North 93 Neighbors v. Bd. of County Com'Rs

Decision Date13 June 2006
Docket NumberNo. 05-179.,05-179.
Citation137 P.3d 557,332 Mont. 327,2006 MT 132
PartiesNORTH 93 NEIGHBORS, INC., Plaintiff and Appellant, v. BOARD OF COUNTY COMMISSIONERS OF FLATHEAD COUNTY, acting as the governing body of the County of Flathead, a government entity, and Wolford Development Montana, LLC, Intervenor, Defendants and Respondents.
CourtMontana Supreme Court

David K.W. Wilson, Jr., Reynolds, Motl & Sherwood, PLLP, Helena, for Appellant.

Alan F. McCormick and William T. Wagner, Garlington, Lohn & Robinson, PLLP, Missoula, for Respondent Flathead County Board of Commissioners.

Kristin L. Omvig and Scott D. Hagel, Crowley Haughey Hanson Toole & Dietrich, PLLP, Ken Kalvig, Scott & Kalvig, Kalispell, for Respondent Wolford Development Montana, LLC.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 A citizens' group challenges the decision of its local elected officials to amend various planning documents to facilitate the development of a large suburban shopping mall on land that formerly had been used for agricultural purposes. The citizens' group, North 93 Neighbors, Inc. (Neighbors), appeals from an order of the Eleventh Judicial District, Flathead County, affirming the Flathead County Board of Commissioner's (Board) decisions to amend the Flathead County Growth Policy (Growth Policy) and to amend portions of the Flathead County Zoning Regulations (Zoning Regulations). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

¶ 2 Neighbors present the following issues on appeal:

¶ 3 1. Whether the Board developed a factual record sufficient to overcome Neighbors's claim that it abused its discretion by failing to support its decisions to amend the Growth Policy and the Zoning Regulations with independently adopted findings of fact.

¶ 4 2. Whether the Growth Policy documents suffer from fatal internal inconsistencies.

¶ 5 3. Whether the Wolford Amendment conflicts with the Growth Policy.

¶ 6 4. Whether the Zoning Amendment constitutes illegal spot zoning.


¶ 7 This case involves the long, convoluted, and sometimes fractious history of planning and zoning in Flathead County. The Board and the Kalispell City Council created the Kalispell City-County Planning Board in 1965. Flathead County and the cities of Kalispell, Whitefish, and Columbia Falls established the Flathead Regional Development Office (FRDO) in 1971 to provide planning staff and administrative services for Flathead County and the three cities. The Board and the Kalispell City Council adopted the Kalispell City-County Master Plan (City-County Plan) in 1986.

¶ 8 The City-County Plan includes a master plan map and goals in twelve specific areas, including growth management, environment, economy, land use, and agriculture, along with specific objectives for each of these goals. The Board also adopted the Flathead County Master Plan (County Plan) in 1987 to cover those areas not otherwise covered by the City-County Plan. The County Plan discusses five elements: agriculture, land use, transportation, public facilities, and parks and open space.

¶ 9 Growth pressure in Flathead County soon spelled the end of county-wide and cooperative planning efforts. For our purposes, the first chink in county-wide planning came when the Board adopted the Stillwater Neighborhood Plan (Stillwater Plan) as an amendment to both the County Plan and the City-County Plan in 1990. The Board then revised the Stillwater Plan in 1992 to include an additional 40 acres for a total plan area of 340 acres. The Stillwater Plan provides for the construction of a golf course, hotel and conference center, commercial development, and residential single-family and townhouse development. The Board zoned the property as resort commercial, residential apartment, and suburban agriculture consistent with the Stillwater Plan. The Stillwater Plan never materialized, but the planning and zoning amendments remained in effect.

¶ 10 Flathead County withdrew from the FRDO and the 1971 planning agreement with the City of Kalispell in 2001. The Flathead County Planning and Zoning Office (Planning Office) now provides planning and zoning administrative staff and services for Flathead County. The Board extended the jurisdiction of the Flathead County Planning Board (Planning Board) to include that portion of the county outside of the City of Kalispell that previously had been included in the jurisdictional area of the Kalispell City-County Planning Board. The Board created a new Growth Policy in August of 2003 by combining the County Plan with those portions of the City-County Plan that covered lands outside the City of Kalispell.

¶ 11 Wolford Development Montana, LLC (Wolford) entered this Balkanized planning process when it submitted a request to the Planning Office. Wolford sought to amend the Growth Policy by revising and expanding the Stillwater Plan in order to accommodate the proposed Glacier Mall (Mall). Wolford's proposal (Wolford Amendment) sought to increase the size of the Stillwater Plan from 340 acres to 481 acres to accommodate a commercial, office and residential development. The Wolford Amendment proposed 271 acres for commercial, 64 acres for mixed use, 141 acres of suburban agriculture, and five acres for construction of a road. Wolford's application indicated that it proposed to set the agricultural land aside for the possible development of an on-site wastewater treatment and disposal system.

¶ 12 The Planning Office reviewed Wolford's application and submitted a report to the Planning Board and the Board. The Planning Office concluded that the Wolford Amendment complied with the Growth Policy. The Planning Board held a public hearing on September 10, 2003, to consider the Wolford Amendment. The Planning Board adopted the Planning Office's report as findings of fact and recommended that the Board approve the amendment.

¶ 13 The Board then passed a resolution of intent to consider the Wolford Amendment on September 29, 2003. The Board gave notice that it would take written public comment on the Wolford Amendment before October 31, 2003. More than four thousand members of the public submitted public comment on the proposal, with over 57 percent opposing the Wolford Amendment. The Board held a public meeting on November 5, 2003, wherein it voted to approve the Wolford Amendment despite the public opposition to the proposal. The Board passed a resolution adopting the Wolford Amendment to the Growth Policy that same day. The Board did not prepare or adopt any independent findings to support its decision and the Board did not analyze or discuss any of the issues raised by the public comments in its decision.

¶ 14 Wolford submitted an application to the Planning Office to rezone the now 481 acres within the Stillwater Plan boundaries on August 25, 2003, in anticipation of the Board's decision to amend the Growth Policy. The Planning Office issued a report for the zoning change, noting that approval of the zoning change depended on approval of the amendment to the Growth Policy. The Planning Office's report further noted that the proposed development would have a significant impact on traffic and "should be connected to public water and sewer as soon as practical." The Planning Board held a public meeting on the zoning change on November 13, 2003. Eight people spoke in favor and four people spoke in opposition to the zoning change (Zoning Amendment). The Planning Board voted to support the proposed Zoning Amendment and recommended its passage to the Board that same day.

¶ 15 The Board held a public meeting on December 23, 2003, to consider the Zoning Amendment. Thirty members of the public spoke at the meeting in addition to Wolford's representatives. Fourteen people spoke in favor and 16 spoke in opposition to the Zoning Amendment, including three of Neighbors's board members. The Board unanimously voted to approve the Zoning Amendment immediately following the close of the public comment period. The Board again did not issue any independent findings of fact to support its decision, but the Board did state in its decision that it considered issues raised through the public comment process. The Board granted final approval of the Zoning Amendment on February 4, 2004.

¶ 16 Neighbors brought this action in the Eleventh Judicial District, Flathead County, challenging the Board's decisions to amend the Growth Policy and Zoning Regulations. Wolford intervened. The parties submitted cross-motions for summary judgment. The District Court denied Neighbors's motion for summary judgment and granted the Board's and Wolford's motions. This appeal followed.


¶ 17 We review a district court's grant of summary judgment de novo, applying the same evaluation under Rule 56, M.R.Civ.P., as the district court. Richards v. Knuchel, 2005 MT 133, ¶ 12, 327 Mont. 249, ¶ 12, 115 P.3d 189, ¶ 12. We review a district court's conclusions of law to determine if they are correct. Richards, ¶ 12.

¶ 18 Amending a growth policy or a zoning designation constitutes a legislative act. Section 7-1-104, MCA. Courts review challenges to a governing body's decision for an abuse of discretion. Schanz v. City of Billings (1979), 182 Mont. 328, 335, 597 P.2d 67, 71.


¶ 19 1. Whether the Board developed a factual record sufficient to overcome Neighbors's claim that it abused its discretion by failing to support its decisions to amend the Growth Policy and the Zoning Regulations with independently adopted findings of fact.

A. Growth Policy

¶ 20 Neighbors contend that the Board's amendment of the Growth Policy without issuing independent findings of fact in support rendered its decision unlawful, an abuse of discretion, and arbitrary and capricious. They argue that the Planning Office's report cannot serve as a substitute in light of...

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