                              No. 13817
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1978


PHIL YOUNG et al.,

                     Petitioners and Respondents,
       -vs-
STILLWATER COUNTY COMMISSIONERS et al.,

                     Respondents and Appellants.


Appeal from:    District Court of the Thirteenth Judicial District,
                Honorable C. B. Sande, Judge presiding.
Counsel of Record:
    For Appellants:
       Anderson, Syrnmes, Brown, Gerbasq, Cebull & Jones,
        Billings, Montana
       Joseph Gerbase argued, Billings, Montana
   For Respondents:
       Moulton, Bellingham, Longo & Mather, Billings, Montana
       Ward Swanser argued, Billings, Montana
   For Amicus Curiae:
       Milodragovich, Dale and Dye, Missoula, Montana


                                    Submitted:     June 8, 1978
                                        Decided:   Au   ' -
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
     Respondents desired to plat two tracts of land, located

within Stillwater County, which are part of the larger parcel,
owned and subdivided by respondents.     There is no dispute

that the plats in question are "minor plats" within the
meaning of the subdivision laws of the State of Plontana,
specifically section 11-3863(5), R.C.M. 1947.
     On March 8, 1976, respondents submitted the two plats
to appellant Stillwater County Planning Board for approval.
On March 15, 1976, the Board denied summary approval of the

plats and set the matter for a public hearing. Notice of
said hearing was given pursuant to section 11-3866(3),
R.C.M.    1947 and the hearing held on April 6, 1976.   On April
19, 1976, the Planning Board disapproved the plats.      Respondents

appealed to appellant Stillwater County Commissioners, who,
on May 17, 1976, affirmed the disapproval.
     Respondents then petitioned for a writ of certiorari to
the District Court, Stillwater County.    Then both parties

moved for summary judgment.
     On February 28, 1977, the District Court, Honorable C.
B. Sande presiding, granted summary judgment for respondents,
reversing the decision of appellants and concluding as a matter
of law:
     "That the County Commissioners and County
     Planning Board of Stillwater County attempted
     to apply the provisions relative to a major
     plat to a minor plat in violation of Montana
     law.


     "The minimum requirements of Montana law did
     not require or authorize a public hearing
     to be held on the plat to obtain input in
     accordance with requirements of a major
     under R.C.M. 11-3866.
     "That the minor plats complied with all the
     requirements of Montana law and were eligible
     for summary approval and should have been
     approved by the County Commissioners and
     the County Planning Board of Stillwater
     County. * * * "
Appellants appeal the order of the District Court granting
summary judgment as aforesaid.
     The District Court further ordered that the Stillwater
County Clerk and Recorder file the plats of record.    Pursuant
to that order, the plats were filed.   Thereafter, the land
was sold.   Appellants made no attempt to stay the order of
the District Court, or to enjoin the filing of the plats or
the sale of land pending appeal.
     Considering the applicable statutes in effect at the
time of the decision of District Court, this Court must
affirm the decision and hold there is no statutory authority
for public hearings on "minor" plats absent local regulations
to that effect.
     Section 11-3863 ( 5 ) , R.C.M. 1947, makes clear that sub-

division plats containing five or fewer parcels (a "minor"

plat) where there is proper access, where no land in the

subdivision will be dedicated to public use, and which have
been approved by the Department of Health and Environmental
Sciences where such approval is required, shall be subject
to summary review and approval.    The only statutory require-
ment for a public hearing in any review procedure for a
subdivision plat is provided in section 11-3866, R.C.M.   1947.
However that section excepts from its procedural review
requirements any "plat eligible for summary approval."    Section
11-3866 (I), R.C.M. 1947.   A public hearing may be had on a
minor subdivision plat if such a hearing is required by local
regulations as indicated by the proviso to subsection (5)
of section 11-3863, R.C.M.    1947:   "reasonable local regulations
may contain additional requirements for summary approval."
        In the instant case the parcels in question were
identified by the planning board as minor subdivision plats
and eligible for summary review and approval.     Therefore,
unless the local regulations required a public hearing, no
such public hearing was necessary under the statutory scheme
set forth in section 11-3866.    The planning board here admitted
that it had no local regulations in effect at the time of the
board action.
     Appellants have argued that regulations promulgated by
the Department of Community Affairs pursuant to the legislative
direction given in section 11-3863 (2), R.C.M. 1947, are
regulations the county can enforce as subdivision regulations
in lieu of its own.    This argument rests on a directive con-
tained in section 11-3863(8), R.C.M.    1947, stating that if
a county by July 1, 1974 had not adopted regulations regarding
subdivisions, the Department of Community Affairs was to

formulate reasonable regulations that the county could then
be required to enforce until its own were adopted.       Appellant
contends that the regulation set forth at M.A.C. 1975 822-2.4
(B) (6) S 4 2 0 (1)(n), requiring local regulations to provide for
       -

summary review and approval procedures and for waiver of
preliminary plat, environmental assessment and public hearing
requirements, is such a regulation and under its authority
the county can require a public hearing.     Such is not the
case.    The regulations contained in Title 22, M.A.C.    relating
to subdivision are those regulations required by section
11-3863(2), to be prescribed to establish minimum requirements
for subdivision regulations.    They are - the regulations
                                         not
required by section 11-3863(8), R.C.M. 1947 to be prescribed
in the event the county did not meet the July 1, 1974 deadline.
Apparently no such regulations were made for or adopted by
Stillwater County.   Therefore, in the absence of any local
regulations requiring a public hearing, the appellants could
only look to the statutory scheme for authority to hold a
public hearing and none existed.     The District Court was
correct in its conclusion that no public hearing in this case
was required or authorized to be held on the minor plats
before summary approval.
     The question has been raised by amici curiae briefs
whether the public interest finding requirements in section
11-3866(4), R.C.M. 1947, should be read into section 11-3866
(6), R.C.M. 1947, which sets forth the rev,iew procedure for
a minor plat, or whether the separate procedural requirements
for major and minor plats mean separate standards for approval.
Because section 11-3866(6), R.C.M.    1947, was not in effect
on the dates pertinent to this appeal, we will not address
that question at this time.
     Affirmed.




We concur:



        Chief Justice




Mr. Chief Justice Frank I. Haswell deems himself disqualified
in this case.
