In re Thornton

Decision Date03 November 2009
Docket NumberNo. DA 09-0141.,DA 09-0141.
Citation2009 MT 367,353 Mont. 252,220 P.3d 395
PartiesDennis THORNTON, Donna Thornton, and Misty Cliff II Condominiums Association, and Blomgren Family Trust, Bill B. Blomgren and Larilyn A. Blomgren, Trustees, and Misty Cliff I Condominiums Association, Jim Etzler and Beverly Etzler, Plaintiffs and Appellants, v. Flathead County, a political subdivision, Board of County Commissioners of Flathead County, in its official capacity, Clerk and Recorder of Flathead County, in her official capacity, et al., Defendants and Appellees.
CourtMontana Supreme Court

For Appellants: Michael A. Ferrington; Attorney at Law, Whitefish, Montana (for Jim Etzler and Beverly Etzler), James C. Bartlett; Attorney at Law, Kalispell, Montana (for Dennis Thornton, Donna Thornton, Misty Cliff II Condominium Association, Blomgren Family Trust, Bill B. Blomgren and Larilyn A. Blomgren, Trustees, and Misty Cliff I Condominiums Association).

For Appellees: Alan F. McCormick; Garlington, Lohn & Robinson, Missoula, Montana (for Flathead County), Peter A. Steele; Office of the County Attorney, Kalispell, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Jim and Beverly Etzler (Etzlers), Blomgren Family Trust (Blomgrens), and Dennis and Donna Thornton (Thorntons) (collectively Appellants) appeal from an order of the Eleventh Judicial District Court, Flathead County, granting Flathead County's (County) motion for summary judgment. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 Whether Appellants' properties were correctly required to complete subdivision review for their condominium projects.

¶ 4 Whether the District Court correctly granted summary judgment to Flathead County.

¶ 5 Whether recording certain condominium documents bars Flathead County's actions under theories of estoppel or waiver.

¶ 6 Whether the District Court abused its discretion by denying Etzlers' motion to amend their complaint.

BACKGROUND

¶ 7 This is a case about condominium exemptions from subdivision review. The District Court consolidated two cases challenging the County's refusal to allow the filing of transfer deeds for condominiums until the projects completed subdivision review. The particular facts presented by Appellants are similar, but addressed separately here.

¶ 8 On October 19, 2006, Etzlers recorded a declaration and bylaws for a residential condominium project containing 31 buildings and 124 condominium units on real property near Lakeside. The Clerk and Recorder's Office accepted the documents for recording. Etzlers previously obtained subdivision approval on the same real property for a five-lot subdivision (plus one remainder lot) for single-family dwellings. The original subdivision approval did not contemplate construction of condominiums. The real property comprising the proposed Osprey Ridge condominium project is located in the County's Scenic Corridor Zoning District.

¶ 9 On August 1, 2006, Blomgrens recorded a declaration of residential condominiums and related documents with the Flathead County Clerk and Recorder for a residential condominium project containing four buildings and 105 condominium units. The Clerk and Recorder's Office accepted the documents for recording. The real property comprising the proposed Misty Cliff I condominium project is not within any zoning district and the project has not been constructed. The parcel for the condominium project was created prior to enactment of the Montana Subdivision and Platting Act of 1973 (Subdivision Act).

¶ 10 On July 25, 2006, Thorntons recorded a declaration of residential condominiums and related documents with the Flathead County Clerk and Recorder for a residential condominium project containing 17 buildings and 385 condominium units. The Clerk and Recorder's Office accepted the documents for recording. The real property comprising the proposed Misty Cliff II condominium project is not within any zoning district and the project has not been constructed. The parcel for the condominium project was created prior to enactment of the Subdivision Act.

¶ 11 When the County learned that Appellants recorded the documents purporting to create condominium projects without subdivision review, the County informed the Clerk and Recorder's Office not to accept deeds for the condominium developments and posted a reminder notice in order to prevent construction of the projects and transfers of any condominium units until Appellants obtained subdivision approval in accordance with the Subdivision Act. Appellants sued. The District Court granted summary judgment to the County on January 14, 2009. Appellants appeal from that order.

STANDARD OF REVIEW

¶ 12 This Court reviews a district court's conclusions of law to determine whether its interpretation is correct. Bitterrooters for Planning v. Bd. of Co. Commrs. of Ravalli Co., 2008 MT 249, ¶ 12, 344 Mont. 529, 189 P.3d 624.

¶ 13 This Court reviews summary judgment rulings de novo, applying the same criteria as the district court based on M.R. Civ. P. 56. Peterson v. Eichhorn, 2008 MT 250, ¶ 12, 344 Mont. 540, 189 P.3d 615. Thus, the moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Peterson, ¶ 12. The evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences are to be drawn in favor of the party opposing summary judgment. Peterson, ¶ 12. "Once the moving party has met its burden, the party opposing summary judgment must present substantial evidence, as opposed to mere denial, speculation, or conclusory statements, raising a genuine issue of material fact." Peterson, ¶ 13. The determination that the moving party is or is not entitled to judgment as a matter of law is a legal conclusion, which we review for correctness. Peterson, ¶ 13.

¶ 14 This Court reviews a district court's denial of a motion to amend pleadings to determine if the district court abused its discretion. Peuse v. Malkuch, 275 Mont. 221, 226, 911 P.2d 1153, 1156 (1996). Pursuant to M.R. Civ. P. 15(a), a party may amend its pleading by leave of court and leave shall be freely given when justice so requires. An opportunity to amend a pleading is not appropriate, however, when the party opposing the amendment would incur substantial prejudice as a result of the amendment. Peuse, 275 Mont. at 227, 911 P.2d at 1156.

DISCUSSION

¶ 15 Whether Appellants' properties were correctly required to complete subdivision review for their condominium projects.

¶ 16 This issue turns on the interpretation of a statutory exemption from subdivision review for certain condominiums. The Subdivision Act defines condominiums as subdivisions:

"Subdivision" means a division of land or land so divided that it creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and includes any resubdivision and further includes a condominium or area, regardless of its size, that provides or will provide multiple space for recreational camping vehicles or mobile homes.

Section 76-3-103(15), MCA (emphasis added). However, the Subdivision Act also exempts certain condominiums from subdivision review:

Exemption for certain condominiums. Condominiums constructed on land divided in compliance with this chapter are exempt from the provisions of this chapter if:

(1) the approval of the original division of land expressly contemplated the construction of the condominiums and any applicable park dedication requirements in 76-3-621 are complied with; or

(2) the condominium proposal is in conformance with applicable local zoning regulations where local zoning regulations are in effect.

Section 76-3-203, MCA (2005). Thus, a condominium project is exempt from subdivision review if it meets two prerequisites. First, the condominium project must be constructed on "land divided in compliance with this chapter." Second, the condominium project must be either: (1) expressly contemplated at the time of the original approval (i.e. subdivision approval); or (2) in conformance with applicable local zoning regulations where local zoning regulations are in effect. Section 76-3-203, MCA (2005).

Etzlers

¶ 17 The Osprey Ridge condominium project fulfills the first prerequisite of § 76-3-203, MCA (2005), because Etzlers obtained approval in 2005 to subdivide the property into five single-family dwellings in accordance with the Subdivision Act. Etzlers rely on their interpretation of § 76-3-203(2), MCA (2005), as providing them an exemption from subdivision review.

¶ 18 Etzlers argue that the Osprey Ridge condominium project is exempt from additional subdivision review because the property is located within the Scenic Corridor Zoning District. Flathead County Zoning Regulations (Zoning Regulations) define the Scenic Corridor as:

An overlay or standing district intended to protect the scenic vistas and provide greater traffic safety along the highway corridors by restricting the number, size and location of outdoor advertising signs and billboards. This district can function as a standing district or can be applied to zoned areas. If zoned, this district will only regulate off-premise advertising signs.

No other land use restrictions apply in this district other than those relating to signs.

Section 3.32.010. The Zoning Regulations only regulate signs and cellular towers within the Scenic Corridor Zoning District. Etzlers interpret the provision that "[n]o other land use restrictions apply in this district other than those relating to signs" as inferring that condominiums are permitted in the Scenic Corridor, since the Scenic Corridor only regulates signs and cellular towers....

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