                                           No. 01-713

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 73


MESA COMMUNICATIONS GROUP, LLC,

              Petitioner and Respondent,

         v.

YELLOWSTONE COUNTY, MONTANA,

              Respondent and Appellant.




APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     The Honorable Gregory R. Todd, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Mark A. English, Deputy County Attorney, Billings, Montana

              For Respondent:

                     Jeanne Matthews Bender, Charles E. Hansberry; Holland & Hart,
                     Billings, Montana


                                                   Submitted on Briefs:    February 21, 2002

                                                               Decided:    April 11, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    Yellowstone County (County) appeals from a Memorandum and

Order     entered      by      the   Thirteenth      Judicial       District     Court,

Yellowstone      County,        concluding     that    the    Yellowstone        County

Commissioners        (Commissioners)         erred    in     interpreting        zoning

regulations and in denying an application by Mesa Communications

Group (Mesa) to build a telecommunications tower in Yellowstone

County.     The County also appeals from the court's issuance of a

writ of mandate ordering approval of Mesa's application.                             We

affirm.

¶2    The issue on appeal is whether the District Court erred in

concluding that the term "existing," as used in the County's Zoning

Regulations, applies only to telecommunications towers actually in

existence and not to towers that were approved but not yet built.

                                      BACKGROUND

¶3    Resolution No. 98-69, Section 27-320 of the County Zoning

Regulations (Regulations) sets standards for telecommunications

towers.      Section 27-320G, subsection 11, of the Regulations is
entitled "Tower Separation" and requires that "[a]ll commercial

telecommunications towers over fifty (50) feet in height . . .

shall be located at least one (1) mile from any other commercial

telecommunications tower."             The Regulations further provide that

"[n]o     new    tower      shall    be   permitted        unless      the    applicant

demonstrates      to     the    reasonable     satisfaction       of    the    Planning

Department that no existing tower or structure can accommodate the




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applicant's     proposed        antenna."         Regulations,      Section      27-320K,

subsection 5.

¶4   In   November         of     2000,     Mesa     applied       to     the    City   of

Billings/Yellowstone County Planning Department for permission to

construct a wireless telecommunications tower 250 feet in height

within the County's zoning jurisdiction.                      Mesa proposed to lease

Summit Wireless space on the tower for an antenna. The City of

Billings/County Planning Department reviewed the application and

recommended      it   be        denied    based     on       the   1-mile       separation

requirement, because a 100-foot tower had been built and a 300-foot

tower had been approved, but not yet built, within a mile of the

tower proposed by Mesa.

¶5   The Regulations allow the Commissioners to waive the 1-mile

separation      requirement        on    "special     review"       if    an    applicant

establishes that an existing tower could not accommodate the

applicant's proposed antenna.                   In fact, the Commissioners had

waived the requirement in approving the application for the 300-

foot tower, which was submitted by TriStar.                         Mesa applied for

special review.

¶6   The County Zoning Commission held a public hearing on Mesa's

request   for    special        review.      At    the       hearing,    Mesa    presented

evidence that it was not technically feasible to place Summit's

antenna on the existing 100-foot tower.                         Mesa did not present

evidence that it would be infeasible to place the antenna on the

previously-approved         300-foot      tower.         A    TriStar    representative

testified that TriStar could and would accommodate Summit's antenna

on its tower, construction of which had not yet begun.                          Following


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the   December     11,   2000     public     hearing,      the   Zoning      Commission

recommended       to   the    Commissioners        that   Mesa's     application     for

special review be denied.

¶7    A week later, the Commissioners held a hearing on Mesa's

application and took it under advisement.                  On January 9, 2001, the

Commissioners issued a written denial of Mesa's application for

special review, reasoning that Mesa's proposed tower was within a

1-mile radius of the proposed and approved TriStar tower.                            They

concluded it would "not make sense" to interpret the Regulations to

fail to consider the approved tower.

¶8    Mesa then filed a "Petition for Declaratory Judgment, Judicial

Review, and Appropriate Writ," in the District Court, seeking a

declaration of its legal rights and relief from application of the

1-mile Regulation.           The parties ultimately agreed the matter could

be resolved via a summary ruling on Mesa's request for declaratory

judgment and, accordingly, each party moved for summary judgment on

the same undisputed facts.

¶9    The District Court granted Mesa's motion for summary judgment

and denied the County's.              In doing so, the court adopted Mesa's

argument that the 1-mile separation requirement applied only to

towers that have been constructed and not to unconstructed towers

approved for construction.

                                      DISCUSSION

¶10   Did   the    District      Court   err       in   concluding    that    the    term

"existing,"       as    used     in    the       Regulations,    applies      only     to

telecommunications towers actually in existence and not to towers

that were approved but not yet built?


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¶11    Our standard of review in summary judgment appeals is de novo.

 We use the same standards used by the trial court:             first, whether

issues of material fact exist and, if not, whether the moving party

is    entitled   to   judgment    as   a   matter   of   law.    Rule   56(c),

M.R.Civ.P.; Winslow v. Montana Rail Link, Inc., 2000 MT 292, ¶ 38,

302 Mont. 289, ¶ 38, 16 P.3d 992, ¶ 38 (citation omitted).                 In

cases such as this one, where the parties agree on the facts, we

review only the district court's legal conclusion that a party is

entitled to judgment as a matter of law.            See Watters v. Guaranty

Nat. Ins. Co., 2000 MT 150, ¶ 21, 300 Mont. 91, ¶ 21, 3 P.3d 626, ¶

21.

¶12    The County argues the meaning of "existing tower" is imprecise

and open to at least two reasonable interpretations:                 one that

includes approved but not yet built towers, and one that excludes

approved but not yet built towers.          In light of such an ambiguity,

the County urges that interpreting the Regulation to include

approved but not yet built towers furthers the Regulations' purpose

of limiting the number of towers and, as a result, limits the

towers' adverse aesthetic effects.

¶13    Mesa contends, on the other hand, that the term "existing

tower" is not ambiguous.         The District Court agreed, and so do we.



¶14    The same rules of construction apply to official enactments by

county commissioners as apply to the construction of a statute.

State, ex rel. Thompson v. Gallatin County (1947), 120 Mont. 263,

271, 184 P.2d 998, 1002.         Under those rules, we look first to the

plain meaning of the words used in determining the intent of the


                                       5
enacting entity; only where that intent cannot be determined from

the plain meaning of the words used may we go further and apply

other means of interpretation.                   See Murphy for L.C. v. State

(1987), 229 Mont. 342, 344, 748 P.2d 907, 908 (citations omitted).

 The role of the judge is to "ascertain and declare what is in

terms or in substance contained [in the Regulations], not to insert

what has been omitted or to omit what has been inserted."                      See § 1-

2-101, MCA.

¶15   The term "existing tower" as used in the Regulations is

neither ambiguous nor imprecise.                "Exist" means to have real being,

whether material or spiritual, or to have being in space and time.

 WEBSTER'S     NINTH    NEW    COLLEGIATE        DICTIONARY    435     (1991).        A

telecommunications tower clearly has no spiritual being.                         Such a

tower does, however, have real material being.                         In addition, a

tower has being in space and time.                    Neither can be said of an

"approved"      tower     on     which      construction         has     not     begun.

Consequently, we conclude that an "existing tower" does not include

one which has not yet been built or even begun.

¶16   Moreover, as the District Court noted, other sections of the

Regulations refer separately to "proposed" and "existing" towers.

See Regulations, Sections 27-320G, subsection 8, and 27-320K,

subsection 5.      The Regulations clearly distinguish between towers

which   have    been    constructed       and      towers     merely    proposed    for

construction.      The Commissioners' denial of Mesa's application did

not   specifically       address    the         Regulations'    use     of   the   word

"existing;" nor did it recognize the alternative use of the word

"proposed."      It focused on the purposes of the Regulations.


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¶17    Because the question of law at issue here can be resolved

based on the plain meaning of the words used in the Regulations, we

do not address at length the County's argument regarding the

purpose      of   the    Regulations.            We   merely   point    out    that   the

Regulations set forth a number of legitimate and competing public

purposes, including "enhanc[ing] the ability of the providers of

telecommunications         services     to       provide    such    services    to    the

community as quickly, effectively, and efficiently as possible."

See Regulations, Section 27-320A.

¶18    For similar reasons, we do not address at length the County's

reliance on City of New York v. Love Shack (N.Y.A.D. 1 Dept. 2001),

729 N.Y.S.2d 37, in support of its contention that the term

"existing" in a regulation includes a use that has been approved.

Love Shack is distinguishable.               First, there is no indication in

Love Shack that the policy at issue there made a distinction

between "existing" and "proposed" adult establishments.                         Second,

the New York court's decision may have been influenced by the fact

that   the    applicant        concealed   its        intention    to   open   an   adult

establishment in its application for a building permit.                        See Love

Shack, 729 N.Y.S.2d at 38.

¶19    We hold the District Court correctly concluded that the term

"existing"        as    used    in   County       Regulations      only    applies     to

telecommunications towers actually in existence and not to towers

that were approved but not yet built.                      Therefore, we affirm the

District Court's summary declaratory judgment in Mesa's favor and

its writ of mandate requiring the Commissioners to approve Mesa's

application to build a telecommunications tower.


                                             7
                          /S/ KARLA M. GRAY

We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER




                      8
Justice W. William Leaphart dissenting.
¶20   I dissent.      The zoning regulations in question were designed

to limit the number of communications towers in the county.                     In

light    of    that    purpose,      the    Board    of     County   Commissioners

interpreted the term “existing tower” as encompassing approved but

not   yet     built   towers.        I     would    defer    to   that   reasonable

interpretation.       The interpretation adopted by the District Court

and approved by this Court results in an increase in the number of

towers in the county and thereby defeats the purpose of the

regulation.



                                                      /S/ W. WILLIAM LEAPHART




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