Citizens for a Better Flathead v. Bd. of Cnty. Comm'rs of Flathead Cnty.

Decision Date13 December 2016
Docket NumberDA 15-0582
Parties Citizens for a Better Flathead, a Montana non-profit public benefit corporation and Sharon DeMeester, Plaintiffs, Appellees and Cross-Appellants, v. Board of County Commissioners of Flathead County, a political subdivision of the State of Montana and the governing body of the County of Flathead, acting by and through James R. Dupont, Pamela Holmquist and Dale W. Lauman, Defendant and Appellant. and Marilyn Noonan, Rick Myers, Eric Wutke, Humane Society of Northwest Montana, Skylink Fiber Communications, LLC and Jump Investments, Intervenors Below.
CourtMontana Supreme Court

For Appellant: Alan F. McCormick, Garlington, Lohn & Robinson, PLLP, Missoula, Montana

For Appellees: Roger M. Sullivan, Ethan Welder, McGarvey, Heberling, Sullivan & Lacey, P.C., Kalispell, Montana

For Intervenors: Noah H. Bodman, Tami E. Fisher, Fisher & Bodman, PC, Kalispell, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 The Board of County Commissioners of Flathead County (Commissioners or Commission) appeal from the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to Appellees and Cross-Appellants Citizens for a Better Flathead and Sharon DeMeester (collectively Citizens), who had challenged zoning actions taken by the Commission. Due to uncertainty over the scope of relief granted by the District Court's order, Citizens has cross-appealed from any partial denial of the relief it sought. We affirm in part and reverse in part.

¶2 We consider the following issues:

1. Did the District Court err by holding that the Map Amendment was invalid for failing to comply with statutory requirements?
2. Did the District Court err by failing to invalidate the Text Amendment for violating statutory obligations and public participation requirements?
3. Did the District Court err by granting attorneys' fees to Citizens?

¶3 Two zoning actions are at issue in this proceeding. First, by Resolution No. 955 HL, the Commission enacted an amendment to the Flathead County Zoning Regulations (FCZR) that created a new zoning classification, called the General Business Highway Greenbelt, or B-2HG. This is known as the "Text Amendment." Second, by Resolution No. 837 BX, the Commission approved an "on-the-ground" zoning change, applying the new B-2HG classification to particular property bordering Highway 93, north of Kalispell. This is known as the "Map Amendment."

¶4 Following the adoption of the Flathead County Growth Policy (Growth Policy)1 in 2007, owners of property lying north of Kalispell on Highway 93 approached the Flathead County Planning and Zoning Office (Planning Office) about changing the zoning of their properties from a combination of Agricultural (AG) and Suburban Agriculture (SAG) classifications to General Business (B-2). The Flathead County planning staff explained that such a change would not be feasible because (1) there was uncertainty regarding such changes due to the Growth Policy's lack of guidance in that area of the County; and (2) the B-2 zoning classification had substantial differences from both the AG and SAG classifications.

¶5 Several years later, in 2010, owners of property on Highway 93, north of Kalispell, proposed the creation of a mitigated commercial zone for use on major highways corridors in Flathead County. Labeled B-2HG, this highway greenbelt category would permit many of the same uses as in B-2, General Business, but also establish conditional uses that would require approval from the Planning Office, as well as mitigation measures to alleviate the impacts between AG/SAG zoning and B-2 zoning, such as setbacks, landscaping, signage requirements, tiered building heights arising from the highway, and additional lighting restrictions to minimize light intrusions on neighboring property. The proposed B-2HG district stated three categories of uses: (1) permitted uses (uses allowed without further review, including banks, barber shops, bed and breakfast operations, hotels, and food stores with less than 5,000 square feet of gross floor area); (2) conditional uses (uses that are permissible but which require a public hearing, including bars and casinos, gas stations, funeral homes, farm equipment sales, supermarkets over 5,000 square feet, and others); and (3) administrative conditional uses (uses that require county review, but do not require a public hearing, including lumber yards, day care centers, boat sales, and rental service stores and yards).

¶6 Following consultation with the Planning Office, the landowners submitted an application for adoption of the Text Amendment to amend the zoning ordinances to create the B-2HG zoning district. The landowners also submitted a request for the Map Amendment to change the zoning of their particular properties, an area covering 63 acres, to B-2HG, if the Text Amendment was first approved.

¶7 The Planning Office staff prepared a report (Text Report) on the proposed Text Amendment. Citing Montana Code and FCZR, the Text Report stated that the proposed B-2HG classification would advance three parts of the Growth Policy: (1) "Provide ample commercial land designation to promote affordability" (Policy 6.3); (2) "Encourage small-scale, impact-mitigated and compatible commercial developments in accessible, developing rural areas with good access and away from urban areas" (Policy 7.3); and (3) "Identify existing areas that are suitable for impact-mitigated commercial uses" (Policy 7.4). The Text Report also addressed the statutory considerations required by § 76-2-203, MCA, including fire dangers; promotion of health, public safety, and general welfare; facilitating adequate provision of transportation, water, sewer, schools, parks, and other public requirements; compatibility with urban growth in the area; the character of the district and its peculiar suitability for particular uses; and whether the proposed Text Amendment would be compatible with ordinances of the surrounding municipalities.

¶8 Specifically, the Text Report stated that Flathead County did not have a "building department" like the cities of Whitefish and Kalispell, but that the proposed amendment contained "additional criteria for the site development similar to criteria used by the cities" and gave consideration to the growth of nearby municipalities "because the text of the proposed amendment provides for standards that are similar to neighboring municipality's standards for highway commercial standards." The Text Report noted that although this particular zoning ordinance did not exist in area municipalities, similar municipal ordinances had been consulted for guidance, and that "[p]ortions of the proposed amendment were based upon regulations adopted by local municipalities."

¶9 After notice, the Commission conducted a public hearing on May 17, 2011. Proponents and opponents of the Text Amendment offered public comment, after which Commissioner Holmquist stated she would take the comments under consideration. Commissioner Lauman said that "issues expressed ... need [to be] addressed" and stated a "concern regarding which public roads would be affected." Chairman Dupont asked the Planning Board to address the concerns raised.

¶10 On May 31, 2011, the Commissioners met to discuss changes to the proposed Text Amendment. Public comment was again taken and six citizens spoke in opposition. The Commissioners discussed potential locations where the B-2HG zone could be applied, but clarified that adopting the Text Amendment would not automatically zone any piece of property, but only provide another "tool in the toolbox" for zoning. The Commissioners adopted changes to the Text Amendment that had been suggested in the multiple public workshops conducted by the Planning Board, and published notice of their intent to adopt the Text Amendment as amended.

¶11 On July 27, 2011, the Commission held its final hearing regarding the Text Amendment. It was reported that, during the statutory protest period, 881 protests to the Text Amendment were received, which was insufficient to legally block its adoption. Commissioner Holmquist said that she had read through all the protest letters, indicating that they included "inaccurate and scare tactic information" and that the "B2HG is not replacing B2 zoning, and it does not cover every road in the county; it is only on major arterial roads." Commissioner Lauman said he "spent a lot of time" reading through the protests and petitions received, and expressed "concerns about the quality of information put out there [regarding the B-2HG Text Amendment]." He stated that he did "not see where B2HG zoning would impose anything on anyone that they can't already do." Chairman Dupont concurred, noting that "if [the B-2HG Text Amendment] passed today it would be an option for zoning that a property owner can choose from to further restrict development of their property." The Commission unanimously adopted the Text Amendment.

¶12 On August 7, 2011, the landowners requested that their proposed Map Amendment be adopted by the Commission, which would change the zoning of their property from SAG to the newly created B-2HG zone. The Planning Office's report (Map Report) analyzed whether the Map Amendment substantially complied with the Growth Policy and met the requirements of § 76-2-203, MCA. The Map Report noted six policies in the Growth Policy that "may be relevant": (1) "Provide ample commercial land designation to promote affordability" (Policy 6.3); (2) "Require traffic impact analysis for all major commercial projects on major highways and arterials" (Policy 6.4); (3) "Conserve resources and minimize transportation demand by encouraging redevelopment and infill of existing commercial areas" (Policy 6.5); (4) "Encourage small-scale, impact-mitigated and compatible commercial developments in accessible, developing rural...

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