Plain Grains Limited Partnership v. Board of County ... - Land Use Law

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2010 MT 155, *P85; 357 Mont. 61, **88;238 P.3d 332, ***350; 2010 Mont. LEXIS 238Page 16addressing the sale of land or property which renders anappeal moot. Opinion, P 41. The Court then offers thatthe spot zoning context of this case is so different thanthe "subdivision" context of Turner, Henesh, Povsha, andMills that disregarding our settled principles of mootnesslaw is here warranted. However, the Court'scharacterizations of these cases are inaccurate and itoffers no reasoned explanation of why establishedmootness principles should somehow not apply in azoning case.[*P86] Our decision in Povsha is so squarely onpoint that it cannot be distinguished in good faith.Contrary to the Court's characterization, Povsha did notmerely involve a subdivision. Incredibly, the Court[**89] misses that it also involved the exact issueinvolved here--a spot-zoning challenge. The issue inPovsha was whether the City unlawfully subdivided andrezoned land in South Billings from "Agricultural-Open"to "Urban Study Area" for the sole purpose of developingthe study area "for commercial uses." A commercialinterest had applied for the zoning change to allowconstruction of a wholesale auto auction house, and theCity's Development Review Committee held a publicreview meeting to discuss it. Appellant Povsha andnumerous other landowners raised substantial concernsabout the incompatibility of the rezoning proposal withthe surrounding residential area and nearby RiverfrontPark. Following the public hearing, the Review [***351]Committee voted to recommend denial of the proposedzone change, due primarily to the incompatibility of theproposed auto auction house with the surroundingresidential area. Povsha, PP 1-10.[*P87] The City Council, however, rejected theCommittee's recommendations and approved the zoningchange. Povsha then filed a complaint in the districtcourt, seeking to enjoin and set aside the zoning changeand corresponding subdivision approval. Povsha alsofiled an application for a preliminary injunction toprevent the development of the auto auction house fromgoing forward. The district court held an evidentiaryhearing on the request for a preliminary injunction, anddenied Povsha's application. Povsha did not appeal thedistrict court's denial of the request for preliminaryinjunction. Povsha, PP 1-10.[*P88] Relying extensively on Henesh, weconcluded that Povsha's appeal had been mooted becausePovsha had not stayed or enjoined the proceedingspending appeal and the auto auction house had been builtpursuant to the judgment. We again outlined the processfor appealing the trial court's denial of Povsha's requestfor injunctive relief under M. R. App. P. 6(3)(e), ormoving the district court and this Court "to stay thezoning change and subdivision proceedings in the Cityand County under M. R. App. P. [22], before thoseproceedings became final." Povsha, P 23 (emphasisadded). Povsha had not availed himself of any of theseremedies. As we later explained, "[n]otably, we chidedthe applicants in both Povsha and Henesh for failing toappeal the district court's denial of the request forinjunctive relief or for failing to seek a stay ofproceedings until the parties could reach a resolution onthe merits. We explained that we could not restore theparties to their original positions . . . ." City of Whitefish,P 23 (citing Povsha, P 23 and Henesh, P 5).[*P89] Povsha is strikingly similar to the case hereand, where it is different, the case for mootness isstronger here than in Povsha. The [**90] issue here iswhether the County unlawfully rezoned the Urquhart'sland in Northeast Cascade County from agricultural tocommercial, for the sole purpose to 'permit, construct andoperate the Highwood Generating Station (HGS).' TheCascade County Planning Department's staff reportactually recommended the rezoning change, whereas theCity's Development Review Committee in Povsha votedto deny the zone change. The Cascade County PlanningBoard and the Cascade County Commissioners thereafterheld extensive public comment sessions to discuss theproposed zone change. Appellant Plains Grains andnumerous other landowners, like those in Povsha, raisedsubstantial concerns about the incompatibility of therezoning proposal with the surrounding character of theland. Following these public hearings, theCommissioners voted to approve the Urquhart's rezoningrequest. Plains Grains then filed their complaint in theDistrict Court, challenging the rezoning approval on avariety of claims including spot zoning and improperpublic participation, but did not prevail.[*P90] At no time did Plains Grains request a stayof the judgment or an injunction in these proceedings,either from the District Court or this Court. See Povsha, P23. Simply put, Plains Grains did not avail themselves toany remedy under the law to preserve their claims or thestatus quo of the parties. Indeed, the appellants in Povshaactually did more to preserve the status quo by requestingan injunction than Plains Grains, who did nothing.
2010 MT 155, *P90; 357 Mont. 61, **90;238 P.3d 332, ***351; 2010 Mont. LEXIS 238Page 17Nonetheless, we dismissed their appeal as moot becausethey failed to avail themselves of further remedies underthe rules.[*P91] The Court responds to this presentation ofour mootness jurisprudence by attempting to distinguishPovsha, and the lengths it goes to do so are astonishing.First, the Court departs from the opinion and actualholding of Povsha and includes information includedonly in the briefs of that case, without attribution.Opinion, P 45. If this information was not pertinent whenwe decided Povsha, it certainly is not pertinent now. Itthen focuses on minutia from the case, apparently toimply that Povsha does not govern because of minorfactual differences. However, this is not a principleddistinguishment of controlling precedent. [***352]Under the Court's approach, any case is distinguishable.[*P92] Then, the Court offers that Povsha isdistinguishable because "[t]he 'damage' that Plains Grainsseeks to avoid has not already been done," Opinion, P 46,and asserts that only the "completion and operation of theHGS would have eliminated this Court's ability toprovide relief to Plains Grains." Opinion, P 49. In otherwords, the [**91] Court holds that only if the challengedproject, which prevailed in the district court, has becomefully completed and operational, can a case be consideredmoot on appeal. This is not the law of judgmentexecution and stays of judgments, discussed below, butfor purposes of the point here--the holding of Povsha--itis not the law of mootness, either. "If this Court cannotrestore the parties to their original position, the appealbecomes moot." Povsha, P 23 (emphasis added, citationsomitted). The proper question is whether this Court canrestore the parties to their original position, not whetherthe challenged action has progressed to completion. ThisCourt cannot now restore Southern Montana Electric(SME) to its original position. 55 Our mootness jurisprudence includes morethan Povsha, but the Court does not address, inresponse, the additional contrary holdings inTurner, Henesh, and Mills.[*P93] Consequently, following entry of judgmentin favor of Appellees, and during the pendency of thisappeal, Appellees proceeded on the judgment and thestatus quo of the parties changed substantially. TheUrquharts sold the rezoned property to SME, who thenrecorded their deeds with the Office of the CascadeCounty Clerk and Recorder. At substantial cost, SMEobtained numerous additional permits it was required toobtain in order to commence construction of the HGS.SME was under a specific deadline to commenceconstruction, pursuant to a Department of EnvironmentalQuality Air Permit. And, as of August 2008, the cost ofthe plant had approximately doubled as a result of thedelay already caused by this litigation.[*P94] Thus, facing mounting costs and permitdeadlines, and Plains Grains having failed to meet itsobligations to seek a stay or injunction, SME commencedconstruction of the HGS, expending millions of dollars todevelop the property--in accordance with its legal right todo so. This construction lawfully continues today, andthere is simply no way to restore the parties to theiroriginal positions without substantial financial harm toAppellee SME. This Court can neither fashion any reliefnor restore SME to its original, status quo position, asrequired under the principles of our mootness law. TheCourt does not even try to offer an explanation as to howSME can be returned to its status quo, because it simplycannot be done. Nor does the Court offer any explanationwhatsoever about why it would issue strongly-wordeddismissals of the appeals as mooted in Turner, Henesh,Povsha, and Mills, and many others, but simply ignorethe law for Plains Grains. A fair application of the lawcannot leave these cases standing side-by-side. At aminimum, the Court should take a principled [**92]approach and explain that it has today determined tooverturn our entire mootness jurisprudence.[*P95] b. Subsequent Legislative Enactment[*P96] Plains Grains' appeal has also been renderedmoot by Cascade County's subsequent adoption of a newcounty-wide zoning map and new county-wide zoningregulations. The Court attempts to avoid this additionalmootness problem by emasculating Country Highlands.However, that case should be dispositive.[*P97] In Country Highlands, landowners broughtsuit against the Flathead County Board ofCommissioners, alleging the County's amendments to itsgrowth policy and the continuous rezoning of 215 acresof land, from "agricultural" to eventually "generalbusiness," were invalid. While the case was pending onappeal, Flathead County adopted a new growth policyand specifically incorporated the existing zoning districts.We held the landowners' appeal was moot because, evenwere we to strike down the zoning district amendmentsunder the old Growth Policy, the County's new Growth
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