A Mont. Nonprofit Pub. Benefit Corp.. v. Bd. Of County Comm'rs Of Cascade County

• Citation: 357 Mont. 61,2010 MT 155,238 P.3d 332
• Decision Date: 16 July 2010
• Docket Number: No. DA 09-0322.,DA 09-0322.
• Parties: PLAINS GRAINS LIMITED PARTNERSHIP, a Montana limited partnership; Plains Grains, Inc., a Montana corporation; Robert E. Lassila and Earlyne A. Lassila; Kevin D. Lassila and Steffani J. Lassila; Kerry Ann (Lassila) Fraser; Daryl E. Lassila and Linda K. Lassila; Dorothy Lassila; Dan Lassila; Nancy Lassila Birtwisle; Christopher Lassila; Joseph W. Kantola and Myrna R. Kantola; Kent Holtz; Holtz Farms, Inc., a Montana corporation; Meadowlark Farms, a Montana Partnership; Jon C. Kantorowicz and Charlotte Kantorowicz; James Feldman and Courtney Feldman; David P. Roehm and Claire M. Roehm; Dennis N. Ward and LaLonnie Ward; Janny Kinion-May; C Lazy J Ranch; Charles Bumgarner and Karla Bumgarner; Carl W. Mehmke and Martha Mehmke; Walter Mehmke and Robin Mehmke; Louisiana Land & Livestock, LLC, a limited liability corporation; Gwin Family Trust, U/A Dated 09 20, 1991; Forder Land & Cattle Co.; Wayne W. Forder and Dorothy Forder; Conn Forder and Jeanine Forder; Robert E. Vihinen and Pennie Vihinen; Violet Vihinen; Robert E. Vihinen, Trustee of Elmer Vihinen Trust; Jaybe D. Floyd and Michael E. Luckett, Trustees of the Jaybe D. Floyd Living Trust; Robert M. Coleman and Helen A. Coleman; Gary Owen and Kay Owen; Richard W. Dohrman and Adele B. Dohrman, Charles Christensen and Yuliya Christensen; Walker S. Smith, Jr. and Tammie Lynne Smith; Jerome R. Thill; and Montana Environmental Information Center, a Montana nonprofit public benefit corporation, Plaintiffs and Appellants, v. BOARD OF COUNTY COMMISSIONERS OF CASCADE COUNTY, the governing body of the County of Cascade, acting by and through Peggy S. Beltrone, Lance Olson and Joe Briggs, Defendants and Appellees, Southern Montana Electric Generation and Transmission Cooperative, Inc.; the Estate of Duane L. Urquhart; Mary Urquhart; Scott Urquhart; and Linda Urquhart, Intervenors, Appellees and Cross-Appellants.
• Court: United States State Supreme Court of Montana

357 Mont. 61

238 P.3d 332

2010 MT 155

PLAINS GRAINS LIMITED PARTNERSHIP, a Montana limited partnership; Plains Grains, Inc., a Montana corporation; Robert E. Lassila and Earlyne A. Lassila; Kevin D. Lassila and Steffani J. Lassila; Kerry Ann (Lassila) Fraser; Daryl E. Lassila and Linda K. Lassila; Dorothy Lassila; Dan Lassila; Nancy Lassila Birtwisle; Christopher Lassila; Joseph W. Kantola and Myrna R. Kantola; Kent Holtz; Holtz Farms, Inc., a Montana corporation; Meadowlark Farms, a Montana Partnership; Jon C. Kantorowicz and Charlotte Kantorowicz; James Feldman and Courtney Feldman; David P. Roehm and Claire M. Roehm; Dennis N. Ward and LaLonnie Ward; Janny Kinion-May; C Lazy J Ranch; Charles Bumgarner and Karla Bumgarner; Carl W. Mehmke and Martha Mehmke; Walter Mehmke and Robin Mehmke; Louisiana Land & Livestock, LLC, a limited liability corporation; Gwin Family Trust, U/A Dated 09 20, 1991; Forder Land & Cattle Co.; Wayne W. Forder and Dorothy Forder; Conn Forder and Jeanine Forder; Robert E. Vihinen and Pennie Vihinen; Violet Vihinen; Robert E. Vihinen, Trustee of Elmer Vihinen Trust; Jaybe D. Floyd and Michael E. Luckett, Trustees of the Jaybe D. Floyd Living Trust; Robert M. Coleman and Helen A. Coleman; Gary Owen and Kay Owen; Richard W. Dohrman and Adele B. Dohrman, Charles Christensen and Yuliya Christensen; Walker S. Smith, Jr. and Tammie Lynne Smith; Jerome R. Thill; and Montana Environmental Information Center, a Montana nonprofit public benefit corporation, Plaintiffs and Appellants,

v. BOARD OF COUNTY COMMISSIONERS OF CASCADE COUNTY, the governing body of the County of Cascade, acting by and through Peggy S. Beltrone, Lance Olson and Joe Briggs, Defendants and Appellees,Southern Montana Electric Generation and Transmission Cooperative, Inc.; the Estate of Duane L. Urquhart; Mary Urquhart; Scott Urquhart; and Linda Urquhart, Intervenors, Appellees and Cross-Appellants.

Supreme Court of Montana. PLAINS GRAINS LIMITED PARTNERSHIP, a Montana limited partnership; Plains Grains, Inc., a Montana corporation; Robert E. Lassila and Earlyne A. Lassila; Kevin D. Lassila and Steffani J. Lassila; Kerry Ann (Lassila) Fraser; Daryl E. Lassila and Linda K. Lassila; Dorothy Lassila; Dan Lassila; Nancy Lassila Birtwisle; Christopher Lassila; Joseph W. Kantola and Myrna R. Kantola; Kent Holtz; Holtz Farms, Inc., a Montana corporation; Meadowlark Farms, a Montana Partnership; Jon C. Kantorowicz and Charlotte Kantorowicz; James Feldman and Courtney Feldman; David P. Roehm and Claire M. Roehm; Dennis N. Ward and LaLonnie Ward; Janny Kinion-May; C Lazy J Ranch; Charles Bumgarner and Karla Bumgarner; Carl W. Mehmke and Martha Mehmke; Walter Mehmke and Robin Mehmke; Louisiana Land & Livestock, LLC, a limited liability corporation; Gwin Family Trust, U/A Dated 09 20, 1991; Forder Land & Cattle Co.; Wayne W. Forder and Dorothy Forder; Conn Forder and Jeanine Forder; Robert E. Vihinen and Pennie Vihinen; Violet Vihinen; Robert E. Vihinen, Trustee of Elmer Vihinen Trust; Jaybe D. Floyd and Michael E. Luckett, Trustees of the Jaybe D. Floyd Living Trust; Robert M. Coleman and Helen A. Coleman; Gary Owen and Kay Owen; Richard W. Dohrman and Adele B. Dohrman, Charles Christensen and Yuliya Christensen; Walker S. Smith, Jr. and Tammie Lynne Smith; Jerome R. Thill; and Montana Environmental Information Center, a Montana nonprofit public benefit corporation, Plaintiffs and Appellants,

v.

BOARD OF COUNTY COMMISSIONERS OF CASCADE COUNTY, the governing body of the County of Cascade, acting by and through Peggy S. Beltrone, Lance Olson and Joe Briggs, Defendants and Appellees,Southern Montana Electric Generation and Transmission Cooperative, Inc.; the Estate of Duane L. Urquhart; Mary Urquhart; Scott Urquhart; and Linda Urquhart, Intervenors, Appellees and Cross-Appellants. No. DA 09-0322. Argued Nov. 18, 2009.Submitted Jan. 27, 2010.Decided July 16, 2010.

COPYRIGHT MATERIAL OMITTED.

For Appellants: Roger M. Sullivan (argued) and John F. Lacey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, Montana, Elizabeth Best, Best Law Offices, Great Falls, Montana.

For Appellees: Alan F. McCormick (argued), Garlington, Lohn & Robinson, Missoula, Montana, Brian J. Hopkins, Cascade County Attorney, Great Falls, Montana (Board of County Commissioners), Gary M. Zadick (argued) and Mary K. Jaraczeski, Ugrin, Alexander, Zadick & Higgins, Great Falls, Montana, (Southern Montana Electric, Estate of Duane Urquhart, Mary Urquhart, Scott Urquhart, Linda Urquhart).

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Plains Grains Limited Partnership (Plains Grains) appeals from an order of the Eighth Judicial District Court, Cascade County, granting summary judgment to the Board of Commissioners of Cascade County (County) and Southern Montana Electric (SME) and denying Plains Grains' spot zoning claim. We reverse.

¶ 2 We review the following issues on appeal:

¶ 3 Did Cascade County's adoption of a new county-wide zoning regulation in 2009 render moot Plains Grains' spot zoning claim?

¶ 4 Did Plains Grains' failure to seek a stay or injunction to prevent the sale or development of the land render moot its spot zoning claim?

¶ 5 Did the rezoning of 668 acres of land from Agricultural to Heavy Industrial constitute impermissible spot zoning?

FACTUAL AND PROCEDURAL BACKGROUND

I. The initial rezone

¶ 6 Duane and Mary E. Urquhart and Scott and Linda Urquhart (Urquharts) sought a zone change from Agricultural (A-2) to Heavy Industrial (I-2) for 668 acres of land in the northeast portion of Cascade County. The Urquharts submitted their rezoning application on October 30, 2007, to allow for the construction and operation of SME's proposed coal-fired power plant, known as the Highwood Generating Station (HGS). SME changed its proposal for the HGS to a natural gas fired plant following the Department of Environmental Quality's revocation of SME's air quality permit. The Urquharts and SME participated jointly in the preparation of the application for rezoning. The Urquharts had agreed to sell the property to SME before the County approved the rezone.

¶ 7 The Urquharts' rezone application claimed that “the requested zoning to heavy industrial use is a prerequisite to the planned construction and operation of an electric generating station.” The Cascade County Planning Department adopted and made public its initial Staff Report on November 19, 2007 (Staff Report). The Staff Report described the surrounding land uses as agricultural for more than twenty acres in every direction. Approximately 200 acres of the land fell within the boundaries of the Lewis and Clark Great Falls Portage National Historic Landmark. The Staff Report cited the Urquharts' attempt to “take advantage of the Tax Increment Financing mechanisms provided in state statutes” as the primary reason that the Urquharts had requested rezoning.

¶ 8 The Staff Report acknowledged that the construction and operation of the HGS would be “out of character with the existing agricultural land uses in the vicinity of the proposed rezoning.” The Staff Report noted, however, that construction and operation of the HGS would not necessarily be “out of character with the land uses allowed under the existing A-2 zoning district.” (Emphasis added). The Staff Report based this conclusion on the fact that the A-2 zone permitted electrical generation facilities through the special use permit process. As a result, the Staff Report determined that “the rezoning is not necessary to accommodate the HGS facility, as such a use is permissible with a special use permit.” The Staff Report further noted that the actual construction of any structures or development of the property would require a zoning location-conformance permit.

¶ 9 SME submitted a letter on January 9, 2008, in response to the Staff Report and the Planning Board's report to the Commissioners. SME's letter contained eleven proposed “conditions” that were intended to address the Planning Board's comments. The SME letter contained, in pertinent part, an agreement by SME that “as a condition of rezoning to heavy industrial use, such use shall be solely for purposes of an electrical power plant.”

¶ 10 Plains Grains claims to have been unaware of the SME letter until the Commission's public hearing on the proposed rezone on January 15, 2008. SME submitted an array of documentation at the public hearing, including a traffic impact study, a baseline noise study, a report on the health impacts of coal-fired power plants, a property appraisal report, and a landscape plan. The County adopted a resolution of intent on January 31, 2008, to rezone the Urquharts' property.

¶ 11 The resolution of intent incorporated by reference the eleven conditions offered in SME's letter. The County published notice of the resolution on four dates over the course of two weeks in February of 2008. The Commissioners met on March 11, 2008, to consider Final Resolution 08-22 to rezone the Urquharts' property from A-2 to I-2. The Commissioners adopted the Planning Board's report as their findings on the proposed rezone. More than 1900 citizens submitted comments on the proposed rezone. The Commission approved the motion to rezone.

II. District Court Proceedings

¶ 12 Plains Grains filed a complaint on April 10, 2008. Plains Grains requested that the court set aside the County's approval of the rezone and requested that the court issue a writ of mandate, a writ of review before this Court, and a declaratory judgment. Plains Grains claimed first that the adoption of the zone change constituted “conditional zoning” and violated the Zoning Enabling Act and statutory and constitutional public notice and participation requirements. Plains Grains also alleged that the zone change constituted impermissible spot zoning. SME and the Urquharts intervened on May 1, 2008. The County and SME responded to Plains Grains complaint with motions for summary judgment that the sale...