Fasbender v. Lewis & Clark County Board of County Commissioners

JUSTICE NELSON,

specially concurring.

¶29 I concur in the Court’s Opinion; however, I would overrule Bryant Development Assn. v. Dagel, 166 Mont. 252, 531 P.2d 1320 (1975), and State ex rel. Christian, Spring, Sielbach and Assocs. v. Miller, 169 Mont. 242, 545 P.2d 660 (1976), rather than simply distinguishing those cases. Opinion, ¶¶ 14-17. In my view, both cases were wrongly decided. When one looks to the plain language of §16-4711, RCM (the predecessor of §76-2-206, MCA), it is apparent that there is absolutely no language in this statute requiring any notice or hearing for the adoption of interim zoning maps or regulations. Hence, the Bryant and Christian Courts’ reading into § 16-4711, RCM, some, but not all, of *512§16-4705, RCM1 (i.e., just the notice and hearing requirements) was as patently violative of §1-2-101, MCA,2 as is reading into §76-2-206, MCA, the notice and hearing provisions of §76-2-205, MCA. Neither Bryant nor Christian should continue to stand as precedent to confuse the law in future cases involving §76-2-206, MCA.

¶30 Finally, while I agree with the Court’s discussion at ¶¶ 21,22, and 27 pertaining to §§2-3-103 and -104, MCA, vis-a-vis §76-2-205, MCA, the Opinion provides no guidance as to what notice, if any, is required for the adoption of interim zoning maps and regulations under § 76-2-206, MCA. In this regard, and because § 76-2-206, MCA, contains no specific notice and hearing requirements (unlike §76-2-205, MCA), §§2-3-103 and -104, MCA, are applicable. See Jones v. County of Missoula, 2006 MT 2, 330 Mont. 205, 127 P.3d 406. Moreover, and reading together §§ 2-3-103 and -104, MCA, and another pertinent statute, § 7-1-2121, MCA, it appears to me that appropriate and sufficient notice and an opportunity to be heard were provided in the instant case. That said, in future cases of this sort, I would hold that for purposes of adopting interim zoning maps or regulations under § 76-2-206, MCA, the local government must demonstrate that notice and an opportunity to be heard sufficient to comply with §§2-3-103, 2-3-104, and 7-1-2121, MCA, were given in advance of adoption.

¶31 With these additional points, I concur in the Court’s Opinion.

Section 16-4705, RCM, is the counterpart to §76-2-205, MCA. Both pertain to the adoption of nontemporary zoning regulations and boundaries. And, like §16-4711, RCM, and §76-2-206, MCA, which pertain to the adoption of temporary zoning maps or regulations, the provisions of both are very similar, though not identical.

‘In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”