                                                                                           August 5 2014


                                          DA 13-0420

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 207



LEWIS AND CLARK COUNTY,

              Petitioner and Appellant,

         v.

GREG L. HAMPTON,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDV-2009-526
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Leo J. Gallagher, County Attorney, Katie Jerstad, K. Paul Stahl, Deputy
                       County Attorneys, Helena, Montana

                For Appellee:

                       David K. W. Wilson, Jr., Robert Farris-Olsen, Morrison, Sherwood, Wilson
                       & Deola PLLP, Helena, Montana


                                                   Submitted on Briefs: April 2, 2014
                                                              Decided: August 5, 2014


Filed:

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

¶1     Lewis and Clark County appeals the judgment of the First Judicial District Court

following a jury trial, along with the court’s previous orders granting Greg Hampton partial

summary judgment and denying the County’s motion for summary judgment.

¶2     We address the following issues on appeal:

¶3    1. Whether the District Court erred in ruling on summary judgment that the County
consented to revocation of an agricultural covenant on Hampton’s property.

¶4     2. Whether the District Court erred in denying summary judgment to the County and
allowing a jury to decide whether Hampton had notice of and failed to complete the
conditions attached to the County’s revocation.

¶5     3. Whether the District Court erred in its entry of final judgment.

¶6     We affirm the District Court’s decisions on the cross-motions for summary judgment

and affirm its judgment in part. We remand for modification of the final judgment.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶7     This action arises from a restriction placed on a parcel of real property located in the

South Hills of Helena. Hampton, a developer, divided a forty-acre parcel into at least a

dozen lots utilizing various exemptions allowed by the Montana Subdivision and Platting

Act (Act). Hampton conveyed an approximately 14.2-acre parcel to John and Carol Turner.

The Turners retained, and later sold, 1.9 acres for residential purposes. In an attempt to

avoid the subdivision review process, they placed an agricultural covenant on the remaining

12.3 acres in 1993. This covenant stated that the land would be used exclusively for

agricultural purposes. It ran with the land and allowed revocation only by “mutual consent

of the owners of the parcel . . . and the governing body of Lewis and Clark County.” The



                                              2
Turners previously had agreed to reconvey the restricted 12.3-acre parcel to Hampton and

did so in 1996. At that time, Hampton requested the County’s consent to lift the covenant.

The County denied his request. In 1997, Hampton again requested lifting the covenant and

the County again denied the request. In 1998, Hampton filed an action for declaratory relief,

requesting that the court declare the covenant void and unenforceable. We affirmed the

district court’s determination that the covenant was not void. Hampton v. Lewis & Clark

Co., 2001 MT 81, 305 Mont. 103, 23 P.3d 908.

¶8     In July 2004, Hampton again requested the County’s consent to revoke the

agricultural covenant. At a regularly scheduled public meeting, the County Commission

decided to hear the request and scheduled a public hearing for September 9, 2004.

¶9     At the public hearing, the Commission heard a presentation from its staff about the

parcel and the agricultural covenant policy. The County Planning Director recommended

denial of Hampton’s request to lift the covenant based on his past misuse of the Act’s

exemptions.    The Commission deliberated and requested input about how it might

conditionally approve Hampton’s request. Prior to the next meeting, County staff circulated

a memo outlining fifteen conditions of approval if the Commission chose to lift the

agricultural covenant. A revised memo listed thirteen conditions. The conditions mirrored

those required of other minor subdivisions in the South Hills and were designed to bring

Hampton’s property into compliance with applicable laws and regulations by mitigating

impacts or eliminating hazards resulting from subdivision of the property. Two conditions of

particular importance involved access to the parcel. The Act requires that approved

subdivisions have both legal and physical access. Section 76-3-608(3)(d), MCA.


                                             3
¶10    At the September 23, 2004 meeting, the Commission voted on the “Revocation of

Agricultural Covenant.” The minutes from the meeting reflect that “[t]he motion to approve

the revocation subject to 13 conditions as amended carried unanimously.”

¶11    Of the thirteen conditions, the following are at issue in the litigation:

       5. A plan to improve Lodgepole and/or Sweetgrass Road to the
       specification required by the County Subdivision Regulations . . . from the
       west edge of the proposal to the intersection with Lime Kiln Road . . .
       submitted to the County Planning Department . . . ;
       6. Evidence that Lodgepole and/or Sweetgrass Roads are public access
       easements . . . submitted to the County Planning Department for review and
       approval;
       7. An Approach Permit . . . granted by the County Road Department . . . ;
                                          . . .

       11. A Certificate of Survey . . . submitted to the Planning Department for
       review and approval.

¶12    The County sent Hampton a letter approving the lifting of the covenant subject to the

thirteen conditions. The letter stated, “Prior to any development, Mr. Hampton and his

successors must submit their proposed development to the Lewis and Clark Planning

Department for its written approval. Approval will be granted only upon a determination by

the planning department that the . . . conditions have been met[.]”

¶13    Shortly after the County’s action, Hampton began working on developing his

residence. The parcel is located on Sweetgrass Road, which is a dead-end accessible from

Lodgepole Road. He submitted a comprehensive permitting application to the County Office

of the Permit Coordinator for a “new home—building on parcel.” In December 2004,

Hampton submitted a Montana Department of Environmental Quality/Local Government

Joint Application Form for the “Greg Hampton Homesite.” On April 14, 2005, the Montana



                                              4
Department of Environmental Quality sent Hampton a letter approving his proposed

development for “water supply, sewage, solid waste disposal, and storm water drainage.”

The letter indicates that a copy was sent to the County Planning Board. In April 2005,

Hampton received his address assignment from the County. Soon afterward, the County

granted approval for Hampton’s septic drainfield. Hampton’s tax classification changed

from agricultural to residential in 2005. His property taxes reflected the change—rising from

$150 to approximately $5,000 per year. The 2006 County tax records include a photo of

Hampton’s residence and his address.

¶14    In September 2006, Josh Chisholm, a developer, applied to subdivide Hampton’s

parcel. As the property owner, Hampton also signed the application. In the process of

reviewing Chisholm’s application, the County realized that Hampton may not have

completed the conditions placed upon him in 2004. On January 5, 2007, the County sent a

letter to Chisholm rejecting the application and stating that the parcel was “subject to an

agricultural covenant.” The County Planner who discovered this testified at trial that

although a survey had lifted the agricultural covenant, there was no evidence that the

conditions had been completed.

¶15    On January 16, 2008, the County sent a letter to Hampton informing him that it had

not received any verification that all of the conditions had been met. The letter gave

Hampton ten days to complete and verify with the County that all of the conditions were

satisfied. Hampton spoke with the County’s Director of Community Development and

Planning, Kelly Blake, on January 22, 2008. Hampton informed her that he was unable to

comply with Conditions Five and Six to make the road public as he had not obtained the


                                             5
neighboring property owners’ approval.       Blake forwarded the matter to the County

Attorney’s Office for enforcement.

¶16    On June 10, 2009, the County filed a complaint in the District Court requesting

injunctive relief and an order requiring Hampton to complete the conditions. The County’s

amended complaint, filed a year later, requested the following relief:

       1.     Order one of the following alternatives:
            a.       Order Hampton to satisfy all 13 conditions of approval within a
                 reasonable amount of time;
            b.       Order Hampton to remove the residential dwelling on his
                 property;
            c.       Permanently enjoin Hampton and any present or future owners
                 of the property from using the property for residential purposes,
                 including the use of the residential dwelling currently on the
                 property;
            d.       Order Hampton to pay to County an appropriate monetary
                 penalty to be established at trial;
       2.     Order Hampton to pay County’s costs and attorney’s fees in this
              matter; and
       3.     Order such other and further relief as the Court deems proper and just.

¶17    Hampton moved for summary judgment on numerous issues, including whether the

agricultural covenant had been revoked. Prior to a ruling on Hampton’s motion, the County

moved for summary judgment on the issues whether Hampton had notice of the conditions

and whether he failed to meet all of the conditions prior to development.

¶18    On November 16, 2011, the court granted partial summary judgment to Hampton,

ruling that the County had agreed to lift the agricultural covenant. Then, on February 1,

2012, the court denied the County’s motion for summary judgment because there was

“substantial disagreement about the status of the conditions.”




                                             6
¶19    A four-day jury trial began April 2, 2012. The two issues were whether Hampton had

notice of the thirteen conditions prior to building his home and which conditions, if any,

remained unmet. The jury determined that Hampton did have notice and that he failed to

complete four conditions (Five, Six, Seven, and Eleven) prior to development.

¶20    Following trial, the County moved for final judgment pursuant to M. R. Civ. P. 54(c),

along with costs and attorney’s fees. The District Court issued its memorandum and order

on post-trial issues and judgment on April 23, 2013. The court ordered Hampton to comply

with Conditions Five and Six by paying the proportional share of the cost to upgrade

Lodgepole Road to County road requirements and to pay the entire cost of upgrading

Sweetgrass Road. The court ordered the County to issue the approach permit required under

Condition Seven and to accept and file the certificate of survey for compliance with

Condition Eleven. The court also ordered Hampton to file an irrevocable deed restriction

prohibiting further development or division of his property. The County does not separately

challenge on appeal the District Court’s order as to Conditions Seven and Eleven, but argues

error in its resolution of Conditions Five and Six.

¶21    On June 17, 2013, other landowners along Sweetgrass Road filed a motion to

intervene. They argued that the court’s order violated their property rights by requiring

Hampton to upgrade Sweetgrass Road. The District Court denied the landowners’ motion to

intervene as untimely and clarified that its ruling “is confined to improvement of Sweetgrass

Road within the access easement(s) set out on the property deeds.” The landowners do not

appeal this determination, nor is this post-judgment intervention request an issue on appeal.

The District Court stayed its judgment pending appeal.


                                              7
                                STANDARD OF REVIEW

¶22    We review a district court’s summary judgment ruling de novo, applying the same

criteria as does a district court under M. R. Civ. P. 56. Empire Office Machs., Inc. v. Aspen

Trails Assocs. LLC, 2014 MT 94, ¶ 9, 374 Mont. 421, 322 P.3d 424. Summary judgment is

appropriate “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).

¶23    We review a district court’s findings for clear error. A finding is clearly erroneous if

it is not supported by substantial evidence, if the trial court has misapprehended the effect of

the evidence, or if this Court is left with a definite and firm conviction that a mistake has

been made. Lewis & Clark Co. v. Schroeder, 2014 MT 106, ¶ 12, 374 Mont. 477, 323 P.3d

207. We review the trial court’s conclusions of law for correctness. Schroeder, ¶ 12.

Whether there is legal authority for an award of attorney’s fees is a conclusion of law that we

review to determine whether the court interpreted the law correctly. Braach v. Graybeal,

1999 MT 234, ¶ 6, 296 Mont. 138, 988 P.2d 761.

                                       DISCUSSION

¶24 1. Whether the District Court erred in ruling on summary judgment that the County
consented to revocation of an agricultural covenant on Hampton’s property.

¶25    The County argues that the District Court erred in partially granting Hampton’s

summary judgment motion because Hampton failed to meet the conditions for revocation.

Hampton responds that the Commission voted to lift the agricultural covenant and imposed

conditions to be completed prior to development. The District Court concluded that “the



                                               8
most reasonable interpretation of the whole of the record evidences an intent to revoke the

agricultural covenant and impose conditions to be met prior to development.” The court

further stated, “As a practical matter, it is a distinction without a difference—no development

could occur without fulfillment of the conditions whether or not the agricultural covenant

was revoked.”

¶26    Section 76-3-207(1)(c), MCA, allows revocation of an agricultural covenant only “by

mutual consent of the governing body and the property owner.” In the County’s internal

memorandum, the thirteen conditions were preceded by the following introduction: “Prior to

any development, Mr. Hampton and his successors must submit their proposed development

to the Lewis and Clark Planning Department for its written approval. Approval will be

granted only upon a determination by the planning department that the following conditions

have been met.” The minutes from the September 23, 2004 meeting reflect that the

Commission voted to “approve the revocation subject to 13 conditions of approval . . . .”

The letter sent to Hampton following the Commission’s vote begins by stating that “the

Commissioners convened to make a decision on the request [to revoke the agricultural

covenant]. The attached statement . . . outlines the basis of the Commissioners’ decision to

approve your request for revocation.” One given reason was that “[t]he parcel of land is not

appropriate for agricultural use.” The County’s letter makes clear, however, that the land

also was not appropriate for development without the fulfillment of the conditions. We

agree with the District Court that this evidence demonstrates the County’s intent to revoke

the covenant while imposing conditions to be completed prior to development.




                                              9
¶27    The County argues that because there is not a revocation recorded for the parcel, the

agricultural covenant still is in effect. It relies on County Resolution 1986-55, which

requires the revocation of an agricultural covenant to be recorded before the revocation

“shall be effective.” The County argues that the “difference” the District Court failed to

appreciate is that once the covenant is removed from the title in the clerk and recorder’s

office, the County no longer has authority to require Hampton to complete the conditions. In

arguing its motion for summary judgment before the District Court, the County urged that

the conditions have to be completed prior to the removal of the agricultural covenant in the

records of the county clerk and recorder’s office.

¶28    Section 76-3-207(1)(c), MCA, requires “mutual consent” to revoke a covenant.

Revocation under the statute is effective between the applicant and the County upon mutual

consent. As the County discusses, the purpose of recordation is to put third parties on notice

of the restriction and to prohibit further development until the developer has complied with

the conditions. While the language of the resolution prohibits Hampton from clearing the

agricultural covenant from the property’s title for the purpose of further development or sale,

it cannot be read to mean that the County’s consent to revoke the covenant means nothing.

Accordingly, we conclude that the District Court did not err in granting Hampton’s summary

judgment motion on this issue.

¶29 2. Whether the District Court erred in denying summary judgment to the County and
allowing a jury to decide whether Hampton had notice of and failed to complete the
conditions attached to the County’s revocation.

¶30    The County next disputes the District Court’s order denying the County’s motion for

summary judgment. Hampton responds that this issue has been rendered moot by the jury


                                              10
verdict. The County moved for summary judgment declaring that Hampton had notice of

and failed to complete the conditions. Following the court’s denial of summary judgment,

the jury concluded that Hampton did have notice and that he failed to meet four conditions.



¶31    An appeal of a final judgment includes appeal of “all previous orders and rulings

excepted or objected to which led to and resulted in the judgment.” M. R. App. P. 6(1).

Nevertheless, only an “aggrieved party” may appeal from a final order. M. R. App. P. 6(3).

We do not decide moot issues. Houden v. Todd, 2014 MT 113, ¶ 27, 375 Mont. 1, 324 P.3d

1157. An issue is moot if a court is no longer able to grant effective relief. Houden, ¶ 24.

¶32    The County characterizes Hampton’s mootness argument to mean that a party can

never appeal from a district court’s denial of summary judgment, and it cites cases involving

the appeal of summary judgment denials. These cases are inapplicable, as they involve an

appeal of a final judgment contrary to the appealing party’s position at the summary

judgment stage. See Harrell v. Farmers Educ. Coop. Union, 2013 MT 367, ¶¶ 26-43, 373

Mont. 92, 314 P.2d 920; Earl v. Pavex, Corp., 2013 MT 343, ¶ 36, 372 Mont. 476, 313 P.3d

154; Lane v. Mont. Fourth Jud. Dist. Ct., 2003 MT 130, ¶ 37, 316 Mont. 55, 68 P.3d 819.

The County is not an aggrieved party because the jury verdict granted the County the

outcome it sought in its motion for summary judgment. Even if there was error in denying

the County’s motion for summary judgment, there would be no change in the relief sought

by or available to the County. As such, whether the court improperly denied the County’s

motion for summary judgment is moot.

¶33    3. Whether the District Court erred in its entry of final judgment.


                                             11
¶34       Following the trial, the County sought entry of judgment pursuant to Rule 54(c). The

remaining issues were whether Hampton could fulfill the four outstanding conditions and

what remedies or sanctions should be imposed for his failure to comply with the conditions

prior to development. The court held a hearing regarding these issues on November 28,

2012. Following the hearing, it ordered post-trial briefing, which was completed on

December 31, 2012. The court entered its judgment on April 23, 2013.

¶35       The County posits three errors in the Court’s final judgment: First, its determination

that Lodgepole Road is public and that Sweetgrass Road did not need to be made public;

second, its determination that Hampton was only responsible for his proportional share of

improvement costs for Lodgepole Road; and third, its failure to order the County’s requested

relief.

          a. Public access on Lodgepole and Sweetgrass Roads

¶36       Condition Six requires Hampton to demonstrate to the County that Lodgepole and

Sweetgrass roads are public roads. The court found that “[t]he first 671 feet of Lodgepole

Road is a paved public road within the city limits of Helena.” Further, the court found that

“[t]he remaining 880 feet [of Lodgepole Road], of which all but 80 feet is paved, is subject

to a public access easement.” The court found that Sweetgrass Road is an unpaved road

approximately 577 feet in length from its juncture with Lodgepole Road to Hampton’s

residence. The court found that Hampton attempted to secure public access easement grants

from landowners on Sweetgrass Road, but that his attempts were unsuccessful, resulting in a

“stalemate.” The court thus determined that Hampton had demonstrated that Lodgepole

Road had the necessary public access easements but that Sweetgrass Road did not.


                                                12
¶37    The County first contends that the court erred in finding that Lodgepole Road is a

public road. The District Court relied on Hampton’s post-trial briefing for its findings.

Hampton attested that Lodgepole Road is a public road and based this conclusion upon an

engineering report he commissioned. That report does not state that Lodgepole Road is

public; it merely discusses the specifications of the road. It characterizes Lodgepole Road as

“an existing paved road,” and states, “The portion of Lodgepole Road located east and south

of the Helena city limits and Sweetgrass Road are located within private access easements.”

This directly conflicts with the court’s finding that 880 feet of Lodgepole Road is subject to a

public access easement. Further, the easement grant attached to Hampton’s post-trial

briefing does not demonstrate that the public access extends across all of Lodgepole Road.

We agree with the County that the court’s findings regarding Lodgepole Road are not

supported by substantial evidence.

¶38    The County next argues that, given the lack of public access, the court must require

strict compliance with Condition Six. The County contends that Hampton cannot improve

the road without affecting other landowners. The County also argues that Hampton did not

expend enough effort to secure public easement grants. Hampton admits that he did not offer

compensation to the neighboring land owners, but suggests that he tried multiple times to get

their permission. As the situation stands now, it appears that Hampton would be unable to

prove that Lodgepole and Sweetgrass Roads are subject to public access easements.

¶39    Recognizing this reality, the court effectively modified Condition Six. Understanding

that the County’s reasoning for this condition was to ensure legal and physical access by

emergency responders, it fashioned an alternative in order to compel the access the County


                                              13
requested. The court prohibited Hampton from further dividing the parcel and required that

he file an irrevocable deed restriction to eliminate the necessity for a public road. It also

required Hampton to be responsible for upgrading the roads to ensure safe emergency access

to the property. The court concluded that the upgrade of Sweetgrass Road to county

standards would address the County’s concerns about emergency services access. The court

noted, “Since there will be no further division or development of the property, there is no

legitimate reason to require a public access easement for the last home on the road.” The

District Court further determined that the improvements to Sweetgrass Road applied only to

“the access easements set out on the property deeds” of neighboring landowners.

¶40    The court’s order effectuates the County’s desire to block additional residential

development of the parcel and ensures needed emergency access. Even though Hampton did

not obtain public access to Lodgepole and Sweetgrass Roads, we conclude that the County

has not demonstrated legal error in the District Court’s resolution of Condition Six.

       b. Proportional share of improvement costs

¶41    The County argues that the court also erred in requiring Hampton to contribute only

proportionally to road improvements for Lodgepole Road.           The County argues that

Hampton’s development in the South Hills “makes him 100% responsible for the physical

adequacy of the roads used by the families accessing their homes on Lodgepole and

Sweetgrass roads.”

¶42    Condition Five requires Hampton to come up with a plan to improve Lodgepole and

Sweetgrass Roads. Hampton argued that this condition unlawfully requires him to pay the

entire cost of an upgrade. The District Court agreed with his assessment; it concluded that


                                             14
Hampton could not be required to pay a disproportionate share of road maintenance simply

as a punitive measure.

¶43    The court relied on a district court decision, Christison v. Lewis and Clark Co.

Comm., 2011 Mont. Dist. LEXIS 5 (1st Jud. Dist. Ct. Jan. 25, 2011), for the rule that a

developer may not be required to upgrade or maintain a road disproportionately to the impact

the development has on the road. Christison involved a County policy that required

developers, chosen on a random basis, to bear the entire cost of improvements to an off-site

County road. Christison, ¶ 4. The County imposed the entire cost regardless of the extent of

the impact from the proposed developments. Christison, ¶ 4. The court determined that this

amounted to an unconstitutional taking of private property for public use under Nollan v.

Cal. Costal Commn., 483 U.S. 825, 107 S. Ct. 3141 (1987), and Dolan v. City of Tigard, 512

U.S. 374, 114 S. Ct. 2309 (1994).

¶44    A takings analysis is inapplicable to the present case. Hampton was bound by the

condition to improve the road because of the County’s agreement to lift the agricultural

covenant. As we held in Hampton’s prior appeal, the County was not required to consent to

lifting the agricultural covenant on this property. Hampton, ¶ 51. We therefore fail to see

how requiring Hampton to comply with the conditions of that revocation constitutes a taking.

Unlike Christison, where no pre-development conditions were placed on the developer,

Hampton violated conditions imposed on him. He did not challenge those conditions at the

time the County consented to revoke the agricultural covenant in 2004. Further, as the

County points out and Hampton does not dispute, Hampton is the party responsible for the

development in this area. Lodgepole and Sweetgrass Roads are dead-end roads that service


                                            15
only that development. Requiring Hampton to pay for the cost of upgrading Lodgepole

Road is not disproportionate. It also is not punitive because the access is necessary to

service his residence and was the County’s primary reason for imposing conditions.

¶45    The District Court incorrectly concluded that Hampton could not be held responsible

for the entire cost of upgrading Lodepole Road. We reverse this portion of its judgment and

remand for entry of a modified judgment requiring Hampton to bear the entire cost of the

upgrade.

       c. Injunctive relief and attorney’s fees

¶46    Finally, the County argues that the District Court erred by failing to impose certain

remedies the County requested in its post-trial briefing. Before the District Court, the

County’s requested relief included: requiring Hampton to remove the residence and

recontour the lot to its preconstruction state; enjoining Hampton from using the property

until the conditions are complete; imposing a lump sum penalty, compensatory damages,

punitive damages, and otherwise to compensate the County for the costs of enforcement; and

requiring Hampton to file an irrevocable deed restriction, preventing him from further

dividing the property. On appeal the County argues, “The judgment on remand must order

Hampton to pay the County’s litigation expenses, an administrative penalty, and attorney[’]s

fees.” The County does not seek the removal of Hampton’s residence on appeal or any

specific injunctive relief. It simply argues that the court committed reversible error by

failing to impose any of the “combination of these remedies or forms of relief” it proposed.

The County strenuously argues that Hampton was allowed to break the rules and to choose

his own punishment.


                                            16
¶47    The court did, however, impose some of the requested injunctive relief by prohibiting

additional residential development on Hampton’s parcel. Further, the County cites no statute

or contract providing for an administrative penalty or an award of fees in this case. Absent

contractual or statutory authority, attorney’s fees generally will not be awarded. Braach,

¶ 8. A court may award attorney’s fees under its equitable powers. Braach, ¶ 9. We

previously have limited this equitable power to narrow circumstances “where a party has

been forced to defend against a wholly frivolous or malicious action.” Braach, ¶ 9. When a

party institutes legal action, this exception is generally inapplicable. Goodover v. Lindey’s,

255 Mont. 430, 447, 843 P.2d 765, 776 (1992). This exception also does not apply if the

losing party had a reasonable basis to believe his cause may prevail. Goodover, 255 Mont. at

447, 843 P.2d at 776.

¶48    As the District Court recognized, there is not a clear prevailing party because the

County did not obtain all of the relief it sought. Although the jury determined that Hampton

had notice of and violated the conditions, he had colorable arguments for why he believed he

had complied substantially with the remaining conditions. Further, the County instituted the

action against Hampton rather than being “forced to defend against a wholly frivolous or

malicious action.” Braach, ¶ 9. Accordingly, the District Court did not abuse its discretion

in concluding that the circumstances of this case do not fall within the narrow exception for

an equitable award of fees.

¶49    The Act does not authorize a civil penalty or enforcement costs as a form of relief.

The Act provides a misdemeanor criminal penalty for “[a]ny person who violates any

provision of this chapter . . . .” Section 76-3-105, MCA. It does not appear that the County


                                             17
pursued criminal charges against Hampton. In interpreting statutes, our role is “simply to

ascertain and declare what is in terms or in substance contained therein, not to insert what

has been omitted . . . .” Section 1-2-101, MCA. The District Court did not err in denying

Hampton’s request for a civil, administrative penalty or for enforcement costs because there

is not authority for such penalties in the applicable law. The County has cited no other legal

basis upon which the Court could assess a civil penalty in this case.

¶50    The Dissent criticizes both the District Court and this Court for making “planning

judgments on behalf of the County.” Dissent, ¶ 66. Instead, the Dissent would remand to

the District Court for entry of judgment that the agricultural covenant remains in effect and

determination of the appropriate remedy for Hampton’s violation. Dissent, ¶ 68. As noted

above, however, the County’s pleadings did not request a declaration that the property

remain under an agricultural covenant. Based on the presentation of the case by the parties

and the relief requested by the County, the District Court already has thoroughly considered

Hampton’s violations and determined the appropriate manner to require satisfaction of the

“13 conditions of approval,” one of the alternative forms of relief specifically sought in the

County’s amended complaint. We decline to consider arguments the County did not make.

                                      CONCLUSION

¶51    The District Court’s rulings on the cross-motions for summary judgment are affirmed.

We reverse the court’s determination that Hampton is only proportionally responsible for

improving Lodgepole Road. The remainder of the court’s final judgment is affirmed. The

case is remanded for entry of a modified judgment in accordance with this Opinion.




                                             18
                                                   /S/ BETH BAKER

We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE


Justice Laurie McKinnon dissents.

¶52    The Court affirms a flawed judicial resolution of matters rightly within the discretion

of local government. I believe the District Court erred by finding on summary judgment that

the agricultural covenant had been revoked, and compounded that error by failing to

recognize the existence of the covenant as the dispositive issue in this litigation. Had the

District Court properly resolved this issue in the first instance, it would not later have been

forced to address such matters as the need for public access easements or the road width

necessary to ensure emergency vehicle access. These matters are within the province of

local government, and neither the District Court nor this Court should invade that province

by effectively granting variances from County regulations. Nevertheless, that is exactly the

outcome reached today. Accordingly, I dissent.

¶53    I begin by noting that the County’s pleadings sought only enforcement of the

covenant. Although the District Court regarded the issue of whether the agricultural

covenant remained in effect as “a distinction without a difference,” the existence of an

agricultural covenant makes a significant difference to the County’s enforcement powers. A

“Certificate of Facts Exempting Division of Land for Agricultural Purpose from Review as a

Subdivision,” filed with the Certificate of Survey in 1993, specifically states that the


                                              19
governing body of Lewis and Clark County “is deemed to be a party to and may enforce this

covenant.” Hampton v. Lewis & Clark Cnty., 2001 MT 81, ¶ 6, 305 Mont. 103, 23 P.3d 908.

If the covenant remains in effect, the County can enforce it. If the covenant no longer exists,

there is nothing for the County to enforce. Although the litigation has proceeded—for more

than five years now—under the assumption the County can require Hampton to perform the

conditions after revocation of the covenant, neither party has identified any legal authority

allowing the County to do so. The Court persists in this error, acknowledging Hampton’s

“violations,” Opinion, ¶ 50, but failing to identify what, as a matter of law, has been violated.

¶54    Although the County’s pleadings sought enforcement of the covenant, the County also

referenced the Montana Subdivision and Platting Act. Sections 76-3-101 to -625, MCA.

Thus, after finding on summary judgment that the covenant had been revoked, the District

Court issued a pretrial order reframing the central question as whether Hampton had evaded

subdivision review under the MSPA. Even if he had, the MSPA does not provide the

remedy fashioned by the District Court in this case. A developer who fails to comply with

the requirements of subdivision review will simply not be granted final plat approval.

Section 76-3-611, MCA. Without final plat approval, a developer is prohibited from selling,

leasing, or transferring the property and may be charged with a misdemeanor for doing so.

Section 76-3-105, MCA. The County has not filed misdemeanor charges against Hampton.

The MSPA contemplates no other remedy. See Opinion, ¶ 49.

¶55    That is not to say the MSPA has no bearing on the present case. The provisions of the

MSPA must be considered in concert with the effect of the agricultural covenant. With

respect to agricultural covenants, the MSPA provides as follows: “a change in use of the land


                                               20
exempted under subsection (1)(c) for anything other than agricultural purposes subjects the

division to review under parts 5 and 6 of this chapter.” Section 76-3-207(2)(b), MCA. This

Court has not previously considered this provision, and I believe it should do so today. In

order for this provision to have any effect, the agricultural covenant must remain in place

until the subdivision review process has been completed.

¶56    When a subdivision is exempted from review pursuant to an agricultural covenant, the

covenant is to be noted on the plat itself or in an instrument recorded with the plat. Section

76-3-306, MCA. If the covenant is revoked, the MSPA does not require the property to be

conveyed to the original owner and joined with the parcel from which it was originally

divided. See § 76-3-207(2)(b), MCA. This would be an impractical requirement. As a

matter of common sense, when an agricultural covenant is revoked, the plat reflecting the

subdivision remains of record. A plat may not be recorded unless the governing body has

granted its final approval. Section 76-3-301(1), MCA. Thus, when an agricultural covenant

is removed from a recorded plat, the status of the plat is the same as if it had been through

subdivision review and earned final approval.

¶57    After final approval of a subdivision, the governing body has no power to enforce

conditions or require improvements other than through a subdivision improvement

agreement secured by a bond. Section 76-3-507, MCA. A governing body has no power to

revoke an agricultural covenant or grant final plat approval and then require a developer to

comply with subdivision regulations after the fact. Subdivision review must therefore take

place prior to revocation of an agricultural covenant.




                                             21
¶58    Hampton’s request for revocation of the agricultural covenant initiated review of the

division of land that resulted in creation of the covenant in 1993. Section 76-3-207(2)(b),

MCA. Review begins with submission of a subdivision application and preliminary plat

containing detailed information, including preliminary water and sanitation information.

Sections 76-3-601, -622, MCA.

¶59    After submission of a complete subdivision application, the governing body may

approve, conditionally approve, or deny the application.         Section 76-3-604, MCA.

Conditional approval is valid for at least one year, during which time the governing body

may not impose additional conditions. Section 76-3-610, MCA. The developer must

complete the required improvements prior to approval of the final plat. Section 76-3-507(1),

MCA. Alternatively, the developer may provide a bond securing the construction of

required improvements within a period specified by the governing body. Section 76-3-

507(2), MCA. Where an agricultural covenant is in place, construction of improvements is

not appropriate. A subdivision improvement agreement secured by a bond ensures that the

necessary improvements will be made after the agricultural restriction is lifted. During the

conditional approval period, the developer can take steps that do not require physical

construction, such as securing easements from neighboring property owners.

¶60    The governing body can grant final approval of a subdivision plat only when all

requirements of the conditional approval have been met or a subdivision improvement

agreement is in place. Sections 76-3-507, -611, MCA. In the context of a property subject

to agricultural covenant, if the developer is unable to demonstrate that the requirements of

the conditional approval can be met, the covenant should remain in effect and the property


                                            22
revert to agricultural use. Whether the agricultural covenant remained in effect is therefore

not “a distinction without a difference,” but instead should have been the dispositive issue in

this protracted litigation.

¶61    The evidence presented to the District Court at the summary judgment stage shows

that the County did not intend to revoke the agricultural covenant until after Hampton had

satisfied the thirteen conditions placed on the revocation. At the September 9, 2004 meeting

of the Board of Commissioners, Planning Department director Sharon Haugen advised the

commissioners that her staff would “recommend[] two conditions upon the approval of the

revocation of [the] agricultural covenant . . . .” The commissioners then asked deputy county

attorney K. Paul Stahl to address “conditioning the revocation of the agricultural covenant.”

Stahl indicated “[t]he commission may condition lifting of the covenant if they deem fit. . . .

The commission would view the parcel, upon lifting of the agricultural covenant, as it was

when it was originally created by process of subdivision and would then place conditions on

the 12 acre parcel.” These statements are largely consistent with the process of conditional

approval of a subdivision application. Moreover, to the extent that Hampton relies on these

statements to support the position that the County intended to revoke the covenant before the

conditions were satisfied, it is important to note that these preliminary deliberations should

not be construed as conclusive evidence of the commission’s final action. The commission

did not take final action until two weeks later, and was not bound to accept the

recommendations made at this meeting. See Allen v. Lakeside Neighborhood Planning

Comm., 2013 MT 237, ¶ 28, 371 Mont. 310, 308 P.3d 956.




                                              23
¶62    A memorandum to the commission dated September 21, 2004 indicates that additional

legal consultation took place after the September 9, 2004 meeting. At the September 23,

2004 meeting, the commissioners voted “to approve the revocation subject to 13 conditions.”

Following that meeting, the commission issued findings of fact and conclusions of law,

which read as follows:

       Based on the above findings and conclusions, the Commission voted 3-0 to
       revoke the Agricultural Covenant [on the Hampton parcel] subject to the
       following:

       CONDITIONS FOR THE LIFTING OF THE HAMPTON AGRICULTURAL
       COVENANT

       Any and all development [on the Hampton parcel] is subject to the following
       conditions:

       Prior to any development, Mr. Hampton and his successors must submit their
       proposed development to the Lewis and Clark Planning Department for its
       written approval. Approval will be granted only upon a determination by the
       planning department that the following conditions have been met . . . .

The “subject to” language used by the County is commonly used when referring to

conditional approval of a subdivision application. See e.g. Broadwater Dev. L.L.C. v.

Nelson, 2009 MT 317, ¶ 4, 352 Mont. 401, 219 P.3d 492 (“The preliminary approval was

subject to 25 conditions that had to be met before the subdivision could receive final

approval.”); Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 2, 312 Mont. 52, 57

P.3d 836 (“Red Lodge conditionally approved Kiely’s application, subject to [26]

conditions.”).

¶63    A letter dated September 24, 2004, addressed to Hampton from the chairman of the

Board of Commissioners, reads in part: “Please work closely with the County Planning



                                            24
Department as you proceed with the fulfillment of the conditions placed on the revocation.

Once all the conditions of this preliminary approval have been met, the Agricultural

Covenant can be lifted.” Furthermore, it was undisputed at the summary judgment hearing

that the agricultural covenant was never removed from the land records, a fact given almost

no significance by either this Court or the District Court. The Court acknowledges that the

purpose of recordation is “to prohibit further development until the developer has complied

with the conditions.” Opinion, ¶ 27. The Court does not explain why it finds this rule

inapplicable to Hampton, other than to say that the County’s “consent to revoke the

covenant” cannot be read to mean “nothing.” Opinion, ¶ 28. To that extent, I agree. The

County’s actions can, and must, be read as granting conditional approval of Hampton’s

request for revocation, with final approval to be given upon completion of the conditions.

Conditional approval does not mean “nothing.” The County’s conditional approval was a

significant benefit to Hampton, as it notified him of the requirements for final approval,

provided him a reasonable period of time to complete those requirements, and ensured that

the County could not impose new requirements during that time. Section 76-3-610, MCA.

¶64    The evidence clearly shows that the commission intended to require completion of the

conditions prior to revoking the agricultural covenant. The County was therefore entitled to

judgment in its favor. The Court disagrees, claiming the County “did not request a

declaration that the property remain under an agricultural covenant.” Opinion, ¶ 50. The

record demonstrates otherwise. In its response to Hampton’s motion for summary judgment

on the issue of the agricultural covenant, the County twice claimed it was entitled to

judgment as a matter of law. The County concluded by “ask[ing] the Court to grant


                                            25
summary judgment in favor of the County based on the undisputed facts in this case.” At the

hearing on the motion, the County repeated its request for the District Court to find that the

agricultural covenant remained in place and accordingly enter judgment in favor of the

County. The Court’s refusal to “consider arguments the County did not make,” Opinion,

¶ 50, ignores the fact that the County argued vociferously for enforcement of the agricultural

covenant from the time it filed its complaint. The County’s request for enforcement of the

covenant implicitly required a determination that the covenant could be enforced.

¶65    If the District Court had properly resolved the summary judgment issue and

recognized the significance of the agricultural covenant, it would not have been necessary to

litigate whether Hampton had notice of the conditions and which conditions had been

satisfied. The recorded agricultural covenant would have imparted constructive notice that

the property was unsuitable for development. Earl v. Pavex Corp., 2013 MT 343, ¶ 17, 372

Mont. 476, 313 P.3d 154 (citing Erler v. Creative Fin. & Invs., 2009 MT 36, ¶ 21, 349 Mont.

207, 203 P.3d 744). Any non-agricultural use of the property would have been a violation.

There would have been no role for a judge or jury in assessing the relative completion or

necessity of the conditions imposed by the County.

¶66    Instead, the District Court asked a jury to sit in the place of the Planning Department

and determine whether Hampton had developed his property in accordance with the

County’s requirements. The District Court itself then evaluated the conditions Hampton had

failed to meet, determining there was “no legitimate reason to require a public access

easement,” and requiring Hampton to improve the roads providing access to his property

only “within the access easement(s) set out on the property deeds,” which the neighboring


                                             26
property owners claim are too narrow to allow access by emergency services. Essentially,

the District Court stepped into the shoes of the County and granted a variance from

subdivision regulations on its behalf. The Court, affirming this resolution, concludes the

outcome “ensures needed emergency access,” but fails to explain how—because it does not.

Opinion, ¶ 40. It was both unnecessary and inappropriate for the District Court to make such

planning judgments on behalf of the County, and this Court should not allow that result to

stand.

¶67      The Court asserts the District Court granted the relief sought in the County’s

complaint when it “determined the appropriate manner to require satisfaction of the ‘13

conditions of approval.’” Opinion, ¶ 50. The County’s request for this relief reflected its

continued willingness to revoke the agricultural covenant if the property could be made

suitable for residential development. In the judgment of the Board of Commissioners,

satisfaction of all thirteen conditions was necessary to mitigate the effects of development

and allow removal of the agricultural covenant. If this could not be accomplished, the

County sought alternative relief including removal of the residence, a permanent injunction

prohibiting residential use of the property, or an appropriate monetary penalty. The District

Court ordered only partial completion of the conditions, a result which neither makes the

property suitable for residential use nor restores it to agricultural use.

¶68      I would reverse and grant summary judgment to the County on the issue of whether

the agricultural covenant had been revoked. I would then remand to the District Court solely

to determine the appropriate remedy for Hampton’s violation of the agricultural covenant.




                                              27
     /S/ LAURIE McKINNON




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