Skinner Enterprises, Inc. v. Lewis and Clark County Bd. of Health

• Decision Date: 15 January 1998
• Docket Number: No. 96-043,96-043
• Citation: 950 P.2d 733,286 Mont. 256
• Parties: SKINNER ENTERPRISES, INC., Skinner Enterprises Profit Sharing Trust, and Andy Skinner as Trustee, Petitioners and Appellants, v. LEWIS AND CLARK COUNTY BOARD OF HEALTH, and Lewis and Clark City/County Health Department, Joan Bowsher, Director, Respondents and Respondents.
• Court: Montana Supreme Court

Page 733

950 P.2d 733

286 Mont. 256

SKINNER ENTERPRISES, INC., Skinner Enterprises Profit

Sharing Trust, and Andy Skinner as Trustee, Petitioners and Appellants, v. LEWIS AND CLARK COUNTY BOARD OF HEALTH, and Lewis and Clark

City/County Health Department, Joan Bowsher,

Director, Respondents and Respondents.

No. 96-043.

Supreme Court of Montana.

Argued Sept. 16, 1997.

Submitted Oct. 28, 1997.

Decided Dec. 22, 1997.

Rehearing Denied Jan. 15, 1998.

[286 Mont. 259] Palmer Hoovestal (argued), Helena, for Petitioners and Appellants.

K. Paul Stahl (argued), Deputy County Attorney, Lewis and Clark County, Helena, for Respondents and Respondents.

Claudia Massman, Montana Department of Environmental Quality, Helena, for Amicus Curiae.

John K. Tabaracci, Sullivan & Tabaracci, Missoula, for Amicus Curiae, Montana Association of Realtors TM.

Susan B. Swimley, Deputy County Attorney, Gallatin County, Bozeman, for Amicus Curiae, Gallatin City-County Health Board.

David J. Patterson, University of Montana Law School, Missoula, for Amicus Curiae, Montana Association of Counties.

Martha McClain, Deputy County Attorney, Missoula County, Missoula, for Amicus Curiae, Missoula City-County Board of Health and Department of Health.

REGNIER, Justice.

In July 1995, petitioners Skinner Enterprises, Inc., Skinner Enterprises Profit Sharing On December 11, 1995, the District Court issued an order denying Skinner Enterprises' petition for declaratory judgment and writ of mandamus. Skinner Enterprises appealed, and on February 20, 1997, this Court issued an opinion reversing the decision of the District Court. See Skinner Enterprises, Inc. v. Lewis & Clark Cty. Board of Health (Mont.1997), 54 St. Rep. 113. On March 3, 1997, respondents filed a petition for rehearing pursuant to Rule 34, M.R.App.P. On March 20, 1997, we granted respondents' petition for rehearing and ordered our February 20, 1997, opinion withdrawn. Following the submission of supplemental and amicus briefs, this Court heard oral argument on September 16, 1997. Having reviewed the entire record, we affirm the December 11, 1995, order of the District Court denying Skinner Enterprises' petition for declaratory judgment and writ of mandamus.

Trust, and Andy Skinner as trustee (Skinner Enterprises), filed a petition for a writ of mandamus and declaratory judgment with the First Judicial District Court, Lewis and Clark County. In its petition, Skinner Enterprises asked the court to issue a declaratory judgment that the Lewis and Clark County Board of Health (Board) could not require an intermittent sand filter sewage treatment system for the Green Acres Subdivision, and a writ of mandate ordering the Board to approve the Green Acres Subdivision.

Generally at issue on the present appeal is whether the District Court erred in concluding that the Board is statutorily authorized to regulate sewage treatment systems in the Green Acres Subdivision thereby denying Skinner Enterprises' petition for a writ of mandamus and declaratory relief.

Specifically, we find the following issues dispositive on appeal:

1. Did the District Court err in concluding that the Montana Subdivision and Platting Act authorizes local boards of health to regulate subdivisions, regardless of size?

2. Did the District Court err in its interpretation and application of § 50-2-116(1)(i), MCA?

3. Did the District Court err in implicitly concluding that the Board's own onsite wastewater treatment regulations did not obligate the Board to approve shallow-capped drainfields for the Green Acres subdivision?

4. Did the District Court err in implicitly concluding that local boards of health may promulgate regulations which differ from comparable state regulations?

FACTUAL AND PROCEDURAL BACKGROUND

The Green Acres Subdivision is a proposed twenty-eight parcel subdivision located in the north-central Helena Valley. Skinner Enterprises Profit Sharing Trust is the current owner of Green Acres, and Skinner Enterprises, Inc., is the developer of Green Acres. Andy Skinner is the president of Skinner Enterprises, Inc., and the trustee of Skinner Enterprises Profit Sharing Trust.

Andy Sinner purchased the property from Darwin Lindberg and Charles Westwood on May 10, 1993. Previously, on July 6, 1990, Lindberg had submitted the subdivision plans for Green Acres to the Lewis and Clark County Planning Board and received preliminary plat approval by the County Commissioners. By its terms, the approval was effective for one calendar year with extensions possible upon application. The Lewis and Clark County Commissioners granted this preliminary plat approval pursuant to the Subdivision Regulations of Lewis and Clark County. Shortly thereafter, the Montana Department of Health and Environmental Sciences ¹ issued a conditional subdivision plat approval. On April 23, 1993, the County Commissioners granted a one-year extension of their preliminary plat approval of Green Acres.

Before Skinner Enterprises could file a final subdivision plat, it was necessary for DEQ to review and certify, pursuant to the Sanitation in Subdivisions Act, §§ 76-4-101 The Board refused to approve the plat, maintaining that the local on-site regulations would not permit the use of shallow-capped drainfields at the proposed subdivision site. The Board stated that its regulations, namely section 3.1(1)(d) of the Lewis and Clark County On-Site Wastewater Treatment Regulations, adopted pursuant to § 50-2-116(1)(i), MCA, required intermittent sand filters for each lot of the proposed subdivision. To avoid losing the preliminary plat approval, the parties agreed to enter a Subdivision Improvements Agreement allowing them to litigate the type of sewage system required.

                through -135, MCA, that Green Acres' water supply, sewage, and solid waste disposal facilities would comply with the Act.  Skinner Enterprises therefore submitted the subdivision plans to DEQ for certification of the proposed water supply, sewage, and solid waste disposal systems.  The DEQ issued a Certificate of Subdivision Plat Approval on April 14, 1994, stating that the plans were in compliance with the requirements of the Sanitation in Subdivisions Act, Title 76, chapter 4, of the Montana Code Annotated.  The DEQ specifically required that each individual sewage treatment system "consist of a septic tank and shallow-capped subsurface drainfield of such size and description as will comply with Title 16, Chapter 16, Sub-chapters 1, 3, and 6, ARM."  (Emphasis added.)   The DEQ issued a revised certificate of approval on July 13, 1995
                

Skinner Enterprises requested a variance from section 3.1(1)(d) of the On-Site Wastewater Treatment Regulations, which the Board denied on February 23, 1995. Skinner Enterprises attempted to appeal the Board's decision to the DEQ, but the DEQ refused to hear the appeal on the stated basis that Green Acres was not subject to regulation by the Lewis and Clark County On-Site Wastewater Treatment Regulations promulgated pursuant to § 50-2-116(1)(i), MCA.

On July 3, 1995, Skinner Enterprises filed a petition for writ of mandate and for declaratory judgment. Skinner Enterprises sought a writ of mandate pursuant to §§ 27-26-101 through -403, MCA, ordering the Board to approve the Green Acres subdivision. Skinner Enterprises sought declaratory relief pursuant to §§ 27-8-101 through -313, MCA, asking that the court issue a declaratory judgment stating that the Board could not require an intermittent sand filter sewage treatment system on Green Acres.

The District Court heard oral argument on August 11, 1995, and subsequently denied Skinner Enterprises' petition for declaratory judgment and writ of mandate in a December 11, 1995, order. In its order, the court concluded that local entities, including boards of health, have statutory authority to promulgate and enforce local subdivision sanitation regulations. The court further concluded that local approval of a final subdivision plat is not a ministerial, nondiscretionary legal duty for which a writ of mandate can issue.

On December 12, 1995, Skinner filed a timely notice of appeal from the District Court's order. In a February 20, 1997, decision, this Court reversed the decision of the District Court. See Skinner Enterprises, Inc. v. Lewis & Clark Cty. Board of Health (Mont.1997), 54 St. Rep. 113. In our opinion, we concluded that neither § 50-2-116(1)(i), MCA, nor Title 76, chapter 3, authorized the Board to regulate sanitation in subdivisions such as Green Acres. We additionally held the District Court erred in concluding that the Board's approval of a final subdivision plat pursuant to § 76-4-122, MCA, is a nonministerial, discretionary, legal duty.

On March 3, 1997, respondents filed a petition for rehearing pursuant to Rule 34, M.R.App.P., on the grounds "[t]hat some fact, material to the decision, or some question decisive of the case submitted by counsel, was overlooked by the court, or that the decision is in conflict with an express statute or controlling decision to which the attention of the court was not directed." Among respondents' arguments in support of their petition for rehearing was the allegation that the complete legislative history of § 50-2-116, MCA, to which this Court's attention was not initially directed, clearly indicated the Legislature's intent to permit local boards of health to adopt sanitation regulations applicable to subdivisions. Respondents additionally conceded they failed to advise this Court that the Board in this case On March 20, 1997, this Court granted respondents' petition for rehearing, and ordered our February 20, 1997, opinion withdrawn. See 1997 WL 74145. The DEQ, the Montana Association of Realtors, the Montana Association of Counties, the Gallatin County City-County Health Board, and the Missoula City-County Board of Health each submitted amicus briefs, to which the parties responded.

was created by an interlocal agreement. Respondents contend...