                                NO.    93-069

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1993

CITY OF KALISPELL, a municipal corporation,
            Plaintiff and Appellant,

     V.
                       . I
FLATHEAD COUNTY, a political subdivision
of the State of Montana, and the FLATHEAD
BOARD OF COUNTY COMMISSIONERS,
            Defendants and Respondents,
JOSEPHINE   SIDERIUS,
            Intervenor   and   Cross-Appellant.




APPEAL FROM:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead,
                 The Honorable Michael H. Keedy, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Glen Neier, City Attorney, Kalispell, Montana
            For Respondents:
                 Thomas J. Esch, Flathead County Attorney,
                 Dennis J. Hester, Deputy County Attorney,
                 Kalispell, Montana; Richard DeJana,
                 Kalispell, Montana


                                      Submitted on Briefs:   June 1, 1993
                                                  Decided:   August 31, 1993
Filed:
Justice James c. Nelson delivered the Opinion of the Court.

     This is an appeal and cross-appeal from an Eleventh Judicial

District Court, Flathead County judgment, granting summary judgment

to the Intervener on two issues and denying summary judgment on a

third.     We dismiss the appeal and remand.

     We restate the issue on appeal as follows: is the decision of

the board of county commissioners                  to conditionally approve a
preliminary    subdivision       plat     appealable?
     The City of Kalispell and Flathead County have established the

jurisdictional area of their city-county planning board pursuant to

5 76-l-504, MCA.        The planning board formulated a master plan for

the jurisdictional area which was adopted by the City of Kalispell
(the City) and         Flathead     County (the County) in 1986.                      The
Intervener    owns an approximately 40 acre property which she wants

to subdivide and which is located outside but within 3 miles of the

corporate city limits of the City and within the jurisdictional

area of the city-county planning board.                    This subdivision is at

issue in the present action.

     In July of 1991,             Intervener     applied for preliminary plat
approval for a 5 lot subdivision of her property to be named Ashley

Business     Park.          In   August    of    1991,     the    Flathead      Regional

Development Office (FRDO) provided a report to the Board of

Commissioners    of    Flathead      County      (the    County   Board),      reviewing,

commenting on, and recommending denial of, the application for the

subdivision.          The    FRDO    report      concluded        that   the    proposed
subdivision was not in conformity with the master plan which had

                                             2
designated the area encompassing the proposed subdivision as being

appropriate for agricultural use.                 Additionally,    the FRDO report,
for the most part, weighed the criteria specified in 5 76-3-608,

MCA, against the proposed subdivision.

        Similarly, on presentment of the proposed subdivision to the

City for its review and comment, the City adopted a resolution

opposing the granting of preliminary subdivision approval by the

County Board.
        The journal of the County Board reflects that it reviewed the

Intervener's    application for plat approval in September of 1991.

It adopted the       FRDO's findings of fact with two amendments.
However, despite the recommendation of the FRDO that the proposed

subdivision be denied and the City's opposition, the County Board,

without    making   written   findings       of    its    own,   granted   preliminary

plat approval to Ashley Business Park.

        The City filed a complaint in the District Court on October 4,

1991,    contending that the County Board's action in approving the

preliminary plat was illegal because its decision amounted to spot

zoning in an unzoned area: because the preliminary plat was not in

conformity with the City-County Master Plan:                       and because the

decision was not        supported by substantial evidence and was

arbitrary,     capricious     and an abuse           of    discretion.       The City

requested judgment that the County Board's approval of the

preliminary plat was null and void and that the court prohibit the

County Board from approving the final plat until it conforms to the

City-County Master Plan.


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   .-
        The Intervenor filed a motion for summary judgment in the
action on the grounds that the approval by the County Board was
supported by substantial evidence and that, as a matter of law,
there could be no spot zoning.          The Intervenor brought a second
motion for summary judgment on the basis that the City lacked
standing in the action.
        Ultimately, the trial court ruled:
        1. That Intervener's Motion for Summary Judgment on the
        issue of the Plaintiff's lack of standing is DENIED.
        2 . That Intervener's Motion for Summary Judgment on the
        issue of whether the Defendant's preliminary plat
        approval of a subdivision need not comply with the master
        plan is GRANTED.
        3 . That Intervener's Motion for Summary Judgment on the
        issue of spot-zoning is GRANTED.
        This appeal by the City followed.
        On appeal,   the parties raise significant issues of first
impression concerning whether the City has standing to bring this
action, whether, and to what extent, the master plan must be used
by the county board in the subdivision review process, and whether,
in this case, that process was used to illegally spot zone in an
unzoned area.
        Notwithstanding,   we must decline to rule on those issues at
this time by reason of our decision in Sourdough v. Board of County
Com'rs (1992), 253 Mont. 325, 833 P.2d 207.
        That case involved the appeal by an intervening party from the
county board's conditional approval of a preliminary subdivision
plat.       In affirming the district court's dismissal of the
petitioner's appeal from the county board's action, we held that
                                    4
the appeal was improperly taken under § 76-2-110, MCA, as that
statute deals with planning and zoning issues.           We also held that
5 z-4-702, MCA,      could not serve as the basis for appeal as the
county board of commissioners is specifically excluded from the
agency definition of the Montana Administrative Procedure Act via
§ 2-4-102(2)(b), MCA.
      Finally,    since that case,          like the present one,        was a
subdivision case, we held that there was no mechanism under the
Montana Subdivision and Platting Act, Title 76, Chapter 3, MCA, for
appealing     from   the      conditional    approval   of   a     preliminary
subdivision      plat.       Specifically, we     observed       that,   "[t]he
legislature did not provide an appeal process under this Act for
cases involving decisions of conditional approval of preliminary
plats; accordingly, this Court, will not fabricate one." Sourdough
833 P.2d at 208.         In dismissing the appeal we found it unnecessary
to weigh the conduct of the county board and the exercise of its
discretion in conditionally approving the preliminary plat.
      In his special concurrence, Justice Trieweiler found that it

was   I'... anomalous that the legislature would enact specific
criteria, such as those found in § 76-3-608, MCA, which must be met
before a local commission can approve a subdivision and then
provide no means of judicially enforcing the law." Sourdouoh, 833
P.2d at 210.
      We note, however, that since our decision in Sourdough was
handed down, the legislature enacted significant amendments to the
Montana Subdivision and Platting Act but still declined to provide

                                        5
a statutory method for appealing from the conditional approval of
a preliminary subdivision plat.             See House Bill 408, Section 5,

Chapter 272, Laws 1993, effective April 6, 1993.

     While the dissent argues that the majority has, sua snonte,

decided this case on an issue not raised or briefed by the parties,
the Intervenor did, citing Sourdouqh, argue that there is no appeal

from the conditional granting of a preliminary plat and that,

therefore,     I' . ..there can be no standing to bring an action that

cannot be brought."        Intervener went on to observe that such a
ruling   was   understandable   because "...[u]ntil        the land owner has
complied with the conditions of the preliminary plat, there is no

risk of a case or controversy... [and that] [i]t is upon submission

and approval of the final plat, that the issue is ripe for judicial
review."

     Notwithstanding,    the    City,       in its reply brief filed after

Intervener's    brief, chose not to discuss, meet or even mention the

citation to Sourdough     by the Intervenor.            We assume that if the

City had disagreed with Intervener's interpretation of or reference

to Sourdouoh,     it would have said so.

     That aside,     for this Court to simply ignore a dispositive

precedent decided within the last year because the parties

themselves chose to avoid it or to not entirely rely on that case,

merely creates confusion and uncertainty in the law.

     In Sourdouah,      the plaintiff appealed the county board's

approval of a preliminary plat by requesting that a writ of
mandamus issue directing the county board to appoint the city


                                        6




                                                   -.
planning board to review the entire project and reverse the county
board's findings of fact.          Notwithstanding,   in affirming the
dismissal of the complaint by the district court for failure to
state a claim, we held that there is no appeal process from the
approval of a preliminary platunder !j 76-2-110, MCA, (planning and
zoning), under §§ 76-3-101, MCA, et. seq., (The Subdivision and
Platting Act), or under 5 2-4-702, MCA, (MAPA).
     Similarly, the City, here, filed a complaint for declaratory
judgment,    injunction, writ of mandamus or other appropriate writ
praying that the county board's approval of the preliminary plat be
adjudged null and void and praying that the county board be
prohibited from approving the final plat unless it conforms to the
master plan.     Since we declined "to fabricate" an appeal process
under Sourdoush, we must, if stare decisis means anything,     decline
to fabricate an appeal process in the instant case.        If mandamus
did not lie in Sourdouqh: it does not lie here.        If there was no
appeal process available in the former case; there is none here,
either.
     While we did not discuss the availability of a writ of review
in Sourdouoh, neither did the City, here, ask for such a writ or in
any respect comply with the provisions of Title 27, Chapter 25,
MCA, in seeking that relief, if that was its intention. Aside from
referring to declaratory judgement, injunction, mandamus or other
appropriate writ in the title of its complaint, those forms of
relief are not otherwise referred to or prayed for in the City's
complaint.    Under   the   circumstances, we are no more inclined to

                                     7
fabricate pleadings for the parties than we are to fabricate
remedies.
     This     Courtls     opinion is     not    to   be   read   as   rendering
meaningless the statutory requirements of the Subdivision and
Platting Act.      Again, as in Sourdoush, we make no comment on the
county board's conduct in this case nor do we pre-judge any of the
substantive issues raised by the parties in this appeal.                    The
discussion and resolution of those matters will simply have to
await an appeal after judicial review of the approval or denial of
a final subdivision plat in this or some other case and controversy
directly involving those issues.
     Finally, and notwithstanding the adoption of major revisions
to the Subdivision and Platting Act by the 1993 Legislature, that
same body has chosen not to enact an appeal process from the
approval of a preliminary plat at any time since the Act was
adopted.     While the wisdom of that decision may be questionable
given the importance of the requirements of the Act and the
potential for harm if the law is disregarded at a critical stage of
the review process,        it is not the prerogative of this Court to
judicially remedy the situation.
     Accordingly,       our decision in Sourdouah is dispositive, and we
are constrained to dismiss this appeal as being premature.
     Furthermore,       and consistent with that decision, the District
Court should not have entertained the City's appeal from the County
Board's     decision.     Accordingly,       we also remand to the      District

Court with instructions that it enter an order which vacates its

                                         8
findings of fact, conclusions of law and judgment dated October 29,
1992 and filed November 2, 1992, and which dismisses the City's
complaint without prejudice.
     Appeal dismissed and case remanded.




          Justices
Justice Terry N.        Trieweiler     dissenting.
        I dissent from the majority opinion.

        We have repeatedly held that we will not decide cases on

appeal based on issues which have never been raised in the District

court.     Hanleyv.Dept. of Revenue (1983), 207 Mont. 302, 306, 673 P.2d

1257,    1259.     The issue which the majority finds controlling in this
case was never raised in the District Court, it was never part of

the     decision    appealed   from,    and it has never been briefed nor
argued as an issue on appeal.            According to the rules we apply to
the district courts of this state, we do not have jurisdiction to

decide the issue which the majority decision finds dispositive. See

hzreMam~ageofDiPaSqua~e (1986), 220 Mont. 497, 499, 716 P.2d 223,

225.

        While the Sourdough decision           was mentioned briefly in the

intervener's       brief as it related to the issue of standing, the

right of         the   City    to appeal       the   decision of   the   County
Commissioners was not an issue on appeal, and the City has had no

opportunity to argue, brief, or respond to the legal issue on which

the majority bases its decision to dismiss the City's appeal.

        Considering our traditional notions that issues are decided

most reliably after thorough argument by adversaries, how can this
result be fair?

        I concurred with the result of the Sourdough decision because

the plaintiff in that case sought to appeal a county commission's

conditional approval of a preliminary subdivision plat pursuant to

                                          10
§§ 76-2-110 and 2-4-702, MCA.     After briefing the issue and hearing

argument,   the district court concluded, and I agreed, that the

former statute pertained only to appeals from planning and zoning

decisions and the latter statute was, by definition, inapplicable

to the decisions of county commissioners.          That case did not
address the issue of whether there is any other procedure by which

county commissions can be compelled to perform their statutory
obligation under the Montana Subdivision and Platting Act found at

55 76-3-101 through -614, MCA.

     In this case, the City of Xalispell did not attempt to appeal

a decision of the County Commissioners based on the aforementioned

statutes.    It filed a complaint for declaratory judgment and

injunction and for a writ of mandamus or other appropriate writ.
     The majority opinion has dismissed the City's appeal to this

Court for the reason that the Subdivision and Platting Act does not

provide for an appeal from a county commission's decision to

conditionally approve a preliminary plat.          However,   writs of

mandamus are specifically intended for situations like this where

there is no adequate remedy in the ordinary course of law. Section

27-26-102, MCA.    Furthermore,   a writ of mandamus may be issued by

the district court to a board of county commissioners to compel the

performance of an act which they are obligated to perform as a duty

of their office.

     The City has complained that the Flathead County Commissioners

have refused to perform several duties which they are required to

perform under the Subdivision and Platting Act.     It is alleged that

                                   11
the Commissioners approved the subdivision in question without

making specific findings that the subdivision would be in the

public     interest, as         required        by   §    76-3-102,       MCA,       without

determining that it conforms to the local master plan, as required

by 3 76-3-604, MCA, and without making written findings that it

considered the specific criteria set forth in § 76-3-608, MCA.

        Furthermore, the City has alleged that without complying with

these    statutory    requirements, the          County        Commission      was   without

authority    to    approve    this   subdivision.             This was, therefore,        an

appropriate       situation      for   a    writ         of     review,     pursuant      to

5 27-25-102, MCA, or a writ of mandamus pursuant to 5 27-26-102,
MCA.

        It is,    perhaps,    for these reasons that at no stage in the
proceedings before the District Court or on appeal has either

Flathead County or the intervening developer moved to dismiss the

City of Kalispell's          complaint, or its appeal from the judgment of

the District Court, pursuant to our decision in Sourdough.                             It is

simply wrong for this Court to suasponte decide this case on a basis

that has never been suggested by the parties to the case.

        The Montana     Subdivision        and       Platting      Act    is     extremely

important to the future quality of life in Montana.                       Its purpose is

to:

        [Plromote the public health, safety, and general welfare
        by regulating the subdivision of land; to prevent
        overcrowding of land: to lessen congestion in the streets
        and highways; to provide for adequate light, air, water
        supply,  sewage disposal, parks and recreation areas,
        ingress and egress, and other public requirements; to
        require   development in harmony      with  the natural
        environment . . . .

                                           12
Section 76-3-102, MCA.
     Nowhere are these considerations more relevant than Flathead

County    which   has,    in recent years,       experienced the most rapid

growth in Montana.

     It is to accomplish these purposes that county commissioners

who are asked to approve subdivisions are required to consider the

master plan adopted by the county.              Section 76-3-604, MCA.      It is
to accomplish these purposes that the county commissioners are also

required to consider whether the subdivision is in the public

interest and issue specific findings of fact which weigh criteria
such as the need for the subdivision,                effects   on    agriculture,
effects    on   local    services,    effects   on   the   natural   environment,

effects on wildlife and wildlife habitat, and effects on public

health and safety.        Section 76-3-608, MCA.
     The majority's decision renders these essential statutory

requirements meaningless because the practical effect of this

decision is to preclude any form of judicial review when two out of

any three county commissioners around the state simply refuse to

comply with the statutes.            The fact that this case was decided on

this basis, without the benefit of any briefing or argument by the

parties, is particularly troubling.

     It is ironic that, because the Montana Legislature recognized

the threat to Montana's character, beauty, and public health from

uncontrolled      development, it expended considerable time and effort

during the past legislative session to strengthen subdivision

regulations.       See House Bill No. 408, 1993 Mont. Laws, ch. 272,

                                         13
effective April 6, 1993.     Yet,   by virtue of this decision, those
regulations    are meaningless because they cannot be judicially
enforced.
      The majority concludes that the City's "appeal" is premature.
However,    the City's complaint to the District Court was not an
"appeal," and if it was, the majority should explain why it was
"premature."      If it is being dismissed due to the lack of a
statutory appeal mechanism in the Subdivision and Platting Act,
then there is no reason to distinguish between preliminary plat
approval and final plat approval.        There is no statutory mechanism
for   appealing   either.   If the same reasoning applies to both
preliminary and final decisions, then why is this "appeal" simply
"premature"?
      In response to this dissent, the majority argues that because
the intervenor made passing reference to the Sourdough decision while

citing it for other reasons, the issue upon which this case was
decided was properly raised on appeal. However, the issues, as set
forth in the parties' briefs, made clear that the issue decided by
the majority was not raised on appeal.       The appellant presented the
following issues for review:
      I.    When a     County   takes   erroneous,  arbitrary,
            capricious action, or abuses its discretion, in a
            subdivision approval, does a City have standing to
            challenge the action when the City is a co-adopter
            of the Master Plan and !j 76-3-601, M.C.A.,
            authorizes review and comment by the City?
      II.   Is Master Plan compliance part of the public
            interest criteria of the Subdivision & Platting
            Act, or does the County have authority to ignore
            the Master Plan?
                                    14
     III. Should the principles of "spot zoning" be applied
          to subdivisions in unzoned areas?

     The issues,      as set forth by the County and the intervenor,

were simply variations of the same three issues set forth above.

It should be clear from the majority's own opinion that the issue

it decided was not raised by the parties.       The    majority's   opinion
points out that       "[w]e restate the issue on appeal as follows

. . . ."

     If the issue that the majority resolved was actually raised by

the parties, why was it necessary to restate it?
     The majority considers it significant that the City chose not

to respond to the intervener's      reference to the    Sourdough decision

when the City filed its reply brief.       There was no reason for the

City to respond.       Sourdough was simply not relevant to the issues

raised in this appeal.

     Perhaps   most    importantly, none of the arguments made by the

majority in support of its dismissal of this appeal were made by

any party in the District Court.         This fact is the most logical
explanation for why the complaint filed by the City was not refined

to the majority's satisfaction. The City, in its complaint, sought

a writ of mandamus or other appropriate writ.             The purpose of
requiring that objections to the inadequacy of a parties' complaint

be made in the trial court is to give the party who filed the

complaint an opportunity to correct any alleged deficiency.            The

City was not given that opportunity in this case because there was

no objection to its complaint on the grounds raised by the majority

                                    15
until the opinion was issued by this Court.                     It is a little late
for the City to correct the majority's objections at this time.

     Finally,        it is appropriate to comment on the majority's

statement that since the Legislature did not provide for a right of

appeal   from      plat    approval,    this Court would not "fabricate" an

appeal process.           Such judicial restraint might be admirable if this

was in fact an appeal.                 However,     it is not.         This case was

commenced by the City of Kalispell when it filed a complaint for a
writ of mandamus or other appropriate writ to compel the Flathead

County Commissioners to perform their public duty.                      And, whether

Commissioners can be compelled to comply with the terms of this

State's Subdivision and Platting Act by mandamus or certiorari was

never addressed in the Sourdough opinion.

     Furthermore, the majority's reluctance to "fabricate" a right

of appeal is selective at best.                   In the very same opinion, this

Court goes on to advise the parties that judicial review will have

to await approval of the final plat map.                The majority states that:

     The discussion and resolution of those matters will
     simply have to await an appeal after judicial review of
     the approval or denial of a final subdivision plat in
     this or some other case and controversy directly
     involving those issues.

     The majority must have overlooked the fact that neither did

the Legislature provide an appeal process from final subdivision

plat approval.         Would the same Court which showed such remarkable

restraint     by    declining    to    "fabricate" an appeal process from a

preliminary     plat      approval    turn   around   and   "fabricate"      an   appeal

process from a final plat approval?                   If not,   then    as   previously

                                             16
mentioned,    the provisions of the Subdivision and Platting Act are

truly    meaningless.
        For these reasons,   I dissent from the majority opinion. I

would affirm the District Court's conclusion that the City of

Kalispell had standing to complain of the County Commission's

approval of this subdivision.      I would reverse that part of the

District Court's summary judgment which dismissed the City of

Kalispell's    complaint, and remand this case for further hearing to

determine whether there is a factual basis for the issuance of the
writ of mandate or other appropriate writ sought by the City of

Kalispell.




                                   I       J stice


        Justice William E. Hunt, Sr., joins in the foregoing dissent.




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