                                                                                        August 28 2013


                                        DA 12-0343

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2013 MT 243



L. REED WILLIAMS,

          Plaintiff and Appellee,

     v.

BOARD OF COUNTY COMMISSIONERS OF MISSOULA COUNTY,
the governing body of the County of Missoula, acting by and
through Michele Landquist, Bill Carey and Jean Curtiss,

          Defendants and Appellees,

LIBERTY COVE, INC., PAUL ROSSIGNOL, NORMA ROSSIGNOL,
and PONDEROSA DEVELOPMENT, INC.,

          Intervenors and Appellants.



APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Missoula, Cause No. DV-10-673
                    Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

            For Intervenors and Appellants:

                    Cory R. Gangle (argued); Gangle Law Firm, P.C.; Missoula, Montana

            For Appellee L. Reed Williams:

                    Timothy M. Bechtold (argued); Bechtold Law Firm, PLLC;
                    Missoula, Montana

            For Appellee Missoula County:

                    Fred Van Valkenburg; Missoula County Attorney; D. James McCubbin
                    (argued); Deputy County Attorney; Missoula, Montana

            For Amicus Land Use Clinic:

                    Michelle Bryan Mudd, Benjamin S. Sudduth (argued); University of
                    Montana School of Law; Missoula, Montana
         For Amicus State of Montana:

               Timothy C. Fox; Montana Attorney General; Lawrence Vandyke (argued);
               Montana Solicitor General; Helena, Montana



                                                     Argued: April 17, 2013
                                                   Submitted: April 23, 2013
                                                    Decided: August 28, 2013




Filed:

               __________________________________________
                                 Clerk




                                        2
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Liberty Cove, Inc., Paul and Norma Rossignol, and Ponderosa Development, Inc.

(collectively “Landowners”) utilized the protest provision of § 76-2-205(6), MCA, to

block the Board of County Commissioners of Missoula County (Commissioners) from

establishing a special zoning district north of Lolo, Montana.           L. Reed Williams

(Williams) challenged the constitutionality of § 76-2-205(6), MCA, by filing a complaint

against Commissioners in Montana’s Fourth Judicial District Court, Missoula County,

seeking declaratory and injunctive relief. Landowners intervened in the action at the

District Court and now appeal from the District Court’s order denying their motion to

dismiss and granting summary judgment to Williams and Commissioners. We affirm.

                                          ISSUES

¶2     We restate the four issues raised by Landowners on appeal as follows:

¶3     1. Did the District Court abuse its discretion in denying Landowners’ motion to

dismiss Williams’ complaint for failure to join them as necessary parties under the

Montana Uniform Declaratory Judgments Act?

¶4     2. Did the District Court err in determining that § 76-2-205(6), MCA, was an

unconstitutional delegation of legislative power?

¶5     3. Did the District Court err in determining that § 76-2-205(6), MCA, was an

unconstitutional violation of the right to equal protection and the right to suffrage?

¶6     4.   Did the District Court err when it ruled that § 76-2-205(6), MCA, was

severable from the remainder of the statute?

                  FACTUAL AND PROCEDURAL BACKGROUND

                                               3
¶7     On September 8, 2009, Commissioners and the Lolo Community Council held a

joint public meeting to solicit public testimony concerning the development of a zoning

proposal for an area north of Lolo, Montana. Public testimony at this meeting indicated

that support existed for the development of a zoning proposal. Following the joint public

meeting, Commissioners directed their staff to work with residents and landowners to

create a proposal to replace the North Lolo Interim Zoning Plan. Three draft alternative

plans were presented at public meetings on January 30, February 3, and February 9, 2010.

Based on comments received on the alternative plans and additional staff review,

Commissioners issued the Planning Board Public Hearing Draft on February 25, 2010,

for public comment.

¶8     The proposed North Lolo Rural Special Zoning District consisted of 422 acres of

land north of Lolo and west of U.S. Highway 93. Agricultural and forest land comprised

223 acres in the district. Prior to 2008, this area had been unzoned. On May 30, 2008,

Commissioners enacted interim zoning to address public health and safety issues

associated with a gravel mining and asphalt production operation proposed by Liberty

Cove, Inc., who is one of the parties referred to as Landowners in the instant case. We

previously upheld these interim zoning regulations as lawful in Liberty Cove, Inc. v.

Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617.1                  Commissioners


1
  Liberty Cove challenged the interim zoning on three grounds: (1) Whether the District Court
erred in concluding there was an emergency to justify interim zoning; (2) Whether the District
Court erred in concluding that Missoula County gave proper notice before adopting interim
zoning; and (3) Whether the District Court erred in concluding that the interim zoning adopted
by Missoula County did not constitute illegal reverse spot zoning. We affirmed the District
Court on all three issues and upheld the interim zoning.

                                              4
extended the one-year interim zoning in 2009, but the interim zoning was set to expire on

May 30, 2010. The proposed North Lolo Special Zoning District would have replaced

the interim zoning and continued to prohibit sand and gravel mining and concrete and

asphalt operations within the district.

¶9     Legal notice concerning the North Lolo Growth Policy Amendment and North

Lolo Rural Special Zoning District was published on multiple occasions in Missoula

newspapers, posted in five locations, mailed to property owners in and near the proposed

district, and emailed to interested members of the public in the Lolo area. The Missoula

Consolidated Planning Board held public hearings on March 16 and 23, 2010, and

recommended approval of the proposed zoning amendment and special zoning district to

Commissioners on a 5 to 1 vote.

¶10    On April 7, 2010, Commissioners held a public hearing and passed “A Resolution

of Intention to Adopt Amendments to the 2002 Lolo Regional Plan as an Amendment to

the Missoula County Growth Policy 2005 Update.” Commissioners published notice in

accordance with § 76-2-205(5), MCA, on April 15, 2010. The publication included

notice that the written protest period provided for in § 76-2-205(6), MCA, would expire

in 30 days. Section 76-2-205(6), MCA, is a protest provision that allows landowners to

prevent the board of county commissioners from adopting a zoning resolution when

protests are received from one of the following two groups: (1) 40 percent of the real

property owners within the district; or (2) real property owners representing 50 percent of

property taxed for agricultural purposes or as forest land in the district.       When a

successful protest is received, it prevents the board of county commissioners from

                                            5
proposing any further zoning resolutions with respect to the subject property for one year.

Section 76-2-205(6), MCA.

¶11      On April 20, 2010, five landowners2 who together owned more than 50 percent of

the agricultural and forest land within the district filed a written protest. All parties agree

that these landowners owned the requisite acreage to effectively block the zoning

proposal pursuant to § 76-2-205(6), MCA.

¶12      On May 14, 2010, Williams filed a complaint in District Court against

Commissioners.        Williams requested that the District Court declare that the protest

provision of § 76-2-205(6), MCA, was unconstitutional because it violated equal

protection, due process, and voting rights.            Williams also asked for a temporary

restraining order and preliminary and permanent injunctions preventing Commissioners

from taking any action pursuant to the allegedly unconstitutional protest provision.

¶13      On May 20, 2010, Commissioners filed an answer. Commissioners agreed with

Williams that § 76-2-205(6), MCA, was unconstitutional for the reasons set forth by

Williams. However, Commissioners admitted that they would apply the protest provision

to prevent adoption of the zoning regulations absent an order from the District Court

directing otherwise.

¶14      Without objection from Commissioners, the District Court issued an order for a

preliminary injunction on May 21, 2010. The order enjoined Commissioners from taking

any actions based on § 76-2-205(6), MCA, but permitted Commissioners to proceed in



2
    Four of these five landowners are the Appellants in this case, designated “Landowners.”

                                                  6
accordance with the remaining provisions of § 76-2-205, MCA. On May 26, 2010,

Commissioners adopted the North Lolo Rural Special Zoning District.

¶15    Landowners filed an unopposed motion to intervene on May 24, 2010.             The

District Court granted Landowners’ motion to intervene on May 28, 2010.             Next,

Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss on June 3, 2010, arguing

that Williams failed to join all of the proper parties pursuant to M. R. Civ. P. 19, which

governs joinder of required parties, and Montana’s Uniform Declaratory Judgments Act

(UDJA), § 27-8-301, MCA, which requires inclusion of all parties who have an interest

which would be affected by the declaration.

¶16    On July 14, 2010, Williams filed a motion for summary judgment. Williams’

motion for summary judgment sought a declaration from the District Court that the

protest provision of § 76-2-205(6), MCA, was an unconstitutional violation of equal

protection and voting rights. Williams requested permanent injunctive relief to prevent

Commissioners from enforcing the protest provision.         Commissioners agreed that

§ 76-2-205(6), MCA, was unconstitutional and they supported issuance of a permanent

injunction. On September 21, 2010, Commissioners filed a separate motion for summary

judgment, challenging the constitutionality § 76-2-205(6), MCA, as an unconstitutional

delegation of legislative power.

¶17    On July 23, 2010, Landowners filed a motion to stay summary judgment

proceedings pending the District Court’s disposition of their motion to dismiss.

Landowners filed an application to quash, vacate and dissolve the preliminary injunction

on August 30, 2010.      On October 15, 2010, Landowners filed a motion to quash

                                              7
Commissioners’ motion for summary judgment, arguing that Commissioners’ motion

addressed matters outside the pleadings, and that Commissioners and Williams lacked

standing to challenge the constitutionality of § 76-2-205(6), MCA, on the grounds that it

represented an unconstitutional delegation of legislative power. In response to Williams’

and Commissioners’ motions for summary judgment, Landowners maintained that the

protest provision was constitutional.

¶18    On February 2, 2011, Williams filed a motion for leave to amend his complaint to

add the claim that § 76-2-205(6), MCA, constituted an unconstitutional delegation of

legislative power. Williams alleged that this claim was merely a new theory of recovery

that arose from the same set of facts contained in the original complaint. The District

Court granted Williams’ motion to amend his complaint on April 18, 2011.

¶19    On April 5, 2012, the District Court issued its order addressing all of the

outstanding and fully briefed motions.         The District Court denied Landowners’

M. R. Civ. P. 12(b)(7) motion to dismiss, denied Landowners’ application to quash,

vacate and dissolve the preliminary injunction, and denied Landowners’ motion to quash

Commissioners’ motion for summary judgment. The District Court granted Williams’

and Commissioners’ motions for summary judgment and concluded that § 76-2-205(6),

MCA, was unconstitutional on three grounds: (1) it violated the fundamental right to

vote because not all landowners within the district were permitted to participate equally

in the zoning process; (2) it violated equal protection rights because there was no

compelling state interest in providing some landowners with a vote against zoning

regulations while depriving other landowners of the opportunity to vote in favor of the

                                           8
zoning regulations; and (3) it constituted an unconstitutional delegation of legislative

power because it failed to provide any standards or guidelines for the application of a

protest and failed to provide a legislative bypass to allow for review of a protest.

Furthermore, the District Court determined that the protest provision, § 76-2-205(6),

MCA, was severable from the remainder of the statute.

¶20    On May 4, 2012, the District Court entered a final judgment in favor of Williams

and Commissioners. Landowners appeal.

                              STANDARDS OF REVIEW

¶21    When considering a motion to dismiss based on the assertion that an indispensible

party is absent, the court is given discretion to determine whether the action will proceed

or must be dismissed. Blaze Constr. v. Glacier Elec. Coop., 280 Mont. 7, 10, 928 P.2d

224, 225 (1996); Mohl v. Johnson, 275 Mont. 167, 169, 911 P.2d 217, 219 (1996). We

review such discretionary rulings for an abuse of discretion. Blaze Constr., 280 Mont. at

10, 928 P.2d at 225; Mont. Rail Link v. Byard, 260 Mont. 331, 337, 860 P.2d 121, 125

(1993).

¶22    We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as the district court. Steichen v. Talcott

Props., LLC, 2013 MT 2, ¶ 7, 368 Mont. 169, 292 P.3d 458; Brown & Brown of MT, Inc.

v. Raty, 2012 MT 264, ¶ 17, 367 Mont. 67, 289 P.3d 156. Summary judgment “should be

rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).

                                             9
¶23    This Court’s review of constitutional questions is plenary. Walters v. Flathead

Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality

of a statute is a question of law, and we review a district court’s legal conclusions for

correctness. Walters, ¶ 9. Legislative enactments are presumed to be constitutional, and

the party challenging the provision bears the burden of proving beyond a reasonable

doubt that it is unconstitutional. DeVoe v. City of Missoula, 2012 MT 72, ¶ 12, 364

Mont. 375, 274 P.3d 752; State v. Ergdorf, 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d

517.

¶24    The severability of an unconstitutional provision from a statute is a matter of

statutory interpretation. See Finke v. State ex rel. McGrath, 2003 MT 48, ¶¶ 25-26, 314

Mont. 314, 65 P.3d 576. We review a district court’s interpretation of a statute for

correctness. Blanton v. Dep’t of Pub. HHS, 2011 MT 110, ¶ 21, 360 Mont. 396, 255 P.3d

1229; Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 24, 358 Mont. 474, 247 P.3d

244.

                                     DISCUSSION

¶25    Did the District Court abuse its discretion in denying Landowners’ motion to
       dismiss Williams’ complaint for failure to join them as necessary parties under the
       Montana Uniform Declaratory Judgments Act?

¶26    When Williams filed his initial complaint on May 14, 2010, seeking declaratory

relief pursuant to the UDJA, he did not include Landowners as parties to the action.

Landowners claim that they were “necessary parties” to Williams’ action because their

interests as protesting property owners would be affected by the District Court’s

declaration as to the constitutionality of § 76-2-205(6), MCA. Landowners moved to

                                           10
intervene on May 24, 2010, and the District Court granted Landowners’ motion on May

28, 2010. However, by the time Landowners were allowed to intervene, the District

Court had already granted Williams’ request for a preliminary injunction.

¶27    On June 3, 2010, Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss

premised on Williams’ failure to join all of the proper parties. Landowners asserted that

both M. R. Civ. P. 19 and the UDJA required that Landowners must be included as

parties to Williams’ action. The District Court discussed the application of M. R. Civ. P.

19(a)(1), and determined that “[a]lthough Intervenors [Landowners] may have an interest

in the instant action, their interest is not one that is within the provisions of Rule

19(a)(1).”   The District Court reasoned that Williams’ action was a constitutional

challenge to the protest provision of a zoning statute and not a property rights dispute.

After concluding that it was not mandatory under M. R. Civ. P. 19(a)(1) to join

Landowners, the District Court denied Landowners’ motion to dismiss. The District

Court noted that “as property owners with an interest in the constitutionality of the zoning

statute at issue, Intervenors [Landowners] were properly granted leave to intervene.”

¶28    While the District Court’s decision on Landowners’ motion to dismiss addressed

the matter in the context of M. R. Civ. P. 19, it is completely bereft of any analysis of

necessary parties under the UDJA. On appeal, Landowners do not challenge the District

Court’s conclusions concerning M. R. Civ. P. 19. Instead, they assert that the District

Court abused its discretion by failing to consider that Landowners were necessary parties

under the UDJA.



                                            11
¶29    Section 27-8-301, MCA, governs “necessary parties” to an action brought under

the UDJA and provides as follows:

       When declaratory relief is sought, all persons shall be made parties who
       have or claim any interest which would be affected by the declaration, and
       no declaration shall prejudice the rights of persons not parties to the
       proceeding.

A court’s decision as to whether a non-party must be included in a matter depends on the

facts and circumstances of the particular case in question. John Alexander Ethen Trust

Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 49, 361 Mont. 57, 256 P.3d

913.

¶30    John Alexander Ethen Trust Agreement involved a boundary dispute between

neighboring property owners. One of the property owners attempted to invalidate the

trial court’s decision concerning the location of the property boundary for failure to join

an indispensable party. John Alexander Ethen Trust Agreement, ¶ 22. The property

owner argued that other neighboring landowners who owned parcels along the same

creek and whose property was divided by the same survey were indispensible. John

Alexander Ethen Trust Agreement, ¶ 52. This Court disagreed, reasoning that while the

other neighboring landowners had an interest in the interpretation of the surveys, they

held no legal interest in the disputed acreage at issue in the case. John Alexander Ethen

Trust Agreement, ¶ 52. Since the only boundary in dispute in the case was between the

two parties to the action and the decision would not determine the rights of any other

neighboring landowners, we held that the trial court did not abuse its discretion in




                                            12
declining to join the neighboring landowners. John Alexander Ethen Trust Agreement,

¶ 52.

¶31     Williams commenced the action in District Court in direct response to

Landowners’ use of the protest provision to prevent Commissioners from adopting the

proposed North Lolo Rural Special Zoning District. As the parties who exercised their

rights under the protest provision, Landowners had a clear interest in the outcome of the

District Court’s declaration concerning the constitutionality of § 76-2-205(6), MCA. If

the District Court declared the protest provision unconstitutional, Landowners’ property

would be zoned according to the proposed North Lolo Rural Special Zoning District, and

Landowners’ use of their property would be limited. On the other hand, if the District

Court declared that the protest provision was constitutional, Landowners’ property would

remain unzoned and they would be permitted to develop their property free of regulation.

Unlike in John Alexander Ethen Trust Agreement, Landowners’ legal rights and interests

as protesting property owners were directly at issue in Williams’ lawsuit.

¶32     The absence of Landowners from Williams’ lawsuit created additional problems

likely to result in prejudice. The Commissioners, as the defendants in Williams’ lawsuit,

agreed with Williams that § 76-2-205(6), MCA, was unconstitutional. The Attorney

General was given notice of the constitutional challenge to § 76-2-205(6), MCA, but

declined to defend the statute.3 Accordingly, before Landowners intervened, all of the

parties before the District Court were of the same mind that the protest provision was

3
 Though the Attorney General declined to participate in 2010 in District Court, the Attorney
General did participate by filing an amicus curiae brief on appeal and appeared at oral argument
before this Court defending the constitutionality of § 76-2-205(6), MCA.

                                              13
unconstitutional. Allowing the lawsuit to continue in the absence of Landowners and

without the presence any other party similarly situated would likely have prejudiced

Landowners.

¶33    Although we agree with Landowners that they were a necessary party under

§ 27-8-301, MCA, we do not agree with Landowners that the proper remedy for

Williams’ failure to name them as a party in his initial complaint is dismissal.

M. R. Civ. P. 19 is instructive in determining the appropriate remedy when a required

party is absent. Rule 19(a)(2) states that “[i]f a person has not been joined as required,

the court must order that the person be made a party.”

¶34    Here, the District Court granted Landowners’ motion to intervene in the early

stages of the litigation.    Landowners fully participated in all substantive briefing

regarding the constitutionality of the protest provision. Even though the District Court

granted a preliminary injunction shortly before Landowners intervened, the preliminary

injunction and the Commissioners’ adoption of the North Lolo Rural Special Zoning

District were subject to the District Court’s later determination of the constitutionality of

the protest provision. Granting the preliminary injunction was necessary to prevent the

issue of the constitutionality of § 76-2-205(6), MCA, from becoming moot. Without the

preliminary injunction, Landowners could have built gravel pits in the interim while the

case was pending before the District Court, thus rendering the question regarding the

validity of the protest provision moot.

¶35    This Court’s adherence to the harmless error doctrine requires that “[a]t every

stage of the proceeding, the court must disregard all errors and defects that do not affect

                                             14
any party’s substantial rights.” M. R. Civ. P. 61; see e.g. Liberty Cove, ¶ 21. Under the

circumstances of this case, we find it unnecessary to dismiss the action in its entirety

because the Landowners cannot demonstrate that their substantial rights were harmed in

any way by Williams’ failure to include them as a party in his original complaint.

Landowners’ timely intervention remedied Williams’ error of failing to initially include

them as necessary parties under the UDJA. We therefore conclude that the District Court

did not abuse its discretion in denying Landowners’ motion to dismiss Williams’

complaint.

¶36    Did the District Court err in determining that § 76-2-205(6), MCA, was an
       unconstitutional delegation of legislative power?

¶37    In Montana, the establishment of local zoning districts is governed by statute. A

local zoning district can be created in two different ways: (1) by citizen petition to the

board of county commissioners under § 76-2-101, MCA, known as “Part 1 zoning,” or

(2) directly by the board of county commissioners under § 76-2-201, MCA, referred to as

“Part 2 zoning.” See Helena Sand & Gravel, Inc. v. Lewis & Clark County Planning &

Zoning Comm’n, 2012 MT 272, ¶ 6, 367 Mont. 130, 290 P.3d 691. This case involves

Part 2 zoning pursuant to § 76-2-201, MCA.

¶38    Section 76-2-201, MCA, provides that a board of county commissioners may

adopt zoning regulations “[f]or the purpose of promoting the public health, safety,

morals, and general welfare.” The board of county commissioners is authorized by

§ 76-2-202, MCA, to “regulate the erection, construction, reconstruction, alteration,

repair, location, or use of buildings or structures or the use of land” in zoning districts. In


                                              15
adopting zoning regulations, the board must consider reasonable provision of adequate

light and air, effects of motorized and non-motorized transportation systems, compatible

urban growth in the vicinity of cities and towns, the character of the district and its

peculiar suitability for particular uses, conserving the value of buildings, and encouraging

the most appropriate use of land. Section 76-2-203(2), MCA. Zoning regulations must

be made in accordance with relevant growth policies and must, as nearly as possible, be

compatible with the zoning ordinances of nearby municipalities.          Section 76-2-203,

MCA. The county and city-county planning boards serve an advisory role to the board of

commissioners by recommending boundaries and appropriate regulations for the zoning

district. Section 76-2-204, MCA.

¶39    The procedure for establishing district boundaries and adopting or revising zoning

regulations, which includes notice and public hearing requirements, is set forth in

§ 76-2-205, MCA. Section 76-2-205(6), MCA, contains a protest provision that provides

two ways for real property owners within the proposed zoning district to prevent the

board of county commissioners from adopting zoning regulations. The protest provision

reads as follows:

       Within 30 days after the expiration of the protest period, the board of
       county commissioners may in its discretion adopt the resolution creating
       the zoning district or establishing the zoning regulations for the district.
       However, if 40% of the real property owners within the district whose
       names appear on the last-completed assessment roll or if real property
       owners representing 50% of the titled property ownership whose property is
       taxed for agricultural purposes under 15-7-202 or whose property is taxed
       as forest land under Title 15, chapter 44, part 1, have protested the
       establishment of the district or adoption of the regulations, the board of
       county commissioners may not adopt the resolution and a further zoning
       resolution may not be proposed for the district for a period of 1 year.

                                            16
Section 76-2-205(6), MCA. At issue in this case is the constitutionality of the provision

allowing agricultural and forest landowners representing 50 percent of the titled

agricultural or forest land within the district to block a board of county commissioners

from adopting a zoning resolution and prevent another from being proposed for one year.

¶40    Section 76-2-205, MCA, was originally adopted in 1963. At that time, the statute

contained the language that allowed 40 percent of property owners in a district to protest

the establishment of a zoning district or imposition of zoning regulations and effectively

prevent the board of county commissioners from taking any action.               However, the

original version of the statute did not contain the protest provision concerning agricultural

and forest land property owners. In 1995, the Legislature debated and ultimately adopted

the protest provision at issue in this case. Based on the legislative history, Landowners

note that the protest provision was enacted to give large agricultural and forest land

property owners more power in the zoning process, and the ability to protect their

property interests from unwanted regulation by residential property owners who often

greatly outnumber agricultural and forest land property owners in a district.

¶41    Courts have long recognized zoning as a valid form of regulation to promote

public health, safety, and welfare. In Freeman v. Board of Adjustment, 97 Mont. 342,

351, 34 P.2d 534, 536 (1934), this Court noted that when zoning ordinances were first

enacted, they were often challenged as unconstitutionally depriving property owners of

liberty and property without due process of law, or attacked as a violation of equal

protection rights. Back in 1934, the Court recognized that the “modern trend” nationwide


                                             17
was to uphold the validity of such ordinances and the statutes that authorize them.

Freeman, 97 Mont. at 351, 34 P.2d at 537. The Court went on to explain that zoning

statutes and ordinances are “generally sustained upon the theory that they constitute a

valid exercise of the police power; that is to say, they have a substantial bearing upon the

public health, safety, morals and general welfare of a community.” Freeman, 97 Mont. at

352, 34 P.2d at 537 (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114

(1926)).

¶42    One important way that zoning promotes public health, safety, and the general

welfare of a community is by separating incompatible land uses, such as industrial and

residential. See Euclid, 272 U.S. at 394, 47 S. Ct. at 120. In Montana, gravel and sand

mining operations present a common example of this conflict between contrary land uses.

The State does not require permitting for certain categories of gravel pits, so counties

must rely on zoning to protect residential areas from the industrial impacts often

associated with gravel and sand mining operations. See § 82-4-431, MCA (providing

limited exemptions from state permitting requirements for mining, processing and

reclamation); see also § 76-2-209, MCA (authorizing reasonable conditions or

prohibitions against sand and gravel mining operations in areas zoned as residential, and

reasonable conditions on operations in areas not zoned residential). This Court has

decided numerous zoning cases in recent years concerning gravel and sand mining

operations. See e.g. Helena Sand & Gravel; Gateway Opencut Mining Action Group v.

Bd. of County Comm’rs, 2011 MT 198, 361 Mont. 398, 260 P.3d 133; Liberty Cove;

Beasley v. Flathead County Bd. of Adjustments; 2009 MT 120, 350 Mont. 171, 205 P.3d

                                            18
812; Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of Adjustment,

2008 MT 1, 341 Mont. 1, 175 P.3d 282; Merlin Myers Revocable Trust v. Yellowstone

County, 2002 MT 201, 311 Mont. 194, 53 P.3d 1268.

¶43    The instant case is not the first time that the constitutionality of § 76-2-205(6),

MCA, has been questioned before this Court. In Gateway Opencut Mining Action Group,

an advocacy group challenged the protest provision as an unconstitutional delegation of

legislative authority to private parties. However, this Court did not reach the merits of

the constitutional challenge. We determined that the proposed zoning regulations failed

because the board of county commissioners did not act within the statutorily-prescribed

deadlines. Gateway Opencut Mining Action Group, ¶ 24. Therefore, we held that the

constitutional question presented to the Court was moot. Gateway Opencut Mining

Action Group, ¶ 25.

¶44    In Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056 (1960), this Court set forth

the standard for a delegation of legislative power as follows:

       The law-making power may not be granted to an administrative body to be
       exercised under the guise of administrative discretion. Accordingly, in
       delegating powers to an administrative body with respect to the
       administration of statutes, the legislature must ordinarily prescribe a policy,
       standard, or rule for their guidance and must not vest them with an arbitrary
       and uncontrolled discretion with regard thereto, and a statute or ordinance
       which is deficient in this respect is invalid.

Bacus, 138 Mont. at 78, 354 P.2d at 1061 (quoting 73 C.J.S. Public Administrative

Bodies & Procedure § 29).

¶45    In the context of zoning, this Court has previously held that a lawful delegation of

legislative authority “must contain standards or guidelines” to inform the propriety of the

                                             19
exercise of that power. Shannon v. City of Forsyth, 205 Mont. 111, 114, 666 P.2d 750,

752 (1983). When no standards or guidelines are present, the exercise of the delegated

power may result in “arbitrary and capricious” actions, “dependent wholly on the will and

whim” of others. Shannon, 205 Mont. at 115, 666 P.2d at 752. The existence of an

appellate body with the power to consider exceptional cases is essential to the proper

exercise of police power. Shannon, 205 Mont. at 115, 666 P.2d at 752. Unlawful

delegations of legislative authority run afoul of the due process guarantees of the

Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the

Montana Constitution. Shannon, 205 Mont. at 114, 666 P.2d at 752.

¶46   In Shannon, mobile home owners filed a petition with the City of Forsyth seeking

a waiver to locate a mobile home in a zoning district which prohibits mobile homes.

Shannon, 205 Mont. at 112, 666 P.2d at 751. The local ordinance required a successful

petition for a variance to include the signatures of at least 80 percent of the landowners

residing within 300 feet of the proposed location of the mobile home and also required

the signatures of all adjoining landowners. Shannon, 205 Mont. at 112, 666 P.2d at 751.

We held that the ordinance was unconstitutional as an unlawful delegation of legislative

authority and police power. Shannon, 205 Mont. at 115, 666 P.2d at 753. We reasoned

that the ordinance provided no standard whatsoever by which to judge the neighbors’

consents.   Shannon, 205 Mont. at 115, 666 P.2d at 752.         We determined that the

ordinance was arbitrary and capricious because the negative vote by a single adjoining

landowner could defeat the petition. Shannon, 205 Mont. at 115, 666 P.2d at 752.

Additionally, we concluded that the ordinance represented an unwarranted application of

                                           20
police power because the City Council had no power to determine whether a variance

should be granted unless a petition was submitted containing all of the required

signatures. Shannon, 205 Mont. at 115, 666 P.2d at 752-53.

¶47    This Court has struck down several other statutes and ordinances outside the

context of zoning as unconstitutional delegations of legislative authority. See e.g. In the

Petition to Transfer Territory, 2000 MT 342, 303 Mont. 204, 15 P.3d 447 (holding that a

statute giving a superintendent the authority to grant or deny petitions to transfer territory

among school districts was an unconstitutional delegation of legislative power because

the superintendent’s broad discretion was “unchecked by any standard, policy, or rule of

decision”); Ingraham v. Champion Int’l, 243 Mont. 42, 793 P.2d 769 (1990) (deeming a

workers’ compensation statute an unconstitutional delegation of legislative power

because it granted the insurer “absolute discretion” as to what terms, under what

circumstances, and in what amounts a lump-sum conversion payment could occur); In the

Matter of Savings & Loan Activities, 182 Mont. 361, 597 P.2d 84 (1979) (declaring a

statute granting the Department of Business Regulation the power to approve or

disapprove applications for the merger of savings and loan associations was an

unconstitutional delegation of legislative power because it lacked guidelines or

substantive criteria); Douglas v. Judge, 174 Mont. 32, 568 P.2d 530 (1977) (holding

unconstitutional a statute authorizing the Department of Natural Resources and

Conservation to make loans to farmers and ranchers who proposed “worthwhile”

renewable resource development projects because the statute lacked adequate

parameters).

                                             21
¶48    The U.S. Supreme Court has similarly struck down laws as unconstitutional

delegations of legislative power when the law “creates no standard by which the power

thus given is to be exercised.” Eubank v. Richmond, 226 U.S. 137, 143-44, 33 S. Ct. 76,

77 (1912).   In Eubank, a property owner challenged a city ordinance that required

municipal authorities to establish building setback lines when such action was requested

by two-thirds of the property owners on a street. Eubank, 226 U.S. at 141, 33 S. Ct. at

76. The Court determined that the ordinance, by “conferring the power on some property

holders to virtually control and dispose of the property rights of others,” unlawfully

empowered “[o]ne set of owners [to] determine not only the extent of use but the kind of

use which another set of owners may make of their property.” Eubank, 226 U.S. at 143,

33 S. Ct. at 77. In fact, under the ordinance, a single landowner who owned two-thirds of

a city block could assert her will against the remaining property owners on the block

solely for her own interest or even capriciously, without any standard to guide the

exercise of her power. Eubank, 226 U.S. at 144, 33 S. Ct. at 77. The ordinance left the

Court questioning, “In what way is the public safety, convenience or welfare served by

conferring such power?” Eubank, 226 U.S. at 143, 33 S. Ct. at 77. A similar result

followed in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct.

50 (1928), in which the Court concluded that an ordinance requiring the consent of

two-thirds of neighboring property owners to allow a facility for the elderly to expand

was unconstitutional because it conferred absolute discretion over whether to issue a

permit to property owners without prescribing any standards or rules or providing for

review of their decision.

                                           22
¶49      In reaching its decision that § 76-2-205(6), MCA, represented an unconstitutional

delegation of legislative power, the District Court relied heavily on an analogous decision

from the South Dakota Supreme Court, Cary v. City of Rapid City, 559 N.W.2d 891 (S.D.

1997).     Cary petitioned the city to rezone her property from a general agricultural

classification to medium density residential. Cary, 559 N.W.2d at 892. The city granted

Cary’s request, but prior to the changes going into effect, certain neighboring property

owners filed a written protest to the rezoning pursuant to a statutory protest provision.

Cary, 559 N.W.2d at 892. The statute provided that if 40 percent of the property owners

within and around the district filed written protests against the proposed zoning, it would

fail. Cary, 559 N.W.2d at 893. Cary challenged the statute as an unconstitutional

delegation of legislative power. Cary, 559 N.W.2d at 895.

¶50      Relying in part on the Montana decisions Shannon and Freeman, the South

Dakota Supreme Court determined that the protest provision was unconstitutional. Cary,

559 N.W.2d at 895-96. The Court reasoned that the protest provision did not provide the

necessary guidelines or standards for a protest and as a result, it allowed the use of a

person’s property “to be held hostage by the will and whims of neighboring landowners”

without reason or justification. Cary, 559 N.W.2d at 895. As the Court observed,

“[s]uch a standardless protest statute allows for unequal treatment under the law and is in

clear contradiction of the protections of the due process clause of the Fourteenth

Amendment.” Cary, 559 N.W.2d at 895. Moreover, the Court determined that the

absence of a legislative bypass or review provision impermissibly allowed a potentially



                                             23
small number of neighboring property owners to make the ultimate determination of the

public’s best interest. Cary, 559 N.W.2d at 895-96.

¶51    We agree with the District Court that the protest provision in § 76-2-205(6), MCA,

which allows property owners representing 50 percent of the agricultural and forest land

in a district to block zoning proposals, is an unconstitutional delegation of legislative

power. First, the protest provision provides no standards or guidelines to inform the

exercise of the delegated power. Second, the protest provision contains no legislative

bypass.

¶52    Without any standards or guidelines for the exercise of the delegated power, the

protest provision of § 76-2-205(6), MCA, contains the same constitutional infirmities as

discussed in Shannon, Eubank, and Cary. The protest provision allows a minority of

landowners, or even one landowner, to strike down proposed zoning regulations without

any justification or for no reason at all. There is no requirement that the protesting

landowners consider public health, safety, or the general welfare of the other residents of

the district when preventing the board of county commissioners from implementing

zoning regulations. As a result, agricultural and forest landowners can exercise their

unfettered power in a proper manner, or in an arbitrary and capricious manner, making

zoning decisions dependent wholly on their will and whim.

¶53    The protest provision also lacks provision for review by a legislative body with the

power to consider exceptional cases, which was noted as essential to the proper exercise

of police power in Shannon and Cary. Without a legislative bypass provision, a small

number of agricultural or forest landowners, or even a single landowner, is granted

                                            24
absolute discretion to make the ultimate determination concerning the public’s best

interests with no opportunity for review. Not only does the statute lack a provision

allowing a legislative body to take action notwithstanding the protest, it actually prohibits

the board of county commissioners from even proposing an alternative zoning resolution

for a period of one year. In contrast, Montana’s Municipal Zoning Act contains an

example of a proper legislative bypass. Section 76-2-305, MCA, allows a city or town

council or legislative body of a municipality to override a citizen protest to a zoning

proposal by a two-thirds vote. When the legislative body retains the authority to make

the final decision on a zoning proposal, courts have often determined that the statute or

ordinance falls within constitutional bounds. See e.g. Hope v. Gainesville, 355 So. 2d

1172 (Fla. 1977); Trumper v. Quincy, 264 N.E.2d 689 (Mass. 1970).                    Section

76-2-205(6), MCA, unlawfully vests this final decision-making power in private

individuals.

¶54      Therefore, we conclude that the District Court did not err in determining that the

protest provision at issue in this case represents an unlawful delegation of legislative

power.

¶55      In his Dissent, Justice Rice touts the rights of the Landowners to acquire and

protect their land as reason for upholding the protest provision. The legislative history of

§ 76-2-205(6), MCA, reveals that the protest provision was enacted to protect agricultural

production and the traditional uses of forest and agricultural land. In fact, as Justice Rice

acknowledges, the Legislature enacted another statute the same year that the protest



                                             25
provision was adopted, expressly declaring the Legislature’s intent to protect agricultural

property from governmental zoning:

               76-2-901. Agricultural activities—legislative finding and
       purpose. (1) The legislature finds that agricultural lands and the ability
       and right of farmers and ranchers to produce a safe, abundant, and secure
       food and fiber supply have been the basis of economic growth and
       development of all sectors of Montana’s economy. In order to sustain
       Montana’s valuable farm economy and land bases associated with it,
       farmers and ranchers must be encouraged and have the right to stay in
       farming.
               (2) It is therefore the intent of the legislature to protect agricultural
       activities from governmental zoning and nuisance ordinances.

The goals of the Legislature are surely salutary.           It bears noting, however, that

Landowners were not utilizing the protest provision to preserve their ability to “produce a

safe, abundant, and secure food and fiber supply” or protect their “right to stay in

farming.” Rather, Landowners wielded the power of the protest provision to block

regulations that would limit their ability to transform their agricultural and forest land

into a large industrial gravel pit. Thus, Justice Rice’s invocation of “safeguards for

agricultural property” as a basis for upholding the protest provision rings somewhat

hollow.

¶56    While Justice Rice expresses concern for the property rights of Landowners, his

Dissent utterly ignores the property rights of the remaining property owners in the zoning

district. These neighboring property owners also have a constitutional right to possess

their property and protect it from harm. When zoning regulations are designed to “have a

real and substantial bearing upon the public health, safety, morals and general welfare of

a community,” such regulations do not unduly interfere with the fundamental nature of


                                              26
private property ownership and can in fact bolster the use, enjoyment, and value of

property. Freeman, 97 Mont. at 355, 34 P.2d at 538.

¶57    Justice Rice attempts to distinguish the instant case by arguing that “Landowners

held only the ability to protect and prevent their own land from being zoned, not to

approve or impose conditions on their neighbors’ property.” Dissent, ¶ 78. We disagree

with this characterization of the protest provision. The protest power of § 76-2-205(6),

MCA, granted Landowners the ability to prevent any zoning regulations from being

adopted for the entire North Lolo Rural Special Zoning District, regardless of how or

whether the proposed regulations might affect their own land. The protest provision did

not merely give Landowners the ability to gain a variance for their own property; it

allowed them to block an entire zoning plan from being implemented.          Moreover,

Landowners could presumably invoke the protest provision year after year so as to

indefinitely block zoning. Contrary to the assumption implicit in ¶ 79 of Justice Rice’s

Dissent, nothing in the protest provision prevents Landowners from engaging in

successive protests whenever the board might again attempt to establish zoning

regulations.

¶58    We now turn to Justice McKinnon’s Dissent. Contrary to the plain language of

the statute, Justice McKinnon argues that § 76-2-205(6), MCA, functions as a “condition

precedent to zoning.” This is simply not the case. This Court has previously defined a

condition precedent as “one which is to be performed before some right or obligation

dependent thereon accrues.” Holter Lakeshores Homeowners Ass’n v. Thurston, 2009

MT 146, ¶ 22, 350 Mont. 362, 207 P.3d 334. Section 76-2-205, MCA, contains no

                                           27
provision allowing, let alone requiring, property owners to vote to approve zoning

regulations before a board of county commissioners may act. This mischaracterization of

the nature of the protest provision derails much of the analysis that follows in Justice

McKinnon’s Dissent.

¶59    Contrary to the impression left by the Dissents, the sky is not falling. We have

concluded that the statute as written unlawfully vests private individuals with legislative

power. It bears repeating that appropriate legislative bypass language has been employed

over the last century around the country to alleviate similar concerns. The Montana

Legislature is certainly free to consider whether and how to reenact the protest provision

so that it will pass constitutional muster.

¶60    For these reasons, we respectfully reject the arguments presented by the Dissents.

¶61    Did the District Court err in determining that § 76-2-205(6), MCA, was an
       unconstitutional violation of the right to equal protection and the right to
       suffrage?

¶62    Based on our resolution of Issue 2 and our determination that the protest provision

in question constitutes an unconstitutional delegation of legislative power, we decline to

address Landowners’ equal protection and right to suffrage constitutional challenges.

¶63    Did the District Court err when it ruled that § 76-2-205(6), MCA, was severable
       from the remainder of the statute?

¶64    We must now consider whether the protest provision of § 76-2-205(6), MCA, is

severable from the remainder of the statute. This Court attempts to construe statutes in a

manner that avoids unconstitutional interpretation whenever possible. State v. Samples,

2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803; City of Great Falls v. Morris, 2006


                                              28
MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692. If a law contains both constitutional and

unconstitutional provisions, we examine the legislation to determine if there is a

severability clause. Finke, ¶ 25; Sheehy v. Public Employees Retirement Div., 262 Mont.

129, 141, 864 P.2d 762, 770 (1993). The inclusion of a severability clause in a statute is

an indication that the drafters desired a policy of judicial severability to apply to the

enactment. Finke, ¶ 26; Sheehy, 262 Mont. at 141, 864 P.2d at 770. In the absence of a

severability clause, this Court “must determine whether the unconstitutional provisions

are necessary for the integrity of the law or were an inducement for its enactment.”

Finke, ¶ 25; Sheehy, 262 Mont. at 141, 864 P.2d at 770.             When unconstitutional

provisions are severed, the remainder of the statute must be complete in itself and capable

of being executed in accordance with the apparent legislative intent. Finke, ¶ 26; Sheehy,

262 Mont. at 141, 864 P.2d at 770. Though “the presumption is against the mutilation of

a statute,” Sheehy, 262 Mont. at 142, 864 P.2d at 770, if removing the offending

provisions will not frustrate the purpose or disrupt the integrity of the law, we will strike

only those provisions of the statute that are unconstitutional. Mont. Auto Ass’n v. Greely,

193 Mont. 378, 399, 632 P.2d 300, 311 (1981).

¶65    The District Court began its analysis by determining that § 76-2-205(6), MCA,

does not contain a severability clause. Next, the District Court reviewed the legislative

history of § 76-2-205, MCA, and noted that there was very little discussion in 1963 when

the statute was first enacted concerning the 40 percent protest provision. Since the

protest provision for 50 percent of agricultural and forest landowners was not added until

1995, the District Court concluded that this protest provision was neither necessary for

                                             29
the integrity of the law nor did it induce the statute’s enactment. The District Court

determined that the protest provision contained in § 76-2-205(6), MCA, was severable

from the statute.

¶66    Landowners argue that if the protest provision is found to be unconstitutional, this

Court must strike down § 76-2-205, MCA, in its entirety. Landowners argue that the

statute contained a severability clause until 1995, and the subsequent removal of the

severability clause should be viewed as evidence that the Legislature did not intend for

the statute to be severable.

¶67    Our review of the history of § 76-2-205, MCA, demonstrates that when the statute

was enacted in 1963, it did in fact contain a severability clause. 1963 Mont. Laws 782,

ch. 246, § 11. The severability clause read as follows:

       The provisions of this act shall be severable and, if any of its sections,
       provisions, exceptions, clauses or parts be held unconstitutional or void, the
       remainder of this act shall continue in full force and effect.

1963 Mont. Laws 782, ch. 246, § 11. In 1971, the Legislature amended the statute to

clarify its language. 1971 Mont. Laws 1176, ch. 273, § 19. The 1971 amendments did

not substantively alter § 76-2-205, MCA. The Legislature once again expressed its intent

that the statute be severable by including the following severability clause:

       It is the intent of the legislative assembly that if a part of this act is invalid,
       all valid parts that are severable from the invalid part remain in effect. If
       part of this act is invalid in one or more of its applications, the part remains
       in effect in all valid applications that are severable from the invalid
       applications.

1971 Mont. Laws 1176, ch. 273, § 21.



                                               30
¶68    According to the Montana Bill Drafting Manual published by the Montana

Legislative Services Division, severability clauses are not codified but are published in

the annotations. In 1977, the statute at issue was identified as § 16-4705, R.C.M., and

was located in Title 16: Counties, Chapter 47: Zoning Districts. At the end of this

chapter, the code contained an annotation noting the severability clause. However, in

1978, the code was renumbered and reorganized. The statute at issue was renumbered as

§ 76-2-205, MCA, and moved to Title 76: Land Resources and Use, Chapter 2: Planning

and Zoning, Part 2:      County Zoning.      The annotation noting the existence of a

severability clause was removed from the code, but the legislative history does not

demonstrate that the Legislature took any specific action to remove the severability

clause. Severability was not mentioned in later revisions of the statute in 1995 and 2009.

The current version of § 76-2-205, MCA, does not include an annotation noting the

existence of a severability clause.

¶69    Even given the checkered background and unclear history of § 76-2-205, MCA,

several facts are apparent. First, when the Legislature enacted the statute in 1963, it

expressly included a severability clause. The original version of the statute contained the

protest provision allowing 40 percent of property owners within the district to block a

zoning proposal, but it did not include the protest provision concerning agricultural and

forest landowners. The protest provision applicable to agricultural and forest landowners

was not enacted until 32 years after the original statute was approved. Since the statute

existed for 32 years without the protest provision at issue in this case, we reject

Landowners’ argument that the protest provision was necessary for the integrity of the

                                            31
law or served as an inducement for its enactment. Furthermore, the Legislature never

took any action at any point in the statute’s history that expressly demonstrated its intent

to remove the severability clause.

¶70    When the protest provision is severed from the statute, the remaining provisions

are complete and capable of fulfilling the legislative intent underlying the statute. The

stated purpose of county zoning is to promote “the public health, safety, morals, and

general welfare.” See § 76-2-201, MCA. In the absence of the protest provision, the

purposes of the statute can still be achieved. The process set forth in § 76-2-205, MCA,

adequately protects the rights of property owners within the district by requiring notice of

any proposed changes and by allowing public comment and participation. Under these

circumstances, the District Court correctly determined that the protest provision at issue

is severable from § 76-2-205, MCA.

                                     CONCLUSION

¶71    For the foregoing reasons, we affirm the District Court’s grant of summary

judgment to Williams and Commissioners.          We hold that the protest provision in

§ 76-2-205(6), MCA, is an unconstitutional delegation of legislative power.

Accordingly, we strike the protest provision that allows agricultural and forest property

owners representing 50 percent of such land within a district to block the board of county

commissioners from adopting a zoning proposal and prohibiting the board from

proposing further zoning regulations for one year. Since the protest provision utilized by

Landowners was unconstitutional and thereby ineffective, we uphold the Commissioners’

adoption of the North Lolo Rural Special Zoning District.

                                            32
                                                   /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS



Justice Jim Rice, dissenting.

¶72    In its analysis, I believe the Court misses the big picture: the Landowners have a

constitutional right to property and to protect their property rights from infringement;

Missoula County has no constitutional right to zone.

¶73    The Court holds that the protest provision in § 76-2-205(6), MCA, is an

unconstitutional delegation of legislative power that violates due process guarantees in

Article II, Section 17 of the Montana Constitution and the Fourteenth Amendment of the

United States Constitution.     Opinion, ¶ 51.     However, the purported due process

violation—that the protest provision confers “the power on some property holders to

virtually control and dispose of the property of others,” Opinion, ¶ 48 (citing Eubank)—

did not occur here. Indeed, the Court has gotten it exactly backwards. Landowners are

not disposing the property of others, but are protecting their own property from

disposition. By the Court’s striking of the right to protest zoning restrictions upon their

land, it is the Landowners who have been denied due process and their constitutional

property rights.

                                            33
¶74    Landowners enjoy the inalienable right of lawfully “acquiring, possessing and

protecting property.” Mont. Const. art. II, § 3; see also e.g. Roberge, 278 U.S. at 121, 49

S. Ct. at 52 (a landowner’s right “to devote its land to any legitimate use is properly

within the protection of the Constitution.”).       As mentioned above, there is no

constitutionally-based right to zone, and we have recognized the principle that “zoning

laws and ordinances are in derogation of the common law right to free use of private

property . . .” Whistler v. Burlington N. R.R., 228 Mont. 150, 155, 741 P.2d 422, 425

(1987) (citations omitted).    In 1995, the Montana Legislature provided additional

safeguards for agricultural property from governmental zoning and nuisance ordinances,

see § 76-2-901, MCA, which included the protest provision challenged here.

¶75    A delegation of legislative power must confer upon a designated group or agency

the ability to create or enact a law. The Court quotes the standard provided in Bacus for

delegation of legislative powers, Opinion, ¶ 44, but overlooks the point that, for

delegation to occur, an agency or group must be given “law-making power” to enact,

make, or create a law. Bacus, 138 Mont at 78-79, 354 P.2d at 1061. This point was

discussed in Eubank, where two-thirds of the neighbors petitioned the local government

to institute a setback restriction that affected the landowner’s use of his property.

Eubank, 226 U.S. at 141, 33 S. Ct. at 76. It was in this context of law-making power that

the Supreme Court held, as rephrased by the Court, that “‘conferring the power on some

property holders to virtually control and dispose of the property rights of others’

unlawfully empowered ‘[o]ne set of owners [to] determine not only the extent of use but

the kind of use which another set of owners may make of their property,’” and struck

                                            34
down the ordinance as unconstitutional. Opinion, ¶ 48 (quoting Eubank, 226 U.S. at 143,

33 S. Ct. at 77). The Court has here misapplied the holding in Eubank by twisting it to

support the opposite conclusion.

¶76    This is further illustrated by the U.S. Supreme Court’s subsequent explanation.

Three years after Eubank, the Supreme Court considered whether a Chicago ordinance

was an unconstitutional delegation of legislative power in Thomas Cusack Co. v. City of

Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917). The Chicago ordinance required consent

from a majority of residential property owners on the affected city block before a person

or company could construct a billboard on the city block. Thomas Cusack Co., 242 U.S.

at 527-28, 37 S. Ct. at 190. The Supreme Court held that this landowner check on the

city’s zoning power was not an unconstitutional delegation of legislative power, and

compared Chicago’s ordinance to the ordinance at issue in Eubank:

       The [ordinance in Eubank] permits two-thirds of the lot owners to impose
       restrictions upon the other property in the block, while the [ordinance in
       Thomas Cusack Co.] permits one-half of the lot owners to remove a
       restriction from the other property owners. This is not a delegation of
       legislative power, but is, as we have seen, a familiar provision affecting the
       enforcement of laws and ordinances.

Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192 (emphasis added).                  The

constitutional ordinance in Thomas Cusack Co. allowed a particular kind of property

owners—residential—to block or remove a zoning restriction, Thomas Cusack Co., 242

U.S. at 531, 37 S. Ct. at 190, while the unconstitutional ordinance in Eubank conferred

power to a group of property owners to enact new property restrictions, Eubank, 226 U.S.

at 143-44, 33 S. Ct. at 77.


                                            35
¶77      Section 76-2-205(6), MCA, is a landowner protection device akin to that in

Thomas Cusack Co., because the protest provision does not confer power to enact or

create a law, as defined in Bacus. The protest provision merely permits Landowners,

who have a constitutional right to possess and protect their own property, to preserve the

status quo by blocking proposed zoning for one year. The fact that some may resent the

device enacted by the Legislature to protect property rights does not render it

unconstitutional.

¶78      The Court fails to recognize that Landowners held only the ability to protect and

prevent their own land from being zoned, not to approve or impose conditions on their

neighbors’ property. The Court correctly presents the applicable principles articulated in

Shannon and Cary, but does so in errant oversimplification. In Shannon and Cary, the

neighboring landowners were granted the ability to prevent the plaintiff from taking a

proposed action on the plaintiffs’ own property. Shannon, 205 Mont. at 112, 666 P.2d at

751 (plaintiff landowners sought a variance to place a mobile home on their own land,

which neighbors would not approve); Cary, 559 N.W.2d at 892 (plaintiff landowner

sought to rezone her land from agricultural to medium density residential, which

neighbors protested). Here, the protest power used by the Landowners to prevent zoning

of their own land in no way deprived their neighbors from any right to use their own

property.

¶79      Finally, § 76-2-205(6), MCA, does not grant to Landowners the power to make a

final arbitration necessary to constitute an unconstitutional delegation of legislative

power.      Rather, a successful protest provides for a one-year suspension of the

                                             36
implementation of new zoning. The County may again engage in zoning after the one

year period has passed, with or without modifications. Section 76-2-205(6), MCA. In

light of a proper understanding of the mechanism of the protest provision and applicable

federal and state precedent, the Court’s striking of § 76-2-205(6), MCA, significantly

expands the governmental power to zone and erodes the ability of the Legislature and

property owners to protect the constitutional rights to lawfully acquire, possess, and

protect their property. Mont. Const. art. II, § 3. Many such similar protest provisions in

Montana law will now be called into question. In the words of the U.S. Supreme Court,

the statutory protest here is “a familiar provision affecting the enforcement of laws and

ordinances.” Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192.

¶80   In response to this Dissent, the Court fails to acknowledge the clear analysis of the

U.S. Supreme Court distinguishing the constitutionally flawed ordinances in the cases

relied upon by the Court from the statute at issue here. The Court instead invokes the

property rights “of the remaining property owners in the zoning district,” Opinion, ¶ 56,

as if this case somehow involved a balancing of rights between property owners.

However, there is no balancing of constitutional rights here—at least, there is not

supposed to be. Under § 76-2-205(6), MCA, other property owners had the same right as

the Landowners to protest or not protest the zoning proposed by the County.            The

Landowners exercised their right of protest. The issue thus raised and litigated is the

right of property owners to resist the government’s restrictions on the use of their

property. The legal conflict is one, not between citizens, but between citizens and the



                                           37
government. And it is a conflict in which the citizens, under the Court’s decision, come

out the big losers.

¶81    I agree with the Court’s conclusion that the District Court erred by rejecting

Landowners’ claim that they were necessary parties, but disagree that the District Court’s

error was harmless. By the time the Landowners were allowed to intervene, the District

Court had already granted the preliminary injunction and the County Commissioners had

already enacted the North Lolo Rural Special Zoning District.        The failure to join

Landowners denied them an opportunity to argue against the preliminary injunction and

in favor of the constitutionality of the statutory protest provisions.      By the time

Landowners got to make their arguments, the zoning was enacted.

¶82    The District Court should have known that Landowners were both interested and

necessary parties to this action from the beginning. The complaint and the answer agreed

that Landowners had availed themselves to the protest provision in § 76-2-205(6), MCA,

to protect their property from being zoned. By its preliminary injunction, the District

Court voided § 76-2-205(6), MCA, without notice to or hearing from the Landowners,

whose efforts pursuant to the protest provision were thereby negated. To me, such

exercise of raw judicial power is astonishing. The District Court should have engaged in

the precisely opposite presumptions—that the statutory protest provision was

constitutional and that the constitutional right of property reinforced the need to uphold

the statute until demonstrated beyond a reasonable doubt that it was unconstitutional.

Landowners’ constitutional right to protect their property from governmental intrusion

was thereby prejudiced. The Landowners should have come before the District Court as

                                           38
successful protestants who were entitled to rely on the presumption of constitutionality of

the protest statute. Instead, they came before the District Court having already lost the

battle:     the protest provision was struck down, the presumption of the statute’s

constitutionality was eliminated, and the zoning was already enacted. Landowners had “a

snowball’s chance” before the District Court.

¶83       The County had no constitutional power to zone; it had only the powers given by

the Legislature. The District Court first marginalized the Landowners procedurally and

then failed to protect their substantive constitutional rights, granting new powers for

government to override property rights.

¶84       I would reverse.



                                                  /S/ JIM RICE




Justice Laurie McKinnon, dissenting.

¶85       In my opinion, the Court today fails to distinguish between a zoning regulation

and a statute that enables zoning to take place in the first instance. The latter does not

implicate considerations of an unconstitutional delegation of legislative authority, while

the former may. In failing to make a distinction between enabling provisions of the

zoning statute and its substantive provisions, the Court has declared unconstitutional a

condition precedent to zoning which the Legislature, as representatives of its citizens,

determined was proper to have. We tell the Legislature and Montana citizens today that


                                             39
you must have zoning in your counties even though 50 percent of agricultural landowners

do not want to be zoned. We tell the Legislature and Montana citizens today that we find

offensive a statute which prioritizes land ownership, perhaps at the expense of a large

number of county residents.

¶86    The Court’s decision today allows county commissioners in rural counties to

implement zoning measures impacting farm and agricultural land based upon a resolution

of county commissioners—normally three individuals in our rural counties. We make

these declarations in spite of the Legislature’s finding and purpose “to protect agricultural

activities from governmental zoning and nuisance ordinances,” § 76-2-901(2), MCA, and

the Legislature’s recognition that agricultural lands in Montana are a basis of Montana’s

growth and development, § 76-2-901(1), MCA. While recognizing Montana’s unique

heritage as a basis for upholding statutes in other contexts, we strike down today one of

Montana’s “unique” statutes designed to protect agricultural lands from governmental

zoning.   We are obliged as jurists, as compared to legislators, to recognize these

distinctions in the law, and to not allow our preference for zoning, in particular

circumstances, to confuse our analysis.

¶87    Landowners own the majority of the property subject to the proposed regulations.

They own agricultural and forest land and are taxed accordingly.               One of the

Landowners, Liberty Cove, wanted to build a lake on their property and entered into a

purchase agreement with a contractor for the gravel mining operations. On March 8,

2006, Missoula County granted a zoning compliance permit, noting that the site location

was not zoned.      County commissioners received complaints from Lolo residents

                                             40
requesting the county enact interim zoning to address environmental and traffic concerns

at the site. The Court today notes that Landowners are attempting to “transform their

agricultural and forest land into a large industrial gravel pit” and that Landowners were

not “utilizing the protest provision to preserve their ability to ‘produce a safe, abundant,

and secure food and fiber supply’ or protect their ‘right to stay in farming.’ ” Opinion,

¶ 55. I do not believe it is for this Court to decide which uses of property have merit and

which do not. It seems to me such an analysis is akin to the notion of choosing what

speech someone may or may not hear. I, for one, am uncomfortable with the notion that

my rights depend on the value another individual gives to the particular use I make of my

property, as long as it is lawful. Landowners pay taxes on their agricultural and farm

land and their standing under § 76-2-205(6), MCA, has not been challenged. We ought

not qualify our analysis by questioning whether they are endeavored in “agricultural

production and the traditional uses of forest and agricultural land.” Opinion, ¶ 55.

¶88    Zoning regulations are enacted pursuant to the police power of the state. Euclid v.

Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926).

       The power to zone is exercised primarily by local units of the government.
       However, local governments have no inherent police powers of their own
       and therefore no inherent power to zone. Before a local government can
       legally exercise the zoning power, it must receive a delegation of that
       power from the sovereign entity inherently possessing it. Most typically,
       that entity is the state.

6 Patrick J. Rohan, Zoning and Land Use Controls, § 35.01 (Matthew Bender 2013).

There is thus no inherent power to zone except as has been delegated to local government

by its enabling statutes or constitution. Transamerica Title Ins. Co. v. Tucson, 757 P.2d


                                            41
1055 (Ariz. 1988); Riggs v. City of Oxnard, 154 Cal. App. 3d 526, 201 Cal. Rptr 291

(1984); Nopro Co. v. Cherry Hills Village, 504 P.2d 344 (Colo. 1972); Stucki v. Plavin,

291 A.2d 508 (Me. 1972); Sun Oil Co. v. New Hope, 220 N.W.2d 256 (Minn. 1974);

State ex rel Ellis v. Liddle, 520 S.W.2d 644 (Mo. Ct. App. 1975); Nemeroff Realty Corp.

v. Kerr, 38 A.D.2d 437, 330 N.Y.S.2d 632 (N.Y. App. Div. 1972), aff’d 299 N.E.2d 897

(1973). The action taken by the local government must not exceed that provided for in its

delegation and must be consistent with the enabling legislation. Smith v. Zoning Bd. Of

Appeals of Greenwich, 629 A.2d 1089 (Conn. 1993); Board of Township Trustees v.

Funtime, Inc., 563 N.E.2d 717 (Ohio 1990); Riggs v. Long Beach, 538 A.2d 808 (N.J.

1988); Ramsey v. Portland, 836 P.2d 772 (Or. 1992); Jachimek v. Superior Ct., 819 P.2d

487 (Ariz. 1991); Ripso Realty & Dev. Co. v. Parma, 564 N.E.2d 425 (Ohio 1990). The

Supreme Court of North Carolina has aptly described the nature of the delegation of

authority to zone:

       Thus, the power to zone is the power of the State and rests in the General
       Assembly originally. There, it is subject to the limitations imposed by the
       Constitution upon the legislative power forbidding arbitrary and unduly
       discriminatory interference with the rights of property owners.
              A municipal corporation has no inherent power to zone its territory
       and restrict to specified purposes the use of private property in each such
       zone. . . . Obviously, the General Assembly cannot delegate to a municipal
       corporation more extensive power to regulate the use of private property
       than the General Assembly, itself, possesses. Consequently, the authority
       of a city or town to enact zoning ordinances is subject both to the above
       mentioned limitations imposed by the Constitution and to the limitations of
       the enabling statute.

Zopfi v. Wilmington, 160 S.E.2d 325 (N.C. 1968) (internal citations omitted).




                                           42
¶89    Involvement by state legislatures in land-use regulation has been growing since

the 1960s. Robert M. Anderson offers the following analysis for the growth of state

legislatures’ involvement, by way of enabling legislation, into the land-use control field:

       Land-use restriction was assumed to be a problem which could be solved
       more efficiently on the local level. The rationale of this policy was
       articulated as early as 1929 by Chief Judge Cardozo of the New York Court
       of Appeals: “A zoning resolution in many of its features is distinctively a
       city affair, a concern of the locality, affecting, as it does, the density of
       population, the growth of city life, and the course of city values.”
                                            . .    .
               The growing state participation in land-use regulation has been
       generated by a combination of problems of a regional nature and local
       inability to provide solutions. The typical fragmentation of the zoning
       power, which created numerous zoning authorities in urban areas sharing a
       common regional problem, made orderly control of development
       improbable. Legislative bodies, amenable to electors from a small
       geographic district, predictably enacted zoning regulations which served the
       provincial interest of their district.
               They disregarded the broad interests of the regional community,
       making solution of area-wide problems difficult, if not impossible. This
       invited state regulation by legislators who were answerable to a broader
       constituency. State legislators began to realize that ecological problems
       would be solved, if at all, only on a state wide basis. This encouraged the
       adoption of measures to control land use which threatened natural
       resources, including places of natural beauty or historic interest. In
       addition, state land use controls were inspired by such other factors as land
       shortages, fiscal crises, urban deterioration, and a wide variety of
       community ills which seemed unlikely to be cured by purely local
       regulation.

1 Robert M. Anderson, American Law of Zoning 3d, § 2.03 (1986).

¶90    Pursuant to Montana’s Constitution, county commissioners have only that

legislative authority specifically granted by the Legislature. Mont. Const. art. XI, § 3(1).

The Legislature conditioned their grant of legislative authority to zone by allowing 40%

of real property owners or 50% of agricultural land owners to reject any proposed zoning.


                                             43
While popularly elected county commissioners can vote for or against zoning proposals,

they cannot enact zoning ordinances when they have not been granted the authority to do

so. The Legislature specifically limited the authority of county commissioners to zone by

allowing those most affected by the zoning—the property owners—to reject any

proposed zoning. The 1995 protest provision was sponsored by Rep. Trexler who, in his

opening statement on HB 358, explained the bill was “not a zoning bill” and was not

intended to address public health, safety and welfare because county governments already

had in place mechanisms to protect public health and safety. The purpose of the bill was

to address if “a group of people are imposing their wishes on their neighbors, they must

sit down and talk with their neighbors to reach an agreement.” Owners of agricultural

land “should be allowed to [manage their property] and not be zoned to [prevent] that.”

Senate Committee Hearing on HB 358 (March 21, 1995). Then Attorney General Joe

Mazurek opined in 1996 that

      [t]here is no controlling decisional law in Montana pertaining to the
      questions . . . presented and the law of other jurisdictions has limited
      application given the unusual nature of the Montana statute. Opinions of
      other jurisdictions are premised on the recognition that the protest
      provisions of those jurisdictions pertain to the amendment of an existing
      zoning regulation. The courts recognize that those protest provisions are a
      form of protection afforded property owners in the stability and continuity
      of preexisting zoning regulations. Such reasoning is not applicable to the
      Montana statute, which operates as a form of extraordinary protection
      afforded property owners to prevent the legislative body from adopting
      zoning regulations in the first instance. As such, the statute operates more
      like a “consent provision” than a protest provision. Consistent with these
      observations, the statute’s “protest” rights discussed within this opinion are
      so identified only for purposes of consistency with the actual language of
      the statute.

46 Mont. Op. Att’y 22 (July 22, 1996) (emphasis added; footnotes omitted).

                                           44
¶91    Initially, it is significant to point out that this Court has previously held valid, as

against an attack that the statute was an unlawful delegation of legislative authority, the

statutory forerunner to § 76-2-205, MCA. In City of Missoula v. Missoula County, 139

Mont. 256, 362 P.2d 539 (1961), this Court found that zoning statutes which created a

zoning commission and enabled the county commissioners to enact zoning ordinances

validly delegated administrative authority and provided sufficiently clear, definite and

certain standards to enable the agency to know its rights and obligations. See Montana

Wildlife Federation v. Sager, 190 Mont 247, 258, 620 P.2d 1189, 1196 (1980). We said

in City of Missoula:

              We shall not quote the entire act, but, with respect to the procedure,
       the law provides definite outlines and limitations. The zoning district may
       come into being only upon petition of sixty percent of the freeholders in the
       area. The adoption of the development district must be by a majority of the
       Commission, after definitely prescribed public notice and public hearing.
       The resolution must refer to maps, charts, and descriptive matters. In other
       words, quite adequate procedural matters are contained in the act itself.

City of Missoula, 139 Mont. at 260-61, 362 P.2d at 541. Although City of Missoula did

not directly address the contention raised here, this Court recognized the validity of the

statutory provision that prevented the creation of a zoning district until 60% of the

freeholders petitioned for its establishment.         Significantly, these prior enabling

provisions, found to be valid by the Court, “denied the power to regulate the use of land

for grazing, horticulture, agriculture, or the growing of timber.” City of Missoula, 139

Mont. at 258, 362 P.2d at 540 (emphasis added). The Legislature’s limitation of zoning

authority to a county and its zoning commission has thus been part of our statutory

scheme since 1953. Our current zoning statute, § 76-2-205, MCA, actually provides less

                                             45
protection to owners of agricultural and farm lands by not prohibiting zoning outright of

these lands, but instead conditioning it upon there being no objection from at least 51% of

the landowners of agricultural and farm land.

¶92    I agree with Justice Rice in his Dissent when he states that “the Court has gotten it

exactly backwards” in describing our analysis of cases construing protest provisions.

Dissent, ¶ 73. While it is true that the Supreme Court in Eubank v. Richmond, 226 U.S.

137, 33 S. Ct. 76 (1912), found an unconstitutional delegation of legislative authority to

particular landowners in determining the location of a building line, the authority to

establish the building line was not challenged and had already been conferred. Thus the

question was not whether the City of Richmond had authority to create the ordinance, but

rather, once conferred, whether that authority was constitutionally exercised.

       The action of the committee is determined by two-thirds of the property
       owners. In other words, part of the property owners fronting on the block
       determine the extent of use that other owners shall make of their lots, and
       against the restriction they are impotent. This we emphasize. One set of
       owners determine not only the extent of use but the kind of use which
       another set of owners may make of their property. In what way is the
       public safety, convenience or welfare served by conferring such power?
       The statute and ordinance, while conferring the power on some property
       holders to virtually control and dispose of the proper rights of others,
       creates no standard by which the power thus given is to be exercised; in
       other words, the property holders who desire and have the authority to
       establish the line may do so solely for their own interest or even
       capriciously.

Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77 (emphasis added). Five years later, the

Supreme Court explained, in declaring constitutional an ordinance that required consent

by a majority of the property holders before billboards could be erected in residential

areas, that:

                                            46
      A sufficient distinction between the ordinance [in Eubanks] and the one at
      bar is plain. The former left the establishment of the building line
      untouched until the lot owners should act and then made the street
      committee the mere automatic register of that action and gave to it the
      effect of law. The ordinance in the case at bar absolutely prohibits the
      erection of any billboards in the blocks designated, but permits this
      prohibition to be modified with the consent of the persons who are to be
      most affected by such modification. The one ordinance permits two-thirds
      of the lot owners to impose restrictions upon the other property in the
      block, while the other permits one-half of the lot owners to remove a
      restriction from the other property owners. This is not a delegation of
      legislative power, but is, as we have seen, a familiar provision affecting the
      enforcement of laws and ordinances.

Thomas Cusack Co., v. Chicago, 242 U.S. 526, 531, 37 S. Ct. 190, 192 (1917) (emphasis

added). See also Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,

121-22, 49 S. Ct. 50, 52 (1928), where the Court held that “[t]he right of [a property

owner] to devote [his] land to any legitimate use is properly within the protection of the

Constitution” and thus the consent provision for issuance of a permit to accommodate a

larger home for the elderly poor was an unconstitutional delegation of power and

“repugnant to the due process clause of the Fourteenth Amendment.”

¶93   The Court’s reliance on Cary v. City of Rapid City, 559 N.W.2d 891 (S.D. 1997),

and Shannon v. Forsyth, 205 Mont. 111, 666 P.2d 750 (1983), is also misplaced. In

Cary, the issue was not the authority to zone, but rather whether the authority delegated

was constitutionally exercised.    Cary sought to have her property rezoned which,

following protests from neighbors, was denied by the City. The Court determined that

the absence of a legislative bypass and a standardless statute regarding her neighbors’

protests “allows for unequal treatment under the law.”       Cary, 559 N.W.2d at 895.

Similarly, in Shannon, several zoning districts had already been established. The issue

                                           47
was whether there were sufficient standards imposed upon adjoining landowners in

denying a petition seeking a waiver to locate a mobile home within a “Residential A”

zoning district. This Court determined that the consent ordinance was unconstitutional as

an unlawful delegation of legislative authority and police power. Shannon, 205 Mont. at

115, 666 P.2d at 753.

¶94    Other jurisdictions have observed a distinction between consent and protest

provisions which impermissibly delegate legislative authority and those that condition the

exercise of legislative authority on particular conditions having been established. In

O’Brien v. St. Paul, 173 N.W.2d 462 (Minn. 1969), the Court determined that a provision

requiring an owner to obtain written consent of two-thirds of the adjoining property

owners prior to rezoning was valid. Consent was determined to be not a delegation of

power, but merely a condition precedent to an exercise of power by the city council. The

Court referred to rules enunciated from other jurisdictions and adopted the following

distinction:

              If the action of the property owners has the effect of legislation—if it
       creates the restriction or prohibition, then it is deemed to fall within the
       forbidden “delegation of legislative power.”
              On the other hand, if the consents are used for no greater purpose
       than to waive or modify a restriction which the legislative authority itself
       has lawfully created and in which creation it has made provisions for
       waiver or modification, then such consents are generally regarded as being
       within constitutional limitations.

O’Brien, 173 N.W.2d at 465-66 (citing 2 Metzenbaum, Law of Zoning, c. X-b-1, p. 1067

(2d ed.). See also 1 Yokley, Zoning Law and Practice § 7-13, p. 358 (3d ed.). The

Washington Supreme Court upheld a similar consent statute and explained:


                                             48
       In this case it may readily be seen that the council, recognizing the rights of
       the residents of the city to be consulted in matters purely local, matters
       affecting the comfort and even the health of the residents, and the right to
       have their will reflected in the enactments of their representatives, provided
       the ordinance for the purpose of meeting the desires of the residents in that
       regard. The ordinance is prohibitive, but leaves the right to the citizen to
       waive the prohibition if he chooses. Statutes of this character are common,
       and while it is generally conceded that the legislature cannot delegate its
       legislative function, it is well established that it may provide for the
       operation of a law which it enacts upon the happening of some future act or
       contingency. The local option laws in their various phases are common
       instances. While these laws were violently assailed, and in some instances
       received judicial condemnation, they are now almost universally sustained.

Spokane v. Camp, 97 P. 770, 771 (Wash. 1908) (emphasis added.). The Illinois Supreme

Court explained in 1896 that “[i]t is competent for the legislature to pass a law, the

ultimate operation of which may, by its own terms, be made to depend upon a

contingency . . . . The legislature cannot delegate its power to make a law; but it can

make a law to delegate a power to determine some fact or state of things upon which the

law makes, or intends to make, its own action depend.” Chicago v. Stratton, 44 N.E. 853,

855 (Ill. 1896). The distinction drawn was this:

       In the case at bar, the ordinance provides for a contingency, to-wit: the
       consent of a majority of the lot owners in the block, upon the happening of
       which the ordinance will be inoperative in certain localities. The operation
       of the ordinance is made to depend upon the fact of the consent of a
       majority of the lot owners, but the ordinance is complete in itself as passed.
       What are known as local option laws depend for their adoption or
       enforcement upon the votes of some portion of the people, and yet are not
       regarded as delegations of legislative power. Delegation of power to make
       the law is forbidden, as necessarily involving a discretion as to what the law
       shall be; but there can be no valid objection to a law, which confers an
       authority or discretion as to its execution, to be exercised under and in
       pursuance of the law itself.

Chicago, 44 N.E. at 855 (internal citations omitted).


                                             49
¶95    A careful and close reading of these cases demonstrates that there exists a clear

distinction between those protest and consent provisions that impermissibly delegate

legislative authority and those that require a condition precedent to the exercise of

legislative authority in the first instance. In my opinion, we have failed to recognize this

distinction. I believe it is the role of the Legislature to chart the course of this State in

land development and growth. Ultimately, it is up to the citizens to craft their own

destiny, but they must do so in the Legislature and not the courts. If they are displeased

with zoning provisions in our statutes, then their remedy is to petition their

representatives for a change in the law. While I would have no problem scrutinizing a

statute for an unconstitutional delegation of authority, that analysis is not called for here.

The statute merely imposes a condition precedent to the grant of legislative authority to

the counties to zone. I believe courts “should be wary of substituting their economic and

business judgment for that of legislative bodies, and should avoid the temptation,

however attractive, to sit as a ‘super-legislature to weigh the wisdom of legislation.’ ”

McCallin v. Walsh, 64 A.D.2d 46, 59, 407 N.Y.S.2d 852, 859 (N.Y. App. Div. 1st Dept.

1978) (quoting Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407

(1952)).

¶96    I respectfully dissent.


                                                  /S/ LAURIE McKINNON




                                             50
