Helena Sand & Gravel, Inc. v. Lewis & Clark Cnty. Planning & Zoning Comm'n

Citation367 Mont. 130,290 P.3d 691
Decision Date30 November 2012
Docket NumberNo. DA 11–0510.,DA 11–0510.
PartiesHELENA SAND AND GRAVEL, INC., a Montana Corporation, Plaintiff and Appellant, v. LEWIS AND CLARK COUNTY PLANNING AND ZONING COMMISSION, and The Lewis and Clark County Board of County Commissioners, Defendants and Appellees.
CourtUnited States State Supreme Court of Montana

OPINION TEXT STARTS HERE

For Appellant: Michael S. Kakuk (argued); Kakuk Law Offices, P.C.; White Sulphur Springs, Montana.

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

For Amicus Curiae: Steven T. Wade, Morgan M. Weber; Browning, Kaleczyc, Berry & Hoven, P.C.; Helena, Montana (for the Montana Contractors Association).

Justice BETH BAKER delivered the Opinion of the Court.

[367 Mont. 132]¶ 1 Helena Sand and Gravel, Inc. (HSG) appeals the First Judicial District Court's order denying its motion for summary judgment and granting summary judgment in favor of Lewis and Clark County Planning and Zoning Commission and Lewis and Clark County Board of Commissioners (collectively, the County). We address the following issues on appeal:

¶ 2 1. Whether, in adopting the zoning pattern and regulations prohibiting mining in a special district, the County abused its discretion by failing to consider existing land uses or to ensure substantial compliance with the Lewis and Clark County Growth Policy (Growth Policy).

¶ 3 2. Whether the County's adoption of zoning regulations prohibiting sand and gravel mining constitutes illegal reverse spot zoning.

¶ 4 3. Whether HSG has an established property right, entitling it to bring a takings claim against the County.

¶ 5 We affirm the District Court's decision as to the first two issues. We affirm in part and remand as to the third.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 6 The establishment of local zoning districts is governed by statute in Montana. A district may be created in one of two ways—by citizen petition to the board of county commissioners under § 76–2–101, MCA, known as Part 1 zoning,” or directly by the board of county commissioners under § 76–2–201, MCA, known as Part 2 zoning.” This case involves Part 1 zoning. HSG challenges the County's decision to adopt a citizen-initiated proposal to configure a zoning district that favors residential uses and prohibits mining.

¶ 7 HSG owns approximately 421 acres located north of East Helena, Montana. In June 2008, HSG obtained a permit from the Montana Department of Environmental Quality (DEQ) to mine gravel on 110 acres of its property. Those 110 acres are not at issue in this case. Before DEQ granted the permit, a group of citizens living north of East Helena submitted to the County a petition seeking to create Special Zoning District Number 43 (District 43). The proposal delineated an area which encompassed the property owned by HSG and its purpose was: “to accommodate and protect the use of single-family dwelling units and associated agricultural land uses while promoting and preserving the rural residential atmosphere of the area and enhancing the aesthetic character and property values of the area.” It proposed to prohibit industrial and mining activities in the district, including any sand and gravel operations to be performed by HSG on the remaining 311 acres of its property. The petition was signed by approximately seventy percent of the property owners within the proposed district.

¶ 8 The statutory provisions for Part 1 zoning authorize the board of county commissioners, “whenever the public interest or convenience may require,” to create a planning and zoning district “upon petition of 60% of the affected freeholders,” unless “50% of the titled property ownership in the district protest the establishment of the district within 30 days of its creation.” Section 76–2–101, MCA (2007).1

¶ 9 On April 1, 2008, following a public meeting, the Lewis and Clark County Board of Commissioners (the Board) voted to create District 43. HSG commented during the meeting that the petition constituted “illegal gerrymandering” because [t]he district borders have been specifically and unreasonably drafted to benefit the petitioners; no protest, however, was filed by fifty percent of the land owners within thirty days of the Board's approval of the district. Thus, on May 8, 2008, the Board adopted a resolution creating the boundaries of District 43.

¶ 10 The matter proceeded to the Lewis and Clark County Planning and Zoning Commission (the PZ Commission), which is statutorily required to adopt a development pattern for the new district and authorized to recommend regulations to the Board to implement the development pattern. Sections 76–2–104 and –107, MCA. On June 4, 2008, the PZ Commission held a hearing in which it solicited public comments regarding the development pattern and regulations proposed by the petitioners. HSG reiterated the concerns it had raised at the earlier meeting and submitted a proposal recommending that sand and gravel mining operations be authorized within the district under a conditional use permit. In order to provide the county attorney's office with additional time to analyze the legal issues raised by HSG, the PZ Commission continued the hearing.

¶ 11 On June 11, 2008, the county attorney's office informed the PZ Commission that it needed additional evidence on two issues—(1) whether the proposed development pattern and regulation complied with the Growth Policy, and (2) how the proposed zoning compared with existing uses surrounding and within the district. The PZ Commission directed planning staff to create a report on the two issues.

¶ 12 The staff report, prepared on June 18, 2008, described the broader transitional area in which District 43 is located as being “characterized by a range of residential and rural residential development,” though it noted the existence of two operational gravel mines in the area. The report was made available to the public and, on June 30, 2008, the PZ Commission reopened its June 4 hearing in order to discuss the report's findings. The Commission received numerous public comments, including comments from HSG. The PZ Commission met on July 1, 2008, to consider the development pattern and regulations for District 43. In discussing the public input they had received, the Commissioners stated that it was a “difficult decision.” The regulations were adopted and referred to the Board for approval. The Board held a public meeting on July 3, 2008, during which it again received comments from HSG and other members of the public. The Board then tabled the matter for a week and, on July 10, 2008, approved the regulations.

¶ 13 In July 2008, HSG filed a complaint in the First Judicial District Court, alleging that the County had adopted a zoning pattern and regulations that improperly prohibited HSG from mining sand and gravel on its property. The District Court considered cross-motions for summary judgment on whether the County had improperly adopted the zoning pattern and regulations creating District 43, and whether the County's zoning decision constituted a taking of HSG's property. The District Court entered summary judgment in favor of the County on both issues. It reasoned that the zoning regulations substantially complied with the growth policy and that they did not single out HSG for disparate treatment because “the County's prohibition on sand and gravel operations applies to all of the land within [District 43], not only to the property owned by HSG.” The District Court also concluded that HSG did not have an established property right in its ability to apply for a mining permit because “DEQ does not lack ‘all discretion’ in granting and denying such permits and thus “approval of the permit is not ‘virtually assured.’

STANDARD OF REVIEW

¶ 14 We review de novo the district court's decision on motions for summary judgment, applying the same Mont. R. Civ. P. 56(c) criteria as the district court. Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 18, 361 Mont. 129, 257 P.3d 352. Summary judgment is appropriate when, drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ternes, ¶ 18.

¶ 15 When reviewing a zoning decision, we “give deference to the decisions of the local board.” Town & Country Foods, Inc. v. City of Bozeman, 2009 MT 72, ¶ 14, 349 Mont. 453, 203 P.3d 1283. Our review is limited to the question whether the zoning authority abused its discretion. Town & Country Foods, ¶ 13. To constitute an abuse of discretion, the zoning authority's decision must be based on information that is “so lacking in fact and foundation that it is clearly unreasonable.” Town & Country Foods, ¶ 13 (citing Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of Adjustment, 2008 MT 1, ¶ 32, 341 Mont. 1, 175 P.3d 282). If the validity of the legislative classification for zoning purposes is “fairly debatable,” then the legislative judgment of the zoning board controls. Mack T. Anderson Ins. Agency v. City of Belgrade, 246 Mont. 112, 120, 803 P.2d 648, 652 (1990) (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 387–88, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926)).

DISCUSSION

¶ 16 1. Whether, in adopting the zoning pattern and regulations prohibiting mining in a special district, the County abused its discretion by failing to consider existing land uses or to ensure substantial compliance with the Growth Policy.

¶ 17 Under § 76–1–605, MCA, zoning regulations adopted by a local governing body in an area covered by a growth policy must “be guided by and give consideration to the general policy and pattern of development set out in the growth policy....” Section 76–1–605(1)(c), MCA. The statute also provides that [a] growth policy is not a regulatory document” and [a] governing body may not withhold, deny, or impose conditions on any land...

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