Heffernan v. Missoula City Council

Decision Date03 May 2011
Docket NumberNo. DA 10–0142.,DA 10–0142.
Citation255 P.3d 80,2011 MT 91,360 Mont. 207
PartiesKathy HEFFERNAN, Robin Carey, David Harmon, and North Duncan Drive Neighborhood Association, Inc., Plaintiffs and Appellees,v.MISSOULA CITY COUNCIL, City of Missoula, and John Engen, Mayor, Defendants and Appellants,andMuth–Hillberry, LLC, Intervenor–Defendant and Appellant.
CourtMontana Supreme Court


For Appellants Missoula City Council, City of Missoula, and John Engen, Mayor: James P. Nugent, City Attorney, Susan A. Firth, Missoula City Attorney's Office, Missoula, Montana.For IntervenorDefendant and Appellant Muth–Hillberry, LLC: Donald V. Snavely, Snavely Law Firm, Missoula, Montana For Appellees: David K.W. Wilson, Jr., Morrison, Motl & Sherwood, PLLP, Helena, Montana.For Amicus Curiae Montana Association of Realtors, Inc.: William K. VanCanagan, J.R. Casillas, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana.For Amicus Curiae MEIC and Citizens for a Better Flathead: Sarah K. McMillan, Matthew Bishop, Western Environmental Law Center, Missoula, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 In December 2007, the Missoula City Council approved zoning and a preliminary plat for a 37–lot subdivision known as Sonata Park. Several parties opposed to the subdivision (Neighbors 1) then filed a petition for judicial review in the Fourth Judicial District Court, Missoula County. The District Court found that the City was arbitrary and capricious in reaching its zoning and subdivision decisions, and the court accordingly set those decisions aside. The City and the owner/developer of Sonata Park (Muth–Hillberry, LLC) now appeal that determination and several underlying rulings. We affirm.


¶ 2 The City and Muth–Hillberry raise several issues, which we restate as follows:

1. Do Neighbors have standing?

2. Did the District Court err in striking affidavits filed by Muth–Hillberry and the City in connection with their motions for summary judgment?

3. Does the 1989 agreement between the City and Muth–Hillberry's predecessor in interest supersede the City's growth policy?

4. Was the City's decision on Sonata Park arbitrary, capricious, or unlawful?

Resolution of these questions moots other issues raised by the parties.

Rattlesnake Valley

¶ 3 The proposed Sonata Park subdivision is located on the north side of Missoula in an area of the city known as Rattlesnake Valley. The following diagram (included in the record) shows the subdivision's location (labeled “SITE”). The bold line, which has been added to the diagram, represents the western, southern, and eastern boundaries of the Rattlesnake Valley neighborhood growth plan at issue in this case.

Image 1 (5.03" X 6.23") Available for Offline Print

¶ 4 Rattlesnake Valley lies at the southern end of the 82–square–mile Rattlesnake Watershed. Rattlesnake Creek begins near McLeod Peak (17 miles to the north) and proceeds in a southerly direction, ultimately flowing into the Clark Fork River on the east side of downtown Missoula. The creek has been an important source of water for Missoula residents. A water system was established in Rattlesnake Valley in the 1870s, and an intake dam was built in 1901. Montana Power Company operated the system from 1930 to 1979. In an effort to protect its investment in the water supply, Montana Power purchased most of the private lands above the intake dam in 1934 and 1935, which in turn helped to reduce contamination of potable water by domestic animals. As a result, the upper portion of Rattlesnake Valley was mostly limited to resource management and recreational use, and development occurred primarily in the lower (southern) six square miles of the valley. That area has evolved over the last century from a sparsely settled rural community to a set of interconnected residential neighborhoods.

¶ 5 Rattlesnake Valley serves as the gateway to the Rattlesnake National Recreation Area and Wilderness, which was established by act of Congress in 1980. The valley also is an important habitat for numerous big game animals, including elk, white-tailed deer, mule deer, black bear, mountain lions, and mountain goats. Two areas in the valley serve as critical winter/spring range for big game, and the remaining open hillsides provide winter feeding areas for deer and elk. In addition, bald eagles, beaver, and blue heron have been sighted frequently in the area around the intake dam.

¶ 6 The City annexed nearly 1,500 acres of Rattlesnake Valley in 1989, including the land on which Muth–Hillberry proposes to develop Sonata Park. The City adopted interim zoning for the area, but the zoning expired in 1992 and the land became unzoned. Between 1989 and 1992, the City also purchased 418 acres of land in the middle valley for the purpose of preserving the acquired area as open space. This land encompasses hillsides and a creek corridor and is valuable for wildlife habitat and recreational uses such as walking, biking, jogging, horseback riding, and cross-country skiing.

Growth Policies and Neighborhood Plans

¶ 7 At this juncture, it is useful to explain the function of a growth policy. It is the policy of Montana

to encourage local units of government to improve the present health, safety, convenience, and welfare of their citizens and to plan for the future development of their communities to the end that highway systems be carefully planned; that new community centers grow only with adequate highway, utility, health, educational, and recreational facilities; that the needs of agriculture, industry, and business be recognized in future growth; that residential areas provide healthy surroundings for family life; and that the growth of the community be commensurate with and promotive of the efficient and economical use of public funds.

Section 76–1–102(1), MCA.

¶ 8 To that end, the governing body of any city, town, or county (or the governing bodies of any combination thereof) is authorized to create a planning board “in order to promote the orderly development of its governmental units and its environs.” Section 76–1–101, MCA. Among other things, a planning board is authorized to prepare a growth policy.2 Section 76–1–106(1), MCA. The required contents of a growth policy are set out in § 76–1–601(3)(a)(j), MCA. They include maps and text describing the characteristics and features of the jurisdictional area; community goals and objectives; and a description of measures to be implemented in order to achieve those goals and objectives. See id. A growth policy may also include “neighborhood plans,” which must be consistent with the growth policy. Section 76–1–601(4)(a), MCA. A neighborhood plan is “a plan for a geographic area within the boundaries of the jurisdictional area that addresses one or more of the elements of the growth policy in more detail.” Section 76–1–103(8), MCA.

¶ 9 Before submitting a proposed growth policy to the governing body, the planning board must hold a public hearing. Section 76–1–602(1), MCA. After consideration of the information elicited at the public hearing, the board must then recommend that the growth policy be adopted, that a growth policy not be adopted, or that the governing body take some other action. Section 76–1–603, MCA. The governing body, in turn, may adopt or reject a proposed growth policy. Section 76–1–604(1), MCA.

¶ 10 An adopted growth policy is not a regulatory document. Section 76–1–605(2)(a), MCA. Nevertheless, the governing body still “must be guided by and give consideration to the general policy and pattern of development set out in the growth policy” in the authorization, construction, alteration, or abandonment of public ways, public places, public structures, or public utilities; in the authorization, acceptance, or construction of water mains, sewers, connections, facilities, or utilities; and in the adoption of zoning ordinances or resolutions. Section 76–1–605(1), MCA. A governing body may not withhold, deny, or impose conditions on a land-use approval based solely on compliance with an adopted growth policy. Section 76–1–605(2)(b), MCA.

Rattlesnake Valley Plan

¶ 11 There is a long tradition of coordinated planning endeavors between Missoula County and the City of Missoula, particularly in the Missoula urban area. In 1961, the Missoula City–County Planning Board completed a master plan for the area. In 1975, the City and County collaborated again to create two sets of land-use planning guidelines, one for the Missoula urban area and the other for rural areas. These guidelines were broad in scope and general in application. To address the unique characteristics of individual areas and provide more specific guidance for particular regions, the County and the City adopted various neighborhood plans over the years. These plans were subsequently added as amendments to the general growth policies.

¶ 12 One such neighborhood plan is the Rattlesnake Valley Comprehensive Plan, which applies to a 12–square–mile area of the Rattlesnake Valley consisting of County land and City land. The area covered by the plan is shown on the map included as an appendix to this Opinion. The proposed Sonata Park subdivision is labeled “SITE” on this map. The County and the City adopted the Rattlesnake Valley plan in 1988 and then adopted an updated version of it in 1995. The County and the City incorporated the 1995 version into the Missoula County Growth Policy in 2002, and reaffirmed it four years later in an update to the Missoula County Growth Policy. The 1995 version of the Rattlesnake Valley plan “thus continue[s] to have full force and effect.”

¶ 13 The Rattlesnake Valley plan was drafted through a public planning process. The 1995 update itself received extensive public review, including five public hearings. Numerous citizens participated in the process. By its terms, the plan is intended “to reduce the problems associated with unplanned and...

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