                                                                                       June 7 2016


                                        DA 15-0469
                                                                                    Case Number: DA 15-0469

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2016 MT 136



JACK and BONNIE MARTINELL, husband and wife;
THOMAS and HAZEL MCDOWALL, husband and wife;
THOMAS SHAFFREY; and BARRETT and
KARI KAISER, husband and wife,

           Plaintiffs and Appellants,

     v.

BOARD OF COUNTY COMMISSIONERS OF CARBON
COUNTY, the governing body of the County of Carbon,
acting by and through JOHN GREWELL, JOHN PRINKKI,
and DOUG TUCKER; DOUG and DENISE AISENBREY,
husband and wife; WILLIS and THERESE HERDEN, husband and wife;
DUANE and DENA HERGENRIDER, husband and wife;
KAREN HERGENRIDER; RUDOLPH HERGENRIDER;
SHELLY BAKICH LECHNER, as personal representative
of the Milovan Bakich estate; and STEVEN and MONICA THUESEN,
husband and wife,

           Defendants and Appellees.


APPEAL FROM:       District Court of the Twenty-Second Judicial District,
                   In and For the County of Carbon, Cause No. DV 15-14
                   Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

            For Appellants:

                   Jenny K. Harbine, Katherine K. O’Brien, Earthjustice; Bozeman, Montana

            For Appellees Aisenbreys, Herdens, Hergenriders, Bakich Lechner, and
            Thuesens:

                   Raymond G. Kuntz, III, Attorney at Law; Red Lodge, Montana
         For Board of Carbon County Commissioners:

               Alex R. Nixon, Carbon County Attorney; Red Lodge, Montana

               Jacqueline R. Papez, Doney Crowley P.C.; Helena, Montana

         For Amicus Curiae Land Use & Natural Resources Clinic:

               Michelle Bryan, Ariel Overstreet-Adkins, Land Use and Natural
               Resources Clinic; Missoula, Montana



                                           Submitted on Briefs: March 9, 2016

                                                      Decided: June 7, 2016


Filed:

               __________________________________________
                                 Clerk




                                       2
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellants appeal from an order entered by the Twenty-Second Judicial District

Court, Carbon County, dismissing their complaint. After the Board of Carbon County

Commissioners denied the Appellants’ petition to create a zoning district pursuant to

§ 76-2-101, MCA, et seq., they filed a declaratory action, requesting a judgment

declaring that the “protest provision” included in the statute is unconstitutional and that

the Commissioners’ actions in denying the petition were “arbitrary and capricious,”

violative of the Montana constitutional environmental provisions, and therefore void.

Upon Appellees’ motions to dismiss under M. R. Civ. P. 12(b)(6), the District Court

agreed, dismissing the complaint without prejudice. We affirm. The issues on appeal are

as follows:

       1. Did the District Court err by holding that the Carbon County Commissioners
acted arbitrarily in waiving compliance with county resolution zoning requirements?

      2. Is the protest provision in the “Part 1” zoning statute, § 76-2-101(5), MCA,
unconstitutional?

       3. Does the Carbon County Commissioners’ reliance on the “Part 1” protest
provision, § 76-2-101(5), MCA, render their decision unlawful?

¶2     Because we affirm based on Issue 1, we do not reach Issues 2 and 3.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Appellants (“the Silvertip Landowners”) are a group of private landowners in

Carbon County who initiated a petition to establish a “Part 1” zoning district pursuant to




                                            3
§ 76-2-101, MCA, et seq.1 The Appellees are the Board of County Commissioners of

Carbon County (“the Commissioners”), and a group of private landowners in Carbon

County who opposed the proposed zoning district (“the Neighbors”).

¶4     Section 76-2-101, MCA, et seq., establishes the statutory procedure for property

owner-initiated zoning (referred to herein as “Part 1” zoning).          In November 2009,

Carbon County specifically adopted a resolution (“Resolution 2009-16”) which

established “the approved process for the certification of ‘Part [1]’ zoning petitions in

Carbon County, Montana,” and which was in effect at all times relevant to the

proceedings.     Resolution 2009-16 includes specific substantive and procedural

requirements for a “Part 1” zoning petition.

¶5     On November 20, 2014, the Silvertip Landowners submitted a “Part 1” zoning

petition to the Commissioners.         The Commissioners held a public meeting on

December 15, 2014, where comment was heard from the public and various legal

counsellors. At this meeting, Appellee Steven Thuesen, a private landowner, informed

the Commissioners that he and other landowners holding more than 50% of the acreage

in the proposed district intended to protest the establishment of such a district. At the end

of the meeting, the Commissioners voted to adopt a resolution of intent to grant the

petition and establish the zoning district, based on a finding that such a district would

serve the public interest and convenience. They determined to reconvene on January 15,


1
  Despite strong characterizations of the proposed zoning district by all parties, such as, for
example, “anti-fracking,” the substance of any proposed zoning regulations are not before us
and, indeed, a zoning commission to consider adoption of regulations has not been created.
                                               4
2015, to address protests to the petition, and to take further action on their resolution of

intent to create the district.

¶6     At the outset of the meeting on January 15, 2015, the Commissioners noted that

none of the parties had complied with Resolution 2009-16 throughout this process.

Commissioner Prinkki made a statement and offered that the Commissioners had made

certain “findings”:

       [T]he Commissioners must acknowledge that the petition provided does not
       comport with the County Resolution 2009-16 regarding citizen-driven or
       type one zoning. Simply put, all parties failed to take notice of the
       resolution during the entire process. The Commission takes the blame for
       the oversight, but also makes the following findings: no parties have been
       prejudiced by the oversight, and both parties, [Silvertip Landowners] and
       [the Neighbors], were held to the same standards and benefitted from the
       easier standards applied. The Commission has no reason to believe that
       either party would have had any difficulty in complying with the standards
       of Resolution 2009-16, had the parties been aware of it. . . . The
       Commission finds that it would be unduly burdensome and unfair to
       proceed with the petition process [as required by Resolution 2009-16], and
       there’s no reason to believe that the outcome would have . . . in any way
       been changed. [Emphasis added.]

¶7     Later in the meeting, the Commissioners reported that landowners holding 60.7%

of the total acreage in the proposed district had submitted protests opposing the zoning

district. The Commissioners rescinded their resolution of intent, and voted to deny

creation of the zoning district as proposed, citing as the reason for doing so the formal

protests lodged.

¶8     The Silvertip Landowners filed an action in the Twenty-Second Judicial District

Court; the complaint listed three causes of action: 1) reliance on an unconstitutional

protest provision in § 76-2-101(5), MCA, pursuant to Williams v. Bd. of Cnty. Comm’rs
                                             5
of Missoula Cnty., 2013 MT 243, 371 Mont. 356, 308 P.3d 88; 2) arbitrary and capricious

reversal of the Commissioners’ own finding of public interest; and 3) unconstitutional

deprivation of the Silvertip Landowners’ right to a clean and healthful environment as

guaranteed by the Montana Constitution. For relief, the Silvertip Landowners asked the

District Court to 1) declare § 76-2-101(5), MCA, unconstitutional and therefore void;

2) declare the Commissioners’ decisions to withdraw the resolution of intent to create the

zoning district and to deny the Silvertip Landowners’ petition as arbitrary and capricious,

and therefore void; and 3) declare the Commissioners’ decisions to withdraw the

resolution of intent and to deny the petition as violative of the Montana Constitutional

environmental protections. The Commissioners and the Neighbors both made motions to

dismiss the complaint pursuant to M. R. Civ. P. 12(b)(6).

¶9     On July 8, 2015, the District Court issued an order granting the Neighbors’ motion

to dismiss, and dismissing the complaint without prejudice.2            The District Court

concluded that the Commissioners had indeed waived compliance with Resolution

2009-16, and “insofar as the resolution is applicable to this case,” had acted arbitrarily in

doing so because “it permitted the petitioners to avoid requirements pertaining to all

similarly situated petitioners at the expense of the Neighbors and other citizens protesting

the petition, while unnecessarily limiting information that would have assisted in an

informed decision by the Commissioners.” The District Court declined to address the

constitutional questions raised, in light of the legal insufficiency of the petition and the

2
 After granting the Neighbors’ motion to dismiss, the District Court denied the Commissioners’
motion to dismiss as moot.
                                              6
Commissioners’ unwarranted waiver of Resolution 2009-16’s requirements.                  In

dismissing the complaint, the District Court explained, “Plaintiffs [Silvertip Landowners]

retain the option to file another petition with Carbon County Commissioners for

consideration of the creation of the Silvertip Zoning District in compliance with

Resolution 2009-16.”

¶10    The Silvertip Landowners appeal.

                               STANDARD OF REVIEW

¶11    “We review de novo a district court’s ruling on a motion to dismiss pursuant to

M. R. Civ. P. 12(b)(6). The determination of whether a complaint states a claim is a

conclusion of law, and the district court’s conclusions of law are reviewed for

correctness.” Schoof v. Nesbit, 2014 MT 6, ¶ 10, 373 Mont. 226, 316 P.3d 831 (citing to

Ming Da Situ v. Smole, 2013 MT 33, ¶ 11, 369 Mont. 1, 303 P.3d 747) (internal citations

and quotation marks omitted). “We accept the complaint’s factual allegations as true and

consider the complaint in the light most favorable to the plaintiff. We will affirm a

district court’s dismissal of a complaint for failure to state a claim only if it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that would

entitle him to relief.” Schoof, ¶ 10 (citing Tally Bissell Neighbors, Inc. v. Eyrie Shotgun

Ranch, LLC, 2010 MT 63, ¶ 15, 355 Mont. 387, 228 P.3d 1134; and Pederson v. Rocky

Mt. Bank, 2012 MT 48, ¶ 8, 364 Mont. 258, 272 P.3d 663) (internal citations and

quotation marks omitted).




                                             7
                                      DISCUSSION

¶12 1. Did the District Court err by holding that the Carbon County Commissioners
acted arbitrarily in waiving compliance with county resolution zoning requirements?

¶13    The Silvertip Landowners argue that the Commissioners waived the requirements

of Resolution 2009-16, and, contrary to the District Court’s conclusion, the waiver was

valid and did not warrant dismissal of the complaint. They argue the District Court

improperly concluded that the Commissioners could not waive the Resolution when they

articulated a reason for doing so on the record, and when no party was prejudiced by the

waiver.

¶14    Section 76-2-101(1), MCA, provides for property owner-initiated zoning, and

states, in pertinent part:

       Subject to the provisions of subsection (5), whenever the public interest or
       convenience may require and upon petition of 60% of the affected real
       property owners in the proposed district, the board of county
       commissioners may create a planning and zoning district and appoint a
       planning and zoning commission consisting of seven members.

¶15    In November 2009, Carbon County adopted Resolution 2009-16, which states that

“Upon passage, the Resolution shall constitute the approved process for the certification

of ‘Part [1]’ zoning petitions in Carbon County, Montana, submitted pursuant to

§ 76-2-101, [MCA].”          Resolution 2009-16 provides the specific procedural and

substantive requirements for a valid zoning petition, including: 1) a map prepared by a

certified land surveyor indicating the boundaries of the area of land to be included in the

district with the names of the landowners clearly marked (this map must be circulated

with each of the petition’s signature pages); 2) a specific format for the signature pages
                                            8
(including a statement of the petition, a separate line for each signature and date, a

separate line for signatory’s printed name, a line for signatory’s mailing address, and a

legal description of the signatory’s affected real property); 3) a title ownership report

prepared by a title company; and 4) an affidavit of the person circulating the petition, or

each signature must be notarized. The Resolution further provides the procedure for

submitting a petition to the County Clerk and Recorder, requiring that a 45 business-day

waiting period pass either for accepting more signatures in support of the petition, or for

withdrawal statements from landowners who had changed their minds, to be submitted.

The Resolution thus contemplates that the 45 business-day period could be fluid in terms

of the petition’s support, with the possibility that signatories would be added or

withdrawn before the period was closed. After the 45 business-day period closed, the

Clerk and Recorder was to transmit to the Board of County Commissioners a verification

of the number of affected landowners within the boundaries of the district, the number of

valid signatures, and “verification of the percentage of freeholders within the boundaries

that signed the petition after it has been reviewed by the county attorney.”3

¶16    The District Court reasoned that the substantive requirements of Resolution

2009-16 “are important to more fully inform the Commissioners in the decision making

process relative to the petition by virtue of the required information and attachments[.]”




3
  The Silvertip Landowners state that “Some of the resolution’s requirements, . . . threaten
substantial expense[,]” and that Resolution 2009-16 “establishes procedural requirements . . . that
go beyond the requirements of state law.” However, despite these allusions, the legality of the
Resolution itself has not been challenged.
                                                9
In addition, the procedural requirements “provide a uniform set of rules upon which

citizens can rely in petitioning for and protesting against a proposed zoning district.”

¶17    The Silvertip Landowners argue that “the Commissioners and Neighbors fail to

identify any way in which the Commissioners’ decision to excuse strict compliance with

Resolution 2009-16 prejudiced the Neighbors’ interest . . . .” However, we do not agree.

First, it is uncontested that the petition in question did not comply with Resolution

2009-16. A map indicating the boundaries of the area of land to be included in the

proposed district, marking the individual names of landowners, was indeed drawn up, but

it was not produced by a certified land surveyor, nor was it attached to each of the

signature pages as they were circulated. The individual signature pages in the record

appear to satisfy the requirements for the required lines for signatures and descriptions,

but the signatures are neither notarized, nor is there an affidavit attached to the petition

from the person collecting the signatures.4

¶18    Also significant is the failure to follow the procedural requirements following the

submission of the petition to the County Clerk and Recorder. Per Resolution 2009-16, a

valid petition must be held for 45 business days after submission, to allow for additional

support signatures or withdrawal statements to be submitted. Both the December 15,

2014 meeting and the January 15, 2015 meeting were conducted prior to the closing of

the waiting period, obviously violating this requirement. Thus, the period for submission



4
 Ms. Bonnie Martinell’s affidavit attesting as to the signature pages is dated August 14, 2014,
but the petition was resubmitted as of November 20, 2014, with no new accompanying affidavit.
                                               10
of additional signatures or withdrawal of signatures was cut off, potentially impacting the

final tally and the validity of the petition.

¶19    The Silvertip Landowners argue that “there is no indication in the record that any

party was confused about the lands proposed for inclusion in the Silvertip District . . . .”

We note that, in the December 15, 2014 meeting, a member of the audience raised

questions about affected zoning area within the boundaries. Another landowner stated in

a letter of protest that “I was never contacted by anyone before they included my acreage

in this proposed zone.” While these comments are not determinative, the record seems to

indicate some confusion over what land was to be included in the proposed district, and

adherence to the Resolution’s careful requirements regarding title and survey information

of the affected properties may have served to clear up any confusion.5

¶20    “The powers of a self-government unit, unless otherwise specifically provided, are

vested in the local government legislative body and may by exercised only by ordinance

or resolution.” Section 7-1-104, MCA. A board of county commissioners is limited in

the exercise of its legislative power to ordinances and resolutions, such as Resolution

2009-16, through which it may act.          As the District Court pointed out, Resolution

2009-16 prescribes self-imposed requirements for a valid “Part 1” zoning petition in


5
  In the December 15, 2014 meeting, the Commission stated that “We have a letter from the
County Clerk and Recorder, basically certifying that 60% of the landowners in the proposed
zone are in fact landowners.” If we can assume that this statement was meant to indicate that the
Clerk and Recorder had provided “verification of the percentage of freeholders within the
boundaries that signed the petition,” as required by Resolution 2009-16, there is nonetheless no
indication in the record that the Clerk and Recorder’s letter included the other information
required by the Resolution to be provided. The letter is not in the record before us.

                                                11
Carbon County, and “sets forth [the] requirements the Commissioners and all citizens

must follow” to validly enact such zoning.

¶21    The Silvertip Landowners emphasize the Commissioners’ stated finding that “no

parties have been prejudiced by the oversight.” However, it is disconcerting that the

same body that adopted Resolution 2009-16 as law can singlehandedly make the

determination to “waive” the Resolution when time constraints make compliance

inconvenient,6 and upon its own assessment that no prejudice would result by its decision

to do so. Although the Commissioners noted on the record that “both parties . . . were

held to the same standards, and benefitted from the easier standards applied,” there was

no articulation of what standards were made “easier” by failing to follow the

Resolution—or whether the public was in any way disadvantaged by the parties’

compliance with “easier standards.” Resolution 2009-16 clearly provides the standards

for “Part 1” zoning petitions in Carbon County, and to waive some unidentified

requirements for one petition may well insert uncertainty into the process for future

petitioners, future protesters, and the public alike, and raise process concerns. As the

District Court noted, “All petitioners coming before the county commission on a Part [1]

zoning petition should be held to the same consistent standard.”             That is the law’s

entitlement to all citizens, and the District Court correctly concluded that the
6
 Mr. Moore, planning director, stated in the January 2015 meeting that “there was a sense of
urgency and emergency” from the Silvertip Landowners when the petition was initially filed.
Counsel for the Silvertip Landowners mentioned in December 2014 that, by acting promptly, the
Commissioners had a chance “to get ahead of the game.” By the time of the January 2015
meeting, the parties obviously felt that time was of the essence in regards to the petition. This
was compounded by the Commissioners’ learning about the requirements of the Resolution only
two days before the January 2015 meeting.
                                               12
Commissioners acted “arbitrarily and for reasons of convenience” by waiving those

requirements.

¶22    Because all parties agree that the petition did not conform with the requirements of

the Resolution, there is no set of facts that the Plaintiff Silvertip Landowners could prove

otherwise. The Commissioners’ waiver of the Resolution being error, we affirm the

District Court’s dismissal of the complaint without prejudice, and its determination to not

reach constitutional issues until they are properly before the court. As the District Court

noted, Silvertip Landowners are free to pursue a properly filed petition.

¶23    Affirmed.


                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA


Justice Patricia Cotter, dissenting.

¶24    I respectfully dissent from the Opinion of the Court in two particulars. First, I

disagree with the District Court’s and this Court’s conclusion that the BOCC’s waiver of

strict compliance with the County resolution was error. While it is certainly true that

County officials are obligated to comply with governing statutes when making zoning

decisions (Bryant Dev. Ass’n v. Dagel, 166 Mont. 252, 531 P.2d 1320 (1975)), there is no




                                            13
parallel authority requiring local officials to strictly comply with their own local

ordinances, nor does the Court cite any such authority.

¶25    Though the Court combs the record here in search of a suggestion of prejudice, in

truth the Neighbors suffered no injustice whatsoever in the BOCC proceedings. The

District Court conceded as much when it was unable to make a finding of prejudice on

the record, stating only that “[t]he Court will not assume a lack of prejudice.” The notion

that the Neighbors were somehow prejudiced by the BOCC’s waiver of strict compliance

with the local ordinance is wholly belied by the fact that they were able to successfully

block the zoning district by collecting protests from landowners holding precisely 60.7%

of the total acreage in the proposed district. Opinion, ¶ 7. This accomplishment clearly

signals that the Neighbors knew exactly what land was at issue and establishes that they

were not at all prejudiced by the actions of the BOCC. Our conclusion to the contrary

finds no substantive support in the record.

¶26    The more significant error of the District Court and this Court, however, is the

refusal to take up and resolve the constitutional issue raised by the Silvertip Landowners.

As the Court notes, the plaintiffs requested in their declaratory action a judgment

declaring that the “protest provision” included in § 76-2-101(5), MCA, is

unconstitutional (Opinion, ¶ 1), a wholly appropriate subject for declaratory relief.

Section 27-8-202, MCA, permits any person “whose rights, status, or other legal relations

are affected by a statute . . . .” to obtain a declaration of rights, status, or legal relations.

The constitutionality of the protest provision was fully briefed by the Silvertip

                                               14
Landowners and the Neighbors in the District Court and this Court, yet both Courts

inexplicably sidestep it until it is “properly before the court.”           Opinion, ¶ 22.

Respectfully, the constitutional issue is properly before this Court now and it will not

change regardless of the outcome of a successive petition to create a zoning district and

an ensuing declaratory action.

¶27    As we acknowledge, the BOCC rescinded its resolution of intent to grant the

Silvertip Landowners’ petition and voted to deny the creation of the proposed zoning

district, “citing as the reason for doing so the formal protests lodged.” Opinion, ¶ 7. We

therefore know that the BOCC rejected the zoning district premised upon the number of

protests filed; we know that the precise issue raised in the Silvertip Landowners’ petition

for declaratory relief is the constitutionality of the subject protest provision; and we know

that this Court previously declared a virtually identical protest provision in a zoning

statute to be an unconstitutional delegation of legislative power to protesting landowners

in Williams v. Bd. of Cty. Comm’rs, 2013 MT 243, 371 Mont. 356, 308 P.3d 88. This

being so, there is no conceivable utility in declining to reach the constitutional issue here

and now, especially given that the issue is purely one of law untethered to the record.

¶28    Because we decline to reach this issue now, the Silvertip Landowners will be

compelled to expend the time and resources to refile their zoning petition before the

BOCC, await the protests of the Neighbors, and face again a rejection of their proposal

by the BOCC premised upon the number of protests filed. They will then have to return

to the District Court, at which time the same constitutional issue will be presented

                                             15
unaltered from its present form. And then, irrespective of the outcome of the District

Court decision, the same issue will be back here for review. This complete waste of the

parties’ and the courts’ time and resources would be forestalled if this Court were to

resolve the constitutional issue now, one way or the other. Not to do so is senseless. I

therefore strongly dissent from our refusal to resolve the constitutional issue before us.



                                                  /S/ PATRICIA COTTER




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