97-019
No. 97-019
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
BURNT FORK CITIZENS COALITION, an unincorporated association,
Petitioner and Respondent,
v.
BOARD OF COUNTY COMMISSIONERS OF RAVALLI COUNTY,
a body politic and political subdivision of the State of Montana,
Respondent and Appellant,
and
DENNIS MORGAN, TRUSTEE OF AMPAC MANAGEMENT, INC.,
PROFIT SHARING PLAN,
Intervenor-Respondent and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Norman H. Grosfield, Utick & Grosfield, Helena, Montana
(for Board of County Commissioners of Ravalli County)
Martin S. King; Worden, Thane & Haines; Missoula, Montana
(for Dennis Morgan, Trustee of AMPAC Management, Inc.)
For Respondent:
William A. Rossbach and Elizabeth A. Brennan; Rossbach & Whiston,
P.C.;
Missoula, Montana; and Karl J. Englund, Attorney at Law, Missoula,
Montana
Submitted on Briefs: May 30, 1997
Decided: December 30, 1997
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Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Petitioner Burnt Fork Citizens Coalition filed a petition for writ of review in
the
District Court for the Twenty-First Judicial District in Ravalli County after the
respondent
Board of County Commissioners of Ravalli County conditionally approved the
subdivision
proposal submitted by intervenor-respondent Dennis Morgan. After a hearing, the
District Court granted Burnt Fork's writ of review and held that the conditional
approval
was "annulled and set aside." Morgan and the Board appeal. We affirm the order of
the
District Court.
There are two issues on appeal:
1. Did the District Court err when it held that the Board was obligated to
apply
the county subdivision regulations and that the regulations had not been impliedly
repealed by the Montana Subdivision and Platting Act, õ 76-3-608(3)(a), MCA (1993)?
2. Did the District Court err when it found that the Board had exceeded its
jurisdiction when it considered the subdivision proposal without the satisfaction of
certain
conditions precedent?
FACTUAL BACKGROUND
Dennis Morgan owns a 191-acre tract of land in northeast Ravalli County. In
1994, he submitted a proposal to the Ravalli County Board of County Commissioners
("Board") to develop a 32-lot subdivision on the land, known as Burnt Fork Meadows.
The Board denied the proposal, but expressly stated that Morgan could resubmit a
revised
proposal and offered him general direction about what aspects of the proposal to
revise.
In the spring of 1995, Morgan submitted a second Burnt Fork Meadows
subdivision proposal which included twenty lots. In addition to the preliminary
plat,
Morgan submitted a number of supplemental materials to support his proposal, pursuant
to the Ravalli County Subdivision Regulations. On July 12, 1995, the Ravalli County
Planning Board held a public hearing to accept public comment on the proposed
subdivision, in accordance with the County Subdivision Regulations. A number of
citizens spoke at the hearing, almost all of whom expressed opposition to the
subdivision
for a variety of reasons. The Planning Board, which acts in an advisory capacity to
the
Board, voted at the meeting to recommend to the Board that the proposed subdivision
be
denied. A few days later, the chair of the Planning Board communicated in a memo to
the Board its findings from the hearing and "strongly recommend[ed]" that the Board
deny the subdivision.
Despite the Planning Board's recommendation, the Board conditionally approved
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the Burnt Fork Meadows subdivision on August 11, 1995. The Subdivision Regulations
of Ravalli County provide that the basis of a decision by the Board to approve or
disapprove a subdivision shall be whether the information submitted has demonstrated
that
the subdivision would be in the public interest. The Regulations also state that any
subdivision not in the public interest shall be disapproved and that, as part of its
decision,
the Board shall include written findings regarding eight criteria for determining
public
interest. The Board's conditional approval made written findings regarding only
five of
the eight criteria. All of those indicated that the subdivision would have a
negative effect
on the public interest.
On September 11, 1995, Burnt Forks Citizens Coalition, an unincorporated
association of interested citizens, filed a petition for writ of review in the
District Court.
The Coalition asserted in an amended petition that the Board failed to follow the
County
Subdivision Regulations and that in doing so it acted in excess of its jurisdiction
when it
approved the subdivision. Morgan moved to intervene, and the District Court granted
his motion on October 27, 1995. He later moved to dismiss the petition for, among
other
things, its failure to state a claim. After the parties briefed the issue, the
District Court
denied the motion to dismiss on July 26, 1996.
A hearing was held on August 29, 1996. Following the hearing, the parties
submitted briefs regarding the implied repeal of the County Subdivision Regulations
by
the amended Montana Subdivision and Platting Act, õ 76-3-608(3)(a), MCA (1993). On
October 30, 1996, the District Court held that the County Subdivision Regulations had
not been repealed and that the Board's approval failed to comply with the Subdivision
Regulations. Therefore, it granted the petition for writ of review and ordered that
the
conditional approval be "annulled and set aside."
ISSUE 1
Did the District Court err when it held that the Board was obligated to apply
the
county subdivision regulations and that the regulations had not been impliedly
repealed
by the Montana Subdivision and Platting Act, õ 76-3-608(3)(a), MCA (1993)?
We review a district court's conclusions of law to determine whether its
interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271
Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603-04.
The Montana Subdivision and Platting Act requires that local governing bodies
adopt regulations for the development of subdivisions within their jurisdiction.
See õ 76-
3-501, MCA. Pursuant to the Act, the Board of County Commissioners of Ravalli
County adopted regulations to review proposed subdivision plats in 1985. Until 1993,
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the County Regulations mirrored the Act; each required that the Board weigh eight
criteria to determine whether the proposed subdivision would be in the public
interest.
The criteria included: "(a) the basis of the need for the subdivision; (b) expressed
public
opinion; (c) effects on agriculture; (d) effects on local services; (e) effects on
taxation;
(f) effects on the natural environment; (g) effects on wildlife and wildlife
habitat; and (h)
effects on the public health and safety." Section 76-3-608(2), MCA (1985); see also
Ravalli County Subdivision Regulations, Section II.A.10.
The 1993 Montana Legislature, however, amended the Act, so that local governing
bodies were required to review only five criteria. They included: "the effect on
agriculture, local services, the natural environment, wildlife and wildlife habitat,
and
public health and safety." Section 76-3-608(3)(a), MCA (1993). The Board, at the
time
of its review of the Burnt Fork Meadows subdivision, had not amended its County
Regulations to conform to the amended 1993 Act, and still listed eight criteria for
review.
Here, in an attempt to justify the Board's consideration of only the five
criteria in
the amended 1993 Act, the Board and Morgan assert that the County Regulations, as
they
existed in 1995, conflicted with the Act, and therefore, that the County Regulations
had
been impliedly repealed and replaced by the amended 1993 Act. Accordingly, they
contend that the Board, in fact, complied with the County regulations, since the
County
regulations, like the Act, required that the Board make findings regarding only five
criteria, and not the eight criteria listed in the "outdated" County Regulations. We
disagree.
There is no question that the Board is required to review and either approve or
disapprove a subdivision proposal pursuant to the terms of the County Regulations in
effect at the time that the proposal is submitted. See õ 76-3-501(2), MCA. It is
also
undisputed that the County Regulations, as they existed at the time of Morgan's Burnt
Fork Meadows proposal, required the Board to review and make written findings on
eight
criteria to determine the public interest. Based on õ 76-3-501(2), MCA, the Board
may
not ignore its own County Regulations and apply just the terms of the Act to review
and
conditionally approve a proposed subdivision. Rather, we hold that it is bound to
follow
the County Regulations in effect at the time that the proposal is made.
The Board and Morgan assert that the County Regulations "conflicted" with the
amended 1993 Act because they included criteria that the Legislature had expressly
removed from the Act and that the County Regulations were therefore impliedly
repealed.
They rely on State ex rel. Swart v. Casne (1977), 172 Mont. 302, 308-09, 564 P.2d
983,
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986, in which we stated: "This grant of authority does not include the right to
promulgate regulations in direct conflict with the Act. . . . An administrative
agency is
not a 'super legislature' empowered to change statutory law under the cloak of an
assumed delegated power." Swart held that where the Act specifically provided for an
exemption, a state agency could not develop regulations that eliminated the
exemption.
However, their reliance on Swart and their consequent claim that the County
Regulations
"directly conflict" with the Act is unfounded.
Unlike the state agency in Swart, county governments have extensive powers
pursuant to the Montana Constitution. See Art. XI, Sec. 4, Mont. Const. ("A county
has
legislative, administrative, and other powers provided or implied by law. . . .
[which]
shall be liberally construed."). In State ex rel. Dreher v. Fuller (1993), 257
Mont. 445,
450-51, 849 P.2d 1045, 1048, which also involved the Act, we explained that an
agency's
authority is limited by the specific and definite guidance from the Legislature,
while a
county governing body, which often has separate legislative authority and is
accountable
to its constituents, requires less guidance. Accordingly, the Act's mandate to local
governing bodies to assert local control and to develop their own subdivision
regulations
clearly contemplates that counties are free, pursuant to their legislative
authority, to
promulgate regulations which do not necessarily conform exactly to the Act, so long
as
they do not conflict with it. See Dreher, 257 Mont. at 451, 849 P.2d at 1049 ("[A]
regulation which establishes procedures . . . gives substance to the Act's policy of
local
government control.").
If we consider the amended 1993 Act as a whole, we further note that local
governing bodies are not necessarily required to maintain their subdivision
regulations in
precise accordance with the language of the Act. For example, õ 76-3-608(3), MCA
(1993), states that proposals must be reviewed for the five "primary criteria," while
earlier versions of õ 76-3-608, MCA, made no attempt to designate the eight criteria
as
primary in relation to other criteria that local governing bodies might consider. In
addition to the provision that names the five primary criteria, the amended 1993 Act
added a provision that requires local governing bodies to review a proposed
subdivision
for its "compliance with the local subdivision regulations provided for in part 5 of
[the
Act]." Section 76-3-608(3)(b)(ii), MCA (1993). This clearly indicates that the Act
expects local regulations to be able to supplement the five requirements in õ 76-3-
608(3)(a), MCA (1993). Finally, the Act prior to and after the 1993 amendments
refers
to state standards as "minimum" requirements for local subdivision regulations and
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the
need for local regulations to be "consistent with [the Act]." Section 76-3-504(2),
MCA.
We find clear evidence in the Act that local regulations need not be in precise
conformity with the Act. The clear intent is that local governing bodies be able to
develop their own local subdivision regulations that are consistent with the Act,
and that
the Act establishes minimum requirements that local governing bodies must follow.
Mere
difference between the County Regulations and the Act is insufficient grounds on
which
to assert that the County Regulations conflict with the Act and effectuate their
implied
repeal by the Act.
Nonetheless, we recognize that some local subdivision regulations may
significantly
conflict with the Act so as to undermine the legality of the local regulations. Where
differences between statutes exist, the earlier statute may be impliedly repealed by
the
later one if they are "plainly and irreconcilably repugnant to or in conflict with
each
other." W.R. Grace & Co. v. Department of Revenue (1989), 238 Mont. 439, 450, 779
P.2d 470, 476.
Here, the County Regulations merely hold subdivision proposals to a stricter set
of criteria than the Act requires. As stated above, the Act contemplates that local
bodies
be able to establish a review process that is particular to their own jurisdiction.
The
County Regulations expand on the Act's minimum requirements and preserve a stricter
review process for proposed Ravalli County subdivisions, which is consistent with the
policy of local government control and suggests no threat to the Act. See Dreher,
257
Mont. at 451, 849 P.2d at 1049. Accordingly, we conclude that the County Regulations
are not plainly and irreconcilably repugnant to or in conflict with the Act.
Therefore,
they are not impliedly repealed by the amended 1993 Act and the Board was bound to
make findings on the eight criteria in the County Regulations.
ISSUE 2
Did the District Court err when it found that the Board had exceeded its
jurisdiction when it considered and conditionally approved the subdivision proposal
without the satisfaction of certain conditions precedent?
This matter came before the District Court as a petition for writ of review.
Section 27-25-102(2), MCA, authorizes a district court to grant a writ of review
"when
a lower tribunal, board, or officer exercising judicial functions has exceeded the
jurisdiction of the tribunal, board, or officer and there is no appeal or, in the
judgment
of the court, any plain, speedy, and adequate remedy."
The parties here do not contest the writ based on the adequacy of the remedy
available to the Coalition. Rather, the Board and Morgan assert that even if the
Board
was bound to review the proposed subdivision according to the eight criteria in the
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County Regulations, its failure to do so and its subsequent conditional approval in
light
of the findings did not amount to an act that exceeded its jurisdiction. Therefore,
we
must determine if the Board's conditional approval of the subdivision constitutes an
exercise of authority beyond its jurisdiction.
In Buffalo v. Thiel (1984), 213 Mont. 280, 691 P.2d 1343, we were called upon
to analyze a tribunal's authority or jurisdiction under circumstances analogous to
those
in this case. In that case, Myron Buffalo was sued in justice court by Jerry Thiel
for
damage to a motel room based on a theory of implied contract. The justice court
issued
an ex parte pre-judgment attachment of a pickup in Buffalo's possession and the truck
was impounded. Buffalo filed a petition for writ of certiorari or review in the
district
court, which concluded that it had no authority to review the pre-judgment
attachment.
On appeal, we held that certiorari or review, as provided for by õ 27-25-102, MCA, is
appropriate where a tribunal acts without jurisdiction, but that it cannot be
employed to
correct errors within a tribunal's jurisdiction. See Buffalo, 213 Mont. at 284, 691
P.2d
at 1345. We stated that:
In this sense, the lack of jurisdiction must be distinguished from an
erroneous decision made by a court in exercising the jurisdiction it
possessed. 20 Am.Jur.2d Courts Section 90. If a court is acting within its
jurisdiction, it has the power to decide erroneously as well as correctly.
Johnston v. Marsh (3rd Cir. 1955), 227 F.2d 528.
Buffalo, 213 Mont. at 284, 691 P.2d at 1345.
We noted, however, that:
The area of difficulty arises, as in this case, where an inferior court has
both subject matter and personal jurisdiction, and is acting under a
particular statute conferring jurisdiction to act only in certain circumstances.
The inquiry in such a case is to whether all of the conditions precedent to
such jurisdiction are present. The presence or absence of such
"jurisdictional facts" is determinative of whether the lower court acted with
and within its jurisdiction.
Buffalo, 213 Mont. at 285, 691 P.2d at 1345.
We noted that a justice court's authority to issue a writ of attachment was
dependent by statute on submission of an affidavit which establishes that the
defendant
is indebted to the plaintiff based on a contract for the direct payment of money and
that
the contract at issue in that case was clearly not one for the direct payment of
money.
For that reason, we held that the justice court had not satisfied a condition
precedent to
the exercise of its jurisdiction and that the district court erred when it denied
Buffalo's
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petition for a writ of certiorari.
A similar situation exists in this case. By both statute and regulation, there
were
limitations on the Board's jurisdiction or authority to approve a subdivision
application.
Section 76-3-501(2), MCA, provides that "[r]eview and approval or disapproval of a
subdivision under [the Act] may occur only under those regulations in effect at the
time
an application for approval of a preliminary plat or for an extension under 76-3-610
is
submitted to the governing body."
In other words, the Board was limited by statute from acting on an application
absent compliance with its own regulations. The Subdivision Regulations of Ravalli
County which were in effect on the date of the intervenor's application provided as
follows:
The governing body shall disapprove any subdivision which it finds not to
be in the public interest. To determine whether the proposed subdivision
would be in the public interest the governing body shall issue written
findings of fact which weigh the following criteria for public interest:
a. The basis of need for the subdivision;
b. Expressed public opinion;
c. Effects on agriculture;
d. Effects on local services;
e. Effects on taxation;
f. Effects on the natural environment;
g. Effects on wildlife and wildlife habitat and;
h. Effects on the public health and safety.
The Board made no findings regarding the need for the subdivision, expressed
public opinion, or its effects on taxation. Of those findings that the Board did
make,
none of them established that the development was in the "public interest" based on
the
criteria considered. For example, the Board found:
1. "[T]he cumulative impacts [of this subdivision] will have a negative long-
term impact on the local farming economy."
2. "[I]t is expected that there will be negative effects of this subdivision
on the
continued operation of existing agricultural activities."
3. "This subdivision will negatively effect [sic] the provision of county-wide
public services as they are provided at this time."
4. "The development of these lots will result in additional air pollution
related
to vehicular and home heating emissions."
5. "Until additional school facilities can be assured, a subdivision of this
magnitude would substantially and immediately jeopardize the quality of education of
those students currently enrolled and the additional students from this subdivision."
6. "[T]his proposed subdivision in this area will have a negative impact on
wildlife populations and habitat."
7. "Police protection is available, but would be severely limited due to
response time and available personnel."
We conclude that the District Court did not, as the appellants contend, simply
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review the Board's decision to determine whether it was correct. If the Board had
made
findings that the subdivision was in the "public interest" and the District Court had
concluded, based on the evidence, that those findings were in error, the appellants'
argument would have some merit. However, in this case, the Board's own findings were
that the applicant for subdivision approval had failed to meet the statutory
prerequisite for
approval. In the language of our decision in Buffalo, the condition precedent to the
Board's authority to approve, or even conditionally approve, the application for
subdivision approval had not, based on the Board's own findings, been satisfied.
We therefore conclude that the District Court did not err when it held that the
Board exceeded its jurisdiction when it considered and conditionally approved the
subdivision of Burnt Fork Meadows, and when the court, on that basis, "annulled and
set
aside" conditional approval of that application.
For these reasons, the order and judgment of the District Court are affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
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