Williams v. Bd. of Cnty. Comm'rs of Missoula Cnty., No. DA 12–0343.

• Docket Nº: No. DA 12–0343.
• Citation: 371 Mont. 356, 308 P.3d 88
• Case Date: August 28, 2013
• Court: United States State Supreme Court of Montana

371 Mont. 356
308 P.3d 88

L. Reed WILLIAMS, Plaintiff and Appellee,
v.
BOARD OF COUNTY COMMISSIONERS OF MISSOULA COUNTY, the governing body of the County of Missoula, acting by and through Michele Landquist, Bill Carey and Jean Curtiss, Defendants and Appellees,
Liberty Cove, Inc., Paul Rossignol, Norma Rossignol, and Ponderosa Development, Inc., Intervenors and Appellants.

No. DA 12–0343.

Supreme Court of Montana.

Argued April 17, 2013.
Submitted April 23, 2013.
Decided Aug. 28, 2013.

Held Unconstitutional

MCA 76–2–205(6)

[308 P.3d 90]

For Intervenors and Appellants: Cory R. Gangle (argued); Gangle Law Firm, P.C.; Missoula, Montana.

For Appellee L. Reed Williams: Timothy M. Bechtold (argued); Bechtold Law Firm, PLLC; Missoula, Montana.

For Appellee Missoula County: Fred Van Valkenburg; Missoula County Attorney; D. James McCubbin (argued); Deputy County Attorney; Missoula, Montana.

For Amicus Land Use Clinic: Michelle Bryan Mudd, Benjamin S. Sudduth (argued); University of Montana School of Law; Missoula, Montana.

For Amicus State of Montana: Timothy C. Fox; Montana Attorney General; Lawrence Vandyke (argued); Montana Solicitor General; Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[371 Mont. 358]¶ 1 Liberty Cove, Inc., Paul and Norma Rossignol, and Ponderosa Development, Inc. (collectively “Landowners”) utilized the protest provision of § 76–2–205(6), MCA, to block the Board of County Commissioners of Missoula County (Commissioners) from establishing a special zoning district north of Lolo, Montana. L. Reed Williams (Williams) challenged the constitutionality of § 76–2–205(6), MCA, by filing a complaint against Commissioners in Montana's Fourth Judicial District Court, Missoula County, seeking declaratory and injunctive relief. Landowners intervened in the action at the District Court and now appeal from the District Court's order denying their motion to dismiss and granting summary judgment to Williams and Commissioners. We affirm.

ISSUES

¶ 2 We restate the four issues raised by Landowners on appeal as follows:

¶ 3 1. Did the District Court abuse its discretion in denying Landowners' motion to dismiss Williams' complaint for failure to join them as necessary parties under the Montana Uniform Declaratory Judgments Act?

[308 P.3d 91]

¶ 4 2. Did the District Court err in determining that § 76–2–205(6), MCA, was an unconstitutional delegation of legislative power?

¶ 5 3. Did the District Court err in determining that § 76–2–205(6), MCA, was an unconstitutional violation of the right to equal protection [371 Mont. 359]and the right to suffrage?

¶ 6 4. Did the District Court err when it ruled that § 76–2–205(6), MCA, was severable from the remainder of the statute?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On September 8, 2009, Commissioners and the Lolo Community Council held a joint public meeting to solicit public testimony concerning the development of a zoning proposal for an area north of Lolo, Montana. Public testimony at this meeting indicated that support existed for the development of a zoning proposal. Following the joint public meeting, Commissioners directed their staff to work with residents and landowners to create a proposal to replace the North Lolo Interim Zoning Plan. Three draft alternative plans were presented at public meetings on January 30, February 3, and February 9, 2010. Based on comments received on the alternative plans and additional staff review, Commissioners issued the Planning Board Public Hearing Draft on February 25, 2010, for public comment.

¶ 8 The proposed North Lolo Rural Special Zoning District consisted of 422 acres of land north of Lolo and west of U.S. Highway 93. Agricultural and forest land comprised 223 acres in the district. Prior to 2008, this area had been unzoned. On May 30, 2008, Commissioners enacted interim zoning to address public health and safety issues associated with a gravel mining and asphalt production operation proposed by Liberty Cove, Inc., who is one of the parties referred to as Landowners in the instant case. We previously upheld these interim zoning regulations as lawful in Liberty Cove, Inc. v. Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617.¹ Commissioners extended the one-year interim zoning in 2009, but the interim zoning was set to expire on May 30, 2010. The proposed North Lolo Special Zoning District would have replaced the interim zoning and continued to prohibit sand and gravel mining and concrete and asphalt operations within the district.

[371 Mont. 360]¶ 9 Legal notice concerning the North Lolo Growth Policy Amendment and North Lolo Rural Special Zoning District was published on multiple occasions in Missoula newspapers, posted in five locations, mailed to property owners in and near the proposed district, and emailed to interested members of the public in the Lolo area. The Missoula Consolidated Planning Board held public hearings on March 16 and 23, 2010, and recommended approval of the proposed zoning amendment and special zoning district to Commissioners on a 5 to 1 vote.

¶ 10 On April 7, 2010, Commissioners held a public hearing and passed “A Resolution of Intention to Adopt Amendments to the 2002 Lolo Regional Plan as an Amendment to the Missoula County Growth Policy 2005 Update.” Commissioners published notice in accordance with § 76–2–205(5), MCA, on April 15, 2010. The publication included notice that the written protest period provided for in § 76–2–205(6), MCA, would expire in 30 days. Section 76–2–205(6), MCA, is a protest provision that allows landowners to prevent the board of county commissioners from adopting a zoning resolution when protests are received from one of the following two groups: (1) 40 percent of the real property owners within the district; or (2) real property owners representing 50 percent of property taxed for agricultural purposes or as forest land in the district. When a successful protest is received, it prevents the board of county commissioners from proposing any further zoning resolutions with respect to the subject property for one year. Section 76–2–205(6), MCA.

[308 P.3d 92]

¶ 11 On April 20, 2010, five landowners ² who together owned more than 50 percent of the agricultural and forest land within the district filed a written protest. All parties agree that these landowners owned the requisite acreage to effectively block the zoning proposal pursuant to § 76–2–205(6), MCA.

¶ 12 On May 14, 2010, Williams filed a complaint in District Court against Commissioners. Williams requested that the District Court declare that the protest provision of § 76–2–205(6), MCA, was unconstitutional because it violated equal protection, due process, and voting rights. Williams also asked for a temporary restraining order and preliminary and permanent injunctions preventing Commissioners from taking any action pursuant to the allegedly [371 Mont. 361]unconstitutional protest provision.

¶ 13 On May 20, 2010, Commissioners filed an answer. Commissioners agreed with Williams that § 76–2–205(6), MCA, was unconstitutional for the reasons set forth by Williams. However, Commissioners admitted that they would apply the protest provision to prevent adoption of the zoning regulations absent an order from the District Court directing otherwise.

¶ 14 Without objection from Commissioners, the District Court issued an order for a preliminary injunction on May 21, 2010. The order enjoined Commissioners from taking any actions based on § 76–2–205(6), MCA, but permitted Commissioners to proceed in accordance with the remaining provisions of § 76–2–205, MCA. On May 26, 2010, Commissioners adopted the North Lolo Rural Special Zoning District.

¶ 15 Landowners filed an unopposed motion to intervene on May 24, 2010. The District Court granted Landowners' motion to intervene on May 28, 2010. Next, Landowners filed a M.R. Civ. P. 12(b)(7) motion to dismiss on June 3, 2010, arguing that Williams failed to join all of the proper parties pursuant to M.R. Civ. P. 19, which governs joinder of required parties, and Montana's Uniform Declaratory Judgments Act (UDJA), § 27–8–301, MCA, which requires inclusion of all parties who have an interest which would be affected by the declaration.

¶ 16 On July 14, 2010, Williams filed a motion for summary judgment. Williams' motion for summary judgment sought a declaration from the District Court that the protest provision of § 76–2–205(6), MCA, was an unconstitutional violation of equal protection and voting rights. Williams requested permanent injunctive relief to prevent Commissioners from enforcing the protest provision. Commissioners agreed that § 76–2–205(6), MCA, was unconstitutional and they supported issuance of a permanent injunction. On September 21, 2010, Commissioners filed a separate motion for summary judgment, challenging the constitutionality § 76–2–205(6), MCA, as an unconstitutional delegation of legislative power.

¶ 17 On July 23, 2010, Landowners filed a motion to stay summary judgment proceedings pending the District Court's disposition of their motion to dismiss. Landowners filed an application to quash, vacate and dissolve the preliminary injunction on August 30, 2010. On October 15, 2010, Landowners filed a motion to quash Commissioners' motion for summary judgment, arguing that Commissioners' motion addressed matters outside the pleadings, and that Commissioners and Williams lacked standing to challenge the constitutionality of [371 Mont. 362]§ 76–2–205(6), MCA, on the grounds that it represented an unconstitutional delegation of legislative power. In response to Williams' and Commissioners' motions for summary judgment, Landowners maintained that the protest provision was constitutional.

¶ 18 On February 2, 2011, Williams filed a motion for leave to amend his complaint to add the claim that § 76–2–205(6), MCA, constituted an unconstitutional delegation of legislative power. Williams alleged that this claim was merely a new theory of...