Posted by: Patricia Salkin | August 19, 2009

Commission’s Denial of Site Plan for Six Mini Stores Upheld as Decision Did Not Violate Due Process or Equal Protection, Nor Was it an Abuse of Discretion

Town and Country Foods, Inc. (T & C) wants to build on its land in a district zoned B-1 according to the Bozeman Unified Development Ordinance (UDO). The B-1 zone is a “neighborhood business district” and limits buildings to 5,000 square feet. When the City rejected T & C’s proposal to build a 32,000 square foot store on the subject property, T & C submitted a new proposal to build six mini-stores each under 5,000 square feet. Rather than allow the planning director to decide the fate of the application, the City commission reclaimed and denied the application citing for its reason that “the overall aggregate impact of the proposal did not harmonize with the intent of the B-1 zone.” T & C brought a lawsuit claiming that the commission violated its constitutional right to due process and equal protection. The District Court granted summary judgment for the commission concluding that no material facts were in dispute and stated that the commission followed procedure. On appeal, T & C argued that the District Court relied on disputed facts in determining that the Zoning Ordinance gave the commission broad discretion and that the commission acted arbitrarily in reclaiming and denying its petition.

 In response to T & C’s first two issues as to whether the Bozeman City Commission violated its constitutional rights to substantive due process and equal protection by denying its application for approval of a site plan, the court said that T & C neither raised substantive due process nor equal protection claims. In terms of the due process claim, the court explains that “T & C does not allege Bozeman’s Zoning Ordinance is unconstitutional,” but rather that the city commission acted arbitrarily in denying its application. Its due process claim is therefore inapplicable. Similarly, with respect to the equal protection claim, the court explains that T & C is not arguing that the law, or the Ordinance, discriminated against it by classifying it differently and treating it differently based on that classification but rather the commission’s decision treated it differently. Its equal protection claim is therefore also inapplicable. 

With respect to the issue of whether the Bozeman city commission’s decision to deny T & C’s application was an abuse of discretion, the court examined the commission’s review of the site plan application and the reclaiming of the application and concluded the commission did not abuse its discretion. T & C claims that the District Court erred in not reconsidering the evidence, however, in accordance with Bozeman’s Zoning Ordinance, the Commission, not the District Court, is the fact finder. Reviewing whether the District Court erred in its decision, the Supreme Court found that the Commission’s decision to deny the application was reasonable. Specifically, the Commission addressed numerous criteria such as vehicular traffic, parking, and conformity with the neighborhood prior to making its decision and complied with its ordinance in reclaiming T & C’s application. Therefore, the district court did not err in its decision as the Commission did not abuse its discretion.

Town & Country Foods, Inc. v. City of Bozeman, 2009 WL 607451 (Mont. March 10, 2009).

The opinion can be accessed at:

For an article on big box/formula retail and zoning click here

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