for its remaining 592.6 acres. According to Muth, 54 of the density units were

ultimately allocated to the area now comprising the Sonata Park property.

¶61 Muth-Hillberry asserts that the Sunlight Agreement “created vested density rights”

which “may not be impaired by a subsequently adopted Growth Policy.” At the outset, it

is unclear from Muth-Hillberry’s arguments what these “density rights” guarantee to their

holder. Clearly, as Neighbors point out, they cannot include the right to enforce a certain

density on Sunlight’s lands, as such a promise by the City would be void ab initio. See

34
Davis v. Pima County, 590 P.2d 459, 461 (Ariz. App. 1978) (“The power to regulate land

use through zoning ordinances is vested in municipal legislatures and they cannot bargain

away this power.”); Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning

vol. 3, § 44:11 (Thomson Reuters 2010). “A contract in which a municipality promises

to zone property in a specified manner is illegal because, in making such a promise, a

municipality preempts the power of the zoning authority to zone the property according

to prescribed legislative procedures.” Dacy v. Village of Ruidoso, 845 P.2d 793, 797

(N.M. 1992).

¶62 Moreover, the agreement does not appear to guarantee Sunlight a certain density

in any event. It grants the City, in conjunction with the right to purchase 346.4 acres for

use as public parks and open space, the additional right to fix the maximum density on

the remaining 592.6 acres at 1,000 units. The agreement even states that if the City later

zones the area at a higher density, Sunlight and its successors “shall nevertheless continue

to be limited to the density allowances to which [Sunlight] is agreeing in this Option.”

But nothing in the agreement provides that Sunlight has the right to enforce a minimum

density. To the contrary, the agreement states that if the City annexes Sunlight’s land but

fails to adopt zoning that would permit the development of 1,000 dwelling units, then

Sunlight has the right to a prorated refund of its RSID payment. In other words, Sunlight

and its successors are given not the right to 1,000 dwelling units, but the right to

reimbursement in the event the adopted density is less than this amount.

¶63 Beyond its claim to “vested density rights,” Muth-Hillberry’s central argument is

that if the densities recognized in the Sunlight Agreement conflict with the densities

35
recommended in the applicable growth policy, then the landowner “must resort to the

zoning process to resolve the conflict.” This view is based on paragraph 9 of the

agreement, which states: “[I]n the event of conflict between the adopted comprehensive

plan’s land use designation for a parcel and the adopted zoning designation, the land use

designation of the zoning controls subject, however, to other issues addressed in both the

comprehensive plan and applicable zoning.” Muth-Hillberry interprets this to mean that

Sunlight and its successors may “utilize[ ] the zoning process to seek greater density than

allowed by the Growth Policy, but less than allowed by the 1989 Agreement.” Yet, while

this interpretation is questionable, the fact remains that the City is statutorily required in

“the zoning process” to “be guided by and give consideration to the general policy and

pattern of development set out in the growth policy.” Section 76-1-605(1)(c), MCA; see

also § 76-2-304(1), MCA (municipal zoning regulations must be made “in accordance

with a growth policy”). Thus, under Muth-Hillberry’s own construction, the Sunlight

Agreement does not supersede the applicable growth policy. The District Court correctly

denied Muth-Hillberry’s motion for summary judgment on this issue.

¶64 Issue 4. Was the City’s decision on Sonata Park arbitrary, capricious, or
unlawful?

Standard of Review

¶65 In an appeal brought under § 76-3-625(2), MCA, the standard of review to be

applied by the district court and this Court is whether the record establishes that the

governing body acted arbitrarily, capriciously, or unlawfully. Kiely Constr. LLC v. City

of Red Lodge, 2002 MT 241, ¶ 69, 312 Mont. 52, 57 P.3d 836; Aspen Trails Ranch, LLC

36
v. Simmons, 2010 MT 79, ¶ 31, 356 Mont. 41, 230 P.3d 808. The governing body’s

action is unlawful if it fails to comply with the requirements of applicable statutes. See

Aspen Trails, ¶ 56; Citizens for Responsible Dev. v. Bd. of County Commrs., 2009 MT

182, ¶ 26, 351 Mont. 40, 208 P.3d 876; North Fork Preservation Assn. v. Dept. of State

Lands, 238 Mont. 451, 464, 778 P.2d 862, 870 (1989). The governing body’s action is

arbitrary and capricious if it came about seemingly at random or by chance, or as an

impulsive and unreasonable act of will. See Silva v. City of Columbia Falls, 258 Mont.

329, 335, 852 P.2d 671, 675 (1993); Kiely, ¶ 69. In making this determination, the

reviewing court must consider whether the governing body’s decision was based on a

consideration of the relevant factors and whether there has been a clear error of judgment.

North Fork, 238 Mont. at 465, 778 P.2d at 871; see also e.g. Aspen Trails, ¶¶ 56-57.

¶66 Review of the governing body’s action is generally limited to the record before the

governing body at the time of its decision. Kiely, ¶ 97; Aspen Trails, ¶¶ 61-67 (Rice, J.,

concurring), and cases discussed therein; cf. § 2-4-704(1), MCA (review of an agency

decision “must be confined to the record”). In Skyline Sportsmen’s Assn. v. Bd. of Land

Commrs., 286 Mont. 108, 951 P.2d 29 (1997), we concluded that it was appropriate for

the district court in that case to accept new evidence and not to limit its review to the

administrative record. See id. at 113, 951 P.2d at 32 (citing Asarco, Inc. v. U.S. EPA, 616

F.2d 1153, 1160 (9th Cir. 1980)). It should be noted, however, that the Asarco court

limited the use of extra-record evidence to three purposes: for background information;

for ascertaining whether the agency considered all the relevant factors; or for ascertaining

whether the agency fully explicated its course of conduct or grounds of decision. 616

37
F.2d at 1160. The court stated that “[c]onsideration of the evidence to determine the

correctness or wisdom of the agency’s decision is not permitted, even if the court has also

examined the administrative record.” Id.

“Substantial Compliance”

¶67 In order to determine whether the City’s action was arbitrary, capricious, or

unlawful, it is necessary first to resolve a threshold issue raised and argued by the City,

Muth-Hillberry, Neighbors, and amici curiae.6 This issue concerns the extent to which

the City was required to consider and follow the recommendations in the Rattlesnake

Valley plan when making its decision on Muth-Hillberry’s Sonata Park application.

¶68 We addressed this same issue in Little v. Bd. of County Commrs., 193 Mont. 334,

631 P.2d 1282 (1981). There, Flathead County argued that growth policies are “advisory

only” and that a governing body is free to give a growth policy “whatever weight it

wants,” while the City of Kalispell and the plaintiffs-landowners argued that although a

growth policy “need not be religiously followed in every detail, substantial compliance is

required.” Id. at 349, 631 P.2d at 1290-91. In addressing this question, we first observed

that under § 76-1-605, MCA, a governing body adopting zoning ordinances or resolutions

must “be guided by and give consideration to” the general policy and pattern of

development set out in its growth policy. Id. at 349-50, 631 P.2d at 1291. Similarly,

§ 76-2-203, MCA (applicable to counties) and § 76-2-304, MCA (applicable to cities)

6
Montana Environmental Information Center and Citizens for a Better Flathead
(collectively, the Citizen Groups) filed an amicus curiae brief supporting Neighbors’
position on this issue, while the Montana Association of Realtors® (MAR) filed an
amicus curiae brief supporting the City and Muth-Hillberry’s position.

38
provided that zoning regulations must be made “in accordance with” the growth policy.

Id. at 352, 631 P.2d at 1292. Reviewing other planning and zoning statutes, we found

that they placed “paramount importance” on growth policies and “rel[ied] heavily” on the

planning board to provide “maximum input” to the governing body on the question of

planning and zoning. See id. at 350-53, 631 P.2d at 1291-93. We reasoned from this that

“[t]he vital role given the planning boards by these statutes cannot be undercut by giving

the governing body the freedom to ignore the product of these boards—the [growth

policy].” Id. at 353, 631 P.2d at 1293.

¶69 We recognized, though, that to require “strict compliance” with the growth policy

would result in a growth policy “so unworkable that it would have to be constantly

changed to comply with the realities.” Id. On the other hand, “to require no compliance

at all would defeat the whole idea of planning. Why have a plan if the local

governmental units are free to ignore it at any time?” Id. Thus, we concluded that “[t]he

statutes are clear enough to send the message that in reaching zoning decisions, the local

governmental unit should at least substantially comply with the [growth policy].” Id.

This standard, we explained, is “flexible enough so that the [growth policy] would not

have to be undergoing constant change,” but “sufficiently definite so that those charged

with adhering to it will know when there is an acceptable deviation, and when there is an

unacceptable deviation from the [growth policy].” Id. We reaffirmed these principles in

Bridger Canyon Prop. Owners’ Assn. v. Plan. and Zoning Commn., 270 Mont. 160, 890

P.2d 1268 (1995), and Ash Grove Cement Co. v. Jefferson County, 283 Mont. 486, 943

P.2d 85 (1997).

39
¶70 In 2003, the Legislature revised some of the laws related to growth policies and

planning boards. One of those was § 76-1-605, MCA, which the Legislature amended, in

pertinent part, by adding a new subsection (2) and making subsection (1) “subject to” it:

(1) Subject to subsection (2), . . . the governing body . . . must be
guided by and give consideration to the general policy and pattern of
development set out in the growth policy in the:

. . .

(c) adoption of zoning ordinances or resolutions.
(2)(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.

See Laws of Montana, 2003, ch. 599, § 7.

¶71 The parties and the amici dispute the significance of these amendments. The City,

Muth-Hillberry, and MAR contend that the Legislature “abrogated” the “substantial

compliance” standard. The City and MAR argue that the extent to which a growth policy

must be addressed is now at the “full discretion” of the governing body. Conversely,

Neighbors and the Citizen Groups maintain that the “substantial compliance” standard

survived the legislative changes. Neighbors argue that subsection (2) simply “clarifies”

that a growth policy is not the only document that matters when making land-use

decisions and that other applicable regulations must be considered as well.

¶72 We acknowledged the amendments to § 76-1-605, MCA, in Citizen Advocates for

a Livable Missoula, Inc. v. City Council, 2006 MT 47, ¶ 24, 331 Mont. 269, 130 P.3d

1259. We noted that “it may be assumed that the 2003 legislation was intended to reduce

40
in some fashion the reliance which local governing bodies are required to place upon

growth policies when making land use decisions.” Citizen Advocates, ¶ 25. But since the

parties had framed their arguments under the “substantial compliance” standard and had

offered no argument in support of changing it, we applied that standard and decided to

“leave for another day the question of what effect the 2003 legislation has had.” Id.

¶73 Three months later, we observed that “[t]he substantial compliance standard set

forth in Little and affirmed in Ash Grove Cement incorporates the statutory standard in

§ 76-1-605, MCA, of being guided by and considering a growth policy.” North 93

Neighbors, Inc. v. Bd. of County Commrs., 2006 MT 132, ¶ 22, 332 Mont. 327, 137 P.3d

557. We reiterated this view in Powell County v. Country Village, LLC, 2009 MT 294,

¶ 24, 352 Mont. 291, 217 P.3d 508. Yet, in neither case did we expressly address the

2003 legislation. In Lake County First v. Polson City Council, 2009 MT 322, ¶ 42, 352

Mont. 489, 218 P.3d 816, we again opined that the 2003 legislation was “intended to alter

this [substantial compliance] standard to some degree.” But because the zoning at issue

met the standard in any event, we did not address the impact of the amendments.

¶74 In the present case, the parties contend that the question whether, in light of the

2003 legislation, a governing body must “substantially comply” with its growth policy is

now squarely before this Court. Indeed, Neighbors characterize this as the “central issue”

in the case; Muth-Hillberry asserts that this is the “only” case in the last eight years

“which squarely addresses the issue”; and the City maintains throughout its briefs that the

District Court was wrong to apply the “substantial compliance” standard given the 2003

legislation. We agree that the question is properly presented, and, for the reasons which

41
follow, we hold that the “substantial compliance” standard still applies, but that it has

been clarified in certain respects by the 2003 legislation.

¶75 As an initial matter, we reject the City’s contention that the Legislature replaced

the “substantial compliance” standard with a “full discretion” standard. This argument is

premised on the title to Senate Bill 326 (2003) which states, in pertinent part:

AN ACT GENERALLY REVISING THE LAWS RELATED TO
GROWTH POLICIES AND PLANNING BOARDS; . . . PROVIDING
THAT A GROWTH POLICY MUST INCLUDE REQUIRED
ELEMENTS BY OCTOBER 1, 2006, AND CLARIFYING THAT THE
EXTENT TO WHICH THE REQUIRED ELEMENTS OF A GROWTH
POLICY ARE ADDRESSED IS AT THE FULL DISCRETION OF THE
GOVERNING BODY; . . . . [Emphasis added.]

See Laws of Montana, 2003, ch. 599. The City repeatedly misstates the meaning of the

italicized language. That clause has nothing to do with the amendments to § 76-1-605,

MCA. Rather, it concerns the amendments to § 76-1-601, MCA. This latter statute

governs the contents of a growth policy and, in subsection (3), lists the elements that a

growth policy “must include.” New language was added to the statute to clarify that

“[t]he extent to which a growth policy addresses the elements listed in subsection (3) is at

the full discretion of the governing body.” Section 76-1-601(2), MCA (emphasis added).

The error in the City’s interpretation of SB 326’s title thus becomes clear:

City’s interpretation: “the extent to which the required elements of a growth
policy are addressed [when deciding a zoning request] is at
the full discretion of the governing body”

Actual meaning: “the extent to which the required elements of a growth
policy are addressed [in the growth policy] is at the full
discretion of the governing body”

SB 326’s title does not support the City’s “full discretion” approach here.

42
¶76 Conversely, the statutes underlying our adoption of the “substantial compliance”

standard in Little still support its use. Section 76-1-605(1), MCA, still states that in the

adoption of zoning ordinances or resolutions, the governing body “must be guided by and

give consideration to” the general policy and pattern of development set out in the growth

policy. As we said in North 93 Neighbors, ¶ 22, the “substantial compliance” standard

“incorporates the statutory standard in § 76-1-605, MCA, of being guided by and

considering a growth policy.” Furthermore, §§ 76-2-203(1)(a) and -304(1)(a), MCA, still

provide that county and municipal zoning regulations must be made “in accordance with”

the growth policy—which, as we noted in Citizen Advocates, ¶ 22, seems to require a

stricter adherence to the growth policy than mere “consideration” of it. The planning and

zoning statutes in general continue to place paramount importance on growth policies and

rely heavily on the planning board to provide input to the governing body on the question

of planning and zoning. See generally Title 76, chapter 1, parts 1 and 6, MCA; see also

§§ 76-2-201, -203, -204, -205, -303, -304, -310, MCA; §§ 76-3-509, -608, -621, MCA.

Growth policies are still “the preeminent planning tool.” Ash Grove, 283 Mont. at 494,

943 P.2d at 90; Citizen Advocates, ¶ 20; § 76-1-106(1), MCA. They are the product of

extensive study, deliberation, and public involvement. Sections 76-1-601 to -604, MCA.

The final product is a well thought out, long range, detailed and comprehensive planning

document which takes into consideration past, present, and anticipated land uses in the

jurisdiction and which is debated and adopted in an atmosphere that is free, to the extent

possible, from the influence of special interests and political expedience. Thus, given the

vital role played by planning boards and the significance attributed to growth policies, as

43
still reflected in Title 76, chapters 1 and 2, MCA, it belies common sense to suggest that a

governing body no longer needs to comply with its growth policy.

¶77 The City and MAR advocate a standard of compliance that is minimal to the point

of being nonexistent. They would have growth policies be treated as merely advisory or

inspirational documents that the governing body may, in its “full discretion,” disregard.

This approach would undercut the value of growth policies and squander the substantial

resources that are expended in developing them. Growth policies would become what the

Planning Board member in the present case thought they were: a waste of people’s time.

The statutory scheme discussed above, however, makes it clear that in reaching zoning

decisions, the governing body still must substantially comply with an adopted growth

policy. In Little, we observed that this standard is flexible enough so that the growth

policy will not have to be undergoing constant change, but sufficiently definite so that

those charged with adhering to it will know when there is an acceptable deviation, and

when there is an unacceptable deviation, from the growth policy. 193 Mont. at 353, 631

P.2d at 1293. The City, Muth-Hillberry, and MAR offer no persuasive reason to abandon

the standard now.

¶78 There remains the question of what effect the 2003 amendments to § 76-1-605,

MCA, have on the analysis. Again, the new subsection (2)(a) provides that “[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.”

And the new subsection (2)(b) states that “[a] governing body may not withhold, deny, or

impose conditions on any land use approval or other authority to act based solely on

44
compliance with a growth policy adopted pursuant to this chapter.” Based on a plain

reading of these provisions, 7 we conclude that they were intended to clarify that strict

compliance with a growth policy is not required. When interpreting a statute, all parts

must be construed together without according undue importance to a single or isolated

portion. Rasmussen v. Lee, 276 Mont. 84, 92, 916 P.2d 98, 103 (1996). Here, the

governing body must be “guided by and give consideration to” an adopted growth policy,

§ 76-1-605(1), MCA, but the growth policy cannot be applied in a “regulatory” fashion,

§ 76-1-605(2)(a), MCA, and a land-use approval cannot be denied based solely on

compliance with the growth policy, § 76-1-605(2)(b), MCA. This is fully consistent with

the “substantial compliance” standard and supports continued application of it. It means

that a proposed land use need not strictly comply with the provisions of the growth

policy, but need only be in substantial compliance with it. A subdivision and zoning

application that proposes 15 dwelling units cannot be denied solely because the growth

policy recommends only 10. All facets of the proposed land use must be considered to

determine whether, taken together, they comply not strictly, but substantially with the

goals, objectives, and recommendations in the growth policy. Notably, we rejected the

notion in Little of requiring “strict compliance” with the growth policy, which would be

the equivalent of treating it as a regulatory document. We acknowledged that such an

7
While MAR provides an extensive discussion of SB 326 in its brief, replete with
quoted remarks that were made during the legislative hearings, Muth-Hillberry correctly
points out that “[t]he language of the 2003 Amendments is clear and unambiguous, so
this Court need not resort to extrinsic interpretational tools.” See In re Estate of Garland,
279 Mont. 269, 273-74, 928 P.2d 928, 930 (1996) (“Where the language is clear and
unambiguous, the statute speaks for itself and we will not resort to legislative history or
other extrinsic means of interpretation.”).

45
approach would be “unworkable.” Little, 193 Mont. at 353, 631 P.2d at 1293; see also

Citizen Advocates, ¶ 30 (to require a zoning proposal to be consistent with every goal and

objective expressed in the growth plan documents would make growth policies “a rigid

regulation, even exceeding the standard of ‘substantial compliance’ ”). Section

76-1-605(2), MCA, codifies this holding.

¶79 For the foregoing reasons, we hold that the “substantial compliance” standard is

still valid and that a governing body must substantially comply with its growth policy in

making zoning decisions.

Review of the City’s Decision

¶80 The stipulated record fully supports the District Court’s conclusion that the City

did not substantially comply with the Rattlesnake Valley plan. Indeed, many of the city

officials involved in approving Muth-Hillberry’s application were openly contemptuous

of the plan. Some second-guessed its goals and recommendations, others downplayed its

relevance, and one bluntly characterized growth policies in general as a “waste of time.”

OPG cautioned at the outset that the subdivision, as proposed, could have deleterious

effects on the neighborhood. Neighbors and two members of the City Council pointed

out repeatedly that the subdivision did not honor the plan. Nevertheless, the City Council

granted approval under the rationale that the City is growing and Rattlesnake Valley is

not exempt—regardless of what the neighborhood plan might recommend.

¶81 The City’s findings of fact and conclusions of law bear this out. By law, the City

was required to be “guided by and give consideration to” the general policy and pattern

of development set out in the Rattlesnake Valley plan. Section 76-1-605(1), MCA. Yet,

46
there are numerous components of the plan that the City did not give any consideration to

in its findings and conclusions. Moreover, while the City states that it did “consider”

other parts of the plan, there is little indication that the City was “guided by” them.

¶82 The plan’s central component is its density recommendations. The plan divides

Rattlesnake Valley into three regions (upper, middle, and lower) and recommends that

development in each region be “at a scale which is compatible with the development

patterns of existing Rattlesnake neighborhoods and the natural ecosystem which underlies

and surrounds the entire study area.” The plan carves up the valley into roughly a dozen

density zones and then assigns a recommended density for each zone. The area proposed

for Sonata Park is currently semirural with widely dispersed houses amidst open grassy

hillside. The property is assigned the two lowest densities in the plan—one dwelling unit

per two acres, and one dwelling unit per five to ten acres—which translates to seven or

eight dwelling units.8 The City, however, approved a 37-lot subdivision, roughly five

times the recommended density. We agree with the District Court that this is a

“significant deviation” from the plan. Not only that, it is the most important deviation

because it undermines all other goals and objectives. As OPG explained,

[t]he recommended land use designations included in the applicable plan
are a mechanism that can help ensure that goals and objectives for the plan
area are met. Development at densities higher than what is recommended
in the applicable plan can have a significant negative impact on the natural
resources, neighborhood character, and transportation capacity of the plan
area as well as the health, safety and welfare of the Rattlesnake Valley
residents.

8
The City asserts that ten or eleven units would be permissible under the growth
policy; however, this is contradicted by its own Rezoning Finding of Fact No. 82.

47
¶83 Besides density recommendations, the Rattlesnake Valley plan lists other goals

and guiding principles, followed by recommended policies and actions. The District

Court reviewed the Sonata Park subdivision in light of these goals and recommendations

and found that the City had ignored or failed to substantiate its findings on a number of

them. For example, Sonata Park is located within the City’s Air Stagnation Zone, and the

plan recommends limiting traffic congestion and encouraging pedestrian, bicycle, and

transit use in order to minimize air pollution. The City, however, approved a subdivision

that will nearly double the number of houses in the neighborhood and create 259 to 370

additional vehicle trips per day, without addressing the impact the resulting emissions

will have on air quality. The plan also identifies the goal of preserving scenic views,

including Waterworks Hill. The construction of 37 homes on 34 acres which, at present,

consist mostly of open space bordering Waterworks Hill and are visible from the middle

to upper Rattlesnake Valley will degrade the scenic views, not preserve them. The plan

encourages the highest density of residential development in the southern portions of the

valley and gradually lower density in the northern portions of the valley. The density of

Sonata Park is more appropriate for the south valley, not the middle valley.

¶84 Three further goals stated in the plan are land preservation, wildlife protection, and

protection of natural resources, including wildlife corridors and habitat. In this regard,

there is a woody draw running east-west through Sonata Park. It is a “significant natural

feature” and “an important wildlife corridor” between the North Hills open space and

Rattlesnake Creek. The Sonata Park project, however, will put a road across the corridor

and generate hundreds of vehicle trips per day. Furthermore, the plan calls for providing

48
connections between neighborhoods to parks, opens spaces, churches, commercial areas,

and schools. The City purports to accommodate this goal by requiring Muth-Hillberry to

dedicate a 20-foot-wide public pedestrian easement through the woody draw. In addition,

to meet the “parkland dedication” requirement of its own subdivision regulations, the

City approved a 16-acre common area—within which the woody draw is located. As the

District Court noted, however, the City cannot use the woody draw to satisfy all three

goals of providing a wildlife corridor, a public thoroughfare, and parkland. For one

thing, the area is supposed to “remain undisturbed to facilitate wildlife movement

through the area.” Moreover, there are riparian resources within the woody draw, and

locating a public easement through what purports to be the common area, the wildlife

corridor, and the riparian-protection zone conflicts with the goals of the Rattlesnake

Valley plan. As the court observed, “The common area cannot be all things.”

¶85 The District Court identified additional areas in which Sonata Park is contrary to

the goals and recommendations of the plan. The court also noted numerous goals and

recommendations that the City had simply not addressed, or that the City had addressed

but in conclusory fashion. The court ultimately concluded that while the valley can

support additional incremental development, the current proposal for Sonata Park “fails

to recognize, in large part, the semirural character of the area.” The court observed that

the subdivision, as proposed, “exists on a scale that is incompatible with the development

patterns of the neighborhoods in the area and especially with the natural ecosystem that

underlies the area.” Hence, the court ruled that the City had failed to substantially

comply with the plan.

49
¶86 On appeal, the City and Muth-Hillberry fail to present cogent arguments in

support of their contention that the District Court erred. Instead, they quibble at length

with various aspects of the court’s decision and complain, in conclusory fashion, that the

court simply got it wrong. First, Muth-Hillberry asserts that the District Court ignored

certain factors weighing in the subdivision’s favor, while the City contends that the court

made “unlawful or incorrect findings.” We have considered these arguments and found

them to be without merit. The City also asserts that the 34 conditions placed on the

subdivision approval demonstrate substantial compliance with the Rattlesnake Valley

plan, but the City provides zero analysis showing this to be the case.

¶87 Next, the City accuses the District Court of wrongly faulting it for not addressing

various elements of the Rattlesnake Valley plan in its findings and conclusions. The City

claims that under SB 326, the extent to which it had to address the elements of the plan

was “at the full discretion of the governing body.” This argument, however, is misplaced

for the reasons already discussed. See ¶ 75, supra. Also, it should be noted that a

governing body is not entitled to rely on an “it’s okay because we said it’s okay”

approach when developing the record underlying its decision. North 93 Neighbors, ¶ 29.

As we have previously indicated, the governing body must develop a record that fleshes

out all pertinent facts upon which its decision was based in order to facilitate judicial

review. North 93 Neighbors, ¶¶ 29-30. For purposes of evaluating “substantial

compliance,” that includes all pertinent elements of the growth policy.

¶88 Finally, Muth-Hillberry attacks the Rattlesnake Valley plan for recommending too

low of a density for Sonata Park and criticizes Neighbors for “refus[ing] to accept their

50
fair share of the exploding growth in the City.” Yet, while Muth-Hillberry may disagree

with the Rattlesnake Valley plan, that is not grounds to flout it. As we have said,

“changes in the [growth policy] may well be dictated by changed circumstances

occurring after the adoption of the plan. If this is so, the correct procedure is to amend

the [growth policy] rather than to erode [it] by simply refusing to adhere to its

guidelines.” Little, 193 Mont. at 354, 631 P.2d at 1293.

¶89 The City reaffirmed the Rattlesnake Valley plan in 2006, and it thus continues “to

have full force and effect” as part of the City’s growth policy. Yet, notwithstanding that

growth policy, the City approved a development which, as the District Court observed,

exists on a scale that is incompatible with the development patterns of the neighborhoods

in the area and especially with the natural ecosystem that underlies the area. While it is

not necessary for the Sonata Park zoning to be “consistent with every goal and objective

expressed” in the Rattlesnake Valley plan, Citizen Advocates, ¶ 30, it is necessary for the

zoning to substantially comply with the plan. It does not, as established by the stipulated

record and the City’s findings of fact and conclusions of law.

¶90 We hold that the City’s decision was unlawful due to the City’s failure to comply

with the mandates of §§ 76-1-605(1) and 76-2-304(1)(a), MCA, and was arbitrary and

capricious because it was not based on all the relevant factors set out in the Rattlesnake

Valley plan. The District Court correctly granted summary judgment to Neighbors.

CONCLUSION

¶91 Neighbors have standing; any error the District Court made in granting Neighbors’

motion to strike the Muth affidavit was harmless; the Sunlight Agreement does not

51
supersede the City’s growth policy; the “substantial compliance” standard is still valid;

and the City’s decision to approve Sonata Park was arbitrary, capricious, and unlawful.

¶92 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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APPENDIX

53