Posted by: Patricia Salkin | December 25, 2007

Montana Supreme Court Reminds Attorneys of the Need to Request Injunctive Relief and Stays During the Pendency of Zoning Challenges

As has been shown in cases posted to this blog in the past, in addition to mastering the substantive subject matter of knowledge in land use cases, practitioners often lose the opportunity to get courts to weigh the merits of the underlying claim when they fail to preserve a remedy through the use of injunctive relief and stays.  Where pleadings forget to request this action and parties proceed under actions already approved, courts will often dismiss the appeals, sometimes years later by the time the case winds its way through the system, on the basis of mootness, where the court is unable to restore the parties to their original position. 

This is the outcome of a recent Montana case where an adjacent property owner sought to challenge the rezoning of a parcel that was zoned “Agricultural-Open” and changed to “Urban Study Area,” with the intention of developing the area for commercial use. Although the planning commission had voted to recommend denial of the proposed zone change, largely because of the incompatibility of the proposed wholesale auto auction use with the character of the surrounding residential area, the City Council voted to conditionally approve the needed annexation and then subsequently formally adopted and approved the zoning change.  

In May 2002, the plaintiff filed his initial complaint seeking to enjoin and set aside the zoning change and corresponding subdivision approval, which was denied a month later by the District Court and the plaintiff did not appeal.  In the meantime, the City issued a building permit for the project and the work was completed in the Fall of 2002. In June 2002 the County, which had also been named as a party, filed a motion for judgment on the pleadings, and because the court considered matters outside of the pleadings, it was converted to a summary judgment motion which was denied. The plaintiff then filed in May 2003 a motion for summary judgment alleging that they underlying actions constituted illegal spot zoning or special legislation and thus were invalid. In July 2005 the District Court entered an order granting the City’s motion for summary judgment. The Court concluded that “this zoning change was part of a gradual and pervasive transition from agricultural use to entry-way commercial use and that land for a wholesale auto auction as part of a planned development was consistent with the uses in the surrounding area since the construction of the Interstate Exchange.” 

The plaintiff again sought to appeal this decision, but by the time of the appeal, the project was already built and, in holding the matter moot, the Court said that they could no longer grant effective relief in the matter.  The Court noted that the plaintiff could have appealed the June 2002 denial of his request for injunctive relief, but that he failed to do so.  The Court further indicated that the plaintiff could have moved the District Court and then the Supreme Court to stay the zoning change and subdivision proceedings before they became final, but he failed to do that as well.  In declining the opportunity to weigh the rezoning, the Court concluded, “If this Court cannot restore the parties to their original position, the appeal becomes moot.” 

Povsha v. City of Billings, 2007 WL 4427859 (Mont. 12/19/2007). 

The opinion can also be accessed at: http://mtlawlibrary.wordpress.com/2007/12/20/opinion-povsha-v-city-of-billings/   


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