Mm & I Llc v. Bd. of County Commissioners of Gallatin County

• Citation: 246 P.3d 1029,2010 MT 274,358 Mont. 420
• Decision Date: 21 December 2010
• Docket Number: No. DA 10–0069.,DA 10–0069.
• Court: United States State Supreme Court of Montana
• Parties: MM & I, LLC, a Montana Limited Liability Company, Plaintiff and Appellant,v.BOARD OF COUNTY COMMISSIONERS OF GALLATIN COUNTY, a political subdivision of the State of Montana, and John Does 1 through 3, Defendants and Appellees.

358 Mont. 420

246 P.3d 1029

2010 MT 274

MM & I, LLC, a Montana Limited Liability Company, Plaintiff and Appellant,

v.BOARD OF COUNTY COMMISSIONERS OF GALLATIN COUNTY, a political subdivision of the State of Montana, and John Does 1 through 3, Defendants and Appellees.

No. DA 10–0069.

Supreme Court of Montana.

Submitted on Briefs Sept. 15, 2010.Decided Dec. 21, 2010.

For Appellant: Michael S. Kakuk, Kakuk Law Offices, PC, White Sulphur Springs, Montana.For Appellee: Jennifer L. Farve, Moore, O'Connell & Refling, P.C., Bozeman, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.

[358 Mont. 421] ¶ 1 MM & I, LLC (MM & I) appeals an order of the District Court for the Eighteenth Judicial District, Gallatin County, granting the Gallatin County Board of County Commissioners' (the Commission) Motion for Summary Judgment regarding its denial of MM & I's subdivision application.

¶ 2 MM & I raises three issues on appeal which we have restated as follows:

¶ 3 1. Whether the District Court abused its discretion in refusing to consider post-hearing deposition testimony of members of the Commission.

¶ 4 2. Whether the District Court erred in concluding that the Commission's denial of MM & I's subdivision application was not arbitrary and capricious.

¶ 5 3. Whether the District Court erred in ruling that the Commission did not violate § 76–3–608(5)(b), MCA.

Factual and Procedural Background

¶ 6 In the fall of 2002, MM & I applied for preliminary plat approval of the Riverfront Park Subdivision consisting of 143 single family lots ranging in size from one-half to one acre and one condominium lot on 1.6 acres. The proposed subdivision would be located east of Belgrade off Spain Bridge Road, near its intersection with Airport Road, and adjacent to the East Gallatin River. Because MM & I's proposed subdivision met with opposition from neighbors and adjoining landowners, MM & I withdrew its application in favor of a revised application which MM & I submitted to the Belgrade City–County Planning Board (the Board) in May 2003. This revised application reduced the density of the subdivision from 143 single family lots with one condominium lot to 135 single family lots with one lot for up to 16 condominiums. The revised application also included plans for a community well and septic system, and reconfigured the layout of the lots. By a vote of three to two, the Board recommended conditional preliminary plat approval of the subdivision.

¶ 7 MM & I's subdivision application came before the Commission on June 3, 2003. There was substantial opposition to the subdivision in the form of public comments, letters, and material submitted prior to the hearing. The Commission reconvened on June 24, 2003, to discuss the proposed subdivision and issue its findings. Citing unmitigated impacts to the statutory primary review criteria, the Commission denied the application by a vote of two to one.

¶ 8 MM & I brought suit against the Commission on September 10, 2003, pursuant to § 76–3–625, MCA, seeking to overturn the Commission's denial of their subdivision application and seeking damages for lost profits. However, almost three years elapsed before MM & I served its lawsuit on the Commission.

¶ 9 On December 31, 2008, the Commission moved for summary judgment requesting dismissal of all claims against it on the grounds that it's denial of the application was supported by law and fact, and was not arbitrary, capricious or unlawful. MM & I filed a cross motion for summary judgment arguing that there was no evidence in the record to support the Commission's findings of unmitigated impacts from the proposed subdivision, thus denial of the preliminary plat was unlawful. The parties agreed that no issues of material fact were in dispute. The District Court heard oral argument on the motions on April 20, 2009.

¶ 10 On December 16, 2009, the District Court issued an order wherein it granted the Commission's motion for summary judgment and denied MM & I's motion. The court reasoned that the Commission's denial of MM & I's subdivision application was not random, unreasonable or unmotivated because the Commission considered the testimony and evidence before it; applied the facts to the relevant and appropriate review criteria from the subdivision regulations and statutes; commented on the information presented; and explained its reasons for the denial at the public hearing and in its written order. Based on this record, the court determined that the Commission's denial of MM & I's subdivision application was not arbitrary, capricious or unlawful. MM & I appeals the court's decision.

Standard of Review

¶ 11 We review a District Court's order granting summary judgment de novo. Goettel v. Estate of Ballard, 2010 MT 140, ¶ 10, 356 Mont. 527, 234 P.3d 99 (citing Waters v. Blagg, 2008 MT 451, ¶ 8, 348 Mont. 48, 202 P.3d 110; Bowyer v. Loftus, 2008 MT 332, ¶ 6, 346 Mont. 182, 194 P.3d 92). In doing so, we apply the criteria contained in M.R. Civ. P. 56 to determine whether the moving party has established both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Goettel, ¶ 10 (citing Watson v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, 136 P.3d 973; Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, 119 P.3d 47).

¶ 12 In addition, we review a district court's findings of fact to determine if those findings are clearly erroneous. Goettel, ¶ 11 (citing Watson, ¶ 17; Ramsey v. Yellowstone Neurosurgical Assocs., 2005 MT 317, ¶ 13, 329 Mont. 489, 125 P.3d 1091). We also review a district court's conclusions of law for correctness. Goettel, ¶ 11 (citing Watson, ¶ 17; Galassi v. Lincoln County Bd. of Com'rs, 2003 MT 319, ¶ 7, 318 Mont. 288, 80 P.3d 84).

Discussion

¶ 13 Although this was not one of the issues raised by the Commission on appeal, we feel it necessary to point out as a preliminary matter that service of process should be made promptly. In this case, the Commission denied MM & I's proposed preliminary plat in a written order dated August 11, 2003, and MM & I filed this action in the District Court on September 10, 2003. However, MM & I did not perfect service on the Commission until September 8, 2006.

¶ 14 Section 76–3–625(2), MCA, requires a party who is aggrieved by a decision of a governing body approving or denying an application for a proposed subdivision or final subdivision plat, to appeal to the district court within 30 days from the date of the written decision. Here, the appeal was timely filed, but inexplicably, MM & I did not serve its complaint for judicial review until nearly three years later.

¶ 15 The appeal process in subdivision approval cases is meant to provide judicial review of an administrative action. See § 76–3–625, MCA. While the Montana Subdivision and Platting Act (the MSPA) (Title 76, chapter 3, MCA) is not by its terms expressly controlled by the Montana Administrative Procedure Act (MAPA) (Title 2, chapter 4, MCA), MAPA is nonetheless instructive. We have previously looked to administrative law procedures and standards of review in interpreting the MSPA. See e.g. Aspen Trails Ranch, LLC v. Simmons, 2010 MT 79, ¶ 16, 356 Mont. 41, 230 P.3d 808 (the governing body is held to the same “hard look” standard as agencies when reviewing environmental assessments); Richards v. County of Missoula, 2009 MT 453, ¶ 37, 354 Mont. 334, 223 P.3d 878 (district courts sit in judicial review of the governing body and must look to the record); Madison River R.V. Ltd. v. Town of Ennis, 2000 MT 15, ¶ 30, 298 Mont. 91, 994 P.2d 1098 (applying the “arbitrary and capricious” standard of review to governing body decisions). Under MAPA, aggrieved parties must appeal final decisions within 30 days—the same time limit as is required under the MSPA. Moreover, under MAPA, appeals from a final administrative decision must be “promptly served upon the agency and all parties of record.” Section 2–4–702(2)(a), MCA. No similar requirement is expressly imposed in the MSPA.

¶ 16 Because appeals in MSPA matters are akin to other administrative appeals, service of such appeals should be “prompt.” Presumably, there is a 30–day window for appeal to the district court by a party seeking to overturn a decision approving or denying a subdivision application so as to bring reasonably swift finality to the subdivision process. Allowing three years to accomplish service of such appeals, as permitted in civil actions under M.R. Civ. P. 4E(1), is counterproductive of this goal and frustrates the intent of the MSPA.

¶ 17 What constitutes “prompt” service is a determination to be made under the facts of each case. In Rierson v. State, 188 Mont. 522, 614 P.2d 1020 (1980), the plaintiff appealed from a decision of the district court dismissing his petition for judicial review of an administrative decision for lack of “prompt” service. In affirming the district court's dismissal, this Court stated: “[T]he plain meaning of ‘promptly’ is ready and quick to act, depending largely on the facts of each cause.” Rierson, 188 Mont. at 527, 614 P.2d at 1023. The Court in Rierson concluded that a delay of sixteen and one-half months before serving the amended complaint was not reasonable under the facts there at issue. The Court further rejected the argument that M.R. Civ. P. 41(e) (now M.R. Civ. P. 4E(1)) applies to service of petitions on agencies for judicial review of administrative decisions. Rierson, 188 Mont. at 527, 614 P.2d at 1023.

¶ 18 While service of process in the case before us on appeal was technically timely, it certainly was not prompt. It is evident that MM & I's delay in serving its summons and complaint not only delayed significantly review of the matter at issue here, but, as well, severely impaired the Commission's ability to defend, after the fact, its actions with respect to MM & I's subdivision application. Delay in serving process in MSPA judicial review actions serves no one. Accordi...