                                                                                            05/30/2017


                                           DA 16-0404
                                                                                        Case Number: DA 16-0404

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 126



TOM ST. JOHN, LINDA GERLEMAN, FRANK
WESTHOFF, SUZANNE WESTHOFF, et al.,

              Plaintiffs and Appellants,

         v.

CITY OF LEWISTOWN, MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Tenth Judicial District,
                        In and For the County of Fergus, Cause No. DV 2015-77
                        Honorable Brenda Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        James A. Hubble, Olive J. Urick, Hubble Law Firm, PLLP, Stanford,
                        Montana

                For Appellee:

                        Kevin C. Meek, Cathy J. Lewis, Ugrin, Alexander, Zaddick & Higgins,
                        Great Falls, Montana


                                                   Submitted on Briefs: February 22, 2017

                                                              Decided: May 30, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Plaintiffs Tom St. John, Linda Gerleman, and Frank and Suzanne Westhoff,

(collectively Land Owners) appeal from an order entered in the Montana Tenth Judicial

District, Fergus County, granting summary judgment to Defendant City of Lewistown

(City) and allowing the City to annex portions of Land Owners’ properties. We affirm on

all issues.

¶2     We restate the issues as follows:

       1. Whether the District Court erred in concluding that the City had met the statutory
       annexation requirements of Title 7, chapter 2, part 43, MCA.

       2. Whether the District Court erred in concluding that the City had correctly
       determined there were less than a majority of valid protests.

       3. Whether the District Court erred in concluding that Land Owners were not
       denied equal protection of the law.

       4. Whether the District Court erred in concluding that Land Owners lacked
       standing to enforce a contract between the City and a subdivision developer.


                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 1982, the City passed Ordinance 1483 which addressed the provision of

municipal services to areas outside of the City limits. Ordinance 1483 was amended by

Ordinance 1630 and, together, these ordinances conditioned the provision of City water

services outside the City’s limits upon the property owners’ execution of written waivers

to protest future annexation by the City of their property. Some of the Land Owners signed

such a waiver, and others did not. Regardless of whether a waiver was executed by Land

Owners, all continued to obtain City water services.



                                             2
¶4     On April 6, 2015, the City passed Resolution 3875, setting forth its plan for

providing municipal services to annexed properties. On June 1, 2015, Resolution 3878

was passed stating the City’s intent to annex contiguous land identified on the “Corrected

Map for Annexation” (Corrected Map). The Corrected Map identified the partial lots that

were at issue and which were being serviced by City water. Each partial lot was a smaller

fraction of a larger lot belonging to Land Owners. The Corrected Map also identified

contiguous lands connected by Castle Butte Road, portions of which were also part of the

annexation, and proposed properties for annexation that were part of the Castle Ridge

Acres subdivision. The Corrected Map was recorded with the Fergus County Clerk and

Recorder, and bore the Clerk’s seal and certification that it was a certificate of survey.

Resolution 3878 specifically identified that the annexation would be conducted pursuant

to § 7-2-4311, MCA, which allowed for annexation of contiguous land to an incorporated

city or town. Further, Resolution 3878 stated the City had determined the proposed

annexation was in the best interests of both the City and the inhabitants of the parcels to be

annexed.

¶5     The City Clerk mailed notices to all registered voters and property owners in the

areas being annexed and published the notice in the local paper. The notice explained how

comments would be received and that the City would consider the annexation at its July 6,

2015 meeting.

¶6     The City was proposing to annex 89 lots. Of those 89 lots, 62 lots had a recorded

waiver to the City’s annexation. After disregarding protests from property owners who

had executed a waiver, the City determined, pursuant to § 7-2-4314(d), MCA, that there


                                              3
were less than the 51% majority of protests needed to stop the annexation. Accordingly,

at the meeting on July 6, 2015, the City adopted Resolution 3880 which finalized

annexation. Resolution 3880 memorialized the City’s determination that the annexation

was in the best interest of the City and those being annexed. It also recognized that less

than a majority of the real property owners of the area proposed for annexation had

submitted valid protests.

¶7     On September 25, 2015, Land Owners challenged the City’s annexation by applying

for a preliminary injunction and temporary restraining order. The District Court issued an

Order to Show Cause and Temporary Restraining Order on November 24, 2015. On

February 10, 2016, the City filed a motion for summary judgment. Following briefing and

oral argument, the District Court issued a Decision and Order on June 16, 2016, granting

summary judgment in favor of the City on all issues.1 Land Owners appeal the entry of

summary judgment for the City.

                                STANDARD OF REVIEW

¶8     This Court reviews de novo a district court’s summary judgment ruling, applying

the same rule, M. R. Civ. P. Rule 56(c), as the district court applies. Modroo v. Nationwide

Mut. Fire Ins., 2008 MT 275, ¶ 19, 345 Mont. 262, 191 P.3d 389. Summary Judgment is

proper when there is no genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law. M. R. Civ. P. Rule 56(c); Bennett v. Hill, 2015 MT 3, ¶ 9, 378

Mont. 141, 342 P. 3d 691.


1
   The District Court had previously granted the City’s motion to stay Land Owners’ request for
class certification. Land Owners do not appeal that order.


                                              4
¶9      Section 7-2-4742, MCA, provides for court review of whether statutory annexation

procedural requirements were followed and satisfied.         “If all of the substantive and

procedural requirements of the annexation statutes are included and complied with by a

municipality in the annexation procedure, the law will necessarily have been followed.”

Gregg v. Whitefish City Council, 2004 MT 262, ¶ 20, 323 Mont. 109, 99 P.3d 151. We

explained in Gregg that compliance with the annexation statutes must be “complete and

municipalities must follow all of the directives of the statutes.” Gregg, ¶ 20. However, if

a statutory mandate contains a subjective component, “[c]ompliance must be substantial .

. . [to allow] a municipality to exercise discretion in making its planning decisions.” Gregg,

¶ 20.

                                       DISCUSSION

¶10 1. Whether the District Court erred in concluding that the City had met the statutory
annexation requirements of Title 7, chapter 2, part 43, MCA.

¶11     Pursuant to § 7-2-4718(2), MCA, a municipality “may in its discretion select one of

the annexation procedures in parts 42 through 47 that is appropriate to the circumstances

of the particular annexation.” The municipal governing authority must then follow “the

specific procedures prescribed in the appropriate part.” Section 7-2-4718(2), MCA. The

City chose to conduct its annexation of Land Owners’ properties pursuant to part 43,

allowing for annexation of contiguous land.         More specifically, § 7-2-4311, MCA,

provides:

        Any tract or parcels of land that have been or may be platted into lots or
        blocks, streets, and alleys or platted for parks, the map or plat of which is
        filed in the office of the county clerk and recorder of the county in which the
        tracts or parcels of land are situated, or any unplatted land that has been


                                              5
       surveyed and for which a certificate of survey has been filed, as provided by
       law, if the platted or unplatted land is contiguous to any incorporated city or
       town, may be embraced within the corporate limits of the city or town, and
       the boundaries of the city or town may be extended to include the platted or
       unplatted land in the manner provided in 7-2-4312 through 7-2-4314 and 7-
       2-4325.

While not a model of statutory clarity, § 7-2-4311, MCA, sets forth two relevant

requirements for annexation of contiguous land. First, the land must be platted, and the

plat filed with the county; or, if unplatted, the land must be surveyed, and a certificate of

survey filed with the county. Second, the land must be contiguous with an incorporated

town or city.

¶12    Finally, also contained within part 43, is the statutory requirement that the governing

body of any city or town council, determine “when, in its judgment . . . expressed by

resolution that is passed and adopted, it is in the best interest of the city or town and the

inhabitants of any contiguous platted tracts or parcels of land” to be annexed. Section

7-2-4312, MCA. Accordingly, for the City to annex Land Owners’ properties pursuant to

Part 43, the requirements of both §§ 7-2-4311 and 7-2-4312, MCA, had to be satisfied by

the City.

¶13    Land Owners argue that the City failed to comply with the statutory provisions of

Part 43 in three ways: (1) there was not a plat or survey on file with the county; (2) the

properties were not contiguous; and (3) the annexation was not in the best interests of the

“inhabitants of the parcels to be annexed.” Land Owners assert if the City fails to comply

with any one of these statutory requirements then the annexation is void. Land Owners are

correct, with the exception of the best interest requirement contained within § 7-2-4312,



                                              6
MCA. The statutory requirements of § 7-2-4311, MCA, are not discretionary and the

annexation is void if the City has failed to follow statutory directives. However, we

conclude that the City has complied with § 7-2-4311, MCA, by filing a survey with the

county and annexing only lands which are contiguous. Additionally, the Legislature has

expressly given the governing city or town body discretion to determine the best interests

of its inhabitants, which may be reviewed only if the governing body has proceeded

contrary to statute. We address each of Land Owners’ arguments.

       a. Whether there was a plat or survey for the properties recorded with the county
       clerk and recorder.

¶14    Land Owners argue that the plat does not identify the partial lots the City seeks to

annex. They point to the Corrected Map which identifies partial lots with a note “not a

parcel” and allege that annexable land may be either a tract or a parcel, but not a partial lot.

Land Owners admit “[c]ertain annexed parcels within Corrected Map 2015-1 are only

portions of actual, larger platted parcels.” Conversely, the City argues that all property has

been platted and identified in a certificate of survey, which has been filed with the county

clerk and recorder.

¶15    We first observe that § 7-2-4311, MCA, does not require a new plat to be filed when

part of a lot is to be annexed, especially given the circumstance here where the lot has

previously been platted and that plat has been identified as part of a larger parcel on a filed

certificate of survey. Section 7-2-4311, MCA, speaks of “tracts or parcels” which we have

explained means “some area of land.” Missoula Rural Fire Dist. v. City of Missoula, 286

Mont. 387, 394, 950 P.2d 758, 762 (1997). Here, although the Corrected Map identified



                                               7
the partial lot as “not a parcel,” the partial lots nonetheless were tracts of land and identified

as a portion of a larger parcel of land in the certificate of survey. Section 7-2-4311, MCA,

requires either a plat or certificate of survey. The Corrected Map, which identifies all of

the land proposed to be annexed, was recorded with the Fergus County Clerk and Recorder.

Accordingly, the City followed the statutory directive for filing a certificate of survey.

¶16    It is worth noting that Land Owners’ argument is also contrary to an annexation

statute, in the same part, specifically addressing the provision of municipal services and

which allows for annexation of only that portion of the tract or parcel that is being

immediately serviced by the water. See § 7-13-4314, MCA (“The consent to annexation is

limited to that tract or parcel or portion of tract or parcel that is clearly and immediately,

and not potentially, being serviced by the water or sewer system.”). “We interpret related

statutes to harmonize and give effect to each.” Gregg, ¶ 38. Consistent with these statutory

provisions, the City proposed annexation of only a portion of Land Owners’ properties.

¶17    Land Owners also argue that the phrase included on Corrected Map, “NOTE: NO

FIELD SURVEY WAS PERFORMED,” somehow negates that the Clerk certified the

Corrected Map as a certificate of survey and that the Corrected Map itself states it is a

certificate of survey completed by a survey company. The recorded Corrected Map shows

the acreages and distances in feet for each partial lot. The property owners and public are

thus on notice of what land the City proposes to annex. We conclude that the City complied

with the statutory requirement for filing with the county clerk and recorder a copy of the

plat or survey.




                                                8
       b. Whether the properties were contiguous.

¶18    Land Owners argue the properties being annexed are not contiguous to the City

limits. The crux of their argument rests on their “hopscotch” argument; that is, when

selecting parcels to annex, the City used a hopscotch method and skipped parcels and

randomly selected other parcels to annex. Land Owners’ hopscotch argument implies that

there is a break in the contiguousness of the parcels because they are only connected by

Castle Butte Road and the City has not attempted to annex the lots on either side of the

road. Land Owners’ argument, however, fails to consider the provisions of § 7-2-4301,

MCA, which are applicable to the instant annexation proceeding. Section 7-2-4301, MCA,

provides that tracts or parcels of land “shall be deemed contiguous . . . even though [they]

may be separated from such city or town by a street or other roadway . . . or strip of

unplatted land too narrow or too small to be platted.” Furthermore, in Missoula Rural Fire

Dist., we addressed this same question and held that “[a] street is indisputably an area of

land, however narrow or long.” 286 Mont. at 394, 950 P.2d at 762 (1997). We also

determined that a street can be considered contiguous to other land for purposes of

annexation pursuant to § 7-2-4301, MCA.2 We conclude the City’s proposed annexed land

was contiguous to existing annexed land and connected by Castle Butte Road, also part of




2
  Land Owners do not argue that the City lacked a “legitimate governmental interest” in pursuing
annexation of lands for which the City was providing services. See Missoula Rural Fire Dist., 286
Mont. at 395, 950 P.2d at 763. While Land Owners claim that the City’s provision of services was
inadequate, this is a separate and distinct issue from whether the City could annex contiguous lands
for which the City was already providing services. We concluded in Missoula Rural Fire Dist.
that the City of Missoula had a legitimate governmental interest to annex lands when it was
providing services to those lands. Missoula Rural Fire Dist., 286 Mont. at 395, 950 P.2d at 763.


                                                 9
the annexation. Section 7-2-4301, MCA, and Missoula Rural Fire Dist. expressly provide

that the lands under these circumstances are to be considered contiguous.

       c. Whether this Court should review the City’s “best interests” determination when
the City proceeded in accordance with statutory requirements.

¶19    Land Owners argue that a court may review a municipality’s determination of best

interests when a municipality has not proceeded with annexation in accordance with

statutory directives. The City maintains that a court should not review a municipality’s

determination of “best interest” when the Legislature has given the City that discretion.

Penland v. City of Missoula, 132 Mont. 591, 595-96, 318 P.2d 1089, 1092 (1957).

¶20    The annexation in Penland was challenged on the basis that it was not in the best

interests of the Plaintiffs. We affirmed the district court’s conclusion that the benefits of

annexation was a matter for the commissioners to decide and, in doing so, clearly stated:

       Since the legislature has set down the manner in which the city may annex
       outlying territory, and has expressly given the city council the discretion to
       determine whether or not it is in the best interests of both groups, the exercise
       of that discretion may be reviewed by a court only when, and if, they have
       proceeded contrary to statute.
                                           . . .
       When the legislature in section 11-403 allowed city councils to weigh the
       interests involved in annexing or refusing annexation they did not
       contemplate courts of law substituting their judgment for that of the city
       council’s. Had they desired such a result it would have been an easy matter
       to have provided for that contingency.

Penland, 132 Mont. at 595-96, 318 P.2d at 1092.

¶21    Here, we do not have a municipality proceeding contrary to the statute, as the City

filed a plat or survey and the area to be annexed is contiguous to the City. Further, as we

have also concluded that the City has complied with statutory procedure regarding the



                                              10
validity of the protests (see discussion infra), we will not reconsider the City’s “best

interests” determination on this basis either. The District Court was correct in concluding

it should not review the City’s “best interest” determination. In the absence of any evidence

suggesting the City proceeded contrary to the statute, we agree with the District Court and

similarly will not reconsider the City’s “best interest” determination.

¶22    We conclude that the City followed the statutory requirements of Title 7, chapter 2,

part 43, MCA, and that, therefore, the City’s “best interest” determination will not be

reviewed.

¶23 2. Whether the District Court erred in concluding that the City had correctly
determined there were less than a majority of valid protests.

¶24    Pursuant to § 7-2-4314(d), MCA, “if the resolution is disapproved in writing by a

majority of real property owners of the area proposed to be annexed, . . .” the area may not

be annexed. Land Owners argue that some or many of the waivers to annexation obtained

by the City were signed under duress or fraud. Land Owners maintain that the City advised

they would terminate their water service if they did not execute a waiver to protest

annexation. They also argue that waivers signed after the annexation commencement

should be discounted, and therefore any protests that were on record that were disregarded

because of a waiver should be reinstated and counted toward the total number of property

owners disapproving.

¶25    This Court has held that requiring consent to annexation in exchange for the

provision of city services is permissible. Schanz v. Billings, 182 Mont. 328, 337, 597 P.2d

67, 72 (1979). We have also held that consent to annex as a condition for continuing to



                                             11
receive utility service by a city is likewise permissible. Gregg, ¶¶ 35-38. If a landowner

is currently receiving city services but does not wish to be annexed or sign a waiver, the

owner can make arrangements to disconnect from services. Gregg, ¶ 38. Here, as in

Gregg, Land Owners were connected to the City’s water supply for a period of time and

continued to receive service without a request from the City to sign a waiver. Similarly,

as in Schanz, Land Owners are receiving utilities from the City which, in exchange for

those services, seeks to annex the property receiving the benefit of those services. Property

Owners make an additional argument that they are not receiving any added service but are

still being taxed at a higher rate; however, taxes are a separate issue and are not part of our

analysis regarding annexation. Construing Gregg and Schanz together, we conclude the

City may require annexation waivers in exchange for utility services even if the waivers

were requested after the utilities and annexation proceedings were initiated. Accordingly,

the District Court correctly concluded that Land Owners’ allegations of fraud and duress

were not sustainable as a matter of law, based on the authority of § 7-2-4314(d), MCA,

Gregg, and Schanz.

¶26 3. Whether the District Court correctly concluded that Land Owners were not
denied equal protection under the law.

¶27    Land Owners maintain the annexation denied them and other similarly situated

property owners their constitutional right to equal protection of the law by creating two

separate classes: those being annexed and those not being annexed. To support their

position, Land Owners rely upon Roosevelt v. MT Dept. of Rev., 1999 MT 30, 293 Mont.

240, 975 P.2d 295, where the state’s method of assessing property values was challenged.



                                              12
In Roosevelt, the plaintiff’s property was being taxed at over 100% of its property value;

while other properties were taxed at 100% or less of their property value. The court found

the statute unconstitutional as applied because taxing property owners at different rates

violated equal protection. Roosevelt, ¶ 46.

¶28   Roosevelt, which dealt with a tax statute, is not helpful authority when considering

the statutory scheme for annexation by a municipality of contiguous land. The City relies

upon Piedmont Ford Truck, Inc. v. City of Greensboro, 380 S.E.2d 107 (N.C. 1989) and

argues that it is not a denial of equal protection for a municipality to annex land without

annexing land similarly situated. In Piedmont Ford Truck, Inc., the Plaintiffs claimed that

they were denied equal protection of the law because other property similarly situated was

not annexed. The Supreme Court of North Carolina held that, “[w]e believe our cases and

the federal cases hold that annexation is a legislative decision with which the courts may

not interfere unless the complaining party is deprived by the annexation of some

constitutional right.” Piedmont Ford Truck, Inc., 380 S.E.2d at 109. The court determined

that “plaintiffs have cited no authority and we can find none that holds that the equal

protection clause of the federal or state constitution requires that other similar land be

annexed when municipal boundaries are extended.” Piedmont Ford Truck, Inc., 380

S.E.2d at 110.

¶29   We agree with the reasoning of Piedmont Ford Truck, Inc. and the City. An equal

protection claim could be made in nearly every annexation case because annexation, by its

very nature, is an exercise of choosing one parcel over another to annex. While annexation

does distinguish between those property owners whose property will be annexed and those


                                              13
property owners whose property will not be annexed, this is a necessary result of the

municipal governing body exercising its discretion in drawing the annexation line. Absent

a failure of the governing body to follow statutory directives, which are designed to provide

notice and to protect the right of participation, the governing body’s decision of what

property to annex is left to its discretion.

¶30    We conclude that the District Court did not err in granting summary judgment to

the City on Land Owners’ claims that they were denied equal protection of the law by the

City’s decision of what properties to annex.

¶31 4. Whether the District Court erred in concluding that Land Owners lacked standing
to enforce a contract between the City and a subdivision developer.

¶32    Land Owners seek to enforce a contract between Castle Ridge Acres subdivision

and the City. They argue that the City has not maintained Castle Butte Road properly. We

conclude, however, that Land Owners lack standing to bring this claim, because they are

neither signatories to nor intended beneficiaries of that contract.3

¶33    We have held “[t]here is a plain distinction between a promise, the performance of

which may benefit a third party, and a promise made expressly for the benefit of a third

party.” Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 18, 366 Mont. 285, 291 P.3d

1082, citing Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 19, 363 Mont. 151, 267

P.3d 756. Those that are incidental beneficiaries lack standing to enforce the contract from

which they benefit. Ronning v. Yellowstone County, 2011 MT 79, ¶ 14, 360 Mont. 108,


3
  Land Owners have not appealed the stay of the class certification entered by the District Court
which Land Owners indicate would have included, as members of the class, residents of the Castle
Ridge Acres subdivision.


                                               14
253 P.3d 818. A plaintiff cannot simply allege that it is an intended third-party; plaintiff

must show “from the face of the contract that it was intended to benefit [them].”

Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105, ¶ 20, 365 Mont. 71, 278 P.3d 1002.

We agree with the District Court that Land Owners are third parties that are benefiting, or

incidental beneficiaries, but they are not intended third-party beneficiaries. No Land

Owners live in the subdivision, their names are not in any part of the contract, and they are

not identified as third-party beneficiaries. Land Owners argue that since some of them use

roads located in the Castle Ridge Acres subdivision they are intended third-party

beneficiaries under the contract. However, the contract makes no mention of third-party

beneficiaries and no mention of Land Owners. Since Land Owners are not intended third-

party beneficiaries they lack standing to enforce the contract.

¶34    As a final matter, the issue surrounding maintenance of Castle Butte Road has no

bearing on the legality of annexation and, as the District Court observed, is not material to

a summary judgment motion and is better entertained in another forum.

                                      CONCLUSION

¶35    After notice and public hearing, the City determined annexation was in the best

interests of the City and the inhabitants of the parcels to be annexed. The City has complied

with the statutory provisions for annexing contiguous lands. The City filed with the Fergus

County Clerk and Recorder plats and a certificate of survey (Corrected Map) providing

notice to the public of the lands it intended to annex. The City also correctly determined

that there were not a sufficient number of valid protests to prohibit the annexation. Finally,

Land Owners have failed to set forth an equal protection challenge under the statutory


                                             15
scheme for annexation and they have no standing to enforce a contract between the City

and a subdivision developer.

¶36   The order of the District Court granting summary judgment to the City is affirmed.



                                               /S/ LAURIE McKINNON

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




                                          16
Justice Jim Rice, concurring.

¶37    This case demonstrates how far the courts have permitted annexation procedure to

depart from the requirements of the statutes with regard to the issue of contiguity. In my

view, the courts have gotten ahead of the Legislature on this issue and legislated provisions

that have significantly altered, and certainly watered down, the Legislature’s contiguity

requirement.

¶38    Below, the unshaded area, at the top left of the map, indicates the area currently

within the City of Lewistown. The two shaded areas are the properties that the City is

seeking to annex in this case, which I will refer to as the North Area and the South Area.

Running down through and adjacent to these separated properties is a segment of Castle

Butte Road, which the City also seeks to annex.
                                    uvx
                                  J1011411.7ft,
  City of                     d

Lewistown
                                                                           or sr/

                                                                          4401           North Area
                                                                                 (proposed annexation area)
                                                     Castle Butte Rd
                                                  -411
                                                     ----, •
                                                        • •
           Castle Butte Rd



                                  • , ,-             •



                                             MT




                            Castle Butte Rd




                                                                 Ill




     South Area
(proposed annexation area




                                                                                             South Area
                                                                                      (proposed annexation area)




                                                                        Castle Butte Rd
                                                                       -4111




                                                               18
¶39    The Legislature has authorized cities to annex land that is “wholly surrounded by

the city,” § 7-2-4501, MCA, or land that is “contiguous to any incorporated city,”

§ 7-2-4311, MCA. The City of Lewistown here claims, and the Court holds, that all of the

land in the North Area, South Area, and Castle Butte Road are “contiguous” to the City of

Lewistown. Opinion, ¶ 18.

¶40    What is obvious from the map is the land comprising the proposed annexation areas

is not “contiguous” to the City, as that term is commonly understood, and as the Land

Owners argue. The Court faults the Land Owners for failing to consider § 7-2-4301, MCA,

see Opinion, ¶ 18, but that statute clearly does not authorize what is occurring here. The

provision simply authorizes annexation of properties that would otherwise be contiguous

except for a street, roadway, or tract of land “too narrow or small to be platted,” which

separates them. Section 7-2-4301, MCA. This is the extent of the legislatively-enacted

exception to the contiguity requirement to account for roads or small properties.

¶41    The Legislature’s contiguity requirement was significantly altered by this Court in

Missoula Rural Fire Dist. v. City of Missoula, 286 Mont. 387, 950 P.2d 758 (1997). First,

the Court held that a road constituted a “tract” or “parcel” under § 7-2-4301, MCA, and

therefore could itself be annexed without limitation, “however narrow or long” it may be.

Missoula Rural Fire Dist., 286 Mont. at 394, 950 P.2d at 762. Of course, if the Legislature

intended this statute to authorize annexation of roads, then the exception to the contiguity

requirement to account for roads would be completely unnecessary. The City could simply

annex the road as well. However, the Court did not undertake any analysis of legislative

intent. This was the first step in a significant expansion of annexation powers.


                                            19
¶42    Secondly, the Court held that a road, starting within the city and running outside the

city, would be considered contiguous in its entire length for purposes of its annexation if

the city had a “legitimate governmental interest” in annexing the entire road. Missoula

Rural Fire Dist., 286 Mont. at 395, 950 P.2d at 763. This test had no origin under Montana

law but was annexed from foreign jurisdictions. Missoula Rural Fire Dist., 286 Mont. at

394-95, 950 P.2d at 762-63. Here, the Land Owners do not challenge the City’s annexation

of Castle Butte Road as lacking a “legitimate governmental interest.”

¶43    Then, the Court took one more leap, holding that the now-annexed road would also

satisfy the contiguity requirement for the annexation of other, noncontiguous properties

beyond the city’s borders that lay along the road. Missoula Rural Fire Dist., 286 Mont. at

396, 950 P.2d at 763. The annexation sought there was of property asserted to be “wholly

surrounded” by the City of Missoula under § 7-2-4501, MCA, and the Court used the

subject road, after approving its annexation, to hold that the City now wholly surrounded

the property. Missoula Rural Fire Dist., 286 Mont. at 396, 950 P.2d at 763. Here, the

Court now permits the use of the annexed Castle Butte Road to satisfy the contiguity

requirement, not for “wholly surrounded” annexation as in Missoula Rural Fire Dist., but

for “contiguous” annexation under § 7-2-4311, MCA.

¶44    The judicial changes to the annexation process permit a city to use roads to extend

octopus-like annexation tentacles into non-contiguous areas, and then annex properties that

would otherwise be completely non-contiguous to the city, in contravention of the

annexation statutes. This is what has occurred here. While an argument could be made

that the North Area satisfies the statutory contiguity requirement, the South Area could not


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be considered contiguous without this Court’s rulings that expansively permit annexation

of Castle Butte Road and of the otherwise non-contiguous areas lying along the Road.

¶45    We have stated that “‘[w]e presume that the legislature is aware of the existing law,

including our decisions interpreting individual statutes . . . . We presume that if the

legislature disagreed with our interpretation . . . it would have amended the statute

accordingly.’” Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 14, 362 Mont.

1, 261 P.3d 570 (citation omitted).         I am concerned that interpreting our part-time

Legislature’s silence about our many court decisions to be an agreement with all of them

presumes too much. “To presume that the Legislature’s passive failure to amend a statute

constitutes affirmative ‘agreement’ with our statutory interpretation is a dangerous and

untenable precedent.” Musselshell Ranch Co., ¶ 56 (Nelson, J., concurring and dissenting).

¶46    I realize that there are other legal and practical limitations on annexation beyond the

issue of contiguity. However, I am very concerned that the courts have undermined the

statutes in this regard and have thereby breached the constitutional separation of powers.

Here, we have no argument that Missoula Rural Fire Dist. was wrongly decided and should

be overturned, or its principles do not govern. Stare decisis thus requires its application.

¶47    I concur with the Court’s Opinion, although my concurrence with the contiguity

portion of the Opinion is most reluctant.

                                                    /S/ JIM RICE


Justice James Jeremiah Shea joins the concurrence.

                                                    /S/ JAMES JEREMIAH SHEA



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