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

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2010 MT 155, *P16; 357 Mont. 61, **67;238 P.3d 332, ***336; 2010 Mont. LEXIS 238Page 4to resolve any remaining [***337] claims and to issue afinal judgment from which Plains Grains could appeal.Our Order delineated the procedure for requesting a stayor injunction pending appeal should Plains Grains chooseto exercise that option. The Order did not affirmativelyinstruct Plains Grains to file a stay or injunction pendingappeal.[*P17] The District Court issued its final order andjudgment on May 27, 2009. The court denied summaryjudgment to Plains Grains on all claims and granted theCounty summary judgment on the merits. Plains Grainsfiled its notice of appeal with this Court on June 1, 2009.Plains Grains raised on appeal its conditional zoning, spotzoning, and public participation claims. The County filedits cross-appeal on June 11, 2009. The County and SMEclaimed, as they did in the District Court, that the transferof the property from the Urquharts to SME had renderedmoot Plains Grains' claims.III. The 2009 zoning ordinance[*P18] On August 25, 2009, while this case waspending on appeal, the Cascade County Commissionvoted to approve amendments to Sections 1 through 5and 7 through 16 of the Cascade County ZoningRegulations (CCZR) and zoning map. The PlanningBoard cited the need to update the regulations anddefinitions and to alter certain zoning districts andboundaries. The 2009 amendments reflected the County'sdesire to update zoning definitions and to clarifyregulations dealing with "hoofed animals" on residentiallots and setbacks for wind turbines, among other matters.The amendments did not change or modify the I-2 HeavyIndustrial designation created by the 2008 rezoning of theSME property. The amendments likewise did not changethe zoning of any of the surrounding land. The SMEproperty retains its I-2 designation (Heavy Industrial)implemented by the 2008 rezone at issue here. Thesurrounding land continues to be zoned Agricultural.[*P19] The County inexplicably waited until sixdays before the scheduled oral argument to file a noticeof supplemental authority with this Court. The Countyrepresented that the 2009 version of the CCZR hadreplaced the zoning regulations in effect at the time of theDistrict Court's November 28, 2008, order. The Countyclaimed at oral [**68] argument that the new version ofthe CCZR superseded the version in place at the time ofthe 2008 contested rezone. The County argued that theseamendments ratified the 2008 rezone and thereforemooted Plains Grains' challenges to the 2008 rezone. ThisCourt ordered supplemental briefs from both parties as towhat effect the County's adoption of the 2009 CCZRamendments had on Plains Grains' claims.[*P20] SME separately filed a motion to dismiss ongrounds of mootness on August 25, 2009. SME claimedthat it had invested "millions of dollars in site work,development of water sources, purchasing and securingspace on the transmission network and commencingconstruction of certain concrete and steel foundationstructures" after its purchase of the property. SMEclaimed that, having undertaken these activities, it couldno longer be restored to its original position. SME filed asecond motion to dismiss on grounds of mootness onApril 9, 2010. SME based this second motion to dismisson Plains Grains' failure to appeal the August 2009amendments to the CCZR by the March 1, 2010,deadline. SME argued that the August 2009 amendmentshad rendered moot Plains Grains spot zoning claim. Weaddress each of SME's motions in due course.STANDARD OF REVIEW[*P21] We review de novo a district court's grant ordenial of a motion for summary judgment. State v.Butte-Silver Bow County, 2009 MT 414, P 17, 353 Mont.497, 220 P.3d 1115. A district court's grant or denial of awrit of mandate constitutes a conclusion of law. Wereview for correctness a district court's conclusions oflaw. Belgrade Educ. Ass'n v. Belgrade Sch. Dist. No. 44,2004 MT 318, P 6, 324 Mont. 50, 102 P.3d 517. Zoningdesignations are legislative acts that courts review for anabuse of discretion. North 93 Neighbors Inc. v. Bd. of Co.Comm'rs, 2006 MT 132, P 18, 332 Mont. 327, 137 P.3d557.[***338] DISCUSSION[*P22] Did Cascade County's adoption of a newcounty-wide zoning regulation in 2009 render mootPlains Grains' spot zoning claim?[*P23] The County and SME argue that the 2009amendments to the CCZR render moot Plains Grains'challenges to the 2008 rezone of the SME property. Amatter becomes moot when the legal issue presented to acourt ceases to exist. Lohmeier v. State, 2008 MT 307, P13, 346 Mont. 23, 192 P.3d 1137. The County reliesprimarily on our decision in Country HighlandsHomeowners Ass'n v. Bd. of County Comm'rs, 2008 MT
2010 MT 155, *P23; 357 Mont. 61, **68;238 P.3d 332, ***338; 2010 Mont. LEXIS 238Page 5286, 345 Mont. 379, 191 P.3d 424, for the propositionthat the [**69] 2009 amendments to the CCZR rendermoot the 2008 zone change. We examine thecircumstances of Country Highlands to test this theory.[*P24] The landowner in Country Highlandsinitially had sought a zone change from agricultural tosuburban-agricultural. The board of countycommissioners approved the zone change (2003 rezone).Id. at P 9. An association of neighboring landownerschallenged the county's approval of the 2003 rezone. Id.at P 12. The landowner acquired another plot of landcontiguous to the original acreage after the county hadapproved the 2003 rezone.[*P25] The landowner then petitioned the countyfor an amendment to the 1987 growth policy. Thelandowner sought a revision that would have allowed fora mixed-use planned unit development on the entireparcel, including that portion acquired after the 2003rezone. The board of county commissioners approved thegrowth policy amendment (2004 amendment). Id. at P10. The landowner then sought to rezone the entire parcelfrom suburban-agricultural and agricultural to residentialand business. The county again approved the zone change(2005 rezone). Id. at P 11.[*P26] These actions prompted the neighbors to filean amended complaint in which they challenged both the2004 amendment to the growth policy and the 2005rezone. Id. at P 12. The county adopted a new growthpolicy (2007 growth policy) while the case was pendingon appeal. Id. at P 13. The 2007 growth policyrepresented "a wholesale change from the 1987 GrowthPolicy," not a "mere refinement of the earlier document."Br. of Appellees at 12, Country Highlands HomeownersAss'n v. Bd. of County Comm'rs,http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/sll_fn_home.htm (No. DA 06-0679, 2008 MT286, 345 Mont. 379, 191 P.3d 424). The 2007 growthpolicy reflected significant demographic and land usechanges that had occurred in the area in the twenty yearssince the 1987 growth policy had been adopted. CountryHighlands, P 13. These changes specifically includedincreased density and a change from agricultural tocommercial and residential uses for the land that was thesubject of the neighbors' suit.[*P27] We agreed with the county that its adoptionof the 2007 growth policy had repealed and replaced the1987 growth policy. The repeal of the earlier growthpolicy had rendered moot the issues raised by theneighbors. Id. at P 16. The neighbors had requested thatthe Court "invalidate the 2004 Growth Policy amendmenton the basis that it was inconsistent with the 1987 GrowthPolicy and then invalidate the 2005 Zoning Districtamendment because it was based on the flawed 2004Growth Policy Amendment." Id. at P 19. We recognizedthat this [**70] relief would not restore the neighbors totheir original position. The 2005 rezone would continueto exist and be presumed valid under the 2007 growthpolicy. A challenge by a party still would be needed todetermine whether the 2005 rezone "was consistent withthe 2007 Growth Policy, which has superseded the 1987Growth Policy." Id. at P 22. We were unable to providean effective remedy to the neighbors because "[t]he issueof whether the 2005 Zoning District amendment isconsistent with the current 2007 Growth Policy is notbefore us for consideration." Id. The neighbors stillwould have needed to challenge the 2005 rezone underthe new 2007 growth policy in order to obtain the reliefthat they had requested.[*P28] Country Highlands does not stand for theproposition that a generalized zoning amendment thatchanges nothing about a disputed land use decisionautomatically ratifies such a decision. Country Highlandsinstead recognizes that subsequent legislative [***339]actions that effectively repeal an earlier legislative actionmay impede the ability of a court to provide meaningfulrelief to a party that has challenged the legality of theearlier legislative action. Id. at P 22. Moreover, CountryHighlands involved an entirely new growth policy thatconstituted a "wholesale change" from the old growthpolicy. This new growth policy incorporated explicitlythe challenged zoning amendments. The neighbors hadbased their claim solely upon the fact that the zoningamendments allegedly conflicted with the repealedgrowth policy. Id. The County's adoption of an entirelynew growth policy that was presumptively consistentwith the challenged zoning rendered moot the neighbors'claim.[*P29] Plains Grains, by contrast, did not challengethe 2008 rezone based on non-compliance with thegrowth policy. Plains Grains challenged as impermissiblespot zoning the legislative act that created the I-2 HeavyIndustrial zone on the Urquhart/SME property. The 2009amendments to the CCZR had no effect on the zoningdesignation of the SME property or that of thesurrounding agricultural zoned land. The 2009
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Plain Grains Limited Partnership v. Board of County ... - Land Use Law

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