Flathead Citizens v. Flathead County Bd., DA 06-0173.

Docket NºNo. DA 06-0173.
Citation341 Mont. 1, 2008 MT 1, 175 P.3d 282
Case DateJanuary 03, 2008
CourtUnited States State Supreme Court of Montana

For Appellant Flathead Citizens for Quality Growth, Inc.: Jack R. Tuholske, Tuholske Law Office, P.C., Missoula, Montana.

For Appellant Tutvedt Family Partnership: Paul A. Sandry, Johnson, Berg, McEvoy & Bostock, PLLP, Kalispell, Montana.

For Appellee: Jonathan B. Smith, Deputy County Attorney, Kalispell, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On July 13, 2005, Flathead Citizens for Quality Growth, Inc. (Citizens) filed suit against the Flathead County Board of Adjustment (Board) in the Eleventh Judicial District, Flathead County. The suit challenged a decision by the Board issuing a Conditional Use Permit (CUP) to Tutvedt Family Partnership (Tutvedt). The CUP allowed Tutvedt to extract and crush gravel on a 320-acre parcel of land it owned in the West Valley area of Flathead County. Citizens argued the issuance of the CUP violated the zoning regulations of the West Valley Zoning District (District) because it permitted Tutvedt to operate a gravel crushing operation which was not accessory to normal farm operations. Subsequently, Tutvedt intervened in the suit and also challenged the Board's decision. Tutvedt, however, argued that the CUP was too narrow in scope because it prohibited Tutvedt from establishing asphalt and concrete batching operations on its land within the West Valley. The District Court ultimately granted summary judgment to the Board, denied motions for summary judgment filed by Tutvedt and Citizens, and upheld the lawfulness of the Board's decision to issue the CUP. Both Tutvedt and Citizens appealed. We affirm in part, reverse in part, and remand to the District Court for further proceedings.


¶ 2 From September 1995 to October 1996, residents of the West Valley, an area northwest of Kalispell in Flathead County, began a major overhaul of the zoning regulations governing the District. The initial impetus for this process was a proposal to establish a neighborhood convenience store near a local school in the West Valley. The residents held a series of monthly meetings in which they evaluated existing land uses, generated input about concerns and issues surrounding future land use, and ultimately developed a set of goals and a plan to guide land use and development in the District. Their efforts culminated in the West Valley Neighborhood Plan (Plan), a document which "examines the various physical, biological, and social elements of the area to establish a benchmark from which all future land use proposals can be measured. More importantly, the Plan presents a future vision for West Valley."

¶ 3 Initially, the West Valley was classified primarily for silvicultural and agricultural uses. But as the Plan notes, "[t]he uniform application of a single zoning district to such a large area fails to recognize the variability of land features throughout the district. Not all the land can easily be classified as either `timber' or `agriculture', especially when considering how the land use character of the area has changed dramatically, even with zoning in place. The liberal use of subdivision exemptions (family transfers, occasional sales) over the past 17+ years has created a suburban development pattern in many locations."

¶ 4 To respond to changing uses in the West Valley area, the residents formulated four land use goals, and accompanying policies, to guide the development of new zoning regulations. These goals include: (1) planning for wise use of the land in the West Valley; (2) maintaining the rural and scenic quality of the valley; (3) protecting air and water quality; and (4) protecting private property rights. The accompanying policies address the following major areas: agriculture/forestry, residential, commercial/industrial, open space, and public services. Within each policy area, the Plan makes specific recommendations consistent with the four major goals. Further, the Plan recommends that subdivision and zoning regulations be utilized to practically implement these policy recommendations. "Subdivision and zoning regulations are the primary tools of plan implementation. Subdivision regulations can assess compliance of proposed land divisions with the Neighborhood Plan and zoning regulations and require mitigation measures as appropriate. . . . Land use regulations generally establish allowable uses, set minimum lot sizes, and identify performance standards for new development."

¶ 5 In April of 1997, the Flathead County Board of County Commissioners (Commissioners) adopted the Plan as the basis for a new set of zoning regulations governing land use in the District. The Flathead County Zoning Regulations (FCZR, or Regulations) define the District as "[a] district to promote orderly growth and development in the West Valley area consistent with the community vision statements as expressed by the text and map exhibits of the West Valley Neighborhood Plan, County Resolution # 1226-A." FCZR § 3.34.010. In addition to citing directly to the Plan in its definition of the District, the Regulations also directly incorporate provisions of the Plan into the Regulations themselves. "In cases where a neighborhood plan, addendum to a Master Plan, or other adopted document contains aspects related to zoning and is under the jurisdiction of these regulations, the provisions that are more restrictive shall control." FCZR § 1.04.020.

¶ 6 In March 2005, Tutvedt applied to the Board for a CUP to operate a gravel pit on a 320-acre parcel of land it owned within the District. Tutvedt sought permission to extract and process gravel and sand, conduct limited retail gravel sales, use a crushing machine, and operate an asphalt batch plant. Under FCZR § 2.03, the Board has the authority and responsibility to approve or deny such permits. FCZR § 2.06 outlines the process which the Board must follow when considering an application for a CUP. One of the steps in this process requires the Board to evaluate the CUP under a specific set of criteria listed at FCZR § 2.06.080. These criteria cover four major areas: Site Suitability, Appropriateness of Design, Availability of Public Services and Facilities, and Immediate Neighborhood Impact. Further, under FCZR § 2.06.090, the applicant has the burden of proof to show the criteria have been satisfied. Because Tutvedt's initial application lacked the necessary information to satisfy these criteria, the Board tabled it until Tutvedt could provide further information.

¶ 7 After Tutvedt supplied the required information, the Flathead County Planning and Zoning Department prepared a Staff Report (Report) which thoroughly evaluated the application. The Report provides background information on Tutvedt's proposed operation and the existing land use in the District. The Report also considers and applies the relevant Regulations and state laws to the CUP application, makes specific findings of fact, and concludes with a series of recommendations to the Board. Because the Board ultimately adopted it as the basis for its decision, aspects of the Report which bear significantly on the issues raised in this appeal must be discussed in some detail.

¶ 8 One significant issue which the Report addresses concerns the zoned status of the District itself. The Report begins by stating the definition of the District from the Regulations themselves. See ¶ 5. The Report goes on to note that while the Plan acknowledges an "increase in residential lots in the West Valley zone," the Plan also states that residential uses, along with agricultural and silvicultural, "comprise a third major land use component of the West Valley area." From this, the Report determines that "[t]here is no clear indication in the planning documents that the West Valley Zoning District is an exclusively residential zone." This observation is repeated in the "Findings of Fact" section later in the Report:

The West Valley Zoning District is not strictly defined as residential or agricultural. The Flathead County Zoning regulations and West Valley Neighborhood Plan indicate the district is intended for a variety of uses, including agricultural and silvicultural, while recognizing that areas of West Valley are becoming increasingly residential.

¶ 9 A second significant issue discussed by the Report concerns the nature of Tutvedt's proposed operation, and whether it qualifies as an "extractive industry." The Report describes Tutvedt's proposed operation as consisting of the "extraction and processing of gravel, limited retail gravel sales, a crushing machine, and an asphalt batch plant. . . ." The Report observes that "gravel extraction" is listed as a conditional use at FCZR § 3.34.080(8), and that the Plan itself states that opportunities for gravel extraction should be allowed. The Report also notes that the term "gravel extraction," and the range of activities included in this term, are nowhere defined in the Regulations. "Extractive industries," however, are defined as "[c]ommercial or industrial operations involving the removal and processing of sand, rock, soil, gravel, or any mineral." FCZR § 7.060.040. Yet "extractive industries" per se are not listed as permitted or conditional uses in the District. In other words, "gravel extraction" is permitted but not defined, and "extractive industries" are not permitted in the District but are defined elsewhere in the Regulations. As a result, it is not clear whether the type of "gravel extraction" allowed in the District is synonymous with "extractive industries," or whether "gravel extraction" has a...

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