97-475
No. 97-475
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 127
IN RE PETITION OF SUTEY OIL COMPANY, INC.,
Petitioner and Appellant,
v.
ANACONDA-DEER LODGE COUNTY PLANNING
BOARD and THE ANACONDA-DEER LODGE
COUNTY BOARD OF ADJUSTMENT,
Respondents and Respondents.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Anaconda-Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby; Haxby & Somers; Butte, Montana
For Respondents:
Michael B. Grayson; Anaconda-Deer Lodge County Attorney;
Anaconda, Montana
Submitted on Briefs: March 26, 1998
Decided: May 28, 1998
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
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1 In June 1995, Sutey Oil Company, Inc., filed a petition for a writ of
certiorari in the District Court for the Third Judicial District in Anaconda-Deer
Lodge County, asking that the court review the Anaconda-Deer Lodge County
Planning Board's and the Anaconda Deer Lodge County Board of Adjustment's
denial of Sutey Oil's application for a special use permit. The District Court
issued a writ of certiorari, and on July 3, 1997, issued an opinion and order
affirming the denial of Sutey Oil's special use permit. It is from the court's
July 3, 1997, order that Sutey Oil presently appeals. For the reasons stated
below, we affirm.
2 The sole dispositive issue on appeal is whether the District Court
abused its discretion in concluding that the Board of Adjustment did not abuse
its discretion in denying Sutey Oil's application for a special use permit.
FACTUAL AND PROCEDURAL BACKGROUND
3 Sutey Oil owns a business establishment known as the Thriftway Super
Stop #7, located in Anaconda, Montana. In early 1994, David Sutey, the
president of Sutey Oil, became interested in expanding his business by adding
a room with four or five gambling machines. Sutey contacted the Anaconda-Deer Lodge
County Planning Department, and spoke with permit official Scott
H. Hurley about the possibility of adding gambling machines to his
establishment. The record indicates that the two did not, however, discuss the
possibility that Sutey might seek a beer and wine license.
4 On April 5, 1994, Hurley wrote to Sutey and advised him "that
Thriftway Super Stops would not be required to file for and obtain a special
use permit for the establishment of gambling machines" because the
"establishment is deemed as an expansion of an existing retail and service
use." Although Hurley did not specifically address the possibility that Sutey
might be required to obtain a special use permit were he to seek a beer and
wine license, Hurley did note that Thriftway would have to adhere to "all
county and state requirements . . . before the commencement of any type of
construction."
5 Sutey obtained a building permit and began remodeling his facility. On
January 9, 1995, Sutey submitted an application to the State Liquor Division
for a retail on-premises consumption beer and wine license. In March 1995,
the State Liquor Division notified Anaconda-Deer Lodge County of Sutey's
application to provide the county with "the opportunity to evaluate whether the
applicant has met all laws and ordinances your office is responsible for
regulating." It was upon receipt of this notice that the Anaconda-Deer Lodge
County Planning Department first learned that the expansion proposed by
Sutey would not only include gambling machines, but would also involve the
issuance of a retail on-premises consumption beer and wine license.
6 On March 20, 1995, James Manning, the Planning Director of
Anaconda-Deer Lodge County, advised the State Liquor Division that the
county "would strongly protest the issuance of a on-premise license for
Thriftway Super Stop of Anaconda #7." Manning explained that "an on-premise
consumption license for this location would constitute a change in use
for the premises," and that "to be in compliance with Zoning regulations, a
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Special Use Permit would need to be approved by the Planning Board." Sutey
received a copy of Manning's letter, and filed an application for a special use
permit with Anaconda-Deer Lodge County on March 30, 1995.
7 On April 20, 1995, the Anaconda-Deer Lodge County Planning Board
held a public hearing to address Sutey Oil's application for a special use
permit. Following public comment, the Planning Board denied Sutey Oil's
application. On April 21, 1995, Manning wrote a letter to Sutey Oil,
explaining that the Planning Board had denied its application for a special use
permit, and advising it of its right to appeal to the Anaconda-Deer Lodge
County Board of Adjustment. Sutey Oil pursued an appeal, and on May 17,
1995, the Board of Adjustment held a public hearing during which it voted to
uphold the Planning Board's decision.
8 On June 7, 1995, Sutey Oil filed a petition for a writ of certiorari in
District Court, asking that the court review the Planning Board's and the Board
of Adjustment's denial of its application for a special use permit. The District
Court issued a writ of certiorari on October 11, 1995. On November 25, 1996,
following review of the record and oral argument, the court issued an opinion
rejecting Sutey Oil's equitable estoppel argument, but remanding the case "to
the Planning Board for determination of the basis for denial of Petitioner's
Special Use Permit."
9 The Planning Board met on December 2, 1996, and explained its
"reason for denying the Special Use Permit for Sutey Oil, Thriftway West, to
acquire an on-premise beer/wine license, is that it would be incompatible to
neighboring land which is designated single family residential land use." On
July 3, 1997, the District Court issued a second opinion and order in which it
affirmed the Planning Board's denial of Sutey Oil's application for a special
use permit.
STANDARD OF REVIEW
10 Pursuant to 27-25-102(2), MCA, the district court may grant a writ
of certiorari, or 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.
11 Ordinarily, the district court's scope of review upon a writ of certiorari
"cannot be extended further than to determine whether the inferior tribunal,
board, or officer has regularly pursued the authority of such tribunal, board,
or officer." Section 27-25-303, MCA. In a case involving an appeal from a
decision by the Board of Adjustment, however, 76-2-327, MCA, provides
the district court with a broader scope of review than that generally available
upon a writ of certiorari. For example, 76-2-327, MCA, provides, in
pertinent part, as follows:
(1) Any person or persons, jointly or severally, aggrieved
by any decision of the board of adjustment or any taxpayer or
any officer, department, board, or bureau of the municipality
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may present to a court of record a petition, duly verified, setting
forth that such decision is illegal, in whole or in part, specifying
the grounds of the illegality. . . .
(2) Upon the presentation of such petition, the court
may allow a writ of certiorari directed to the board of
adjustment to review such decision of the board of adjustment
. . . .
(3) If, upon the hearing, it shall appear to the court
that testimony is necessary for the proper disposition of the
matter, it may take evidence or appoint a referee to take such
evidence as it may direct and report the same to the court with
his findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which the
determination of the court shall be made.
(4) The court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review.
12 Although 76-2-327, MCA, contemplates relief by certiorari, it
simultaneously authorizes the reviewing court to hold a hearing and reverse,
affirm, or modify a decision made by the Board of Adjustment. In so doing,
76-2-327, MCA, clearly provides the district court with a broader scope of
review than that generally available upon a writ of certiorari. See Bryant
Development Ass'n v. Dagel (1975), 166 Mont. 252, 257, 531 P.2d 1320, 1323
(interpreting identical language in 16-1706, RCM (1947)). Thus, the District
Court in this case was bound to review the Board of Adjustment's decision for
an abuse of discretion.
13 Having identified the standard by which the District Court is bound to
review the Board of Adjustment's decision, we must now determine the
standard by which we are bound to review the District Court's decision. In so
doing, we turn first to the terms of 76-2-327, MCA, which specifically
empower the district court to "take evidence" if "necessary for the proper
disposition of the matter." In Lambros v. Board of Adjustment of Missoula
(1969), 153 Mont. 20, 26, 452 P.2d 398, 401, we held that "upon review of a
determination by a district court where it is hearing a petition for variance and
takes additional testimony the question for this Court to determine is whether
the court committed an abuse of discretion." Indeed, in cases where the
district court exercises its statutory option to take additional evidence, we have
consistently reviewed the district court's decision for an abuse of discretion
and to determine whether that decision is supported by substantial evidence.
See, e.g., Whistler v. Burlington Northern R.R. Co. (1987), 228 Mont. 150,
155, 741 P.2d 422, 425 (noting that district court "received evidence indicating
that the decision itself was reasonable," and holding the district court's
conclusion was "supported by substantial, credible evidence"); Cutone v.
Anaconda Deer Lodge (1980), 187 Mont. 515, 518, 610 P.2d 691, 693 (where
district court "allowed the appellant a full hearing and testimony was
introduced by both parties," we reviewed the court's decision for an abuse of
discretion).
14 In the present case, review of the record indicates that the District Court
did not take any additional witness testimony during the oral argument held on
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September 18, 1996. Although the court did not take any additional evidence
during the parties' oral argument, the parties did supplement the record with
affidavits from David Sutey and Brian Bossard. Because the District Court
exercised its statutory option and took additional evidence before making its
decision, we review the District Court's decision for an abuse of discretion.
DISCUSSION
15 Did the District Court abuse its discretion in concluding the Board of
Adjustment did not abuse its discretion in denying Sutey Oil's application for
a special use permit?
16 On appeal, Sutey Oil argues the District Court erred in upholding the
Board of Adjustment's decision on several grounds. Sutey Oil first argues that,
pursuant to Chapter XII of the Anaconda-Deer Lodge County Development
Permit System, its proposed gaming facility was a permitted use, and it was
thus not required to obtain a special use permit. Even assuming it were
required to secure a special use permit, however, Sutey Oil argues the District
Court erred in affirming the Board of Adjustment's decision in the absence of
any evidence that the proposed expansion would materially or adversely
impact any of the zoning regulation criteria set forth in 76-2-304, MCA, and
recognized by this Court in Lowe v. City of Missoula (1974), 165 Mont. 38,
41, 515 P.2d 551, 552-53. Finally, Sutey Oil argues Anaconda-Deer Lodge
County was equitably estopped from denying Sutey Oil's application in light
of permit official Hurley's initial opinion that Sutey Oil "would not be required
to file for and obtain a special use permit for the establishment of gambling
machines." Based on the foregoing, Sutey Oil argues the District Court erred
in affirming the Board of Adjustment's denial of its application for a special
use permit.
A. Necessity of special use permit
17 As noted, Sutey Oil first argues the provisions of the Anaconda-Deer
Lodge County Development Permit System did not require that it obtain a
special use permit in this case. Sutey Oil points specifically to Chapter XII of
the County's Development Permit System which governs development in the
Highway Commercial Development District in which Sutey Oil's Thriftway
Super Store is located. Sutey Oil argues that the expansion it proposed
constituted a permitted use pursuant to the provisions of Chapter XII, and
asserts it was thus not required to obtain a special use permit. Because it did
not need a special use permit, Sutey Oil argues, that the Planning Board
subsequently denied its application "should have no legal effect upon Mr.
Sutey's right to operate a gaming room and acquire an on-premise beer and
wine license at his present commercial location."
18 In response, respondents note that Sutey Oil did not appeal the
Development Permit System administrator's decision to require a special use
permit in this case, but instead "agreed to follow the process and submitted an
application for a special use permit." Respondents assert that, because Sutey
Oil did not appeal from the Development Permit System administrator's
decision requiring that it obtain a special use permit, Sutey Oil failed to
exhaust its administrative remedies on this issue.
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19 Neither the District Court's initial order remanding this case to the
Planning Board, nor its final decision affirming the Board of Adjustment's
decision contain a discussion regarding the propriety of the Development
Permit System administrator's decision requiring that Sutey Oil obtain a
special use permit to proceed with its proposed expansion. Moreover,
nowhere does Sutey Oil dispute the respondents' assertion that it failed to
exhaust its administrative remedies and is thus precluded from objecting on
appeal to the requirement that it secure a special use permit. In light of the
foregoing, we decline to address Sutey Oil's argument that it should not have
been required to secure a special use permit under the circumstances of this
case.
B. Review of Planning Board and Board of Adjustment decisions
20 Sutey Oil next argues the District Court erred in affirming the Board of
Adjustment's decision denying its application for a special use permit because
there existed no evidence that the proposed expansion would materially or
adversely impact any of the statutory zoning regulation criteria set forth in
76-2-304, MCA, and recognized by this Court in Lowe, 165 Mont. at 41, 515
P.2d at 552-53.
21 Sutey Oil argues it was incumbent upon the Planning Board, in making
its decision regarding Sutey Oil's application for a special use permit, to
consider and comply with the following statutory provisions:
76-2-304. Purposes of zoning. (1) Such regulations shall be
made in accordance with a comprehensive plan and designed to
lessen congestion in the streets; to secure safety from fire, panic,
and other dangers; to promote health and the general welfare; to
provide adequate light and air; to prevent the overcrowding of
land; to avoid undue concentration of population; to facilitate
the adequate provision of transportation, water, sewerage,
schools, parks, and other public requirements.
(2) Such regulation shall be made with reasonable
consideration, among other things, to the character of the district
and its peculiar suitability for particular uses and with a view to
conserving the value of buildings and encouraging the most
appropriate use of land throughout such municipality.
22 Relying on our decision in Lowe, Sutey Oil argues the Planning Board
was compelled to consider and comply with the criteria set forth in 76-2-304, MCA,
in making its decision regarding Sutey Oil's application for a
special use permit. In Lowe, we concluded the district court had abused its
discretion in upholding a decision by the Missoula City Council to adopt a
rezoning ordinance. Lowe, 165 Mont. at 41, 525 P.2d at 553. In so
concluding, we considered the twelve criteria set forth in 76-2-304, MCA,
and held the factual information upon which the Missoula City Council had
relied in adopting the rezoning ordinance at issue was so lacking, that its
action, as well as that of the district court, constituted an abuse of discretion.
Lowe, 165 Mont. at 41, 525 P.2d at 553.
23 In the present case, Sutey Oil argues the Planning Board's decision to
deny Sutey Oil's application for a special use permit on the grounds that the
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proposed use "would be incompatible to neighboring land which is designated
single family residential land use," does not take into account the statutory
criteria set forth in 76-2-304, MCA. Sutey Oil asserts "[t]here has been
absolutely no evidence that the operation of on-premises gambling of the type
that was to be used in this convenience store would materially or adversely
impact any of those mandatory criteria outlined in 76-2-304, MCA." In light
of the foregoing, Sutey Oil suggests, the Planning Board abused its discretion
in denying Sutey Oil's application for a special use permit and the District
Court erred in affirming the Board's decision.
24 Upon remand, the Planning Board explained that it was denying Sutey
Oil's application because the proposed expansion "would be incompatible to
neighboring land which is designated single family residential land use."
Moreover, the Planning Board noted that "[t]he Public Hearing, held on April
20, 1995, clearly indicated that the adjoining neighborhood did believe that the
beer/wine license would have a detrimental impact on the neighborhood
designated for single family residential."
25 As discussed above, we review the District Court's order upholding the
Board of Adjustment's decision for an abuse of discretion. Lambros, 153
Mont. at 26, 452 P.2d at 401. In its order affirming the Board of Adjustment's
decision, the District Court rejected Sutey Oil's argument that it was necessary
for the Planning Board to specifically evaluate each of the twelve criteria set
forth in 76-2-304, MCA, before making a decision with respect to Sutey
Oil's application. Instead, the court noted that the Planning Board had acted
in accordance with the terms of its authority pursuant to the Anaconda-Deer
Lodge County Development Permit System, which provides in pertinent part
that:
The purpose of the special use permit procedure is to implement
the plan by requiring intensive public review of any
development that may have a significant impact on the
landscape setting, neighboring land uses, or public facilities and
services, and requiring that such developments comply with
performance standards designed to assure their compatibility
with the landscape setting, neighboring land uses, and the
capacity of public facilities and services.
26 By its terms, the County's Development Permit System required that the
Planning Board ensure that proposed developments "comply with performance
standards designed to assure their compatibility with . . . neighboring land
uses." In denying Sutey Oil's application on the grounds of incompatibility
with neighboring land use, the Planning Board was thus acting within its
authority pursuant to the express terms of the County's Development Permit
System.
27 In its order upholding the Board of Adjustment's decision, the District
Court improperly identified its scope of review as that traditionally available
upon a writ of certiorari, and thus primarily discussed the question of whether
the Planning Board had acted legally and within its jurisdiction in denying
Sutey Oil's application for a special use permit. Although the court set forth
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the incorrect standard of review, it nevertheless concluded that the Planning
Board "had sufficient information upon which to base its denial of Petitioner's
Special Use Permit." That the court so concluded indicates it additionally
reviewed the Planning Board's decision for an abuse of discretion.
28 Although the District Court did not discuss the basis for its
determination that the Planning Board had sufficient information upon which
to base its decision, review of the record indicates the court did not abuse its
discretion in so concluding. More specifically, the minutes from the Planning
Board's April 20, 1995, public meeting chronicle testimony from a number of
citizens concerned about the impact of the proposed expansion. For example,
citizens voiced concerns regarding property values, increased traffic, parking
problems, and raising their children in the vicinity of an establishment licensed
to serve alcoholic beverages. Having reviewed the record, we conclude the
District Court did not err in holding the Planning Board had sufficient
evidence before it upon which it could base its decision denying Sutey Oil's
application for a special use permit. Accordingly, we hold the District Court
did not abuse its discretion in upholding the Board of Adjustment's decision.
C. Equitable estoppel
29 Sutey Oil points to the District Court's November 25, 1996, order and
argues the court erred in concluding Anaconda-Deer Lodge County was not
equitably estopped from denying Sutey Oil's request for gaming machines in
light of permit official Hurley's initial opinion that Sutey Oil "would not be
required to file for and obtain a special use permit for the establishment of
gambling machines."
30 Respondents, in contrast, argue that the District Court's review upon a
writ of certiorari "cannot be extended further than to determine whether the
inferior tribunal, board, or officer has regularly pursued the authority of such
tribunal, board, or officer." Section 27-25-303, MCA. Respondents thus
assert that "equitable estoppel is not an available remedy" in light of the
limited scope of review available pursuant to a writ of certiorari.
31 Having already recognized that the scope of review available upon an
appeal from a decision by the Board of Adjustment is broader than that
generally available upon a writ of certiorari, we will turn to the merits of Sutey
Oil's argument.
32 In its November 25, 1996, order, the District Court held that, were it "to
consider equitable estoppel, it would find in favor of Respondent." More
specifically, the court determined that Sutey Oil had failed to demonstrate
"conduct, acts, language, or silence amounting to a representation or a
concealment of material facts," and had thus failed to demonstrate the first
element of equitable estoppel.
33 In Dagel v. City of Great Falls (1991), 250 Mont. 224, 234, 819 P.2d
186, 192, we indeed recognized that one of the six essential elements of
equitable estoppel is that "there must be conduct, acts, language, or silence
amounting to a representation or a concealment of material facts." In the
present case, although Hurley initially advised Sutey Oil that it "would not be
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required to file for and obtain a special use permit for the establishment of
gambling machines," he also instructed Sutey Oil to adhere to "all county and
state requirements . . . before the commencement of any type of construction."
Moreover, as the District Court noted, "there is nothing in the record about
beer or wine on-premises consumption until March of 1995." Based on the
foregoing, we hold, as did the District Court, that "[t]he record does not reveal
any conduct, act, language, or silence on the part of Anaconda-Deer Lodge
County which would lend itself to estoppel."
34 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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