                                                                                                10/11/2016


                                           DA 15-0696
                                                                                           Case Number: DA 15-0696

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 256



CITIZENS FOR A BETTER FLATHEAD,
a Montana nonprofit public benefit corporation,

              Plaintiff and Appellant,

         v.

BOARD OF COUNTY COMMISSIONERS
OF FLATHEAD COUNTY, a political subdivision
of the State of Montana and the governing body of
County of Flathead, acting by and through Dale W. Lauman,
Pamela J. Holmquist, and Calvin L. Scott,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV-12-1304(C)
                        Honorable Heidi Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John F. Lacey, McGarvey, Heberling, Sullivan & Lacey, PC, Kalispell,
                        Montana

                For Appellee:

                        Alan F. McCormick, Garlington, Lohn & Robinson, PLLP, Missoula,
                        Montana

                        Tara R. Fugina, Flathead County Attorney’s Office, Kalispell, Montana


                                                    Submitted on Briefs: June 29, 2016
                                                               Decided: October 11, 2016

Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Citizens for a Better Flathead (Citizens) appeals the District Court’s rejection of its

challenge to Flathead County’s 2012 Revised Growth Policy. Citizens asserts that both

the Flathead County Planning Board (Planning Board or Board) and the County

Commission (Commission) violated public rights protected by Montana’s constitution

and statutes when they developed the revised policy without adequate public

participation. Citizens also claims that the County failed to follow its own procedures for

amending the growth policy.        We agree with the District Court that the alleged

irregularities do not invalidate the revised growth policy. Because the growth policy

lacks the force of law, we likewise affirm the District Court’s refusal to strike from it

what Citizens calls the “property rights trump card.”

¶2     We address Citizens’ claims in the following issues:

       1. Whether the District Court abused its discretion in striking Citizens’ expert
       report.

       2. Whether the District Court erred in determining that the Commission complied
       with the growth policy’s mandatory procedures for adopting revisions.

       3. Whether the District Court erred in determining that the Commission allowed
       meaningful public participation in the revision process.

       4. Whether the District Court erred in determining that the Commission
       adequately incorporated public comments into its decision-making process.

       5. Whether the final clause in Part 6 of the revised growth policy survives
       constitutional scrutiny.




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                   PROCEDURAL AND FACTUAL BACKGROUND

¶3       The Commission adopted the original Flathead County Growth Policy in March

2007. The growth policy’s terms required the Planning Board to review the policy at

least every five years and to make recommendations to the Commission as to what

changes to the original policy, if any, it should adopt. In anticipation of the five-year

deadline, the Planning Board prepared a proposed “work plan” for the growth policy

update process and forwarded it to the Commission for consideration. On January 3,

2011, the Commission adopted a resolution requesting that the Planning Board update the

growth policy as proposed by the work plan.

¶4       Shortly after the Commission’s resolution, the Planning Board announced through

a press release that it was commencing a revision process. Over the next year, the

Planning Board held approximately twenty public workshops to solicit public comment

and to discuss revisions to the growth policy.

¶5       The Planning Board presented a “first final draft” of the revised growth policy at a

public hearing on February 15, 2012. Members of the public offered comments on the

draft.    Over the next few months, the Planning Board held four additional public

workshops and continued to refine the draft policy.

¶6       The Planning Board released a “second final draft” in April 2012, and solicited

comments on this draft at another public hearing in June. The Planning Board discussed

these public comments at its next meeting. The Board voted to forward the policy to the

Commission for approval.




                                              3
¶7     The Commission passed a resolution of intent to adopt the Planning Board’s

proposed revised growth policy and initiated a thirty-day public comment period. After

the comment period ended, the Commission held a meeting on October 12, 2012. At that

meeting, it approved the revised growth policy. The October meeting, along with all of

the Planning Board’s public workshops and hearings, was recorded onto DVD. The

Commission did not issue written findings of fact explaining its rationale for approving

the policy.

¶8     Citizens brought suit, claiming that the Commission’s adoption of the revised

growth policy violated Montana statutes, the Montana Constitution, and Flathead

County’s own procedures. In support of its claims, Citizens submitted an expert report of

Kathleen McMahon. The District Court granted the Commission’s motion to strike

McMahon’s report.     Citizens and the Commission filed cross-motions for summary

judgment on the question whether the revised growth policy’s adoption complied with the

law. The District Court granted the Commission’s motion, reasoning that the growth

policy revision process did not violate any statutory, constitutional, or regulatory

provisions. Citizens appeals.

                                STANDARDS OF REVIEW

¶9     It is within a district court’s discretion to determine whether evidence is relevant

and admissible.   State v. Hocevar, 2000 MT 157, ¶ 54, 300 Mont. 167, 7 P.3d 329.

District courts are vested with great latitude in ruling on the admissibility of expert

testimony. Hocevar, ¶ 54. Absent a showing of an abuse of discretion, we will not

overturn a district court’s determinations on evidentiary matters. Hocevar, ¶ 54.


                                            4
¶10    We review de novo a district court’s ruling on summary judgment, applying the

criteria of M. R. Civ. P. 56(c)(3).      Pilgeram v. GreenPoint Mortg. Funding, Inc.,

2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court’s conclusions

of law to determine whether they are correct and its findings of fact to determine whether

they are clearly erroneous. Pilgeram, ¶ 9.

¶11    We review a governing body’s decision to amend or revise its growth policy—a

legislative act—for an abuse of discretion. North 93 Neighbors, Inc. v. Board of Cnty.

Comm’rs of Flathead Cnty., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557.

¶12    This Court’s review of constitutional questions is plenary. Williams v. Bd. of

Cnty. Comm’rs, 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88.

                                      DISCUSSION

¶13 1. Whether the District Court abused its discretion in striking Citizens’ expert
report.

¶14    Kathleen McMahon is a professional land-use planner. At Citizens’ request, she

reviewed the audio and video recordings of the Planning Board’s and the Commission’s

public meetings. She then prepared a report discussing the growth policy’s revisions and

the process employed in preparing and adopting those revisions. Citizens proffered her

report as evidence.

¶15    The District Court struck the report on a number of grounds, among which was

that it contained legal conclusions. Citizens argues that the report is admissible because

it served the primary purpose of assisting the trier of fact to understand the content of the

numerous recorded public workshops and hearings. Citizens alternatively argues that,



                                             5
even if the District Court rightly identified certain portions of the report as inadmissible,

the remaining portions should have been admitted.

¶16    The McMahon report’s stated purposes include: (1) determining if the growth

policy revision process “followed requirements mandated by the Montana Code

Annotated (MCA) and the process for updates that is specified in the Flathead County

Growth Policy”; (2) reviewing key revisions to the growth policy to determine if they are

“consistent with the requirements of the MCA”; and (3) assessing whether the revision

process “provided meaningful public participation in accordance with the MCA and the

county’s own obligations.”     The report analyzes whether the Commission’s and the

Planning Board’s activities conformed to the growth policy’s guidelines for revision and

complied with Montana statutory, constitutional, and case law.

¶17    Montana law permits testimony by experts “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue.” M. R. Evid. 702. We have held, however, that “expert

opinion that states a legal conclusion or applies the law to the facts is inadmissible.”

Wicklund v. Sundheim, 2016 MT 62, ¶ 15, 383 Mont. 1, 367 P.3d 403 (citing Cartwright

v. Scheels All Sports, Inc., 2013 MT 158, ¶ 43, 370 Mont. 369, 310 P.3d 1080). “Legal

conclusions offered by an expert witness invade the province of the fact-finder, whose

duty it is to apply the law as given to the facts in the case.” Wicklund, ¶ 15 (citing Perdue

v. Gagnon Farms, Inc., 2003 MT 47, ¶ 28, 314 Mont. 303, 65 P.3d 570).

¶18    Rather than serving to “assist the trier of fact to understand the evidence or to

determine a fact in issue,” M. R. Evid. 702, the McMahon report primarily offers legal


                                             6
conclusions.     The report’s stated purposes include determining whether the revision

process met the legal requirements of Montana statutes and the procedural requirements

of the County’s growth policy.           The report repeatedly applies the law to the

Commission’s and the Planning Board’s actions. By applying the law to the facts of this

case, the report impermissibly offers legal conclusions.        See Wicklund, ¶ 15.     We

therefore hold that the District Court did not abuse its discretion in striking this report.

See Hocevar, ¶ 54.

¶19       Similarly, we are unpersuaded by Citizens’ argument that the District Court erred

in excluding certain segments of the report that it argues are admissible, such as the

summary tables and descriptions of the DVD recordings. These tables and descriptions

mainly provided background information to support the report’s legal conclusions. The

District Court reasonably determined, within its broad discretion, that these portions of

the report had little relevance independent of their relation to the report’s legal

conclusions. The court did not abuse its discretion in striking these segments of the

report.

¶20 2. Whether the District Court erred in determining that the Commission complied
with the growth policy’s mandatory procedures for adopting revisions.

¶21       The District Court held that the Planning Board and the Commission properly

observed the growth policy’s revision procedures. It concluded that the Planning Board

did not exceed its broad scope of review in revising the policy, that the revisions to the

policy constituted “updates” rather than “amendments,” and that the requirement to

prepare findings of fact did not apply to the Commission or to the Planning Board.



                                              7
¶22    Citizens argues that the Planning Board exceeded the scope of review defined in

the original work plan and that the revisions constituted “amendments” to the growth

policy rather than “updates.”     The Planning Board and the Commission, Citizens

maintains, failed to comply with the original growth policy’s requirements for amending

the policy when they neglected to prepare written findings of fact. In the alternative,

Citizens argues that even if the revisions to the policy constituted “updates,” the Planning

Board and the Commission failed to meet the requirements for updating the policy by not

holding meetings “throughout” Flathead County.

¶23    The original growth policy described the requirements for updating or amending

the policy. Chapter 9, Part 6, under the heading, “Growth Policy Update,” provided in

relevant part:

       At a minimum of every five years, the Planning Board shall prepare a draft
       revised Growth Policy . . . Goals and policies should be revised as needed
       to accurately reflect the present day needs of Flathead County . . . Public
       meetings shall be held throughout Flathead County to present revisions to
       the public and gather public opinion.

¶24    Chapter 9, Part 7, titled, “Growth Policy Amendments,” stated as follows:

       Various events could potentially create a situation where certain goals,
       policies and/or implementation techniques are no longer adequate or
       appropriate. If this occurs prior to the regularly scheduled updates, the
       Flathead County Growth Policy may be amended . . . Amendments shall be
       subject to . . . preparation of findings of fact.

¶25     Montana law requires that “a governing body ‘must be guided by and give

consideration to’ its growth policy.” North 93 Neighbors, Inc., ¶ 22 (quoting § 76-1-605,

MCA). We have held that a governing body “must substantially comply with an adopted

growth policy.” Heffernan v. Missoula City Council, 2011 MT 91, ¶ 77, 360 Mont. 207,


                                             8
255 P.3d 80; North 93 Neighbors, Inc., ¶ 23. Chapter 9, Part 7 of the growth policy

defines amendments as changes to the policy that occur “prior to the regularly scheduled

updates.” By contrast, Part 6 implies that updates are revisions to the growth policy that

occur routinely—every five years at minimum.

¶26   The record shows that the revision process began with discussions of a Planning

Board subcommittee in the fall of 2010, in anticipation of the April 2012 five-year

deadline.   The Commission’s January 3, 2011 resolution—about four years after it

adopted the initial policy—called for an “update” of the growth policy. The Commission

approved the Planning Board’s proposed work plan at the same time. The work plan

stated a goal of “updating the Growth Policy by April 2012.” “Rather than a wholesale

update” of the growth policy, the work plan stated that “it would be most effective to

focus on specific areas of the growth policy in most need of updating or clarification

based on public input received as well as insight gleaned from working with the [growth

policy] document over the past 4 years.” The plan named three areas of “main focus” for

the revision process, with two sub-topics under each.

¶27   The revised growth policy came about as part of a longstanding plan to update the

growth policy every five years. Both the resolution and the work plan called for an

update, and the resolution directed the Planning Board to consider “insight gleaned from

working with the document over the past 4 years.”          The District Court correctly

determined that the revisions to the growth policy constituted an update within the

meaning of Chapter 9, Part 6.




                                            9
¶28    Next, we agree with the District Court that the Planning Board did not exceed its

scope of review as determined by the work plan. The flexible language of the work

plan’s phrases, quoted above, gave the Planning Board discretion and a wide-ranging

directive to revise the growth policy, rather than a rigid set of instructions. Furthermore,

Chapter 9, Part 6 of the growth policy states, “Goals and policies should be revised as

needed.” (Emphasis added.) Taken together, this provision and the work plan’s flexible

language gave the Planning Board a broad directive to revise the policy. In expanding

the revision process to include topics not specifically identified by the work plan, the

revision process did not violate this directive.

¶29    Finally, the Planning Board and the Commission complied with the requirements

for updating the growth policy. The policy calls for “preparation of findings of fact” only

when the governing body initiates amendments pursuant to Chapter 9, Part 7 of the

policy; thus, the absence of such findings here is immaterial. Rather, when a governing

body revises a growth policy, it “must equip reviewing courts with a record of the facts it

relied upon in making its decision to avoid judicial intrusion into matters committed to

the Board’s discretion.” North 93 Neighbors, Inc., ¶ 35. Citizens challenges the Board’s

processes, but it does not argue that any particular revisions are without support in the

administrative record. The only requirement for updating the policy that Citizens claims

the Commission and the Planning Board did not meet is the provision in Chapter 9, Part 6

that “[p]ublic meetings shall be held throughout Flathead County to present revisions to

the public and gather public opinion.” (Emphasis added.)




                                              10
¶30    Citizens points out that the Commission and the Planning Board held meetings

only in Kalispell and not in additional locations throughout the county. While true, we

conclude that this failure alone does not require invalidating the revised growth policy.

The record does not suggest that limiting the meetings to Kalispell negatively affected the

Planning Board’s presentation of revisions to the public, or that the public was limited in

its ability to comment on the proposed changes. Citizens does not demonstrate how the

numerous public meetings and hearings the Board and the Commission convened should

be deemed substantial non-compliance with the growth policy on the single ground that

all of those meetings occurred in one part of the county. See Heffernan, ¶ 77.

¶31    In conclusion, the Planning Board and the Commission substantially complied

with the County’s procedural requirements for updating the growth policy. The District

Court’s holding on this issue was correct.

¶32 3. Whether the District Court erred in determining that the Commission allowed
meaningful public participation in the revision process.

¶33    In response to Citizens’ public participation challenge, the District Court

concluded that no statutory basis existed to invalidate the revised growth policy. In its

view, the public participation statutes afforded Citizens no avenue for relief because the

Planning Board was not an “agency” whose “decision” the law allowed the court to

invalidate. The court therefore declined to consider further whether the Planning Board

violated its public participation obligations.

¶34    Citizens asserts that the Planning Board failed to keep minutes of its meetings,

failed to produce a comprehensive document highlighting in one place all the changes



                                                 11
made to the original growth policy, and failed to give adequate notice after its

February 15, 2012 public hearing of what changes it was considering. These failures, in

Citizens’ view, amounted to statutory violations of Montana’s open meeting laws and

constitutional violations of the rights to know and participate.

¶35    The record shows that the Planning Board held over twenty public workshops at

which it solicited public comment on proposed revisions to the growth policy. The Board

held its first public hearing on February 15, 2012, to discuss the revised policy’s “first

final draft.” The Board then held four additional public workshops between February and

April to further revise the policy. On June 13, 2012, the Planning Board held a public

hearing to discuss the policy’s “second final draft.” It posted the “second final draft” to

the County’s website well in advance of this hearing. The Planning Board continued

discussion of this second draft at a public meeting the following month. Throughout the

revision process, the Planning Board gave notice of the times, dates, locations, and

agendas of its public workshops and hearings.

¶36    All of the Planning Board’s public workshops and hearings were recorded onto

DVD. The DVDs did not include written logs to help viewers access the contents. The

Planning Board did not keep written minutes of its many public workshops, but it did

keep minutes of its public hearings on February 15 and June 13, 2012, and of its public

meeting in July 2012.

¶37    The Planning Board routinely posted “tracked-changes” versions of the growth

policy’s individual chapters to the County’s website during the revision process. Neither




                                             12
the Planning Board nor the Commission, however, provided the public with a single,

comprehensive document identifying all of the proposed changes to the original policy.

¶38    The Commission entertained a thirty-day public comment period on the proposed

revised growth policy, and then held a public meeting on October 12, 2012, to discuss the

public comments received. At the beginning of the meeting, the Commissioners briefly

solicited oral public comments. The Commission kept minutes of this meeting and

recorded the entire meeting. At the conclusion of the public meeting, the Commission

voted to approve the revised growth policy.

¶39    Article II, Section 8, of the Montana Constitution provides, “The public has the

right to expect governmental agencies to afford such reasonable opportunity for citizen

participation in the operation of the agencies prior to the final decision as may be

provided by law.” We have held that “[t]he essential elements of public participation”

required by Article II, Section 8, are “notice and an opportunity to be heard.” Bitterroot

River Protective Ass’n v. Bitterroot Conservation Dist., 2008 MT 377, ¶ 21, 346 Mont.

507, 198 P.3d 219.     The public’s right to participate requires more than simply an

“uninformed opportunity to speak.” Bryan v. Yellowstone Cnty. Elementary Sch. Dist.

No. 2, 2002 MT 264, ¶ 44, 312 Mont. 257, 60 P.3d 381. The right to know is protected

by Article II, Section 9, of the Constitution, which provides, “No person shall be deprived

of the right to examine documents or to observe the deliberations of all public bodies or

agencies of state government and its subdivisions.” We analyze Article II, Sections 8 and

9, as coextensive provisions. Bryan, ¶ 31.




                                              13
¶40   The     Legislature   implemented   these      constitutional   rights   by   enacting

§§ 2-3-101 to -221, MCA.     Bryan, ¶ 24.        The law requires that agencies “develop

procedures for permitting and encouraging” public participation and provide adequate

notice of their planned actions.   Section 2-3-103(1)(a), MCA.         It also requires that

agencies give the public a “reasonable opportunity to submit data, views, or arguments.”

Section 2-3-111, MCA. Meetings of “public or governmental bodies [or] boards” must

be open to the public. Section 2-3-203(1), MCA. The governmental bodies must either

keep minutes of their meetings or create audio recordings accompanied by logs or time

stamps. Section 2-3-212(1), (3), MCA.

¶41   Courts may void agency decisions reached in violation of these statutory

provisions.   Sections 2-3-114, -213, MCA.       Montana law defines an agency as “any

board, bureau, commission, department, authority, or officer of the state or local

government authorized by law to make rules, determine contested cases, or enter into

contracts.” Section 2-3-102, MCA (emphasis added). Courts may not use §§ 2-3-114

or -213, MCA, to invalidate decisions made by public bodies that are not agencies, even

if those decisions violate the open meeting laws.        Allen v. Lakeside Neighborhood

Planning Comm., 2013 MT 237, ¶ 31, 371 Mont. 310, 308 P.3d 956.

¶42   The Planning Board does not have the authority of an agency. Its duty is to

recommend that the Commission adopt, reject, or take some other action with regard to

the proposed revisions to the growth policy. Section § 76-1-603, MCA. The Planning

Board’s recommendations are not binding on the Commission. Allen, ¶ 28. Because the




                                            14
Planning Board is not an agency as defined by law, the statutes do not authorize a court to

invalidate its actions. Allen, ¶ 31; §§ 2-3-114 and -213, MCA.

¶43   While the Commission is an “agency” under § 2-3-102, MCA, it did not violate

the open meeting laws. The Commission solicited public comment prior to and during its

October 12, 2012 meeting, and it kept minutes at the meeting. The Commission provided

the public with a “reasonable opportunity to submit data, views, or arguments.” Section

2-3-111, MCA.

¶44   Citizens nonetheless contends that the Planning Board and the Commission

deprived Citizens of the meaningful participation guaranteed by Article II, Sections 8 and

9, of the Montana Constitution. First, the record shows that the Planning Board gave

advance notice of its public workshops and hearings. The Planning Board provided

agendas for its public workshops between February and April 2012. The Commission

solicited public comment on its proposed adoption of the revised growth policy for a

thirty-day period prior to its October 12, 2012 meeting. These actions provided adequate

notice under the law to the public regarding the Planning Board’s and the Commission’s

deliberations. See Bitterroot, ¶ 21; § 2-3-103(1)(a), MCA.

¶45   Second, the Planning Board and the Commission allowed for public observation of

their deliberations. All of the workshops, hearings, and meetings were open to the public

and recorded onto publicly available DVDs. This fulfilled the constitutional obligation of

permitting public observation. See Mont. Const. art. II, § 9; § 2-3-203(1), MCA.

¶46   Third, and finally, the Planning Board and the Commission gave the public

reasonable opportunities to be heard during the deliberations, and these opportunities


                                            15
amounted to more than uninformed opportunities to speak.          See Bryan, ¶ 44.     The

Planning Board held over twenty workshops and multiple hearings at which it solicited

public comments.      The Board preceded each subsequent meeting with a release of

changes made since the last meeting, and it posted those changes to its website for

viewing. True, the County did not maintain a comprehensive document to illustrate all

changes proposed. But the Planning Board did post a full proposed revised growth policy

draft to the County’s website well before the June 13, 2012 public hearing. Finally, the

Board posted agendas of its workshops between its presentations of the first and second

“final drafts” of the revised policy.

¶47    The Commission entertained a thirty-day public comment period prior to adopting

the revised growth policy. Members of the public submitted 299 written comments in the

form of emails, letters, and postcards, and a petition containing 451 signatures. We

conclude that the public had ample reasonable opportunities through the workshops, the

hearings, the website materials, and the comment period to be informed and to be heard

by the Planning Board and the Commission. See Bitterroot, ¶ 21; Bryan, ¶ 44; § 2-3-111,

MCA.

¶48    The Planning Board and the Commission met the constitutional requirements of

Article II, Sections 8 and 9. They gave adequate notice of their deliberations, allowed the

public to observe the meetings, and gave the public sufficient opportunities to be

informed and heard. As such, neither the Commission nor the Planning Board infringed

on the public’s right to participate or right to know. For these reasons, we hold that the




                                            16
District Court did not err in determining that the Commission allowed for meaningful

public participation in the revision process.

¶49    Citizens takes issue with the complexity of the process and with the difficulty for

the public in keeping abreast of the specific revisions under consideration and in

following the details of the Planning Board’s deliberative process. The statute commands

a “reasonable opportunity” for public participation. Section 2-3-111, MCA. The court

cannot dictate process to government agencies administering programs and functions

within their authority. Instead, this Court’s role is limited to assessing whether the

Planning Board and the Commission fulfilled the obligations imposed by the Constitution

and related statutes. We conclude that they did.

¶50 4. Whether the District Court erred in determining that the Commission
adequately incorporated public comments into its decision-making process.

¶51    Citizens claims that the Commission, through its own actions and those of the

Planning Board, failed to consider public comments, to incorporate those comments into

the decision-making process, to summarize the comments, or to explain how the

comments factored into its decision, in violation of the law. The District Court disagreed,

reasoning that the Planning Board and the Commission received many public comments

and that the record showed that these comments had at least some influence on their

decision-making processes.

¶52    At the February 15, 2012 public hearing, Flathead County residents commented on

the “first final draft” of the proposed revised version of the growth policy. The Planning

Board then discussed those comments. The Planning Board’s four public workshops in



                                                17
the ensuing months included discussion of public input. The minutes of the Board’s June

2012 public hearing reflect that the Board made revisions to the growth policy in the

months following the February 2012 hearing based on its consideration of the public

input received and on the Board’s own discussions.

¶53    Members of the public offered additional comments on the revised growth

policy’s “second final draft” at the Planning Board’s June 2012 public hearing. When the

Planning Board met the next month, each member discussed his or her thoughts on the

public comments received at the June hearing.

¶54    Under Montana law, the Planning Board was required to consider “the

recommendations and suggestions elicited at the public hearing[s],” § 76-1-603, MCA,

and to “incorporate those comments into its decision-making process,” North 93

Neighbors, Inc., ¶ 36. Here, the Planning Board’s consideration and incorporation of

public comment met the law’s requirements.        Board members discussed the public

comments offered at the two public hearings. In the months following the February 15,

2012 hearing, the Board based its many revisions to the policy on public comments

received at the workshops and on the Board’s own discussions at those workshops. This

record establishes that the Planning Board considered “the recommendations and

suggestions elicited at the public hearing[s]” and “incorporate[d] those comments into its

decision-making process.” Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. The

law does not require that specific public comment be incorporated into the final decision,

only into the process.




                                           18
¶55       The Commission also was required to consider and incorporate public comments

into its process. Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. In addition, by

County resolution, the Commission was required to “summarize” the comments received

and to “explain” how the comments influenced its decision to approve the revised policy.

Flathead County Resolution No. 2129, March 18, 2008 (stating that the “scope and

format of such summarization and explanation may vary as appropriate for the type of

decision and extent of public comment”).         This resolution provides no specific

requirement as to the form of the Commission’s summary and explanation.

¶56       The Commission met on October 12, 2012, to discuss the public comments

received as to the Commission’s intent to adopt the revised growth policy. At that

meeting, the Commissioners briefly summarized the comments and explained how the

comments factored into their decisions.      Commissioner Holmquist summarized the

comments for and against the revised growth policy, and explained how the comments

opposing the policy factored into her decision.     Commissioner Scott and Chairman

Lauman addressed specific issues with the growth policy that the public comments

raised, including traffic, water quality, planning and zoning, and development along

highways. We conclude that these discussions fulfilled the Commission’s obligations to

consider and incorporate public comments into its process, to summarize the comments,

and to explain how the comments influenced its decision to adopt the revised growth

policy.

¶57       Citizens argues that the Planning Board and the Commission could not possibly

have considered all of the public comments from the revision process, given the volume


                                            19
of comments received.       The Planning Board members and Commissioners stated,

however, that each had reviewed the public comments. It is not within this Court’s

purview to determine how sincere these county officials were in their assertions that they

had reviewed all public comment or to assess how the comments factored into their

decisions. The scope of our review is to determine, based on the record, whether the

Planning Board and the Commission “consider[ed] the public comments and

incorporate[d] those comments” into their decision-making processes.              North 93

Neighbors, Inc., ¶ 36. The record shows that they did. We therefore uphold the District

Court’s determination on this issue.

¶58 5. Whether the final clause in Part 6 of the revised growth policy survives
constitutional scrutiny.

¶59    Citizens claims that a clause in Part 6 of the revised growth policy, which it refers

to as the “property rights trump card,” is unconstitutionally vague and that it violates

Citizens’ Article II, Section 3, constitutional right to a clean and healthful environment.

Part 6 emphasizes the predominance of individual property rights and lists requirements

that a growth policy must meet if it attempts to regulate the use of private property. It

concludes with the following sentence: “In the event of a conflict between the provisions

in this part and any other provision in this Growth Policy and [its] amendments, this part

shall control.” The District Court held that this clause did not violate the Constitution. It

reasoned that the growth policy was not regulatory in nature, that the clause was not

inherently vague, and that it did not encourage a violation of the constitutional right to a

clean and healthful environment.



                                             20
¶60    Montana law provides that “a growth policy is not a regulatory document and does

not confer any authority to regulate that is not otherwise specifically authorized by law or

regulations adopted pursuant to the law.” Section 76-1-605(2)(a), MCA. Courts may

strike down regulations as unconstitutional if they permit government action that

conflicts with the Constitution. Because a growth policy “is not a regulatory document

and does not confer any authority to regulate that is not otherwise specifically authorized

by law,” it is incapable of authorizing a governing body to take action that would conflict

with the Constitution. Section 76-1-605(2)(a), MCA.

¶61    The revised growth policy, including the final clause of Part 6, provides guidance

to the local governing body. The growth policy constitutes “the preeminent planning

tool” for land use planning. Heffernan, ¶ 76. But it “cannot be applied in a ‘regulatory’

fashion,” Heffernan, ¶ 78 (quoting § 76-1-605(2)(a), MCA), and thus bestows the

Commission with no authority that it does not have under a statute or regulation. The

clause cannot require Flathead County to take any action, much less any action that

conflicts with the Constitution. We hold that, because this clause lacks the force of law,

it cannot “trump” Citizens’ constitutional rights. We agree with the District Court’s

conclusion that this clause is not unconstitutional.

                                      CONCLUSION

¶62    The alleged procedural shortcomings in Flathead County’s process for updating its

growth policy do not rise to the level of either a statutory or a constitutional violation.

The County’s process was adequate to meet its obligations under the law. We affirm the




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District Court’s order and its decision to award summary judgment to the Commission on

the validity of the County’s 2012 revised growth policy.



                                                /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE




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