LIBERTY COVE, INC. v. Missoula County, No. DA 09-0183.

• Docket Nº: No. DA 09-0183.
• Citation: 353 Mont. 286, 220 P.3d 617, 2009 MT 377
• Case Date: November 10, 2009
• Court: United States State Supreme Court of Montana

220 P.3d 617
2009 MT 377
353 Mont. 286

LIBERTY COVE, INC., Plaintiff and Appellant,
v.
MISSOULA COUNTY, Defendant and Appellee.

No. DA 09-0183.

Supreme Court of Montana.

Submitted on Briefs September 23, 2009.

Decided November 10, 2009.

220 P.3d 618

For Appellant: Cory R. Gangle; Milodragovich, Dale, Steinbrenner & Nygren, P.C., Missoula, Montana.

For Appellee: Fred Van Valkenburg, Missoula County Attorney; D. James McCubbin, Deputy County Attorney, Missoula, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Liberty Cove, Inc. (Liberty Cove) appeals from an order of the Fourth Judicial District Court, Missoula County, affirming the Missoula County Board of County Commissioners' (County Commissioners) decision to adopt interim zoning banning, for one year, development of gravel pits on Liberty Cove's property. We affirm.

¶ 2 Liberty Cove argues that Missoula County's decision to enact interim zoning was arbitrary and capricious, and violated Montana law. Specifically, Liberty Cove challenges the zoning decision by raising the following issues for review:

220 P.3d 619

¶ 3 Whether the District Court erred in concluding there was an emergency to justify interim zoning.

¶ 4 Whether the District Court erred in concluding that Missoula County gave proper notice before adopting interim zoning.

¶ 5 Whether the District Court erred in concluding that the interim zoning adopted by Missoula County did not constitute illegal reverse spot zoning.

BACKGROUND

¶ 6 Liberty Cove appeals an interim zoning decision by the Missoula County Commissioners for an area north of Lolo. The Missoula County Board of County Commissioners enacted interim zoning to address public health and safety concerns regarding a proposal to establish a gravel mining, crushing, and asphalt production operation on property owned by Liberty Cove. The concerns arose from the possibility that the mining applicant would receive a mining permit without any substantive environmental review by the Montana Department of Environmental Quality (DEQ) and because the mining applicant indicated that they could avoid oversight of traffic impacts by the Montana Department of Transportation (MDT).

¶ 7 On April 28, 2006, Liberty Cove entered into a purchase agreement with JTL Group, Inc. (JTL) (now Knife River) for "construction of a lake" on Liberty Cove's property. JTL contracted for the gravel mining operations. An open-cut mining permit from DEQ was required in order to dig the lake and remove gravel. JTL requested a zoning compliance permit from Missoula County as part of the mining permit application process. The County granted the zoning compliance permit on March 8, 2006, noting that the site location was not zoned. DEQ deemed the mining permit application complete in January 2007.

¶ 8 Missoula County received complaints from Lolo residents requesting the County enact interim zoning to address environmental and traffic concerns at the site. The County held a public meeting on December 19, 2007, to discuss imposing interim zoning to preclude mining operations. At that time, the County Commissioners did not find an emergency to justify interim zoning, because environmental concerns would be subject to DEQ review of the mining permit application, and traffic concerns would be addressed by MDT review of the application for a permit to access Highway 93, then the only access to the gravel pit proposed.

¶ 9 On May 23, 2008, JTL sued DEQ seeking a court order that DEQ issue a permit for the proposed mining operation. Since other district court orders had granted this relief, the County Commissioners were concerned that DEQ could issue a permit without substantive environmental review. The County also learned that JTL might pursue a different access to the gravel pit that would not require a MDT permit and thus would not be subject to any regulatory review regarding public health and safety.

¶ 10 The County Commissioners scheduled a public meeting for May 30, 2008, to address these issues and the possibility of enacting interim zoning. The County posted notice of the meeting on its website and issued a press release announcing the meeting, which resulted in a prominent front page article in the Missoulian. The County Commissioners received significant public comment prior to making a decision, including comment from JTL and Liberty Cove. The County Commissioners then determined that an emergency existed due to changed circumstances caused by JTL and enacted interim zoning to address the emergency. The interim zoning placed various residential designations on the area where Liberty Cove's property is located.

¶ 11 Liberty Cove challenged the County's interim zoning on June 26, 2008, and the District Court affirmed the County's action on March 3, 2009. Liberty Cove now appeals.

STANDARD OF REVIEW

¶ 12 A local government's zoning designation constitutes a legislative act, which courts review for abuse of discretion. North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557. A zoning ordinance

220 P.3d 620

is entitled to a presumption of validity and reasonableness. Schanz v. City of Billings, 182 Mont. 328, 335, 597 P.2d 67, 71 (1979). This Court reviews a district court's conclusions of law to determine if they are correct. North 93 Neighbors, ¶ 17. We review de novo a district court's interpretation of statutes. Fasbender v. Lewis and Clark Co. Bd. of Co. Commrs., 2009 MT 323, ¶ 11, 352 Mont. 505, 218 P.3d 69

DISCUSSION

¶ 13 Whether the District Court erred in concluding there was an emergency to justify interim zoning.

¶ 14 Interim zoning is provided for by § 76-2-206, MCA (2007):

(1) The board of county commissioners may adopt an interim zoning map or regulation as an emergency measure in order to promote the public health, safety, morals, and general welfare if:

(a) the purpose of the interim zoning map or regulation is to classify and regulate those uses and related matters that constitute the emergency; and

(b) the county:

(i) is conducting or in good faith intends to conduct studies within a reasonable time; or

(ii) has held or is holding a hearing for the purpose of considering any of the following:

(A) a growth policy;

(B) zoning regulations; or

(C) a revision to a growth policy, to a master plan, as provided for in 76-1-604(6) and 76-2-201(2), or to zoning regulations pursuant to this part.

(2) An interim resolution must be limited to 1 year from the date it becomes effective. The board of county commissioners may extend the interim resolution for 1 year, but not more than one

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