                                                                                           08/01/2017


                                          DA 17-0016
                                                                                       Case Number: DA 17-0016

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 186



TODD CARLSON,

              Petitioner and Appellant,

         v.

YELLOWSTONE COUNTY
BOARD OF ADJUSTMENT,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 15-1536
                       Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Thomas J. Stusek, Stusek Law Firm, P.C., Bozeman, Montana

                For Appellee:

                       Daniel L. Schwarz, Mark A. English, Deputy Yellowstone County
                       Attorneys, Billings, Montana


                                                  Submitted on Briefs: June 21, 2017

                                                             Decided: August 1, 2017


Filed:

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

¶1     Todd Carlson began construction on a detached garage on his property in a

subdivision outside of Billings, Montana, without first obtaining a zoning compliance

permit. The garage’s size and setbacks from the property line violated county zoning

regulations.   Carlson requested a variance from the Yellowstone County Board of

Adjustment (Board). The Board held a public hearing and denied the variance request.

Carlson appealed to the District Court. The District Court upheld the Board’s decision.

We consider on appeal whether the District Court abused its discretion in affirming the

Board’s denial of Carlson’s variance request.

¶2     We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     Carlson employed a contractor in the spring of 2015 to construct a detached

garage on his property.      The property is located in a residential subdivision in

Yellowstone County outside of the Billings city limits. The garage was over eighteen

feet tall, spanned 2,140 square feet, and was situated with side and rear setbacks of three

and one-half feet from the property line.

¶4     The subdivision in which Carlson lives is subject to Yellowstone County zoning

regulations.   Section 27-310(j) of the City of Billings and Yellowstone County

Jurisdictional Area Unified Zoning Regulations (Unified Zoning Regulations) requires,

among other things, that detached garages over eighteen feet tall maintain eight-foot side

and rear setbacks from the property line and that a garage on a property the size of




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Carlson’s be no larger than 1,238 square feet. Neither Carlson nor his contractor applied

for a zoning compliance permit before beginning construction.

¶5    Carlson’s next-door neighbor, Jason Frank, filed a complaint with the Yellowstone

County Code Enforcement Office due to the close proximity of Carlson’s garage to

Frank’s fence.   A Code Enforcement Officer responded by investigating Carlson’s

property.   The officer informed Carlson that the garage violated county zoning

regulations and advised him to cease construction until he could come into compliance.

Carlson continued construction on the garage nonetheless.

¶6    Carlson applied to the County Planning Division in late April 2015 for a zoning

permit to build his garage. On May 11, 2015, the Planning Division sent Carlson a letter

denying his permit request because his garage violated the size and setback requirements

of § 27-310(j) of the Unified Zoning Regulations. The letter informed Carlson that he

could apply for a variance with the Board.

¶7    Carlson petitioned the Board for a variance on August 3, 2015—eighty-four days

after receiving the Planning Division’s letter—to allow him to complete construction of

his garage. The Board scheduled a public hearing on Carlson’s variance request for

September 10, 2015, postponed the hearing twice, and then finally held the hearing on

October 29, 2015.

¶8    At the variance hearing, the Board heard testimony from numerous witnesses,

including Carlson, his attorney, his contractor, some of his neighbors, and County staff

who had investigated Carlson’s property. The Planning Division recommended denial of

Carlson’s variance, based on its investigation of Carlson’s property and other properties


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in the surrounding area. Nicole Cromwell, the Zoning Coordinator for the Planning

Division, and others testified that Carlson began construction on his garage before

acquiring the required permit, that he submitted a permit request, that the request was

denied, that Carlson was informed he could apply for a variance, and that he continued

construction despite being advised that the garage violated zoning regulations.

¶9     Carlson testified that he needed the detached garage in order to store his valuable

car collection and that the garage was of high quality and was aesthetically pleasing. He

alleged that other structures in his subdivision violated zoning regulations and that his

garage was not unique in this regard. Carlson submitted photographs of his property and

of neighboring properties to the Board. He testified that he was not initially aware that he

needed a permit, and that he had relied on his concrete contractor to comply with any

relevant regulations. Carlson argued that it would cause him significant hardship to have

to tear down the garage, in which he had invested approximately $40,000 to $50,000.

¶10    Frank, Carlson’s next-door neighbor, testified that the proximity of the tall garage

to his property created a safety hazard of snow and ice falling into his backyard. Another

neighbor testified that Carlson’s garage was constructed over a utility right-of-way for

sewer and water lines.

¶11    At the close of public testimony, the Board members discussed Carlson’s request.

The members expressed concern about the economic waste of Carlson tearing down his

nearly-completed garage, but also noted that Carlson had not done his due diligence and

had carelessly disregarded zoning regulations.      The Board noted the garage’s close

proximity to the property line and its presence over the utility right-of-way. One member


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voiced concern that granting the variance would set a precedent of the Board permitting

significant deviations from the zoning regulations. At the close of discussion, the Board

voted unanimously to deny Carlson’s variance request.

¶12       Carlson appealed the Board’s denial to the Thirteenth Judicial District Court. The

court determined that Carlson had not met his burden of showing that the Board abused

its discretion in denying his request for a variance, and it affirmed the Board’s decision.

The court explained that its “responsibility is not to examine the ‘wisdom’ of the

[Board’s decision], but to give it deference so long as the evidence shows the [Board]

acted legally and within its jurisdiction, which is precisely what it did when it denied

Carlson’s variance.” Carlson appeals.

                                STANDARDS OF REVIEW

¶13       A district court reviews a board of adjustment’s decision for an abuse of

discretion.     Flathead Citizens for Quality Growth, Inc. v. Flathead Cnty. Bd. of

Adjustment, 2008 MT 1, ¶ 32, 341 Mont. 1, 175 P.3d 282 (hereafter “Flathead”).             A

board abuses its discretion when it relies for its decision on information so lacking in fact

and foundation that it is clearly unreasonable. Flathead, ¶ 32. A court does not examine

the wisdom of a board’s decision if it is established that the board acted within its

jurisdiction and that its action was not illegal. Schendel v. Bd. of Adjustment, 237 Mont.

278, 283, 774 P.2d 379, 382 (1989). We review a District Court’s affirmation of a board

of adjustment’s decision for an abuse of discretion. Schendel, 237 Mont. at 283, 774 P.2d

at 382.




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                                       DISCUSSION

¶14 Whether the District Court abused its discretion in affirming the Board’s denial of
Carlson’s variance request.

¶15    As an initial matter, Carlson argues for the first time on appeal that the Board and

the District Court erroneously required that he show that denial of his variance would

cause him “unnecessary hardship.”        Carlson claims that the “unnecessary hardship”

standard applies only to “use” variances, but that his request was for an “area” variance,

which required the less burdensome showing of a “practical difficulty.” “[T]his Court

generally will not address an issue or new legal theory raised for the first time on appeal.

We will not unfairly fault a trial court for failing to rule correctly on an issue that it was

not asked to consider.” Ryffel Family P’ship v. Alpine Country Constr., Inc., 2016 MT

350, ¶ 24, 386 Mont. 165, 386 P.3d 971 (internal citations omitted). Carlson did not

present this argument to the District Court. We therefore decline to address it.

¶16    Carlson contends also that the various factors that this Court employs to determine

whether a variance should have been granted weigh in his favor. He argues that the

economic hardship he will endure if he has to tear down his garage was not self-inflicted

and that the Board failed to consider equitable principles underlying his claim.

¶17    “Montana case law clearly establishes that the following conditions must be

present before the granting of a variance is proper: (1) The variance must not be contrary

to the public interest; (2) a literal enforcement of the zoning ordinance must result in

unnecessary hardship owing to conditions unique to the property; and (3) the spirit of the

ordinance must be observed and substantial justice done.” Cutone v. Anaconda Deer



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Lodge, 187 Mont. 515, 521, 610 P.2d 691, 695 (1980). A board of adjustment “is bound

to apply” the relevant zoning regulations. Flathead, ¶ 37. A board may not “disregard

the provisions of, nor exceed the powers conferred by, a zoning ordinance and must act in

accordance with the law.” Flathead, ¶ 37 (citation and internal quotations omitted).

¶18    Section 27-1506(d) of the Unified Zoning Regulations states, in relevant part, that

the Board must determine the following before it grants a variance request:1

       (1) That special conditions and circumstances exist which are peculiar to
       the land, the lot or something inherent in the land which causes the
       hardship, and which are not applicable to other lands in the same district;

       (2) That a literal interpretation of the provisions of this chapter would
       deprive the applicant of rights commonly enjoyed by other tracts in the
       same district;

       (3) That granting the variance requested will not confer on the applicant
       any special privilege that is denied by this chapter to other land in the same
       district; [and]

       (4) That the granting of the variance will be in harmony with the general
       purpose and intent of this chapter and with the comprehensive plan.

¶19    The Board issued findings in conjunction with its denial of Carlson’s variance

request in which it addressed the criteria of § 27-1506(d). Based on the testimony and

evidence before it, the Board determined that Carlson did not satisfy the criteria.

¶20    As to the first criterion, the Board reasoned that Carlson’s hardship—the economic

waste of tearing down a partially-built garage—was not a hardship that was peculiar to




1
  This section of the Unified Zoning Regulations lists a total of seven criteria that the Board
must determine, the final three of which apply only in cases in which the Board grants a
variance. Because the Board denied Carlson’s variance, those three criteria are not relevant here.


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his land. The record before the Board supports its determination that Carlson’s hardship

was strictly economic and was not due to any conditions unique to his property.

¶21   As the Board observed, the “practical difficulties” Carlson urges are in large part

due to his own actions.     He began construction without first requesting a zoning

compliance permit, and he continued construction even after he was informed that his

garage did not comply with zoning regulations. Carlson acknowledges that he had the

garage framed in and nearly enclosed by the time the Board considered his application in

October, for the stated reason that he wanted to complete the structure before winter.

Carlson’s contractor’s failure to seek a permit and Carlson’s decision to proceed with

construction—not anything inherent in Carlson’s land—caused his hardship. Carlson

thus failed to satisfy this first criterion.       He was unable to show that “a literal

enforcement of the zoning ordinance [would] result in unnecessary hardship owing to

conditions unique to the property.” Cutone, 187 Mont. at 521, 610 P.2d at 695 (emphasis

added).

¶22   In examining the second criterion, the Board concluded that literal interpretation

of the zoning regulations would not deprive Carlson of any right enjoyed by nearby

property owners. Carlson presented photographs to the Board depicting other zoning

violations in his neighborhood; he acknowledged that the Board had not granted

variances in those cases and did not present other evidence of the circumstances of the

construction on those properties.     Carlson presented no evidence that the Board

previously had granted variances similar to the one he requested. The Board noted that it

had granted variances for oversized, detached garages, but that it had permitted a


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maximum size of 1,500 square feet—far less than Carlson’s 2,140-square-foot garage.

The evidence presented to the Board substantiated its conclusion that Carlson did not

satisfy this criterion.

¶23    As to the third criterion, the Board found that granting Carlson’s variance would

improperly confer a special privilege on him. The Board noted that it had never granted

variances for such significant deviations from the zoning regulations as Carlson

requested. It reasonably determined, based on its knowledge of the zoning regulations

and its history of approving variances, that to grant Carlson’s request would unfairly

allow him—but not others in the area—to deviate substantially from the zoning

regulations.

¶24    Finally, under the fourth criterion, the Board concluded that Carlson’s variance

would conflict with the general purpose of the zoning regulations.            Based on its

assessment of Carlson’s and the surrounding properties, the Board found that the

detached garage was exceptionally large and “out of character with the surrounding

residential properties.” Although Carlson substantiated his position with evidence that

his garage was well-built and aesthetically pleasing, he did not dispute that it violated the

size and setback requirements, or that it was considerably larger than other structures the

Board had permitted. The factors that the Board addressed in its decision adequately

account for the equitable considerations that Carlson argues. The testimony and evidence

concerning the nature of Carlson’s and other nearby properties supports the Board’s

conclusion.




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¶25   The District Court properly declined to second-guess the Board’s discretionary

determinations.   The record before the Board substantiated its rationale in denying

Carlson’s request for a variance. Carlson failed to demonstrate that he was legally

entitled to the relief he requested. See Cutone, 187 Mont. at 521, 610 P.2d at 695.

Carlson cites a number of our cases to support his position, including Rygg v. Kalispell

Board of Adjustment, 169 Mont. 93, 544 P.2d 1228 (1976), Lambros v. Board of

Adjustment of City of Missoula, 153 Mont. 20, 452 P.2d 398 (1969), and Freeman v.

Board of Adjustment of City of Great Falls, 97 Mont. 342, 34 P.2d 534 (1934). These

cases recognize that a board of adjustment’s decision on a variance request is a case-by-

case, fact-specific inquiry, and they do not show that the Board abused its discretion in

Carlson’s case. The Board acted “in accordance with the law,” and its decision was not

“so lacking in fact and foundation that it [was] clearly unreasonable.” Flathead, ¶¶ 32,

37.

                                    CONCLUSION

¶26   We conclude that the District Court did not abuse its discretion when it upheld the

Board’s denial of Carlson’s variance request. See Schendel, 237 Mont. at 283, 774 P.2d

at 382. We therefore affirm the District Court’s order.


                                                 /S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE


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