          IN THE SUPREME COURT OF THE STATE OF MONTANA                           t.
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                             No. 88-2114:                    Z
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THE STATE OF MONTANA, ex rel.,     1                         (X
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TAMMY L. LEACH and CRAIG S. LEACH, 1                                                   rv
GREGORY LEACH, and SUSAN LEACH,    )          OPINION AND M & R ~ N
     Petitioners and Appellants,              PETITION FOR A q E A p N G
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WILBUR VISSER, JANE JELINSKI, and )                          o
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RAMON S. WHITE, THE GALLATIN COUNTY)                         23
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BOARD OF COMMISSIONERS,            1
     Respondents and Respondents. 1




       The County Commission of Gallatin County has petitioned
for rehearing of our opinion promulgated November 1, 1988, on
the grounds that the opinion is in conflict with an earlier
decision of this Court, Withers v. Beaverhead County (1985),
710 P.2d 1339, 42 St.Rep. 1730 and that language in our
opinion of November 1, 1988, eliminates the discretion of a
county commission to determine if a proposed division of land
is an attempt to evade subdivision review.
     The Attorney General, appearing on behalf of the State
of Montana as amicus curia, supports the petition for
rehearing, contending that the Gallatin County regulation was
properly found by this Court to be void, but that certain
language in our opinion is extraneous to the decision and
that   the   extraneous    language   is   contrary   to   controlling
Montana case law. Several county attorneys, acting for their
respective counties, join in the State's brief. They are the
county attorneys from Missoula County, Flathead County, and
Lewis and Clark County.    In addition, Flathead County has
filed a supporting amicus curia brief, and a response to the
amicus curia brief        for the State of Montana, the                latter
directed to a fear that the State may have conceded in its
amicus brief that under all situations the local governing
body would be deemed to be abusing its discretion in denying
the use of an occasional sale exemption if that exemption
were proposed only once during a twelve-month period on a
division of land.
     The respondents have filed a responsive brief contending
that the petition for rehearing is groundless.
     For ease of reference, we set out the Gallatin County
subdivision regulation in question:

     b.  Exemption as an occasional sale.
           (1) An occasional sale is one (1) a sale of a
     division of land within any 12-month period.    The
     12-month period commences upon sale of the division
     of land.
           (2) The proper use of an occasional sale
     exemption is to create a single division of a
     parcel from any tract or from continuous tracts of
     land.
           (3) The governing body     shall declare a
     proposed division of land as an occasional sale to
     he an evasion of the act if it is determined that
     one or more of the following conditions exist:
           (a) the proposed new parcel is part of a
     parcel which was created under the occasional sale
     or family conveyance exemption of the act; or
           (b) a parcel contiguous to the parcel to be
     transferred has heen previously transferred by the
     same transferor as an occasional sale; or
           (c) the creation of the proposed parcel would
     leave 2 or more parcels of less than 20 acres.
     The pertinent statutory provision to which t.he Gallatin
County subdivision regulations relate are these:

    76-3-207.   .  . .unless the method of disposition
    is adopted for the purpose of evading this chapter,
    the following division of land are not subdivisions
    under this chapter . . .
          (d) a single division of a parcel outside of
     platted subdivisions when the transaction is an
     occasional sale; . ..
     76-3-103. Definitions. As used in this chapter,
     unless the context or subject matter clearly
     requires otherwise, the following words or phrases
     shall have the following meanings:
          . . .
          (7) "Occasional Sale" means one sale of a
     division within any 12-month period.
     In this case, Tammy Leach proposed     a division of a
certain tract 14 as an occasional sale.     The tract of the
proposed division was contiguous to a tract which had earlier
been transferred as an occasional sale to Tamrny Leach. The
"governing body", the county commission of Gallatin County,
determined that since the parcel is contiguous to a parcel
which had earlier been transferred by the same transferor as
an occasional sale, under the Gallatin County regulation the
Tammy Leach proposal did not qualify as an occasional sale
and so the division was denied. More than a year had elapsed
from the time of the earlier transfer.
     It is obvious that the Gallatin County subdivision
regulation which sets out a per se or automatic ru1.e to
determine when a proposed division of land is an evasion of
the act engrafts additional and contradictory requirements on
the statute providing for occasional sales without regard to
whether the purpose of the proposed divider is to evade
subdivision review. As such the regulation is void. All of
the amici appearing herein (but not Gallatin County) concede
that the regulation is void. and that mandamus is proper in
the premises. What they seek, however, is to have us delete
from our opinion of November 1, 1988, the following language:

    For the same reasons, the contentions of the county
    commission that i-t has discretion to determine
    whet.her the method of disposition is adopted for
     the purpose of evading 5 76-3-207, MCA, has no
     merit. Plainly, under our statutes, a landowner is
     permitted a single division of a parcel outside of
     a platted subdivision if the division and any other
     division do not occur within any 12-month period.
     The county commission has no discretion to deny a
     division of land if the landowner otherwise
     complies with the exemptions provided to him under
     the statutes for a single division of land.
     All of the amici contend that the foregoing paragraph
takes away from the county commissioners the power to
determine whether in fact a proposed division of land
submitted as an occasional sale or under some other exemption
of the act is an evasion of subdivision review. Such was not
our intention, and the point requires discussion.
     There is an inherent conflict between the statutory
allowance of an occasional sale without subdivision review,
and the condition "unless a method of disposition is adopted
for the purpose of evading this chapter."         A landowner
proposing to divide land under the occasional. sale exemption
obviously contemplates avoiding subdivision review by the
governing body. Whether such an avoidance is for the purpose
- evasion is quite another factual question.
of                                                F e have no
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direct guidance from the legislature through its statutes to
determine the difference between avoidance and evasion.
     In Withers v. Reaverhead County, supra, this Court had
before it a situation where Barbara Withers attempted to deed
property to her daughter Amy blithers under the immediate
family exemption of    76-3-207 (b), MCA.  When her deed and
certificate of     survey  were  rejected by    the   county
authorities, she sought mandamus in the district court. The
district court considered the earlier history of the family
pertaining to land divisions, determined that the proposed
division to the daughter was for the purpose of evading
suhdivisi on review, and denied ma-ndamus . This Court on
appeal held that there was no abuse of discretion by the
county commission in so determining, and therefore denied
mandamus. 710 P.2d at 1339, 1341.
     In this difficult field, the word "discretion" is itself
a confusing term. It can have two meanings, as discussed by
this Court in Kujich v. Lillie, 327 Mont 125, 137-38, 260
P.2d 383. There we said:

         Discretion. The term "discretion" denotes the
    absence of a hard and fast rule.     (citing a case)
         The establishment of a clearly defined rule
    would be the end of discretion. (citing authority)
         1 Rouvier' s Law Dictionary, Rawle ' s 3rd Rev. ,
    p. 884, has defined "discretion" in part as: "That
    part of the judicial function which decides
    questions arising in the trial of a cause,
    according to the particular circumstances of each
    case, and as to which the judgment of the court is
    uncontrolled by fixed rules of law.
         "'Discretion when applied to a court of
    justice means sound discretion guided by law.' 4
    Burr. 529.     Judicial discretion is a mere legal
    discretion--a discretion in discerning the course
    presented by law; and what has been discerned it is
    the duty of the court to follow.              (citing
    authority)      .
                 . . 'A ,-egaldiscretion is one that is
    regulated by well known and established principles
    of law. '   (citing authority)
         "'Rut if      the word    discretion in     this
    connection [injunction] is used in a secondary
    sense, and by it is meant that the chancellor has
    the liberty and power of acting, in finally
    settling property rights, at his discretion,
    without the restraint of the legal and equitable
    rules governing those rights, then I denv such
                                .
    power. ' " (citing authority)
     The use of the term "d.iscretionl'
                                      by the author of our
opinion of November 1, 1988, in the case at bar, and by this
Court in Withers, supra, may have been unfortunate. What is
really meant is that the governing bodies have the power and
duty to evaluate and determine from all the circumstances
whether the proposed division of land is based on a purpose
to evade the subdivision requirements.           The Attorney General
recognized this distinction in an opinion issued by him on
July 20, 1983 (40 Opinions A.G. No. 16) in response to a
question from the city attorney of Missoula where a developer
had completed and submitted for filing a fourth certificate
of survey dividing a tract into five lots, four of which were
to be conveyed as occasional sales, and the question asked
was, whether under these facts, are the claimed "occasional
sales" subject to review under the act on the grounda that.
the exemptions are claimed. "for the purpose of evading" the
act.
     The Attorney General answered in part:

     . . .  I have consistently declined to address such
     questions in the context of an advisory opinion.
     However, to assist you in analyzing the issue I
     offer the following observations.      As a statute
     promoting    public   health   and    welfare,  the
     Subdivision and Platting Act must be literally
     construed to effectuate its object. Its exemptions
     must be narrowly applied. State ex rel., Florence
     Carlton School District v.       Board of County
     Commissioners, 180 Mont. 285, 291, 590 P . 2 d 602,
     605 (1978).    A local government may legitimately
     require one claiming an exemption from the Act's
     requirements to make some evidentiary showing that
     the exemption is justified.          . .
                                        It would also be
     legitimate for the local government to establish by
     rule some sort of hearing procedure to allow the
     local government to evaluate the evidentiarv basis
     for the claimed exemption and to allow or disallow
     it. . .    .In contrast, a regulation estahlishina
     procedures for evaluati-on of a claimed exemption
     gives substance to the Act's policy of local
     government control of land use and is certainly
     consistent with the Act's requirements.
     Evaluation and determination of a factual issue is
different from "discretion."     Since the legislature has
provided that the occasional sale exemption is subject to the
condition    that   it   not   he   for    the   purpose   of   evading
subdivision review, a determination       (not discretion) by a
governing body   based   on   stated   facts which   show   such   a
purpose is within the power of the governing body.            This
Court has never intended otherwise.
     Rased on the foregoing discussion therefore we eliminate
from our original opinion the paragraph objected to by the
county commission and by amici. Aside from that exception,
the opi-nion as originally promulgated stands as issued. The
petition for rehearing is otherwise denied
