Lake County First v. Polson City Council
| Decision Date | 29 September 2009 |
| Docket Number | No. DA 07-0659.,DA 07-0659. |
| Citation | 218 P.3d 816,2009 MT 322,352 Mont. 489 |
| Parties | LAKE COUNTY FIRST, a Montana non-profit corporation, Greg Hertz, Meredith B. Pollack, Donald C. Pollack, Marion H. Rosa, Peter W. Stone, Dick Molenda, Stanley Petersen, Dorothy L. Peterson, Does 1 through 100, individuals, Plaintiffs and Appellants, v. POLSON CITY COUNCIL, Mark MacDonald, Bruce Agrella, Tom Jones, Mike Lies, Fred Funke and Tom Corse, in their capacity as Councilpersons of the Polson City Council; Jules Clavadetscher, as Mayor of the City of Polson and as former Councilperson of the Polson City Council; Wal-Mart Stores, Inc., a corporation; Wal-Mart Realty Company, a corporation; Does 1 through 10, individuals, corporations, and political subdivisions, Defendants and Appellees. |
| Court | Montana Supreme Court |
For Appellants: Martin S. King; Worden Thane, P.C.; Missoula, Montana.
For Appellees: Alan L. Joscelyn, Dennis R. Lopach, Jeffrey M. Hindoien; Gough, Shanahan, Johnson, & Waterman; Helena, Montana (Attorneys for Wal-Mart), James Raymond; Raymond Law Office PLLP; Polson, Montana (Attorney for City of Polson).
¶ 1 Defendants Wal-Mart Stores, Inc. and Wal-Mart Realty Company (collectively "Wal-Mart") applied for a zoning change and annexation of property into the City of Polson. Wal-Mart requested that the zoning of their property be changed from a Low Density Residential Zoning District (LRZD) to a Highway Commercial Zoning District (HCZD). The Polson City Council (Council) approved the request. Lake County First, Greg Hertz, Meredith B. Pollack, and others (collectively "Appellants") filed suit against the Council and individual members of the Council in the Twentieth Judicial District Court, Lake County. Wal-Mart intervened. Appellants and Wal-Mart filed cross motions for summary judgment, and the District Court granted Wal-Mart's motion, from which Appellants appeal. We affirm.
¶ 2 Appellants raise numerous issues on appeal, which we restate as follows:
¶ 3 1. Whether the District Court erred by ruling that the Council need not consider the Polson Growth Policy that was adopted shortly before the approval of the zoning amendment.
¶ 4 2. Whether the District Court erred by ruling that the Council need not consider the Lake County Growth Policy and corresponding zone density maps and regulations in approving the zoning amendment.
¶ 5 3. Whether the District Court erred in its review of challenges regarding the Lowe criteria, the Polson Master Plan, and the Polson Development Code.
a. Whether the Council sufficiently considered the Lowe criteria and issued sufficient findings of fact.
b. Whether the Council made incorrect conclusions concerning the Lowe criteria.
c. Whether the Council erred in finding that the zoning amendment substantially complied with the Polson Master Plan.
d. Whether Appellants properly challenged compliance with the Polson Development Code.
¶ 6 4. Whether the zoning amendment constitutes illegal spot zoning.
¶ 7 5. Whether Appellants' constitutional due process rights to know and participate were violated by adoption of the zoning amendment.
¶ 8 6. Whether Wal-Mart's substitution of Judge Deschamps was untimely and should have been denied.
¶ 9 Wal-Mart obtained a property interest in approximately twenty-eight acres of land zoned LRZD lying on the east side of Highway 93 as it enters Polson from the south. In the fall of 2005, Wal-Mart submitted "pre-application" materials to the City of Polson Planning Department (Department) seeking a change in the zoning designation to HCZD, approval of a three-lot subdivision, and annexation into the City of Polson.1 Wal-Mart appeared before the City/County Planning Board (Planning Board or Board) in October 2005 and received comments from both Board members and the public concerning the proposed development. Wal-Mart then conducted various studies to address the issues raised during that public meeting. In March 2006, Wal-Mart submitted an application to the Department requesting approval of a Special Use Permit, approval of a subdivision, a zoning amendment, and annexation of the property by the City. Wal-Mart's zoning change request was contingent upon approval of the annexation request. The subdivision request served to separate the twenty-eight total acres into three lots: Lot 1, an approximately eighteen-acre Wal-Mart Supercenter site; Lot 2, an approximately one-acre site to the south of Lot 1; and Lot 3, an approximately nine-acre lot to the east of Lot 1.
¶ 10 On May 9, 2006, the Planning Board conducted a public meeting concerning the application and received public comment. The Department provided a staff report (Department's Report) to the Board analyzing the factual circumstances and the legal requirements related to the application. The Department's Report included findings of fact, which were referenced for both the subdivision request and the zoning amendment. The Report recommended that, upon conditions, the Planning Board should recommend approval of the application to the City Council. The Board conducted a public hearing at which the Department presented its Report to the Board, Wal-Mart made a presentation about the proposal, and extensive public comments were received. The Board then discussed the application and voted to approve the Special Use Permit, recommend that the Council approve the subdivision, and recommend that the Council deny the zoning change. The Board does not review annexation requests.
¶ 11 On June 29, 2006, the Council met to consider the application. The Department discussed its Report, Wal-Mart made a presentation about the proposal, and the Council heard extensive public comments. The Council then voted to approve the subdivision and annexation requests. The Council approved the zoning amendment as to Lots 1 and 2 but denied the zoning change requested for Lot 3, leaving its designation as residential. The zoning change to Lots 1 and 2 was enacted by the Council as Ordinance 623.
¶ 12 Simultaneously with the processing of Wal-Mart's application, the City developed and adopted a new growth policy. That process began in January 2005 and continued through June 19, 2006, when the Council adopted the Polson Growth Policy (PGP). Prior to adoption of the PGP, the Polson Master Plan (PMP) was the City's comprehensive planning document. Also relevant to the application was the Polson Development Code (PDC), a set of regulatory requirements aimed at implementing the policies of the PMP.
¶ 13 Appellants filed this action in District Court challenging the Council's approval of the zoning amendment. Wal-Mart intervened in the suit. Other than filing an answer, the Council did not participate in the litigation. The District Court heard cross motions for summary judgment and found in favor of Wal-Mart. Additional facts will be discussed herein.
¶ 14 This case is before us on a grant of summary judgment. We review district court grants of summary judgment de novo. North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, ¶ 17, 332 Mont. 327, 137 P.3d 557.
¶ 15 Additional standards of review will be discussed herein.
¶ 16 1. Whether the District Court erred by ruling that the Council need not consider the Polson Growth Policy that was adopted shortly before the approval of the zoning change.
¶ 17 As mentioned, development of the new PGP and processing of Wal-Mart's application for zoning change occurred simultaneously, with approval of the PGP coming about ten days prior to the Council's final vote on the zoning amendment. Appellants argue that because the PGP was adopted before the zoning change was finalized, the Council erred by not reconsidering Wal-Mart's application under the PGP. Wal-Mart responds that because the PMP was undeniably the relevant document during the application process, the Council did not need to reconsider the application under the PGP.2
¶ 18 Appellants rely on § 76-1-605(1), MCA (2005), which provides that "[s]ubject to subsection (2), after adoption of a growth policy, the governing body ... must be guided by and give consideration to the ... growth policy in the ... adoption of zoning ordinances or resolutions." However, in turn, subsection (2) provides that "[a] growth policy is not a regulatory document" and that a governing body "may not withhold, deny, or impose conditions on any land use approval or other authority to act based solely on compliance with a growth policy. ..."
¶ 19 Appellants also cite to a provision in the new PGP, which states that the PGP "is intended to help guide present and future development in the City of Polson." (emphasis by Appellants). However, this quote is a snippet from a section of the PGP entitled "Growth Policy Review and Revision," which governs future review and amendment of the Growth Policy for purposes of keeping it current. Taken in its context, this is not a statement about the applicability of the PCP to applications under review when the PGP was adopted.
¶ 20 The District Court concluded that "[n]othing in the record supports the assertion that the PGP was meant to apply retroactively, and equity requires that both the Board and Council consider the application under the same regulation." The District Court's determination distinguishes the PGP from the development code at issue in Town Pump, Inc. v. Bd. of Adjustment of the City of Red Lodge, 1998 MT 294, ¶ 11, 292 Mont. 6, 971 P.2d 349, which contained a retroactivity clause making the code explicitly applicable to pending applications.
¶ 21 The predecessor PMP was the document in effect during virtually the entirety of the review process, from the submission of Wal-Mart's application through the preparation of city reports, review by the Planning Board, and the holding of public hearings. Appellant...
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