                                                                                       September 3 2009




                                         DA 08-0654

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 294



POWELL COUNTY, a political subdivision
of the State of Montana,

              Petitioner and Appellee,

         v.

COUNTRY VILLAGE, LLC d/b/a
HAPPY ENDINGS CASINO,

              Respondent and Appellant.


APPEAL FROM:          District Court of the Third Judicial District,
                      In and For the County of Powell, Cause No. DV 08-66
                      Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Wade J. Dahood, Michelle Sievers; Knight, Dahood, Everett &
                      Sievers, Anaconda, Montana

               For Appellee:

                      Lewis K. Smith; Powell County Attorney, Deer Lodge, Montana



                                                  Submitted on Briefs: July 22, 2009

                                                             Decided: September 2, 2009


Filed:
                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Country Village, LLC, dba Happy Endings Casino (Happy Endings) appeals from

orders of the Third Judicial District Court, Powell County, granting Powell County’s

(County) petition for a restraining order and denying Happy Endings’ motion to alter or

amend judgment or for a new trial. We affirm.

¶2    We restate the issues on appeal as follows:

¶3    Whether the Powell County Planning Board had jurisdiction to require Happy

Endings to apply for a conditional use permit.

¶4    Whether the erection of 50 artificial lighted palm trees constituted a change in use

under the Powell County Zoning and Development Regulations.

¶5    Whether Powell County’s enforcement of the Powell County Zoning and

Development Regulations substantially complies with its Growth Policy.

                                   BACKGROUND

¶6    This land-use case concerns lighted, artificial palm trees at the Happy Endings

Casino in Deer Lodge. Happy Endings purchased Country Village, a gambling casino,

convenience store, gas station, and restaurant, in the business district of Deer Lodge

along I-90. Happy Endings remodeled the interior and expanded the casino by adding six

gambling machines to the existing 14 machines. At the direction of the Powell County

Planning Department (Planning Department), on August 15, 2007, Happy Endings

submitted an application for a conditional use permit (CUP) seeking approval for four

logo signs, including an LCD display sign, and 50 lighted palm trees. Happy Endings’


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owner Jon Dehler describes the palm trees as a “unique advertising motif” associated

with his other Montana casinos. After reviewing the CUP application, the Planning

Department recommended that the Powell County Planning Board (Planning Board)

approve the gambling casino and three logo signs, but deny the 50 lighted palm trees and

LCD sign. The Planning Board adopted those recommendations at a public hearing on

September 6, 2007.

¶7    Happy Endings did not appeal the decision by the Planning Board, “because

HAPPY ENDINGS felt that the Planning Department and Planning Board did not have

jurisdiction over the geographical area in which HAPPY ENDINGS was located.” In

May 2008, Happy Endings erected 25 palm trees on the property in direct violation of the

Planning Board’s decision. Powell County filed a petition for a restraining order seeking

to prohibit Happy Endings from erecting additional palm trees and to remove existing

ones from its property. The District Court held a hearing on the County’s petition on

June 27, 2008, and issued the restraining order on October 17, 2008. Happy Endings

filed a motion to alter or amend the judgment or for a new trial, which was denied by the

District Court on December 5, 2008. Happy Endings appeals from that order.

                              STANDARD OF REVIEW

¶8    Section 76-2-227, MCA, authorizes a reviewing court to hold a hearing and

reverse, affirm, or modify a zoning decision made by a board of adjustment or any

officer, department, board, or bureau of the county. Montana district courts review a

zoning authority’s decision for abuse of discretion. Town & Country Foods, Inc. v. City

of Bozeman, 2009 MT 72, ¶ 13, 349 Mont. 453, 203 P.3d 1283; Flathead Citizens for

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Quality Growth, Inc. v. Flathead Co. Bd. of Adjustment, 2008 MT 1, ¶ 32, 341 Mont. 1,

175 P.3d 282. A zoning authority abuses its discretion when the information upon which

the authority based its decision is “so lacking in fact and foundation that it is clearly

unreasonable.”   Town & Country, ¶ 13, Flathead Citizens, ¶ 32.          The courts give

deference to the decisions of the local board. Town & Country, ¶ 14. We review a

district court’s conclusions of law to determine if they were correct.        Clark Fork

Coalition v. Mont. Dept. of Envtl. Quality, 2008 MT 407, ¶ 19, 347 Mont. 197, 197 P.3d

482. An agency’s interpretation of its rule is afforded great weight, and the court should

defer to that interpretation unless it is plainly inconsistent with the spirit of the rule.

Clark Fork Coalition, ¶ 20.

                                     DISCUSSION

¶9    This appeal arrives at this Court as a result of Happy Endings’ failure to avail

itself of proper legal remedies in a timely manner. Happy Endings did not appeal the

Planning Board’s decision to the Board of Adjustment as provided for by § 76-2-226,

MCA, after which further appeal to a court of record would be appropriate under § 76-2-

227, MCA. Instead Happy Endings ignored the decision of the Planning Board by

erecting 25 artificial palm trees on its property. Consequently, this appeal arises from

Powell County’s efforts to enforce a decision ignored by Happy Endings, and this Court’s

review is thus narrowly defined.

¶10   Whether the Powell County Planning Board had jurisdiction to require Happy

Endings to apply for a conditional use permit.



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¶11     Happy Endings argues that the Planning Board had no jurisdiction to require it to

apply for a CUP. Happy Endings is located in a planning area “donut” encircling Deer

Lodge, but outside of the city limits. Prior to 2006, pursuant to an inter-local agreement

between the City of Deer Lodge and Powell County, the “donut” was jointly managed by

the City and County.       At the time, the Powell County Zoning and Development

Regulations (Zoning Regulations) and Growth Policy excluded the “donut” from the

County’s planning jurisdiction. However, the City and County terminated the inter-local

agreement on September 28, 2006, and the Powell County Commissioners amended the

Zoning Regulations to create District 5 for the planning area “donut.”

¶12     Thereafter, all areas outside of the City were administered by the Powell County

Planning Board.       Chapter I, section I-E of the Zoning Regulations provides:

“Jurisdiction — The area included within the jurisdiction of these regulations shall be all

of the unincorporated area of Powell County, Montana, except that area located within

the jurisdiction of the Deer Lodge City-Powell County Planning Board.”

¶13     Regarding conditional use permits, chapter III, section III-B provides, in pertinent

part:

        Conditional Use Permit (CUP) — . . . a CUP must be obtained from the
        Planning Board before any person may begin to construct, place, move or
        significantly expand approved uses indentified in each Zoning District.

        Uses for which a CUP is required include new and sometimes expansion of
        residential, commercial, industrial, institutional, recreational or public
        uses. . . .

        A CUP may be issued only when the proposed building, structure, parcel or
        use are consistent with the general and specific purposes stated in Chapter I
        of these regulations, will meet the conditions specified in Chapter V and

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       will meet the requirements specified in chapters VI, VII and VIII of these
       regulations.

Chapter VI of the Zoning Regulations provides for certain specific requirements of

individual districts. That chapter provides:     “SPECIFIC DISTRICT REQUIRE-

MENTS FOR DEVELOPMENT CERTIFICATE OR CONDITIONAL USE

PERMIT APPROVAL.” Section VI-F-3 of the Zoning Regulations “reserved” specific

standards for the District 5 “donut”:

       Specific Standards — In addition to the requirements of Chapter V,
       Chapter VII, and Chapter VIII, the following specific standards apply:

              a. Permitted Land Uses (No Development Certificate required)

              (Reserved)

              b. Permitted Land Uses (Development Certificate required)

              (Reserved)

              c. Conditional Land Uses (Conditional Use Permit required)

              (Reserved)

¶14    Happy Endings argues that “reserved” means that general standards applicable to

the County do not apply to District 5, because specific standards for the area were

reserved to be addressed in the future. The County counters that “reserved” means that

the Zoning Regulation’s general standards would be incorporated into the provisions

applicable to District 5. We concur with the District Court’s reasoning:

       The Regulations, however, particularly Section VI thereof, treat District
       No. 5 in the same manner as Districts No. 1 through 4. Section VI does not
       specifically incorporate the requirements of Chapter III and Chapter IV of
       the Regulations for any of the Districts. The Regulations must be read
       together and in so doing, it is apparent that the Powell County Commission

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       intended to treat District No. 5 in the same manner as Districts No. 1
       through 4 as they pertain to the procedural and substantive requirements for
       Conditional Use Permits although the Commission reserved establishing
       more specific requirements for Conditional Use Permits for District No. 5
       to a later date.

¶15    The fact that specific standards for District 5 were “reserved” in the Zoning

Regulations does not nullify the applicability of general county-wide standards to District

5. The Zoning Regulations clearly provide jurisdiction over “all of the unincorporated

area of Powell County.” Section I-E. Happy Endings is located within an unincorporated

area of the County. Further, as noted in the Zoning Regulations, “[a] CUP may be issued

only . . . with the general and specific purposes stated in Chapter I of these

regulations. . . .” Section III-B. All of the general regulations quoted above apply to

Happy Endings. Statutes and regulations must be interpreted in accordance with the plain

language of the provision. Shelby Distributors, LLC. v. Mont. Dept. of Revenue, 2009

MT 80, ¶ 18, 349 Mont. 489, 206 P.3d 899; Barnard v. Liberty Northwest Ins. Corp.,

2008 MT 254, ¶ 17, 345 Mont. 81, 189 P.3d 1196. In addition, when possible all

provisions of a statute or regulation must be read together to give meaning to all. State v.

Brendal, 2009 MT 236, ¶ 18, 351 Mont. 395, ___ P.3d ___. “When possible, we

interpret statutes to give effect to the Legislature’s intent. We will also read and construe

the statute as a whole to avoid an absurd result and to give effect to a statute’s purpose.”

Brendal, ¶ 18. Clearly reading the Zoning Regulations as a whole, the provisions in

Chapter VI regarding specific standards that were reserved do not abrogate the general

standards that provide county planning jurisdiction in this matter.



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¶16    Moreover, the Planning Department’s interpretation of its regulations is not

inconsistent with the spirit of the rule, and therefore we defer to that interpretation. Clark

Fork Coalition, ¶ 20. An agency’s interpretation of its rule is afforded great weight, and

the court should defer to that interpretation unless it is plainly inconsistent with the spirit

of the rule. Clark Fork Coalition, ¶ 20. Ron Hansen (Hansen), Director of the Planning

Department, testified that the County intended to bring District 5 under the County’s

Zoning Regulations. The District Court heard testimony, reviewed evidence, and found

that the Planning Board had jurisdiction to require and hear the CUP application for

Happy Endings.      The District Court decision was based upon substantial credible

evidence.

¶17    Happy Endings further argues that the District Court erroneously applied an abuse

of discretion standard to determine whether the Planning Board had jurisdiction. Happy

Endings notes that the existence of jurisdiction is a question of law that is reviewed for

correctness. However, this matter was presented to the court through the County’s

amended petition for a restraining order. The County argues that the District Court

correctly applied an abuse of discretion standard to the decision of the Planning Board.

We agree. As the District Court reasoned:

       Had Respondent sought its remedy according to law rather than proceeding
       in contravention of it, the Court would be limited to a determination of
       whether the Board of Adjustment’s decision constituted an abuse of
       discretion. Certainly, the decision of the Planning Board cannot be
       subjected to stricter scrutiny by Respondent’s failing or refusing to follow
       the law.




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We conclude that the District Court correctly determined that the Planning Board had

jurisdiction.

¶18    Whether the erection of 50 artificial lighted palm trees constituted a change in use

under the Powell County Zoning and Development Regulations.

¶19    Happy Endings argues that even if the standard CUP sections applied to District 5,

no CUP application was required because Happy Endings did not change the use of the

Country Village business nor significantly expand that use. Happy Endings notes that the

exterior dimensions of the business did not change, and only six gaming machines were

added. However, Hansen testified that the proposal presented to him by Happy Endings

in the summer of 2007 was for the elimination of the convenience store and significant

expansion of the casino that constituted a change of use requiring a CUP. Based on this

evidence, the District Court found that there was a significant change in use to warrant

the need for a CUP. Courts review a zoning board’s decision for abuse of discretion, and

we concur with the District Court that the Planning Board’s partial denial of Happy

Endings’ CUP application was reasonable in light of the proposed changes described.

¶20    Happy Endings further argues that signs are not considered a use, building or

structure in the Zoning Regulations, thus the erection of palm trees did not constitute a

change in use. The Zoning Regulations only regulate signs after a CUP application has

been made. The District Court’s determination that a CUP was required was based on the

change in use from primarily a convenience store to a gambling casino, not on the

erection of the lighted palm trees. Section IV-E-2 of the Zoning Regulations provides:



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      Conditional uses must comply with the requirements of chapters VI, VII
      and VIII and any additional conditions prescribed by the Planning Board
      relating to the following:

                                        .   .    .

              h. Signs, with attention to preventing glare from lighting, promoting
      traffic safety and maintaining harmony with adjacent properties by limiting
      scale, height and size of the signs.

Zoning Regulation § IV-E-2 permits the Planning Board to review signage for conformity

with surrounding property use when a change in use is contemplated.

¶21   Whether Powell County’s enforcement of the Powell County Zoning and

Development Regulations substantially complies with its Growth Policy.

¶22   Happy Endings argues that Powell County’s enforcement of its Zoning

Regulations unreasonably promotes a nonexistent western/historical theme and the

private interests of the Grant-Kohrs Ranch. Happy Endings contends that during the

hearing, Powell County presented documents from employees of the Grant-Kohrs Ranch

alleging that the palm trees would be bad for the Ranch. Happy Endings notes that the

Ranch is several miles away from the business district where Happy Endings is located.

Happy Endings raises various private property arguments (i.e. unconstitutional

application of police power depriving private property rights) and contends it was

unreasonable for Powell County to deprive Happy Endings from effectively advertising

its business in order to promote a nonexistent western/historical theme.        A Happy

Endings’ manager testified regarding the “overwhelming support” from the local business

owners in the Deer Lodge community, who believe the palm trees are “a positive,



                                            10
colorful influence that has attracted customers into the community and has increased

business.”

¶23    Powell County responds that its Growth Policy, adopted after considerable public

comment, promotes a western historic theme consistent with the agricultural nature of the

County. Section IV-E-2 of the Zoning Regulations requires conditional uses to maintain:

“j. General compatibility with the Powell County Growth Policy.” Hansen testified that

the lighted palm trees would not be compatible under the Growth Policy with the

preservation of the rural character of the community.          Additionally, the LCD signs

located close to the freeway were considered a public safety concern with their bright

lights potentially creating a traffic hazard or distraction.

¶24    Montana law authorizes a county that has adopted a growth policy, pursuant to

Title 76, Chapter 1, to enact zoning regulations to promote “public health, safety, morals,

and general welfare.” Section 76-2-201, MCA. In counties where a planning board has

been created, “the preeminent planning tool is the comprehensive jurisdiction-wide

development plan, which is today known as a growth policy. A growth policy essentially

surveys land use as it exists and makes recommendations for future planning.” North 93

Neighbors v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, ¶ 21, 332 Mont. 327,

137 P.3d 557. Section 76-1-605, MCA, provides that a governing body “must be guided

by and give consideration to” its growth policy. A Planning Board must “substantially

comply with its Growth Policy.” Neighbors, ¶ 23.

¶25    The Powell County Growth Policy’s focus on maintenance of open spaces and

historic heritage reasonably promotes the general welfare of the community. Happy

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Endings’ private property rights were not infringed when the Planning Board denied

portions of the CUP requesting to erect artificial palm trees on the property. While

Happy Endings may still advertise its business in various manners, Happy Endings has no

vested right to erect artificial palm trees on its property without approval from the

County. We cannot conclude that the County abused its discretion by denying portions

of Happy Endings’ CUP application that were inconsistent with its Growth Policy. On

the contrary, by enforcing its Zoning Regulations the County substantially complied with

its Growth Policy.

¶26   Affirmed.



                                               /S/ MIKE McGRATH

We concur:


/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




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