No. 8 6 - 5 8 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JEANNE MORLEDGE WHISTLER; KARL
MORLEDGE and ANITA MORLEDGE,
husband and wife; LAURA MORLEDGE;
and LYNN MORLEDGE,
Plaintiffs and Appellants,
-vs-
BURLINGTON NORTHERN RAILROAD COMPANY,
a Delaware corp; STEVE BAKER, in his
official capacity as Superintendent of
Building and Safety Dept., City of
Billings, Montana; and YELLOWSTONE
COUNTY, MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable eliarles L u e d k e , Judge presiding.
COIJNSEL OF RECORD:
For Appellant:
Patten Law Firm; James A. Patten argued, Billings,
Montana
For Respondent :
Crowley Law Firm; Michael S Dockery; Gerald Krieg
argued, Billings, Montana
James Tillotson, City Attorney, Billings, Montana
Harold Hanser, County Attorney, Billings, Montana
--
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Plaintiffs appeal the denial of their application for a
preliminary injunction entered by the District Court of the
Thirteenth Judicial District in and for Yellowstone County.
We affirm.
Plaintiffs (the "Morledges") initiated this action to
challenge the issuance of a building permit issued by
Yellowstone County to the Rurlington Northern Railroad. The
permit was issued on February 6, 1986, and authorized
construction of a 35,000 barrel diesel tank and excavation
and site work for an accompanying retaining dike. The
Morledges own land adjacent to the location of the fuel tank.
Burlington designed this fuel tank to facilitate the
transportation of diesel fuel used in its everyday
operations. The tank is located near the intersection of the
Yellowstone and Powder River Pipelines. The Yellowstone
Pipeline is a ten-inch line running east and west,
originating in Billings, Montana and terminating in Moses
Lake, Washington. Finished petroleum products are moved
through this pipeline in ten day cycles, with separate
batches of gasoline, distillate and d.iese1 fuel transported
in a patterned sequence during each cycle.
The Powder River Pipeline is a four-inch line running
generally north and south, and was previously used to deliver
crude oil to Laurel, Montana. The two pipelines intersect
north of Laurel at a point named Alkali Creek Station.
For economic reasons, Burlington sought a way to
transport diesel fuel from refineries in Billings to its
Laurel railyards via pipeline rather than by railroad tank
cars. Hence, Rurlington designed a plan to transport fuel
from the Billings refineries west through the Yellowstone
Pipeline to Alkali Creek Station and then south to Laurel
through the Powder River line.
However, because of the mismatched pipe diameters, the
cycling of other products on the Yellowstone line and the
amount of fuel to be transported, Burlington's fuel could not
pass directly from the Yellowstone to the Powder River line.
Burlington therefore designed this fuel tank so that its fuel
could be transported at high pressure along the Yellowstone
line, directed into the fuel tank, and then repumped at a
lower pressure into the Powder River line. By necessity with
this design, this tank, in addition to orchestrating the
change of flow of the fuel, would also have to store
temporarily the fuel that would accumulate before it could
all be repumped into the Powder River line.
With this design in mind, Burlington submitted its
application for a building permit to construct the tank and
related accessories. The property upon which Rurlington
sought to construct its tank is zoned Agricultural-Open Space
("A-0") by the Yellowstone County Jurisdictional Area Zoning
Plan.
Typically, this County Zoning Plan permits certain land
uses within each particular zoning designation as well as
certain other uses deemed accessory to the specified allowed
uses. Under the terms of this Plan, pipelines are permitted
uses within an A-0 zone. Liquid petroleum storage, on the
other hand, is permitted as a primary use only in the Heavy
Industrial Zone and in certain other (non-A-0) zones pursuant
to special exception.
Burlington submitted its building permit application on
November 4, 1985. Upon initial review, the Zoning
Coordinator and the City-County Planning Department
determined the project was not permitted in an A-0 zone.
Following this initial decision, Burlington and Continental
Pipe Line Company (co-owner and operator of the Yellowstone
line and owner and operator of the Power River line), through
legal counsel, submitted a letter to the Zoning Coordinator.
The letter contained additional factual information and legal
authority supporting Burlington's position that the fuel tank
and associated facilities were permitted in an A-0 zone. On
December 23, 1985, a meeting was held to discuss the project
and zoning issues, and shortly thereafter, the city-county
zoning officials concluded this fuel tank was part of the
pipeline and therefore permitted in an A-0 zone. The county
issued Burlington the necessary building permits and
construction began.
The Morledges commenced this action in the District
Court, requesting relief which included, inter alia, an
order declaring the issuance of the building permit to
Burlington arbitrary, capricious, an abuse of discretion and
unlawful and an order permanently enjoining the construction
of the fuel tank and retaining dike. In addition, the
Morledges filed an application for preliminary injunction
seeking to enjoin commencement or continuation of
1 The County Zoning Plan provides that any person
aggrieved by a decision of the Zoning Coordinator may
appeal to the County Board of Adjustment. The Morledges
chose, instead, to appeal directly to the District
Court. Rurlington did not contest this strategy.
construction of the tank and its accessories. The District
Court issued a show cause order regarding the preliminary
injunction and set a hearing for March 13, 1986.
Following the hearing, the District Court denied the
Morledges' application for preliminary injunction. The
parties later stipulated that the court's findings and
conclusions should be treated as final, thereby resolving the
case on its merits before the District Court. Pursuant to
the written stipulation, the District Court entered judgment
denying the requests for all relief sought by the Morledges
and dismissed their complaint with prejudice. The Morledges
now appeal.
On appeal, appellants appear to present essentially two
arguments. They first contend that the District Court erred
in its conclusion that the zoning officials' decision was
lawful, regular and reasonable. Appellants instead insist
that the zoning officials' decision was arbitrary, capricious
and an abuse of discretion. Second, appellants argue that as
a matter of law, the District Court erred in its
interpretation of the County Zoning Plan. Both arguments
center upon the contention that this fuel tank, regardless of
its stated purpose, will store fuel, and is therefore not
permitted in an A-0 zone. Though the arguments are related,
we will address each separately.
I
We are first asked to determine whether substantial,
credible evidence supports the District Court's conclusion
that the zoning officials' decision was lawful, regular and
reasonable.
We initially note that when an administrative decision
or order is reviewed by a district court, it is entitled to a
rebuttable presumption in favor of the decision of the
agency. Thornton v. Commissioner of the Dept. of Labor and
Industry (Mont. 1980), 621 P.2d 1062, 1064-65, 37 St.Rep.
2026, 2028. This rebuttable presumption is generally
recognized in the zoning and planning context. See Gordon
Paving Co. v. Blaine County Board of County ~ornrnissioners
(Idaho 1977), 572 P.2d 164, 165. The Oregon Supreme Court,
addressing the issuance of a building permit, stated in
Murphy v. S.A. Hutchins & Associates Const. Co., Inc. (or.
1972), 501 P.2d 1273, 1275:
[A] presumption of validity, regularity,
and reasonableness accompanies the acts
of the city officials charged with the
enforcement of the ordinance. rCitation
omitted. 1
The District Court correctly recognized this
presumption. The burden of overcoming this presumption
rests, of course, on the party attacking the administrative
order. Thornton, 621 P.2d at 1065.
We next note that at the March 13 hearing, the District
Court received relevant evidence regarding the propriety of
the decision-making process utilized by the zoning officials.
The County Zoning Plan vests interpretation and enforcement
2 The Zoning
of the Plan in a Zoning Coordinator.
Coordinator, in conjunction with the staff of the City-County
2 A board of county commissioners is, of course, entitled
to appoint officers to supervise the provisions of a
zoning ordinance. Section 76-2-210(2), MCA.
Planning Department, is assigned the task of reviewing
building permit applications to determine compatibility with
the underlying zoning. Appellants do not contest that the
proper officials made this decision.
Further, these officials reached their decision only
after what the record reveals was a lengthy review of the
underlying facts. As noted, the Zoning Coordinator and
Planning Department initially denied Burlington's permit.
After Burlington and Continental challenged this denial via a
letter written through counsel, the zoning officials again
reviewed the entire project and conducted a meeting to
discuss the relevant issues. Again, the District Court
received ample evidence demonstrating that this decision was
a considered one.
Finally, the District Court received evidence indicating
that the decision itself was reasonable. Burlington
introduced evidence illustrating the full measure of the
project in question in support of its argument that this tank
is permitted in an A-0 zone.
In short, we find the determination that this tank is a
part of the pipeline was based upon a careful and
conscientious review by the Zoning Coordinator and
City-County Planning Department, the agent and agency vested
with the discretion and authority to interpret the County
Zoning Plan. The District Court's determination that the
decision of the Planning Department was lawful, regular and.
reasonable was based upon a full review of the
decision-making process and. the details of the project. The
District Court's conclusion is supported by substantial,
credible evidence.
I1
Appellants also argue that the District Court erred as a
matter of law in its interpretation of the County Zoning
Plan. They contend that under the terms of the Plan, liquid
fuel storage in a tank, no matter how temporary or in what
context, is not permitted in an A-0 zone. Appellants
conclude that the District Court erred by not ruling that the
express terms of the County Zoning Plan prohibit this tank in
an A-0 zone.
We find that appellants' argument presents too narrow
and too rigid an interpretation of the zoning ordinance. It
has been elsewhere established that since zoning laws and
ordinances are in derogation of the common law right to free
use of private property, such ordinances should be strictly
construed. See e.g., Foster Village Community Ass'n v. Hess
(Hawaii App. 1983), 667 P.2d 850, 854; Specht v. City of Page
(Ariz.App. 1981), 627 P.2d 1091, 1095; Keller v. City of
Bellingham (Wash. 1979), 600 P.2d 1276, 1279. At the very
least, such ordinances must be given a fair and reasonable
interpretation with some regard given the proposed use.
As noted by the District Court, the County Zoning Plan
does not contain any definition of "pipeline" decisive of the
issue, nor are there any Montana statutes or decisional
authorities which provide controlling guidance. Accordingly,
the question fell to the zoning officials assigned to
interpret and apply the zoning regulations consistent with
the terms and purposes of the County Zoning Plan. These
officials decided that pursuant to the County Zoning Plan,
this fuel tank could be considered a part of the pipeline and
is therefore permitted in an A-0 zone. We agree that when
interpreting a zoning ordinance, considerable judicial
deference should be accorded the interpretation provided by
an officer charged with its enforcement. Keller, 600 P.2d at
1280.
The record supports the zoning officials'
interpretation. These officials impliedly found that this
project was compatible with the nature of an A - 0 zone. The
record supports such a finding. The primary purpose of this
project was not liquid petroleum storage, but the
facilitation of the transportation of diesel fuel. The
storage that does occur is concededly brief, and the project
does not present the typical fuel storage accessories, such
as off-loading ramps and related traffic. In short, we find
that the interpretation provided by those charged with the
ordinance ' s enforcement is not unreasonable. We find no
error.
Affirmed.
We concur: /+/
Mr. Justice John C. Sheehy, dissenting:
I dissent.
A 35,000 gallon tank sitting in the middle of a moat is
exactly akin to any storage tank at any tank farm at any
refinery in Montana. It mocks the zoning plan to assume such
a tank is merely a part of a pipeline.
I cannot accept the purported logic of the majority that
the primary purpose of the tank is not storage but the
transportation of fuel. The primary purpose is indeed
storage--storage until the fuel can be taken through a lesser
pipeline to another location. In that use, again the storage
tank is akin to any fuel storage tank.
These are strange days. The federal government names
nuclear arms as peacemakers. Grocery stores sell turkey as
ham. In Montana, a 35,000 gallon surface fuel tank is a
buried pipeline. The law is a farce when words mean nothing
and everything. n
i
l / Justice
I concur in the dissent of Mr. Justice J o h n C. Sheehy.
I