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

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2010 MT 155, *; 357 Mont. 61, **;238 P.3d 332, ***; 2010 Mont. LEXIS 238Page 2Judge.COUNSEL: For Appellants: Roger M. Sullivan (argued)and John F. Lacey, McGarvey, Heberling, Sullivan &McGarvey, Kalispell, Montana Elizabeth Best, Best LawOffices, Great Falls, Montana.For Appellees: Alan F. McCormick (argued), Garlington,Lohn & Robinson, Missoula, Montana, Brian J. Hopkins,Cascade County Attorney, Great Falls, Montana (Boardof County Commissioners); Gary M. Zadick (argued) andMary K. Jaraczeski, Ugrin, Alexander, Zadick & Higgins,Great Falls, Montana (Southern Montana Electric, Estateof Duane Urquhart, Mary Urquhart, Scott Urquhart,Linda Urquhart).JUDGES: BRIAN MORRIS. We Concur: MIKEMcGRATH, W. WILLIAM LEAPHART, JEFFREYSHERLOCK, District Court Judge Jeffrey Sherlock,sitting in for former Justice John Warner. Justice BrianMorris delivered the Opinion of the Court. Justice JimRice, dissenting. Justice James C. Nelson joins in thedissenting Opinion of Justice Rice. Justice Patricia Cotterjoins in paragraphs 70-101 and 113 of the foregoingdissent.OPINION BY: Brian MorrisOPINION[***335] [**64] Justice Brian Morris deliveredthe Opinion of the Court.[*P1] Plains Grains Limited Partnership (PlainsGrains) appeals from an order of the Eighth JudicialDistrict Court, Cascade County, granting summaryjudgment to the Board of Commissioners of CascadeCounty (County) and Southern Montana Electric (SME)and denying Plains Grains' spot zoning claim. Wereverse.[*P2] We review the following issues on appeal:[*P3] Did Cascade County's adoption of a newcounty-wide zoning regulation in 2009 render mootPlains Grains' spot zoning claim?[*P4] Did Plains Grains' failure to seek a stay orinjunction to prevent the sale or development of the landrender moot its spot zoning claim?[*P5] Did the rezoning of 668 acres of land fromAgricultural to Heavy Industrial constitute impermissiblespot zoning?FACTUAL AND PROCEDURAL BACKGROUNDI. The initial rezone[*P6] Duane and Mary E. Urquhart and Scott andLinda Urquhart (Urquharts) sought a zone change fromAgricultural (A-2) to Heavy Industrial (I-2) for 668 acresof land in the northeast portion of Cascade County. TheUrquharts submitted their rezoning application onOctober 30, 2007, to allow for the construction andoperation of SME's proposed coal-fired power plant,known as the Highwood Generating Station (HGS). SMEchanged its proposal for the HGS to a natural gas firedplant following the Department of EnvironmentalQuality's revocation of SME's air quality permit. TheUrquharts and SME participated jointly in the preparationof the application for rezoning. The Urquharts had agreedto sell the property to SME before the County approvedthe rezone.[*P7] The Urquharts' rezone application claimedthat "the requested zoning to heavy industrial use is aprerequisite to the planned construction and operation ofan electric generating station." The Cascade CountyPlanning Department adopted and made public its initialStaff Report on November 19, 2007 (Staff Report). TheStaff [**65] Report described the surrounding land usesas agricultural for more than twenty acres in everydirection. Approximately 200 acres of the land fell withinthe boundaries of the Lewis and Clark Great FallsPortage National Historic Landmark. The Staff Reportcited the Urquharts' attempt to "take advantage of the TaxIncrement Financing mechanisms provided in statestatutes" as the primary reason that the Urquharts hadrequested rezoning.[*P8] The Staff Report acknowledged that theconstruction and operation of the HGS would be "out ofcharacter with the existing agricultural land uses in thevicinity of the proposed rezoning." The Staff Reportnoted, however, that construction and operation of theHGS would not necessarily be "out of character with theland uses allowed under the existing A-2 zoning district."(Emphasis added). The Staff Report based this conclusionon the fact that the A-2 zone permitted electricalgeneration facilities through the special use permitprocess. As a result, the Staff Report determined that "the
2010 MT 155, *P8; 357 Mont. 61, **65;238 P.3d 332, ***335; 2010 Mont. LEXIS 238Page 3rezoning is not necessary to accommodate the HGSfacility, as such a use is permissible with a special usepermit." The Staff Report further noted that the actualconstruction of any structures or development of theproperty would require a zoning location-conformancepermit.[*P9] SME submitted a letter on January 9, 2008, inresponse to the Staff Report and the Planning Board'sreport to the Commissioners. SME's letter containedeleven proposed "conditions" that were intended toaddress the Planning Board's comments. The SME[***336] letter contained, in pertinent part, an agreementby SME that "as a condition of rezoning to heavyindustrial use, such use shall be solely for purposes of anelectrical power plant."[*P10] Plains Grains claims to have been unawareof the SME letter until the Commission's public hearingon the proposed rezone on January 15, 2008. SMEsubmitted an array of documentation at the publichearing, including a traffic impact study, a baseline noisestudy, a report on the health impacts of coal-fired powerplants, a property appraisal report, and a landscape plan.The County adopted a resolution of intent on January 31,2008, to rezone the Urquharts' property.[*P11] The resolution of intent incorporated byreference the eleven conditions offered in SME's letter.The County published notice of the resolution on fourdates over the course of two weeks in February of 2008.The Commissioners met on March 11, 2008, to considerFinal Resolution 08-22 to rezone the Urquharts' propertyfrom A-2 to I-2. The Commissioners adopted thePlanning Board's report as their findings on the proposedrezone. More than 1900 citizens submitted [**66]comments on the proposed rezone. The Commissionapproved the motion to rezone.II. District Court Proceedings[*P12] Plains Grains filed a complaint on April 10,2008. Plains Grains requested that the court set aside theCounty's approval of the rezone and requested that thecourt issue a writ of mandate, a writ of review before thisCourt, and a declaratory judgment. Plains Grains claimedfirst that the adoption of the zone change constituted"conditional zoning" and violated the Zoning EnablingAct and statutory and constitutional public notice andparticipation requirements. Plains Grains also alleged thatthe zone change constituted impermissible spot zoning.SME and the Urquharts intervened on May 1, 2008. TheCounty and SME responded to Plains Grains complaintwith motions for summary judgment that the sale of theproperty by the Urquharts to SME on August 25, 2008,had rendered moot both issues. The County filed aseparate motion for summary judgment on September 20,2008. Both parties engaged in extensive pretriallitigation.[*P13] The District Court issued its order onNovember 28, 2008. The court first addressed theCounty's motion for summary judgment as to mootness.The court rejected the County's argument that a favorabledecision could not return Plains Grains to the status quo.The court recognized that "the underlying status quo isnot property ownership but the re-zoning determinationby the Cascade County Commissioners. That is not mootfor either Defendant SME or any of the Plaintiffs." TheDistrict Court also rejected the County's argument thatPlains Grains should have obtained a stay in order topreserve its claim.[*P14] The District Court denied Plains Grains'motion for summary judgment and its application forwrits of mandate and review. The court found first thatthe eleven allegedly improper conditions constitutedmerely an adoption of the Planning Board's suggestionsand findings. The court rejected Plains Grains' publicparticipation claims after it determined that the Countyhad satisfied the notice and public participationrequirements of both the Montana constitution andstatutory provisions. Finally, the District Court deniedPlains Grains' spot zoning claim on the basis that therezone did not satisfy the three-part test for impermissiblespot zoning articulated by this Court in Little v. Board ofCounty Comm'rs, 193 Mont. 334, 346, 631 P.2d 1282,1289 (1981).[*P15] SME and the Urquharts filed a motion forentry of judgment on January 7, 2009. Plains Grainsopposed the motion on the grounds that the DistrictCourt's rejection of Plains Grains' motion for [**67]summary judgment did not represent a final resolution onthe merits. Plains Grains filed a petition for a writ ofsupervisory control with this Court shortly thereafter.SME opposed the exercise of supervisory control in lightof the District Court's denial of Plains Grains' requestedrelief.[*P16] This Court granted limited supervisorycontrol on April 29, 2009. We directed the District Court
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Plain Grains Limited Partnership v. Board of County ... - Land Use Law

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