Citizen Advocates v. City Council, 04-836.

Docket NºNo. 04-836.
Citation2006 MT 47, 331 Mont. 269, 130 P.3d 1259
Case DateMarch 07, 2006
CourtUnited States State Supreme Court of Montana

For Appellants: Caryn Miske, Attorney at Law, Frenchtown, Montana.

For Respondents: Jim Nugent, City Attorney; Susan A. Firth, Deputy City Attorney, Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Citizen Advocates for a Livable Missoula, Judy Smith, John Fletcher, Jim Parker, and John Couch (collectively, Appellants) appeal from the order of the Fourth Judicial District Court granting summary judgment to the City Council and Mayor of the City of Missoula, Montana (Respondents). Appellants argue that the existence of material questions of fact precludes summary judgment, and further, that Missoula City Ordinance 3234 fails to comply with the City's growth policy and neighborhood plan. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 (1) Did the District Court err by granting summary judgment in favor of Respondents?

¶ 4 (2) Did the District Court abuse its discretion by denying Appellants' motion to compel the testimony of Dale McCormick?

¶ 5 Because we affirm the judgment of the District Court in favor of Respondents, we do not undertake review of Appellants' claim for attorney fees and costs.


¶ 6 Offered for sale by the City of Missoula, the City properties occupying most of the 800 and 900 blocks in the West Broadway area were used primarily for heavy equipment maintenance, storage, and fueling of City vehicles. The offered property bordered property owned by St. Patrick's Hospital (SPH). As a result of the proximity of the offered lands, SPH bid on the property and was thereafter selected as the successful bidder by the City.

¶ 7 After discussions with Safeway, Inc., regarding Safeway's nearby grocery store in the 600 block of West Broadway, SPH submitted a zoning proposal seeking City approval of a zoning amendment which would allow construction of a large new Safeway grocery store on the lands purchased from the City by SPH, and upon that approval, for purchase of Safeway's existing store by SPH and expansion of SPH's current hospital facilities therein. SPH sought to rezone the purchased City lands because that property's zoning classifications of C (Commerical), RH (High Rise), and P-2 (Public Lands and Institutions), did not permit SPH and Safeway's proposed development plans.

¶ 8 SPH's zoning proposal, also known as the Broadway-Scott Gateway Special District, or City Ordinance 3234, quickly caught the attention of the West Broadway community, and the attention was not always positive. On December 4, 2002, the Northside/Westside Neighborhood Council unanimously declared its opposition to the zoning proposal. Thereafter, on January 7, 2003, Office of Planning and Grants (OPG) city planner Dale McCormick noted OPG staff's displeasure with the zoning proposal at a presentation before the Missoula Consolidated Planning Board (Planning Board). According to McCormick, OPG seriously questioned whether the zoning proposal complied with relevant planning documents — i.e., the 1998 Missoula Urban Comprehensive Plan, the 2000 Joint Northside/Westside Neighborhood Plan, and the 2002 Missoula County Growth Policy. Specifically, McCormick and the OPG staff believed that construction of a new Safeway mega-store in conjunction with the rezoning of the former City lands (1) failed to reflect the residential and small business character of the district, (2) would create traffic congestion, and (3) did not encourage the most appropriate use of land. Ultimately, OPG recommended that the Planning Board deny the zoning proposal.

¶ 9 After receiving OPG's recommendations, the Planning Board received public comment on the zoning proposal. While some supporting comments were received — e.g., proponents argued expansion of SPH and a new modern Safeway store would create much needed jobs and modernization in the area — most of the comments opposed the proposal — e.g., residents believed that the rezone and resulting new construction would hurt the historic character of the community, create an area unfriendly to pedestrians, and violate the goals and objectives outlined in the 2000 Joint Northside/Westside Neighborhood Plan.

¶ 10 After a hearing on January 7, 2003, and despite strong staff and public opposition, the Planning Board voted to approve the zoning proposal. The Board noted that the rezoning and subsequent construction of a new Safeway would (1) stabilize grocery shopping in the area, (2) support mixed uses of the area, and (3) provide an anchor institution which would attract more businesses to the area. In approving SPH's zoning proposal, the Planning Board did not recommend any changes in the proposal or conditions for the approval thereof.

¶ 11 After approval by the Planning Board, the zoning proposal went before the Missoula City Council (City Council), which held ultimate authority to approve or deny the request. After reviewing the Planning Board's findings and the public comment, several City Council members expressed concern with aspects of the proposal. Consequently, the City Council rejected the Planning Board's recommendation for unconditional approval and, instead, requested that OPG recommend conditions of approval which would amend the zoning proposal to address the Council's concerns.

¶ 12 After further OPG consideration, that office recommended the placement of seventeen conditions on SPH's proposal. Those conditions responded to many of the concerns expressed by the public, including (1) the size and design of the proposed Safeway facility, (2) the lack of mixed-use and residential character of the initial proposal, and (3) the traffic and pedestrian problems generated by the initial proposal. Dale McCormick the lead OPG planner assigned to the proposal, noted that the revised zoning proposal, with its new conditions, was "substantively different from what St. Patrick Hospital originally proposed." He later wrote that the revised proposal "move[d] toward compliance" with the City Center/Mixed Use land designation aspect of the Northside/Westside Neighborhood Plan, better integrated the proposed Safeway structure with the current look and feel of the community, and lessened the traffic congestion which seemed likely to arise under the original zoning proposal.

¶ 13 After consideration of the revised zoning proposal, the City Council approved it on an eight to four vote on September 22, 2003. Thereafter, Appellants initiated this action, arguing that the revised proposal violated the 2002 Missoula County Growth Policy and the 2000 Joint Northside/Westside Neighborhood Plan.

¶ 14 Respondents filed a motion to dismiss on May 5, 2004, which the District Court thereafter converted into a motion for summary judgment. The District Court held a hearing on that motion on August 23, 2004, at which Appellants presented five witnesses who testified that the zoning proposal violated the Missoula County growth policy and related neighborhood plan. Nonetheless, the District Court granted summary judgment to Respondents, concluding that there were no genuine issues of material fact and that the City Council did not abuse its discretion when it adopted the zoning proposal.

¶ 15 Appellants appealed on October 26, 2004.


¶ 16 This case is before us on a grant of summary judgment. We review district court grants of summary judgment de novo. Abraham v. Nelson, 2002 MT 94, ¶ 9, 309 Mont. 366, ¶ 9, 46 P.3d 628, ¶ 9. Summary judgment is "an extreme remedy, and is only appropriate when there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law." Patterson v. Verizon Wireless, 2005 MT 261, ¶ 9, 329 Mont. 79, ¶ 9, 122 P.3d 1193, ¶ 9. Where there are genuine issues of material fact, summary judgment is inappropriate. Patterson, ¶ 9.

¶ 17 We review a district court's conclusions of law to determine if they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶ 18 We review a district court's denial of a motion to compel discovery for abuse of discretion. Circle S Seeds of Montana, Inc. v. T & M Transporting, Inc., 2006 MT 25, ¶¶ 14, 25, 331 Mont. 76, ¶¶ 14, 25, ___ P.3d ___, ¶¶ 14, 25. "A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." State v. Riggs, 2005 MT 124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18.

1. Did the District Court err by granting summary judgment in favor of Respondents?

¶ 19 Appellants argue that City Ordinance 3234 (the zoning proposal) as approved by the Missoula City Council violates both § 76-2-304, MCA (2003), and Missoula City Ordinance § 19.72.040, and further, does not substantially comply with the Missoula County Growth Policy and 2000 Joint Northside/Westside Neighborhood Plan.

¶ 20 To assist in community planning and the orderly development of its governmental units and environs, local governments are authorized to create planning boards. Section 76-1-101, MCA (2003); see also Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 494, 943 P.2d 85, 90. Further, "[i]n counties . . . where a planning board has been created, the preeminent planning tool is the comprehensive jurisdiction-wide development plan . . ." which is today known as a "growth policy."1 Ash Grove, 283 Mont. at 494, 943 P.2d at 90; see also § 76-1-106, MCA (2002). A growth policy "essentially...

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    • May 3, 2011 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 in some fashion the reliance ......
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