LIBERTY COVE, INC. v. Missoula County
| Decision Date | 10 November 2009 |
| Docket Number | No. DA 09-0183.,DA 09-0183. |
| Citation | 353 Mont. 286,220 P.3d 617,2009 MT 377 |
| Parties | LIBERTY COVE, INC., Plaintiff and Appellant, v. MISSOULA COUNTY, Defendant and Appellee. |
| Court | Montana Supreme Court |
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.
¶ 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:
¶ 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.
¶ 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.
¶ 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 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.
¶ 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):
In 2002, the Montana Attorney General issued an opinion on this statute concluding that "both `emergency' and `urgency' measures exist if there is some exigent circumstance impacting the public health, safety and welfare, and zoning is required to address the exigency." 49 Mont. Op. Atty. Gen. No. 23, § IV, http://www.doj.mt.gov/ resources/opinions2002/49-023.pdf (Sept. 26, 2002). "The question of what constitutes an `exigency' is necessarily fact-bound, and under the law it is left largely to the discretion of the local governing body." 49 Mont. Op. Atty. Gen. No. 23, § IV.
¶ 15 Liberty Cove primarily argues that there was no emergency to justify interim zoning. Liberty Cove claims that the sole basis for the emergency was the fact that DEQ had failed to timely issue a permit. Liberty Cove contends that DEQ already reviewed the mining permit application and deemed it complete, that DEQ would retain regulatory responsibilities after issuing a permit, and that Missoula County found that no emergency existed in December 2007. Liberty Cove maintains that no facts or expert testimony support finding an emergency in these circumstances.
¶ 16 At the May 30, 2008, public meeting, the County Commissioners found that:
the application of a permit from the JTL Group, also known as Knife River, constitutes an emergency related to issues of public health, welfare and safety, because the Board of County Commissioners find a deficiency, or failure, of the regulatory process regarding these issues as promulgated by the State of Montana Department of Environmental Quality and the State of Montana Department of Transportation.
More specifically, the interim zoning resolution included findings that "recent legal decisions in the State of Montana may compel DEQ to issue a permit without the review that is normally carried out by DEQ" and "MDT will not be able to require traffic control measures during the operation of the pit that will adequately protect public health and safety." The District Court referenced these findings in concluding that "the Board validly exercised its discretion in enacting interim zoning as they determined based on the facts before them that an interim measure was needed to resolve an exigent circumstance impacting the public health, safety, and general welfare."
¶ 17 We agree with the District Court that "a reasonable emergency existed to enact the interim zoning." In December 2007, the County Commissioners found that no emergency existed because they understood that DEQ would conduct additional environmental review and MDT would address traffic concerns related to the proposed gravel mine. However, by May of 2008, the County Commissioners realized that DEQ could issue a mining permit without additional environmental review and that changes in access to the gravel mine would not require a MDT permit. Since the County Commissioners' earlier findings were based on facts that were no longer applicable, the Board was justified in finding an emergency related to issues of public health, safety, and welfare due to regulatory deficiencies. The County Commissioners were within their discretion as the local governing body in finding an emergency justifying adoption of interim zoning.
¶ 18 Whether the District Court erred in concluding that Missoula County gave proper notice before adopting interim...
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