City of Helena, Corp. v. Svee

• Decision Date: 25 November 2014
• Docket Number: No. DA 14–0022.,DA 14–0022.
• Citation: 377 Mont. 158,2014 MT 311,339 P.3d 32
• Parties: CITY OF HELENA, a Municipal Corporation, Plaintiff, Counter–Respondent, Appellant, and Cross–Appellee, v. Scott SVEE and Megan Svee, Defendant, Counter–Petitioner, Appellee, and Cross–Appellant.
• Court: Montana Supreme Court

377 Mont. 158

339 P.3d 32

2014 MT 311

CITY OF HELENA, a Municipal Corporation, Plaintiff, Counter–Respondent, Appellant, and Cross–Appellee

v.Scott SVEE and Megan Svee, Defendant, Counter–Petitioner, Appellee, and Cross–Appellant.

No. DA 14–0022.

Supreme Court of Montana.

Submitted on Briefs Sept. 10, 2014.

Decided Nov. 25, 2014.

For Appellant: Jeffrey M. Hindoien, Thomas J. Jodoin; Office of the City Attorney; Helena, Montana.

For Appellee: Robert M. Murdo ; John M. Semmens ; Jackson, Murdo & Grant, P.C.; Helena, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 The City of Helena (City) appeals from the Judgment of the First Judicial Court, Lewis & Clark County, denying its cross-motion for summary judgment and concluding as a matter of law that it had no legal authority to adopt or enforce Helena City Code § 11–42–2. Scott Svee and Megan Svee (Svees) cross-appeal from the Judgment for dismissing their constitutional claims and denying their claim for attorney's fees. We affirm in part, and reverse and remand in part, and restate the issues as follows:

1. Did the District Court err by determining that Helena City Code § 11–42–2 was an impermissible building code, and not a zoning ordinance?

2 Did the District Court err by holding that the Svees were ineligible for an award of attorney fees under § 27–8–313, MCA ?

3. Did the District Court err by failing to address and dismissing the Svees's constitutional arguments?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In January 2009, the Helena City Commission adopted an amendment to its existing zoning ordinance, § 11–41–1 of the Helena City Code, which created a wildland-urban interface district (WUI district) encompassing the corporate limits of the city of Helena and overlaying the City's other zoning districts. As part thereof, the City also adopted § 11–41–2, which provides, in pertinent part, as follows:

A. Structures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher in accordance with ANSI/UL 790 or ASTM E 108 or any equivalent test.

B. Existing roofs that undergo renovation, alteration, or repairs that involve more than ten percent (10%) of the square footage of the affected roof plane must meet the requirements of this chapter. If the renovation, alteration, or repair involves more than fifty percent (50%) of the square footage of the area of the entire roof, then the entire roof must comply with the requirements of this chapter.

Helena, Mont., City Code § 11–41–2. The challenge in this case is made only to § 11–41–2, and the limitations it places on roofing materials, not to the creation of the WUI district itself.

¶ 3 The Svees are homeowners whose property is situated within the WUI zoning district. After receiving notice that their homeowners insurance policy would be canceled due to the condition of their roof, the Svees, due to personal financial constraints, limited repairs to the portion of the roof most in need of improvement, replacing old wooden shingles on the south plane of the roof with new wooden shingles. The project began on August 12, 2011.

¶ 4 On August 15, 2011, a city building official observed the Svees' repair project and issued a stop-work notice. By the time the Svees received the notice, they had finished the roof repair. The City filed criminal complaints against the Svees for re-roofing without a permit, serving them on September 8, 2011. Then, on November 7, 2011, the Helena City Commission voted to file a civil action against the Svees in addition to pursuing criminal charges. On December 6, 2011, the City filed a six-count complaint against the Svees in the First Judicial District Court, alleging failure to obtain a building permit; violation of the International Residential Code by failing to obtain a building permit; violation of the International Residential Code by installing new roof covering over an existing roof covering; violation of the International Residential code by using excess applications of roof covering; violation of Helena City Code by using illegal roofing materials; and public nuisance. The Svees answered the civil complaint in January 2012 and petitioned the District Court for a declaratory judgment that the Ordinance was invalid on statutory and constitutional grounds. On February 13, 2012, the criminal charges were dismissed on the motion of the City.

¶ 5 Svees moved for summary judgment on their Petition for Declaratory Judgment and the City countered by moving for summary judgment while simultaneously withdrawing five of the counts alleged in its complaint, leaving only the count alleging violation of the Ordinance. The parties agreed that there were no genuine issues of material fact, and that the validity of § 11–41–2 was a question of law.

Based on a statutory analysis, the District Court denied the City's motion and granted the Svees', reasoning:

[W]hen the plain language of the statutes are applied in conjunction with one another, the Court concludes that the logical conclusion is that § 11–41–2 is a building regulation, i.e., an ordinance relating to the design, construction, alternation, or repair of buildings, and the materials to be used therefor.... The statute does not authorize the City to adopt building regulations under the guise of a zoning ordinance.

The court did not address the constitutional claims raised by the Svees.

¶ 6 On October 25, 2013, the District Court entered a final Judgment, declaring “the Svees' claims seeking a declaration that the City had no legal authority to adopt or enforce Helena City Code § 11–41–2 ... are GRANTED.” On November 5, 2013, the Svees filed a motion requesting attorney fees, which the District Court denied. Subsequently, the City filed a notice of appeal from the judgment invalidating the Ordinance, and the Svees filed a cross-appeal challenging the dismissal of their constitutional arguments and the denial of attorney fees.

STANDARD OF REVIEW

¶ 7 This Court reviews the grant of summary judgment de novo, using the same M.R. Civ. P. 56 criteria used by a district court. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Summary judgment is appropriate when the moving party demonstrates an absence of any genuine issue of material act and entitlement to judgment as a matter of law. Albert, ¶ 15. When no dispute exists as to the material facts, this Court reviews whether the district court correctly applied the law. Kalispell Educ. Ass'n v. Bd. of Trustees, 2011 MT 154, ¶ 9, 361 Mont. 115, 255 P.3d 199. A district court's ruling on a summary judgment is not a discretionary function that merits deferential review. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 53, 345 Mont. 12, 192 P.3d 186. This Court reviews for correctness a district court's conclusion regarding the existence of legal authority to award attorney fees. Hughes v. Ahlgren, 2011 MT 189, ¶ 10, 361 Mont. 319, 258 P.3d 439 (citation omitted). If legal authority exists, we review for an abuse of discretion a district court's order granting or denying attorney fees. Hughes, ¶ 10.

DISCUSSION

¶ 8 1. Did the District Court err by determining that Helena City Code § 11–42–2 was an impermissible building code, and not a zoning ordinance?

¶ 9 In 1969, Montana adopted a state building code designed to “ provide reasonably uniform standards and requirements for construction and construction materials consistent with accepted standards of design, engineering, and fire prevention practices.” Section 50–60–201(1), MCA. Section 50–60–202, MCA, designates the Department of Labor and Industry as “the only state agency that may promulgate building regulations....” The Legislature has authorized counties, cities, and towns to locally adopt and enforce only those building codes that have been “adopted by the department.” Sections 50–60–301(2), MCA ; 50–60–302(a), MCA. “Building regulations” are defined as “any law, rule, resolution, regulation, ordinance, or code, general or special ... relating to the design, construction, reconstruction, alteration, conversion, repair, inspection, or use of buildings and installation of equipment in buildings.” Section 50–60–101(3)(a), MCA. This definition “does not include zoning ordinances.” Section 50–60–101(3)(b), MCA.

¶ 10 The City interprets the District Court's order as holding that “the creation of the WUI zoning district was nothing more than the adoption of ‘a building regulation[ ] under the guise of a zoning ordinance,’ ” (emphasis added), which the City challenges as error. The City argues that the key issue is “whether the WUI zoning overlay district is a valid zoning ordinance under Montana law,” and notes that municipalities are authorized, pursuant to their delegated zoning authority, to regulate the height and size of buildings and other structures, § 76–2–301, MCA, as well as “the erection, construction, reconstruction, alteration, repair, or use of buildings.” Section 76–2–302, MCA. Positing that its WUI district falls squarely within statutorily authorized municipal zoning, the City then cites the qualification within the definition of “building regulations” in § 50–60–101(3)(b), MCA, as “not includ [ing] zoning ordinances,” and reasons that this exclusion eliminates any possible classification of the WUI zoning district as a building code regulation, as well as any conflict with state law.

¶ 11 The first problem with the City's overbroad argument, as noted by Svees, is that Svees did not challenge and the District Court did not invalidate the entire WUI zoning district as an impermissible building regulation that conflicted with state law. Rather, they challenged and the District Court invalidated only the portion of the WUI ordinance that regulated building construction materials, that being § 11–42–2. While the District Court's decision may have removed the “tee...