                                           No. 04-836

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 47


CITIZEN ADVOCATES FOR A LIVABLE
MISSOULA, INC., a Montana Nonprofit Public
Benefit Corporation; JUDY SMITH; JOHN
FLETCHER; JIM PARKER; and JOHN COUCH,

              Plaintiffs and Appellants,

         v.

CITY COUNCIL and MAYOR OF THE CITY OF
MISSOULA, MONTANA, Acting as the Governing
Body of the City of Missoula, a Governmental Entity,

              Defendants and Respondents.



APPEAL FROM:         The District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DV 2003-870,
                     Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

              For Appellants:

                     Caryn Miske, Attorney at Law, Frenchtown, Montana

              For Respondents:

                     Jim Nugent, City Attorney; Susan A. Firth, Deputy City
                     Attorney, Missoula, Montana


                                                        Submitted on Briefs: August 23, 2005

                                                                   Decided: March 7, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Citizen Advocates for a Livable Missoula, Judy Smith, John Fletcher, Jim Parker,

and John Couch (collectively, Appellants) appeal from the order of the Fourth Judicial

District Court granting summary judgment to the City Council and Mayor of the City of

Missoula, Montana (Respondents).       Appellants argue that the existence of material

questions of fact precludes summary judgment, and further, that Missoula City Ordinance

3234 fails to comply with the City’s growth policy and neighborhood plan. We affirm.

¶2     We consider the following issues on appeal:

¶3     (1)   Did the District Court err by granting summary judgment in favor of

Respondents?

¶4     (2) Did the District Court abuse its discretion by denying Appellants’ motion to

compel the testimony of Dale McCormick?

¶5     Because we affirm the judgment of the District Court in favor of Respondents, we

do not undertake review of Appellants’ claim for attorney fees and costs.

                                   BACKGROUND

¶6     Offered for sale by the City of Missoula, the City properties occupying most of the

800 and 900 blocks in the West Broadway area were used primarily for heavy equipment

maintenance, storage, and fueling of City vehicles.      The offered property bordered

property owned by St. Patrick’s Hospital (SPH). As a result of the proximity of the

offered lands, SPH bid on the property and was thereafter selected as the successful

bidder by the City.


                                         2
¶7    After discussions with Safeway, Inc., regarding Safeway’s nearby grocery store in

the 600 block of West Broadway, SPH submitted a zoning proposal seeking City

approval of a zoning amendment which would allow construction of a large new Safeway

grocery store on the lands purchased from the City by SPH, and upon that approval, for

purchase of Safeway’s existing store by SPH and expansion of SPH’s current hospital

facilities therein. SPH sought to rezone the purchased City lands because that property’s

zoning classifications of C (Commerical), RH (High Rise), and P-2 (Public Lands and

Institutions), did not permit SPH and Safeway’s proposed development plans.

¶8    SPH’s zoning proposal, also known as the Broadway-Scott Gateway Special

District, or City Ordinance 3234, quickly caught the attention of the West Broadway

community, and the attention was not always positive. On December 4, 2002, the

Northside/Westside Neighborhood Council unanimously declared its opposition to the

zoning proposal. Thereafter, on January 7, 2003, Office of Planning and Grants (OPG)

city planner Dale McCormick noted OPG staff’s displeasure with the zoning proposal at

a presentation before the Missoula Consolidated Planning Board (Planning Board).

According to McCormick, OPG seriously questioned whether the zoning proposal

complied with relevant planning documents—i.e., the 1998 Missoula Urban Compre-

hensive Plan, the 2000 Joint Northside/Westside Neighborhood Plan, and the 2002

Missoula County Growth Policy. Specifically, McCormick and the OPG staff believed

that construction of a new Safeway mega-store in conjunction with the rezoning of the

former City lands (1) failed to reflect the residential and small business character of the

                                         3
district, (2) would create traffic congestion, and (3) did not encourage the most

appropriate use of land. Ultimately, OPG recommended that the Planning Board deny

the zoning proposal.

¶9     After receiving OPG’s recommendations, the Planning Board received public

comment on the zoning proposal. While some supporting comments were received—

e.g., proponents argued expansion of SPH and a new modern Safeway store would create

much needed jobs and modernization in the area—most of the comments opposed the

proposal—e.g., residents believed that the rezone and resulting new construction would

hurt the historic character of the community, create an area unfriendly to pedestrians, and

violate the goals and objectives outlined in the 2000 Joint Northside/Westside

Neighborhood Plan.

¶10    After a hearing on January 7, 2003, and despite strong staff and public opposition,

the Planning Board voted to approve the zoning proposal. The Board noted that the

rezoning and subsequent construction of a new Safeway would (1) stabilize grocery

shopping in the area, (2) support mixed uses of the area, and (3) provide an anchor

institution which would attract more businesses to the area. In approving SPH’s zoning

proposal, the Planning Board did not recommend any changes in the proposal or

conditions for the approval thereof.

¶11    After approval by the Planning Board, the zoning proposal went before the

Missoula City Council (City Council), which held ultimate authority to approve or deny

the request. After reviewing the Planning Board’s findings and the public comment,

                                         4
several City Council members expressed concern with aspects of the proposal.

Consequently, the City Council rejected the Planning Board’s recommendation for

unconditional approval and, instead, requested that OPG recommend conditions of

approval which would amend the zoning proposal to address the Council’s concerns.

¶12   After further OPG consideration, that office recommended the placement of

seventeen conditions on SPH’s proposal. Those conditions responded to many of the

concerns expressed by the public, including (1) the size and design of the proposed

Safeway facility, (2) the lack of mixed-use and residential character of the initial

proposal, and (3) the traffic and pedestrian problems generated by the initial proposal.

Dale McCormick, the lead OPG planner assigned to the proposal, noted that the revised

zoning proposal, with its new conditions, was “substantively different from what St.

Patrick Hospital originally proposed.” He later wrote that the revised proposal “move[d]

toward compliance” with the City Center/Mixed Use land designation aspect of the

Northside/Westside Neighborhood Plan, better integrated the proposed Safeway structure

with the current look and feel of the community, and lessened the traffic congestion

which seemed likely to arise under the original zoning proposal.

¶13   After consideration of the revised zoning proposal, the City Council approved it

on an eight to four vote on September 22, 2003. Thereafter, Appellants initiated this

action, arguing that the revised proposal violated the 2002 Missoula County Growth

Policy and the 2000 Joint Northside/Westside Neighborhood Plan.




                                        5
¶14   Respondents filed a motion to dismiss on May 5, 2004, which the District Court

thereafter converted into a motion for summary judgment. The District Court held a

hearing on that motion on August 23, 2004, at which Appellants presented five witnesses

who testified that the zoning proposal violated the Missoula County growth policy and

related neighborhood plan. Nonetheless, the District Court granted summary judgment to

Respondents, concluding that there were no genuine issues of material fact and that the

City Council did not abuse its discretion when it adopted the zoning proposal.

¶15   Appellants appealed on October 26, 2004.

                             STANDARDS OF REVIEW

¶16   This case is before us on a grant of summary judgment. We review district court

grants of summary judgment de novo. Abraham v. Nelson, 2002 MT 94, ¶ 9, 309 Mont.

366, ¶ 9, 46 P.3d 628, ¶ 9. Summary judgment is “an extreme remedy, and is only

appropriate when there is no genuine issue as to any material fact such that the moving

party is entitled to judgment as a matter of law.” Patterson v. Verizon Wireless, 2005 MT

261, ¶ 9, 329 Mont. 79, ¶ 9, 122 P.3d 1193, ¶ 9. Where there are genuine issues of

material fact, summary judgment is inappropriate. Patterson, ¶ 9.

¶17   We review a district court’s conclusions of law to determine if they are correct.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶18   We review a district court’s denial of a motion to compel discovery for abuse of

discretion. Circle S Seeds of Montana, Inc. v. T&M Transporting, Inc., 2006 MT 25,

¶¶ 14, 25, 331 Mont. 76, ¶¶ 14, 25, ___ P.3d ___, ¶¶ 14, 25. “A district court abuses its

                                         6
discretion when it acts arbitrarily without employment of conscientious judgment or

exceeds the bounds of reason, resulting in substantial injustice.” State v. Riggs, 2005 MT

124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18.

                                     DISCUSSION

1. Did the District Court err by granting summary judgment in favor of Respondents?

¶19   Appellants argue that City Ordinance 3234 (the zoning proposal) as approved by

the Missoula City Council violates both § 76-2-304, MCA (2003), and Missoula City

Ordinance § 19.72.040, and further, does not substantially comply with the Missoula

County Growth Policy and 2000 Joint Northside/Westside Neighborhood Plan.

¶20   To assist in community planning and the orderly development of its governmental

units and environs, local governments are authorized to create planning boards. Section

76-1-101, MCA (2003); see also Ash Grove Cement Co. v. Jefferson County (1997), 283

Mont. 486, 494, 943 P.2d 85, 90. Further, “[i]n counties . . . where a planning board has

been created, the preeminent planning tool is the comprehensive jurisdiction-wide

development plan . . .” which is today known as a “growth policy.”1 Ash Grove, 283

Mont. at 494, 943 P.2d at 90; see also § 76-1-106, MCA (2002).          A growth policy

“essentially surveys land use as it exists and makes recommendations for future planning

. . . .” Ash Grove, 283 Mont. at 494, 943 P.2d at 90. By statute, a growth policy may

include a neighborhood plan, and that plan must be consistent with the growth policy.

      1
        The “growth policy” was formerly known as a “master plan.” See § 76-1-106,
MCA (1997). The Legislature made the change from “master plan” to “growth policy” in
1999, though the substance and effect of the actual document is the same. See compilers
comments to § 76-1-106, MCA (1999).
                                        7
Section 76-1-601(4)(a), MCA (2003). The statutory scheme includes § 76-1-605, MCA

(2003), entitled “Use of adopted growth policy,” which states, in pertinent part, as

follows:

             Use of adopted growth policy. (1) Subject to subsection (2), after
      adoption of a growth policy, the governing body within the area covered by
      the growth policy pursuant to 76-1-601 must be guided by and give
      consideration to the general policy and pattern of development set out in the
      growth policy in the:

             ...

             (c) adoption of zoning ordinances or resolutions.

             (2)(a) A growth policy is not a regulatory document and does not
      confer any authority to regulate that is not otherwise specifically authorized
      by law or regulations adopted pursuant to the law.

            (b) A governing body may not withhold, deny, or impose conditions
      on any land use approval or other authority to act based solely on
      compliance with a growth policy adopted pursuant to this chapter.

¶21   “The establishment of zoning districts is governed by statute in Montana,” Ash

Grove, 283 Mont. at 493, 943 P.2d at 89, and pursuant to those statutes, a municipality

such as the City of Missoula may create zoning districts. See § 76-2-301 et seq., MCA

(2003). Zoning regulations are to be made, among other things, “in accordance with a

growth policy . . . .” Section 76-2-304, MCA (2003).

¶22   A question we have previously resolved is again raised here, that is, how closely a

growth policy and neighborhood plan must be followed by a city when it zones lands

pursuant to the statutory scheme. The statutes noted above are somewhat contradictory.

Section 76-1-605, MCA (2003), provides that “the governing body within the area

                                        8
covered by the growth policy pursuant to 76-1-601 must be guided by and give

consideration to the general policy and pattern of development set out in the growth

policy in the: . . . (c) adoption of zoning ordinances or resolutions.” (Emphasis added.)

On the other hand, § 76-2-304, MCA (2003), states that “[z]oning regulations must be . . .

made in accordance with a growth policy . . . .” (Emphasis added.) The confusion is

evident when one tries to reconcile these two statutes, since the former seems to require

mere consideration of a growth policy in zoning decisions, while the latter seems to

require a stricter adherence to the growth policy.

¶23    We previously reconciled this statutory incongruence in Little v. Bd. of County

Commissioners (1981), 193 Mont. 334, 349-53, 631 P.2d 1282, 1290-93. 2 There, after

struggling with the language of the statutes and considering the purposes of planning, we

reasoned:

       To require strict compliance with the master plan would result in a master
       plan so unworkable that it would have to be constantly changed to comply
       with the realities. The master plan is, after all, a plan. On the other hand,
       to require no compliance at all would defeat the whole idea of planning.
       Why have a plan if the local governmental units are free to ignore it at any
       time?

Little, 193 Mont. at 353, 631 P.2d at 1293. Ultimately, we concluded that the statutes

required governmental zoning bodies to “substantially comply” with the master plan or

growth policy. Little, 193 Mont. at 353, 631 P.2d at 1293. This “substantial compliance”

standard has remained unchanged since Little. See Ash Grove, 283 Mont. at 497-98, 943

       2
       It should be noted that Little involved the interplay between § 76-1-605, MCA,
and § 76-2-203, MCA (county zoning), and not between § 76-1-605, MCA, and § 76-2-
304, MCA (municipal zoning), as here.
                                         9
P.2d at 92; Bridger Canyon Property Owners’ Association, Inc. v. Planning & Zoning

Commission (1995), 270 Mont. 160, 169, 890 P.2d 1268, 1273.

¶24    Recently, however, the 2003 Legislature amended § 76-1-605, MCA, adding the

following language:

              (2)(a) A growth policy is not a regulatory document and does not
       confer any authority to regulate that is not otherwise specifically authorized
       by law or regulations adopted pursuant to the law.

             (b) A governing body may not withhold, deny, or impose conditions
       on any land use approval or other authority to act based solely on
       compliance with a growth policy adopted pursuant to this chapter.

Section 76-1-605(2), MCA (2003). 3 The question then becomes how this new statutory

language will affect Little’s “substantial compliance” standard.

¶25    From its plain reading, it may be assumed that the 2003 legislation was intended to

reduce in some fashion the reliance which local governing bodies are required to place

upon growth policies when making land use decisions. However, although alluding to

the passage of the new statute, both Appellants and Respondents have nonetheless framed

their arguments regarding the validity of Ordinance 3234 under Little’s “substantial

compliance” standard, and offer no argument in support of a change in the standard. 4

Consequently, and because the outcome is not dependent upon an interpretation of the


       3
       The 2003 amendments to § 76-1-605, MCA, were effective as of May 9, 2003.
See compilers comments to § 76-1-605, MCA (2003); Sec. 7, Ch. 599, L. 2003.
      4
       We note Respondents argue that, as a result of the 2003 legislation, the growth
policy is no longer a regulatory document. However, they assert the zoning proposal
should be upheld as substantially complying with the growth plan.

                                         10
new statute, we will undertake the arguments as presented—pursuant to the “substantial

compliance” standard. While mindful of the statutory changes, we leave for another day

the question of what effect the 2003 legislation has had on the “substantial compliance”

standard.

¶26    Appellants argue that the zoning proposal does not substantially comply with the

Joint Northside/Westside Neighborhood Plan for the following reasons.           First, the

proposal does not comport with the neighborhood plan’s goal to maintain a sense of

history and protect key landmarks. Second, the proposal, including Safeway’s new

facility, will increase traffic congestion and create a pedestrian unfriendly environment,

which they claim violate key principles of the neighborhood plan. Finally, the scale of

the proposed “big box” style Safeway facility is inconsistent with the residential and

small business character of the neighborhood, which they argue the neighborhood plan

seeks to preserve.

¶27    Respondents counter by arguing that the zoning proposal, and the resulting SPH

expansion and Safeway construction, stabilize two of the neighborhood’s most important

“anchor institutions”—Safeway and SPH, thereby fulfilling a neighborhood plan goal to

expand and enhance existing businesses. Further, Respondents argue that the seventeen

conditions attached to the proposal by the OPG and approved by the City Council

specifically address public concerns about the project, and likewise, insure that the

proposal complies with the neighborhood plan. Given the provisions of the planning

documents cited by Respondents, we concur with their argument.

                                        11
¶28    Appellants correctly note that certain aspects of the SPH zoning proposal are not

in harmony with the neighborhood plan. For instance, language in the plan supporting a

residential and small business environment would militate against approval of a “big

box” style grocery store in the West Broadway neighborhood. Likewise, it appears as

though the historic city shop building will be razed, a strike against preservation of the

neighborhood’s history. However, at the same time, it is also apparent that SPH and

Safeway are specifically considered two of the most important of the neighborhood’s

“anchor institutions,” and it is clear that the neighborhood plan strives to support those

institutions. First, Neighborhood Economy Goal “A” of the plan generally provides:

       Goal A: Encourage existing neighborhood businesses to stay in the
       neighborhoods and to expand or enhance their current operations.

Further, the neighborhood plan addresses the importance of Safeway and SPH by name,

stating that:

       [h]ow businesses like St. Patrick Hospital . . . and Safeway conduct
       business in the neighborhoods has a significant effect on the economic
       character and health of the area. Institutions and enterprises like these form
       the core of the neighborhood economy and provide critical assets to both
       business and residential neighbors.

Given that the plan specifically identifies Safeway and SPH as critical neighborhood

entities, Appellants faced a difficult challenge in arguing that a zoning proposal which

promotes the enhancement of these named entities is inconsistent with the planning goals

and documents.

¶29    We also note that the seventeen OPG conditions attached to the zoning proposal

substantially addressed early concerns that the proposal was not in compliance with the
                                         12
neighborhood plan. As explained by Dale McCormick, the amended proposal dedicated

more land to residential housing, reduced the size of the proposed Safeway grocery store,

and made the proposed facility more pedestrian friendly. McCormick reiterated this

point in a memo to the Missoula City Attorney’s Office, noting that:

      In contrast to the initial proposal, the current approved building plans move
      toward compliance with the Goals and Action Items of the City
      Center/Mixed-Use Corridor land use designation specified in the
      Northside/Westside Neighborhood Plan . . . .

In response to concerns that the zoning proposal and proposed Safeway did not support

residential use, McCormick also stated that:

      The [revised] proposal requires residential development for up to 32 new
      dwelling units on 10.6% of the site fronting the Pine Street residential
      neighborhood compatible with the neighborhood character . . . .

¶30   Appellants make much of the fact that some parts of the proposed Safeway

development—i.e., the proposed gas station and razing of the City shop building—are not

consistent with the neighborhood plan. However, it cannot be denied that the proposal is

very consistent with other parts of the plan. Surely, not every zoning proposal will be

consistent with every goal and objective expressed in a city’s growth plan documents. To

impose such a requirement would remove flexibility from a city’s review of zoning

proposals and make growth policies a rigid regulation, even exceeding the standard of

“substantial compliance.” Consequently, we conclude that the SPH zoning proposal, as

modified and approved by the Missoula City Council, substantially complies with the

growth plan.


                                        13
¶31    Appellants make three additional arguments as to why summary judgment was

inappropriate. First, they argue that the existence of genuine issues of material fact

should have precluded summary judgment. However, we agree with the District Court.

Although Appellants claim that their witnesses created questions of material fact by

testifying to their belief that the zoning proposal did not comply with the relevant

planning documents, that question is more of a determination of law, rather than fact, and

does not preclude summary judgment.

¶32    Second, Appellants argue that the zoning proposal constitutes illegal spot zoning.

As we said in Little, “[g]enerally . . . three factors enter into determining whether spot

zoning exists in any given instance.” Little, 193 Mont. at 346, 631 P.2d at 1289. Those

factors are (1) whether the requested use is significantly different from the prevailing use

in the area, (2) whether the area which is being rezoned is rather small, and looks to

benefit a small number of persons, and (3) whether the rezone appears to be more in the

nature of special legislation, designed to benefit a few landowners at the expense of the

surrounding landowners or the general public. Little, 193 Mont. at 346, 631 P.2d at 1289.

Finally, we noted in Little that, “[i]f spot zoning is invalid, usually all three elements are

present . . . .” Little, 193 Mont. at 346, 631 P.2d at 1289.

¶33    Here, the zoning proposal and proposed Safeway facility are not significantly

different from prior uses and zoning within the 800 and 900 blocks of the West

Broadway community. Similar to the former zoning classifications of C (Commerical),

RH (High Rise), and P-2 (Public Lands and Institutions), the current zoning proposal

                                          14
continues to provide for a mixed use of residential and business uses. Furthermore, the

Planning Board noted that other “big box” grocery stores have historically used the area,

specifically “the Big Broadway,” illustrating that the proposed Safeway is not

“significantly different” from past uses.

¶34    Finally, while the zoning proposal certainly benefits Safeway and SPH, we cannot

conclude that the benefit is conferred at the expense of the general public. To the

contrary, as a matter of adopted policy under the neighborhood plans, the health of

Safeway and SPH is deemed to be in the public’s interest. For that reason, and for the

others listed above, we agree with the District Court that the zoning proposal does not

constitute illegal spot zoning.

¶35    Appellants also offer an argument that the City Council violated Missoula City

Ordinance § 19.72.040 by not adopting findings of fact when it evaluated the zoning

proposal. However, Appellants have made this procedural argument for the first time on

appeal, which may be the reason this issue was not addressed by the District Court.

Although Appellants asserted in their Amended Complaint that the City Council had

violated Ordinance § 19.72.040, their claim in that regard was that the ordinance required

the Council to ensure satisfaction of the twelve substantive requirements listed in the

ordinance, and that this proposal “does not comply with at least three of the twelve

criteria.” Appellants did not assert that the Council had violated the ordinance by failing

to adopt findings of fact. “It is well established that this Court will not review an issue

that was not raised in the district court. ‘It is fundamentally unfair to fault the trial court

                                            15
for failing to rule correctly on an issue it was never given the opportunity to consider.’”

Paulsen v. Flathead Conservation District, 2004 MT 136, ¶ 37, 321 Mont. 364, ¶ 37, 91

P.3d 569, ¶ 37 (quoting Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866).

Therefore, we decline to reach the issue.

2. Did the District Court abuse its discretion by denying Appellants’ motion to compel
the testimony of Dale McCormick?

¶36    In preparation for the September 7, 2004, hearing, Appellants’ attorney deposed

Dale McCormick on September 2, 2004, because McCormick could not attend the

hearing. Shortly after the deposition, because McCormick did not answer questions to

Appellants’ counsel’s satisfaction, Appellants filed a motion to compel McCormick’s

testimony during the hearing. The District Court denied that motion in its order of

September 27, 2004, citing the motion’s vagueness as the basis for its denial.

¶37    As noted above, we review a district court’s denial of a motion to compel

discovery for abuse of discretion. Circle S Seeds, ¶¶ 14, 25. Here, in moving to compel

McCormick’s testimony, Appellants did not cite to any particular questions which were

unsatisfactorily answered, and only vaguely referenced the subject matter they sought to

explore more fully. On the basis of these assertions, the District Court concluded that:

       As the motion is too vague for either the City Council’s attorney or this
       Court to respond in any intelligent substantive manner, the motion fails on
       its face as a matter of law.

We conclude that the District Court did not abuse its discretion in determining that the

motion was too vague and lacked the specificity needed to rule upon it. As such, it

committed no error.
                                            16
¶38   The District Court is affirmed.



                                             /S/ JIM RICE


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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