Town & Country Foods v. City of Bozeman

• Decision Date: 10 March 2009
• Docket Number: No. DA 07-0448.,DA 07-0448.
• Citation: 2009 MT 72,203 P.3d 1283
• Parties: TOWN & COUNTRY FOODS, INC., Plaintiff and Appellant, v. CITY OF BOZEMAN, Defendant and Appellee.
• Court: Montana Supreme Court

203 P.3d 1283

2009 MT 72

TOWN & COUNTRY FOODS, INC., Plaintiff and Appellant, v. CITY OF BOZEMAN, Defendant and Appellee.

No. DA 07-0448.

Supreme Court of Montana.

Submitted on Briefs May 28, 2008.

Decided March 10, 2009.

For Appellant: Arthur V. Wittich and Margot E. Barg, Wittich Law Firm, Bozeman, Montana.

For Appellee: Philip F. Walsh, Walsh & McKenna, Bozeman, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The Eighteenth Judicial District Court, Gallatin County, granted summary judgment in favor of the City of Bozeman (the City), affirming the city commission's denial of the application for approval of a site plan proposed by Town and Country Foods, Inc. (T & C).

¶ 2 We restate the issues as follows:

¶ 3 Issue 1: Did the Bozeman city commission violate T & C's constitutional rights to substantive due process and equal protection of the law by denying its application for approval of a site plan?

¶ 4 Issue 2: Was the Bozeman city commission's decision to deny T & C's application an abuse of discretion?

BACKGROUND

¶ 5 T & C desires to build on land it owns in a district zoned B-1 according to the Bozeman Unified Development Ordinance (UDO or Zoning Ordinance). The B-1 zone is a "neighborhood business district" and the size of buildings in the B-1 zone is limited to 5,000 square feet. The intent of the B-1 zone is,

to provide for smaller scale retail and service activities frequently required by neighborhood residents on a day to day basis, as well as residential development as a secondary purpose, while still maintaining compatibility with adjacent residential land uses. Development scale and pedestrian orientation are important elements of this district.

Section 18.18.010(A), UDO.

¶ 6 In 2005, after the City rejected an initial proposal to build a 32,000 square foot store on the subject property, and following several meetings with the planning director and his staff, T & C applied for approval of a new site plan. In its new plan, T & C proposed to build six mini-stores, each serving a different purpose, e.g., a separate pharmacy, bakery, produce market, etc. In an attempt to meet the B-1 size requirement, the plan proposed each mini-store to be under 5,000 square feet in size. The planning director and his staff told T & C its plans complied with the letter of the zoning regulations and that the office of the planning director would recommend approval, but the city commission "may see it differently, and that's their prerogative, it's their discretion to do so...."

¶ 7 In May 2005 at a public meeting, the city commission voted unanimously to "reclaim" T & C's application, rather than leave the decision to the office of the planning director. At this meeting, Jerry Perlinski, the owner of T & C, said he agreed the project belonged with the commission rather than going through the regular channels in the administrative review process.

¶ 8 Two months later, the city commission voted four to one to deny T & C's application. The record reflects that members of the commission verbally stated reasons for the denial at a public meeting and also informed T & C of their reasons for the denial in a letter, the details of which are discussed below. The record indicates that, although each of the mini-stores proposed by T & C complied with the building size requirements of the B-1 zone, the city commission decided the overall aggregate impact of the proposal did not harmonize with the intent of the B-1 zone.

¶ 9 T & C commenced this action, claiming the city commission violated its constitutional right to due process by arbitrarily and capriciously deciding to consider its application itself, rather than allowing the decision to be made by the planning director, and denying the site plan approval application. T & C also alleged that the city commission violated its constitutional right to equal protection of the law because it treated T & C differently from other similarly situated applicants.

¶ 10 The City moved for summary judgment, asserting that because the Zoning Ordinance gave the city commission broad discretion in granting applications for site plan approval, T & C did not have a protected interest in its application, which prevented T & C from establishing its substantive due process and equal protection of the law claims. The District Court granted summary judgment in favor of the City, concluding that because the Zoning Ordinance granted the city commission broad authority and significant discretion in rendering its decision to approve or reject T & C's site plan, T & C did not have a protected property interest in having its application granted. The District Court concluded no material facts were in dispute and the city commission followed proper procedure by stating its findings at the public hearing and reducing its reasons to writing in the denial letter sent to T & C.

¶ 11 T & C appeals, arguing the District Court relied on disputed facts to determine the Zoning Ordinance granted the city commission broad discretion and that the city commission acted arbitrarily and capriciously in reclaiming and denying its application.

STANDARDS OF REVIEW

¶ 12 The standard of review in appeals from summary judgment rulings is de novo. Erler v. Creative Finance & Investments, L.L.C., 2009 MT 36, ¶ 16, 349 Mont. 207, 203 P.3d 744. Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Erler, ¶ 16 (citing M.R. Civ. P. 56). We review questions of law to determine whether the district court's legal conclusions are correct. Erler, ¶ 16.

¶ 13 Section 76-2-227, MCA, authorizes a court reviewing a zoning decision made by a board of adjustment or any officer, department, board, or bureau of the municipality to hold a hearing and reverse, affirm, or modify a zoning decision. In Montana, a district court reviews the zoning authority's decision for an abuse of discretion. Flathead Citizens v. Flathead County Bd., 2008 MT 1, ¶ 32, 341 Mont. 1, 175 P.3d 282; Arkell v. Middle Cottonwood Bd., 2007 MT 160, ¶ 24, 338 Mont. 77, 162 P.3d 856. An abuse of discretion occurs when the information upon which the municipal entity based its decision is so lacking in fact and foundation that it is clearly unreasonable. Flathead Citizens, ¶ 32; North 93 Neighbors, Inc. v. Bd. of Co. Com'rs, 2006 MT 132, ¶ 44, 332 Mont. 327, 137 P.3d 557 (quotation omitted).

¶ 14 This Court does not sit as a super-legislature or super-zoning board. Englin v. Board of County Com'rs, 2002 MT 115, ¶ 16, 310 Mont. 1, 48 P.3d 39; Anderson Ins. v. City of Belgrade, 246 Mont. 112, 120, 803 P.2d 648, 653 (1990). The courts give deference to the decisions of the local board. 83 Am.Jur.2d Zoning and Planning § 677 (2003) (citing Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Tp., 181 F.3d 403 (3rd Cir.1999)).

¶ 15 The record shows the material facts of the instant case—the contents of T & C's application, the process of approval, and the city commission's stated reasons for denial—are not in dispute. Thus, only questions of law remain.

DISCUSSION

¶ 16 Issue 1: Did the Bozeman city commission violate T & C's constitutional rights to substantive due process and equal protection of the law when it denied T & C's application for approval of a site plan?

¶ 17 T & C is challenging the action of the city commission in denying its application. It does not challenge Bozeman's Zoning Ordinance. Under these circumstances, whether the Bozeman city commission acted illegally when it denied T & C's application does not present a constitutional question. In examining a substantive due process claim, a court is concerned with the constitutionality of the underlying rule rather than with the fairness of the process by which the government applies the rule to an individual. Rotunda & Nowak, 2 Treatise on Constitutional Law: Substance and Procedure § 14.6 (2nd ed.1992). This Court has set forth the analysis for evaluating a substantive due process claim:

Substantive due process analysis requires a test of reasonableness of a statute in relation to the State's power to enact such legislation. The essence of substantive due process is that the State cannot use its police power to take unreasonable, arbitrary or capricious action against an individual. In order to satisfy substantive due process guarantees, a statute enacted under a state's police power must be reasonably related to a permissible legislative objective.

Raisler v. Burlington N.R. Co., 219 Mont. 254, 263, 717 P.2d 535, 541 (1985) (citations and internal quotations omitted) (followed in State v. Webb, 2005 MT 5, ¶ 22, 325 Mont. 317, 106 P.3d 521); State v. Egdorf, 2003 MT 264, ¶ 21, 317 Mont. 436, 77 P.3d 517. Substantive due process primarily examines underlying substantive rights and remedies to determine whether restrictions are unreasonable or arbitrary when balanced against the purpose of a government body in enacting a statute, ordinance or regulation. Webb, ¶ 21; Egdorf, ¶ 19. In other words, the test of whether the government denied a party constitutional substantive due process concerns an examination of whether the government, by enacting a piece of legislation, acted in an unreasonable, arbitrary, or capricious fashion.

¶ 18 A constitutional substantive due process analysis is inapplicable under the facts of this case because T & C does not allege Bozeman's Zoning Ordinance is unconstitutional. T & C essentially argues the city commission failed to follow its own ordinance in denying its application and therefore acted arbitrarily and capriciously. We address this argument in Issue 2.

¶ 19 T & C also claims the city commission violated its constitutional right to equal protection of the law when it denied its application. The Fourteenth Amendment to the United States Constitution, and Article II, Section 4, of the Montana Constitution guarantee equal protection of...