Cmty. Ass'n for N. Shore Conservation, Inc. v. Flathead Cnty.

• Decision Date: 02 July 2019
• Docket Number: DA 18-0366
• Citation: 2019 MT 147
• Parties: COMMUNITY ASSOCIATION FOR NORTH SHORE CONSERVATION, INC., a Montana Nonprofit Mutual Benefit Corporation, Plaintiff, Appellee, and Cross-Appellant, v. FLATHEAD COUNTY and its BOARD OF COUNTY COMMISSIONERS, a Political Subdivision of the State of Montana, Defendants and Appellees, JOLENE DUGAN, Intervenor and Appellant.
• Court: Montana Supreme Court

2019 MT 147

COMMUNITY ASSOCIATION FOR NORTH SHORE CONSERVATION, INC.,
a Montana Nonprofit Mutual Benefit Corporation, Plaintiff, Appellee, and Cross-Appellant,
v.
FLATHEAD COUNTY and its BOARD OF COUNTY COMMISSIONERS,
a Political Subdivision of the State of Montana, Defendants and Appellees,
JOLENE DUGAN, Intervenor and Appellant.

DA 18-0366

SUPREME COURT OF THE STATE OF MONTANA

Submitted on Briefs: March 20, 2019
July 2, 2019

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-15-121B Honorable Robert B. Allison, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard De Jana, Richard De Jana & Associates, PLLC, Kalispell, Montana

For Appellee and Cross-Appellant Community Association for North-Shore Conservation, Inc.:

Donald Murray, Hash, O'Brien, Biby & Murray, Kalispell, Montana

For Appellees Flathead County and its Board of County Commissioners:

Tara R. Fugina, Caitlin Overland, David W. Randall, Flathead County Deputy Attorneys, Kalispell, Montana

For Amicus Montana Environmental Information Center:

Shiloh Hernandez, Western Environmental Law Center, Helena, Montana

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For Amicus Montana Trial Lawyers Association:

John F. Lacey, McGarvey, Heberling, Sullivan & Lacey PC, Kalispell, Montana

Filed:

/s/_________
Clerk

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Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Intervenor Jolene Dugan (Dugan) appeals from orders of the Eleventh Judicial District Court, Flathead County, entering judgment in favor of plaintiff Community Association for North Shore Conservation, Inc. (CANSC). CANSC cross-appeals from the court's order denying its request for attorney fees. Defendants Flathead County and its Board of County Commissioners (the Board) do not appeal but assert the District Court correctly denied CANSC's request for attorney fees. We affirm and address the following issues:

1. Does CANSC have standing?

2. Was the Board's approval of the bridge permit arbitrary and capricious?

3. Did the District Court abuse its discretion when it ordered Dugan to restore the lake to its original state?

4. Did the District Court abuse its discretion by refusing CANSC's request for attorney fees under the private attorney general doctrine?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Dugan owns a peninsula-shaped parcel of land on the shore of Flathead Lake. When the lake's water is at its highest point for a few months each year, the end of the peninsula becomes an island. During the rest of the year, Dugan's property is a continuous strip of land. Dugan sought to build a bridge on her property to connect the intermittent island to the mainland. To do so, at the beginning of 2011, Dugan applied to the Flathead County Planning and Zoning Office for a Lakeshore Construction Permit. The Board approved Dugan's initial permit and subsequently approved an amended permit. Dugan built the bridge.

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¶3 Meanwhile, CANSC filed a petition in District Court asking the court to overturn the Board's approval of Dugan's permit. It argued the Board should have never approved the permit and asked the court to require Dugan to restore the area to its natural state. The District Court ultimately agreed with CANSC and entered an order requiring Dugan to take down the bridge and restore the area. CANSC, as the prevailing party, asked the District Court for an award of fees. The District Court denied its request. Dugan now appeals the District Court's order requiring her to restore the area, raising various issues. CANSC cross appeals, arguing it is entitled to attorney fees.¹ We include additional facts throughout this Opinion as needed.

STANDARDS OF REVIEW

¶4 This Opinion addresses multiple and diverse issues and, therefore, we set forth each standard of review at the beginning of each issue's discussion.

DISCUSSION

¶5 In 1975, the Montana Legislature enacted the Lakeshore Protection Act (the Act), §§ 75-7-201 to -217, MCA. The Act begins with a policy statement: "The [L]egislature finds and declares that the natural lakes of Montana are high in scenic and resource values and that the conservation and protection of these lakes is important to the continued value of lakeshore property as well as to the state's residents and visitors who use and enjoy the

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lakes." Section 75-7-201, MCA. This policy is founded in the Montana Constitution. Mont. Const. art. II, § 3 (inalienable right to a clean and healthful environment); Mont. Const. art. IX, § 1(1) (duty to maintain and improve a clean and healthful environment).

¶6 The Act grants local governments the statutory power to adopt local lakeshore regulations to conserve and protect lake areas. Section 75-7-201, MCA. A person seeking to do any work "that will alter or diminish the course, current, or cross-sectional area of a lake or its lakeshore must first secure a permit" from the local governing body. Section 75-7-204(1), MCA. Each local governing body having jurisdiction over a lake adopts its own lakeshore regulations. Section 75-7-207(1), MCA. The regulations must, at a minimum, favor permit issuance if, during the proposed work's construction or utilization, it will not:

(1) materially diminish water quality;
(2) materially diminish habitat for fish or wildlife;
(3) interfere with navigation or other lawful recreation;
(4) create a public nuisance; or
(5) create a visual impact discordant with natural scenic values, as determined by the local governing body, where such values form the predominant landscape elements.

Section 75-7-208(1)-(5), MCA. Those requirements "are minimum requirements and do not restrict a local governing body from adopting such stricter or additional regulations as may be authorized by other statutes." Section 75-7-207(5), MCA.

¶7 The Act also provides for judicial enforcement and review. Section 75-7-215, MCA. A district court may hear and decide various issues arising from the Act, including "a complaint and petition of a governing body or an interested person for an order to restore a lake to its previous condition" and "a petition of an interested

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person for review of a final action of a governing body upon an application for a permit." Section 75-7-215(1)-(2), MCA. If a person performs work without a permit, the local governing body or the district court may require the person to "restore the lake to its condition before the person disturbed it." Section 75-7-205, MCA.

¶8 Pursuant to the Act, Flathead County's local governing board, the Board, adopted the Flathead County Lake and Lakeshore Protection Regulations (Regulations). Flathead County, Mont., Lake and Lakeshore Protection Regulations §§ 1.1 to 1.2 (enacted April 13, 1982, amended January 24, 2002), https://flathead.mt.gov/planning_zoning/documents/FCLakeshoreRegs-hyerlinked.pdf [https://perma.cc/K6QN-NVEJ] (hereinafter, "Regulations").² The Regulations' listed purposes reflect the Act's policies:

A. Protect the fragile, pristine character of Flathead County's lakes and recognize that the ecosystem of these lakes [is] inseparably intertwined with the adjacent riparian corridor and uplands area;
B. Conserve and protect natural lakes because of their high scenic and resource value;
C. Conserve and protect the value of the lakeshore property;
D. Conserve and protect the value of the lakes for the State's residents and visitors who use and enjoy them.

Regulations § 1.3(A)-(D); accord § 75-7-201, MCA.

¶9 The Regulations provide that a person must obtain a valid Lakeshore Construction Permit before he or she proceeds with "any work on, or alteration or disturbance of a lake, lakebed, or lakeshore . . . ." Regulations § 2.1. The lakeshore protection zone is defined

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as the "land area which is within twenty (20) horizontal feet of the perimeter of the lake and adjacent wetlands when the lake is at the mean annual high water elevation." Regulations § 6. Conforming with the Act's minimum requirements, § 75-7-208(1)-(5), MCA, and adding some additional requirements, the Regulations provide policy criteria for permit issuance that mirrors the language of § 75-7-208(1)-(5), MCA, and adds that a proposed action may not alter the characteristics of the shoreline. Regulations § 4.1(A)-(F). The Regulations list various examples of work requiring a permit, including the construction of buildings, docks, decks, ramps, stairways, and walkways (§ 2.5(F), (J), (P)); the development of roads, roadways, and driveways (§ 2.5(Q)); pilings (§ 2.5(R)); and "[a]ny other work, not herein mentioned, that may have an impact on a lake, lakebed or lakeshore" (§ 2.5(S)). Specific installations are not allowed in the lakeshore protection zone, including "[r]oads or driveways except to serve boat ramps" (§ 2.7(N)). The Regulations do not mention bridges.

¶10 A person seeking to do any work requiring a permit must submit an application to the Flathead County Planning and Zoning Office. Regulations § 3.1. Staff planners review the application for compliance with the Regulations and, based on their review, decide how to process the application. Regulations § 3.2(C). An application should generally go to the planning board for its review and recommendation, and the planning board will subsequently forward the application to the Board for its consideration. Regulations §§ 3.2(C)(b), 3.4(B). A project may receive summary review if the staff planners determine the project complies with the Regulations' construction requirements and design standards or if proper design modifications and necessary conditions can be incorporated

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into the project to bring it into compliance. Regulations § 3.2(C)(a); see also § 75-7-207(3), MCA (permitting summary review). In those cases, the staff planners send the application directly to the Board. Regulations §§ 3.2(C)(a), 3.3(A). Based on its findings, the Board will approve, conditionally approve, or deny the application. Regulations § 3.3(C).

¶11 When Dugan applied for her Lakeshore Construction Permit in 2011, the Planning Director at the Flathead...