Group v. Bd. of County Commissioners of Gallatin County

• Decision Date: 20 September 2011
• Docket Number: No. DA 10–0578.,DA 10–0578.
• Citation: 260 P.3d 133,2011 MT 198,361 Mont. 398
• Parties: GATEWAY OPENCUT MINING ACTION GROUP, a Montana nonprofit corporation, and Carol K. Lee–Roark, et al., Plaintiffs and Appellants,v.BOARD OF COUNTY COMMISSIONERS of Gallatin County, the governing body of the County of Gallatin, acting by and through Joe P. Skinner, R. Stephen White, and William A. Murdock, Defendants and Appellees,andThree Way Mining and Construction, et al., Intervenors and Cross–Claimants, Plaintiffs/Defendants.
• Court: Montana Supreme Court

361 Mont. 398

260 P.3d 133

2011 MT 198

GATEWAY OPENCUT MINING ACTION GROUP, a Montana nonprofit corporation, and Carol K. Lee–Roark, et al., Plaintiffs and Appellants,

v.BOARD OF COUNTY COMMISSIONERS of Gallatin County, the governing body of the County of Gallatin, acting by and through Joe P. Skinner, R. Stephen White, and William A. Murdock, Defendants and Appellees,andThree Way Mining and Construction, et al., Intervenors and Cross–Claimants, Plaintiffs/Defendants.

No. DA 10–0578.

Supreme Court of Montana.

Submitted on Briefs June 15, 2011.Decided Aug. 17, 2011.Rehearing Denied Sept. 20, 2011.

For Appellant: Roger M. Sullivan, McGarvey, Heberling, Sullivan & McGarvey, P.C., Kalispell, Montana, David K.W. Wilson, Jr., Morrison, Motl and Sherwood, P.L.L.P., Helena, Montana.For Appellee: Marty Lambert, Gallatin County Attorney, Bozeman, Montana.For Intervenor Three Way Mining and Construction: Susan B. Swimley, Attorney at Law, Bozeman, Montana, James L. Shuler, Doney, Crowley, Bloomquist, Payne, Uda, P.C., Helena, Montana.For Intervenor Loseff, et al., and Knife River: Brian K. Gallik, Benjamin J. Alke, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana, John Alke, Hughes, Kellner, Sullivan & Alke, PLLP, Helena, Montana.For Amici: Sarah McMillan, Matthew Bishop, Western Environmental Law Center, Missoula, Montana.Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[361 Mont. 399] ¶ 1 This is an action arising from the Gallatin County Board of Commissioners' (the Commission) efforts to regulate gravel pits within the County limits. Between 2008 and 2010 the Commission took various actions to impose zoning restrictions. It created an Interim Zoning District and proposed creation of four permanent zoning districts throughout the County. The Commission's efforts were challenged by the Gateway Opencut Mining Action Group (GOMAG), an advocacy group made up of residents of one of the proposed districts. GOMAG sought an injunction, claiming the public comment provision of the applicable zoning statute, § 76–2–205(6), MCA, was unconstitutional. Subsequently, GOMAG and Gallatin County (the County) agreed to defer certain statutorily-required actions until GOMAG's injunction request was heard by the Eighteenth Judicial District Court. While awaiting the injunction hearing, multiple Gallatin County farmers and ranchers plus two gravel pit owners (collectively Intervenors) intervened in the action seeking summary judgment on the ground that the Commission had failed to act within the statutorily-required time and the case was moot. The District Court agreed and granted Intervenors' motions for summary judgment. GOMAG appeals. We affirm.

ISSUE

¶ 2 The dispositive issue before us is whether the District Court erred in granting summary judgment to the Intervenors on the basis of mootness.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 2003, Gallatin County adopted a county growth policy in an effort to address its rapid growth. Subsequently, over several years, a Gallatin Gateway Community Plan was developed and adopted. On May 7, 2008, after several meetings pertaining to opencut mining issues, the Commission adopted an Interim Zoning District (IZD) for opencut mining operations. In accordance with applicable statutes, in May 2009 the Commission extended the IZD for a second year. This Interim Zoning District was scheduled to expire on May 7, 2010. During these two years, the County issued four separate conditional use permits to gravel pit operations.

¶ 4 Also during the two years between May 2008 and May 2010, the Commission decided to create four new zoning districts within the County—Southern Valley, Belgrade, Manhattan, and Amsterdam/Churchill. To accomplish this, at a public hearing on March 23, 2010, the Commission passed a “Resolution of Intention” (Resolution) to adopt the Southern Valley Zoning District (SVZD); however, the Resolution actually encompassed all four of the zoning districts identified above. In accordance with § 76–2–205(5), MCA, the public was notified that it could comment on or protest the Commission's Resolution through April 27, 2010. The County received numerous protests to the Resolution. Under the applicable statute, the Commission could proceed to act on the Resolution within 30 days after the expiration of the public comment period, i.e., by May 27, 2010, unless the requisite number of protests was received. If a sufficient number of protests was received, the Commission could not adopt the Resolution and could not propose another for one year.

¶ 5 On April 30, 2010, shortly after the public protest period expired and before the Commission had tabulated the protests or taken action on the Resolution, GOMAG filed a verified complaint against the Commission, seeking declaratory relief, and an application for a temporary restraining order (TRO) and preliminary and permanent injunction (PI). GOMAG challenged the constitutionality of the protest provisions contained in § 76–2–205(6), MCA. On the same day, the County stipulated to the TRO. The District Court immediately signed the TRO and scheduled the injunction hearing for July 12, 2010. The TRO provided:

[A] Temporary Restraining Order ... is hereby issued restraining defendants from taking any action based upon the statutory protest provisions contained in § 76–2–205(6), MCA, pending the hearing set [for July 12]. Except as specifically restrained by this Order, the defendants may otherwise proceed in accordance with the provisions of § 76–2–205, MCA, including proceeding with the meeting presently scheduled for May 4, 2010.

¶ 6 To maintain the status quo, GOMAG and the County also agreed to obtain an order that the Interim Zoning Regulations scheduled to expire on May 7, 2010, would remain in effect until the District Court ruled on GOMAG's injunction request. On May 3, 2010, the District Court issued the requested order.

¶ 7 During May 2010, additional parties intervened in the suit between GOMAG and the County—two gravel pit owners, Three Way Mining and Construction, Inc. (TWM) and Knife River Corporation, and multiple ranchers and farmers who owned land in the County, hereinafter jointly referred to by the name of one of the landowners, Loseff. Collectively, the intervening parties will be referred to as Intervenors. As a result of these judicial proceedings and agreements, the Commission did not act on the Resolution by May 27—the 30–day post-protest deadline. On May 27, 2010, the Gallatin County Clerk and Recorder certified that none of the proposed zoning districts received sufficient protest votes to block the Commission's zoning plans.

¶ 8 In June 2010, Knife River and the Loseffs filed motions for summary judgment. TWM joined in Loseffs' motion. Knife River argued that the Interim Zoning Regulations, vis-à-vis the Belgrade proposed district, expired on May 7, 2010. Loseffs and TMC made the same argument, and also maintained that the Resolution creating the proposed new zoning districts had similarly expired without action by the Commission. As a result, the Intervenors argued that the entire case was moot and should be dismissed.

¶ 9 In an Order issued on September 29, 2010, the District Court ruled in favor of Intervenors. Noting that the provisions of § 76–2–205(6), MCA, are explicit and mandatory, the court reasoned that the Commission had limited options: it could either adopt or reject the respective zoning resolutions within 30 days after the protest vote, or it could take no action which would have the effect of an affirmative rejection. Because the Commission failed to act at all during the 30–day statutory timeframe, the zoning resolutions were effectively dead. This being so, the court determined there was no justiciable controversy before it, and it had no jurisdiction to assess the constitutionality of the statute as GOMAG had requested because the matter was now moot. The court further ruled that its May 3, 2010 Order extending the Interim Zoning Regulations beyond the May 7, 2010 expiration date was null and void. The court therefore granted Knife River's and Loseff/TWM's motions for summary judgment, denied GOMAG's request for a preliminary injunction and declaratory judgment, and dissolved the TRO issued on April 30, 2010. This appeal by GOMAG follows.

STANDARD OF REVIEW

¶ 10 We review a district court's grant of summary judgment de novo, applying the criteria set forth in M.R. Civ. P. 56. Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 8, 359 Mont. 346, 249 P.3d 913 (citations omitted).

DISCUSSION

¶ 11 Did the District Court err in granting summary judgment to the Intervenors?

¶ 12 In Montana, counties are authorized to adopt zoning regulations for all or parts of their jurisdictional area. Section 76–2–201, MCA. They may also establish interim zoning districts or interim regulations. Under the applicable statute, an interim zoning district or regulation is limited to a duration of one year from the date it became effective. It may be extended by the county commissioners for no more than one additional year. Section 76–2–206, MCA. The statute allowing counties to adopt such districts and boundaries sets forth the necessary procedures and provides for notice to and comment by the public. Section 76–2–205, MCA.

¶ 13 In the case before us, GOMAG brought a constitutional challenge in the District Court under the Montana Uniform Declaratory Judgment Act (UDJA). It asserted that § 76–2–205(6), MCA, is unconstitutional because only landowners, and preferentially landowners of agricultural and forest properties, may protest zoning decisions made by the Commission. GOMAG argued that this “veto provision” represents “an unconstitutional delegation of legislative authority to private parties.” Section 76–2–205(6), MCA, provides:

Within 30 days...