Fasbender v. Lewis and Clark County Bd., DA 08-0404.

• Court: United States State Supreme Court of Montana
• Citation: 2009 MT 323,218 P.3d 69
• Docket Number: No. DA 08-0404.,DA 08-0404.
• Parties: Michael J. FASBENDER, John W. Herrin, and John and Jane Does 1-25, Plaintiffs and Appellants, v. LEWIS AND CLARK COUNTY BOARD OF COUNTY COMMISSIONERS, Deputy County Attorney, Paul Stahl, and Chief Administrative Officer, Ron Alles, Defendants and Appellees.
• Decision Date: 01 October 2009

218 P.3d 69 2009 MT 323 Michael J. FASBENDER, John W. Herrin, and John and Jane Does 1-25, Plaintiffs and Appellants,
v.
LEWIS AND CLARK COUNTY BOARD OF COUNTY COMMISSIONERS, Deputy County Attorney, Paul Stahl, and Chief Administrative Officer, Ron Alles, Defendants and Appellees. No. DA 08-0404. Supreme Court of Montana. Submitted on Briefs July 8, 2009. Decided October 1, 2009.

[218 P.3d 70]

For Appellants: W.A. (Bill) Gallagher, Gallagher and Associates, Helena, Montana.

For Appellees: Leo J. Gallagher, County Attorney; K. Paul Stahl, III, and Jeff Sealey, Deputy County Attorneys, Helena, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Michael J. Fasbender, John W. Herrin, and unnamed plaintiffs John and Jane Does 1-25 (collectively Fasbender), challenged the adoption of interim zoning regulations by the Lewis and Clark County Board of County Commissioners (Board). Fasbender appeals from an Order in the First Judicial District, Lewis and Clark County, granting summary judgment to the Board. We affirm.

¶ 2 We review the following issues on appeal:

¶ 3 Did the District Court correctly hold that the notice provided by the Board of its intent to adopt interim zoning regulations, and the hearing that it conducted, satisfied the procedural requirements of § 76-2-205, MCA (2005)?

¶ 4 Did the District Court correctly declare void the Board's permanent zoning regulations for failure to comply substantially with the notice provisions of § 76-2-205, MCA (2005)?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 The Board published two separate notices, on August 6, 2006, and August 13, 2006, of public hearings to discuss zoning in the Helena valley. The Board held a public hearing on August 23, 2006, and accepted public comment, as required by § 76-2-205(2), MCA. The Board allowed additional time for public comment. The Board used this additional time to consider the comments submitted and to review the recommendations of the Lewis and Clark City-County Consolidated Planning Board (Planning Board).

¶ 6 After the hearing on August 23, 2006, the Board passed a resolution of intent to create a zoning district in the Helena valley and adopt the proposed regulations. The Board published a single notice of this resolution on September 17, 2006. The Board failed to publish the second notice the following week, however, as required by § 76-2-205(5), MCA. The Board eventually approved the zoning district and accompanying zoning regulations on November 16, 2006.

¶ 7 Fasbender sent an email to the Board on November 17, 2006, in which he inquired as to the dates of publication of the public notice of intent. Fasbender's email prompted the Board to recognize that it had failed to provide the second statutorily required notice. The Board determined that this omission prevented it from adopting the zoning regulations.

¶ 8 The Board immediately proceeded to adopt interim zoning regulations. The interim regulations essentially mirrored the originally proposed permanent regulations. The Board published separate notices on November 23, 2006, and December 3, 2006, of a public hearing on the proposed interim zoning regulations. The Board held a public hearing on December 12, 2006. The Board adopted the interim zoning regulations at the conclusion of the hearing even though the Planning Board had not yet reviewed the interim regulations and the Board had not offered the public a 30-day protest period. The Board also did not adopt a resolution of intent before approving the interim regulations.

¶ 9 Fasbender filed suit on December 18, 2006. He challenged the Board's failure to follow all of the procedural requirements set forth in § 76-2-205, MCA, in adopting the interim zoning regulations. Fasbender also alleged that the Board substantially had complied with the notice requirements of § 76-2-205, MCA, in its original efforts to adopt the permanent zoning regulations. Fasbender alleged that the Board erroneously had declared void the original permanent zoning regulations. The District Court granted summary judgment in favor of the Board on both issues. Fasbender appeals.

218 P.3d 71

STANDARD OF REVIEW

¶ 10 We review de novo a district court's grant of summary judgment. Citizen Advoc. for a Livable Missoula, Inc. v. City Council of City of Missoula, 2006 MT 47, ¶ 16, 331 Mont. 269, 130 P.3d 1259. Summary judgment is appropriate only 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, 122 P.3d 1193.

¶ 11 We review a district court's conclusions of law to determine if they are correct. Steer, Inc. v. Dept. of Revenue, 245 Mont. 470, 474, 803 P.2d 601, 603 (1990). We review de novo a district court's interpretation of statutes. LHC, Inc. v. Alvarez, 2007 MT 123, ¶ 13, 337 Mont. 294, 160 P.3d 502.

DISCUSSION

¶ 12 Did the District Court correctly hold that the notice provided by the Board of its intent to adopt interim zoning regulations, and the hearing that it conducted, satisfied the procedural requirements of § 76-2-205, MCA (2005)?

¶ 13 Fasbender argues that § 76-2-205(1)-(6), MCA, requires the Board to go beyond providing notice and conducting a public hearing in adopting interim zoning regulations. He contends that § 76-2-205, MCA, also requires the Planning Board to review proposed interim zoning regulations. Fasbender claims that after the Planning Board reviews the proposed interim regulations, the Board must pass a resolution of its intent to adopt the interim regulations, publish two notices of the intent to pass the resolution, and receive written protests after notice. He argues that the Board's failure to take these steps invalidates the interim zoning regulations.

¶ 14 Fasbender cites for support this Court's decisions in Bryant Dev. Ass'n. v. Dagel, 166 Mont. 252, 531 P.2d 1320 (1975), and State ex rel. Christian, Spring, Sielbach & Assoc. v. Miller, 169 Mont. 242, 545 P.2d 660 (1976). This Court invalidated an interim zoning regulation in each case due to the failures of the counties to provide notice and a hearing as required by § 76-2-205, MCA. As a result, Fasbender argues that the interim zoning statute — § 76-2-206, MCA—incorporates all of the procedural requirements set forth in § 76-2-205, MCA. We disagree.

¶ 15 In neither Bryant, nor Christian, did this Court hold that § 76-2-206, MCA, incorporates from the permanent zoning statute any procedural requirements beyond notice and hearing. The Court in Bryant cited the fact that the notice and hearing provisions of the permanent zoning statute applied with equal force to the interim zoning statute. Bryant, 166 Mont. at 258, 531 P.2d at 1324. The Court voided the county's adoption of an emergency interim zoning regulation due to the county's failure to provide notice and a hearing. Bryant, 166 Mont. at 258, 531 P.2d at 1324.

¶ 16 Similarly, in Christian, the clerk and recorder had refused to file the landowner's certificate of survey due to the county's recent adoption of an interim zoning regulation. Christian, 169 Mont. at 244, 545 P.2d at 661. The Court cited the county's undisputed...