MONDAY, MARCH 1, 2010 - Flathead County, Montana

MONDAY, MARCH 1, 2010
(Continued)
This ruling was a veritable invitation to the Commissioners to file their Motion for Summary Judgment, which
is standard practice in such proceedings. As aptly noted by Judge Lympus, there is indeed a compelling record
which supports the Commissioners‟ decision to deny the Subdivision. Here, while the developer has argued that
there is evidence that supports a different result, the legally significant fact is that there is evidence that supports the
Commissioners‟ decision to deny the subdivision. This includes evidence of record submitted by the Montana
Department of Fish Wildlife and Parks, the United States Fish and Wildlife Service, the technical memorandum
prepared by Geomatrix Consultants on behalf of Citizens for a Better Flathead, the legal memorandum on north
shore flood easements submitted by attorney Katherine Maxwell, and detailed comments submitted by numerous
organizations and individuals including the Flathead Lakers and Citizens for a Better Flathead. As required by
Section 76-3-620, M.C.A., the Commissioners sent a detailed statement of the reasons for their denial to the
developer in a letter dated April 25, 2008, along with Findings of Fact dated April 23, 2008, which were filed in the
lawsuit at the request of Judge Lympus, and which Judge Lympus determined “established that a significant bases
for denying the development request” existed in this case.
Moreover, even if the Commissioners had not adequately articulated the bases to their decision to deny the
proposed Subdivision, 2 then the appropriate remedy for the reviewing court would be to remand the matter back to
the governing body to articulate the bases to its decision. See, e.g., Heffernan, et al. v. Missoula City Council, Cause
No. DV-08-84, Order of August 10, 2009, remanding challenged subdivision back to City Council for issuance of
findings of fact as mandated by § 76-3-608(2), MCA; and Kiely Construction, supra, 11-12, explaining that the
District Court declined to grant relief in the form of a “deemed approval” of the subdivision application as sought by
the developer, and instead ordered the governing body to complete the review of the subdivision application in
conformance with the requirements of the Subdivision Act and Subdivision Regulations in effect at the time that the
application was submitted.
The Kiely case is instructive on several other points as well. As a corollary of the rule that the legality of the
governing body‟s decision to approve or disapprove a subdivision must be based upon the court‟s review of the
record, the Kiely Court ruled:
Nor were the after-the-fact opinions of individual counsel members asked the reasons for the denial relevant. In an
analogous situation, courts will not consider post enactment statements of legislatures because they are not
part of the legislative history and accordingly, not part of the record.
Therefore, we conclude it was not error for the trial court to exclude testimony from the individual
counsel members as to their reasons for denying Kiely’s preliminary application, since such testimony
would constitute “post-decision” statements which were not properly part of the record.
Kiley, 97 (citations omitted; emphasis added).
Also in Kiely, the Supreme Court affirmed the District Court‟s approval of the preliminary plat application that
had been denied by the City of Red Lodge, after the subdivision application had been remanded by the District Court
to the local governing body and the local governing body had ignored the remand instructions of the District Court.
Thus, the Supreme Court held:
We conclude the District Court‟s remedy in this case-ordering conditional approval of Kiely‟s
preliminary plat application subject to the original eighteen conditions recommended by the County
Planning Board-was a proper remedy, and an appropriate response to the unique factual situation
with which the court was presented. In fashioning this remedy, the court noted that “the evidence
was clear that [Kiely] was entitled to the approval,” and recognized that, „[i]n view of the City Council‟s
disregard of the laws of our state in acting upon [Kiely‟s] [preliminary plat] application, there is no
reason to expect that it would follow those laws if the court were to … remand the matter back
to the City Council.”
Kiely, 76 (emphasis added; brackets in original).
Here, in contrast to Kiely, the District Court has already recognized that the record indicates that the
developer is not entitled to the approval. Moreover, had Judge Lympus been presented with motions for substantive
rulings as was done in the cases against the City of Missoula and the City of Red Lodge, and had the Court found
that there were deficiencies in the review of the developer‟s application, then at that point the case would have
appropriately been remanded to the Board of Commissioners to review the application under appropriate legal
standards. However, this proposed settlement, reached in a settlement conference far removed from the public eye,
short-circuits the legitimate judicial process that would not only have allowed the District Court to scrutinize the merits
of the respective parties‟ positions, but would have enabled the public to scrutinize the process.
The Kiely decision is further instructive in the Supreme Court‟s rejection of the developer‟s claims brought
against the local governing body for violation of 42 U.S.C. § 1983. As noted by the Kiely Court:
In order to state a viable § 1983 claim, the plaintiff must first establish it possesses a protected interest
since the guarantees of the Fifth and Fourteenth Amendments “apply only when a constitutionally
protected liberty interest or property interest is at stake.”
Kiely, 23 (citations omitted).
The Kiely Court noted the legislative discretion that the governing body had: “Red Lodge had the
discretionary power to reject/accept the recommendations of the County Planning Board, as the jurisdiction for
ultimate approval of the proposed subdivision rested with Red Lodge.” Kiely, 37.
After reviewing the statutory provisions in the Subdivision and Platting Act, the Kiely Court then held:
Thus, we conclude Kiely did not have a protected property interest at the preliminary approval
stage of his plat application process.
* * *