Posted by: Patricia Salkin | December 9, 2009

Court Upholds Interim Zoning and Finds it is Not Reverse Spot Zoning

Missoula County enacted an interim zoning law to address the public health and safety concerns regarding a proposal to establish a gravel mining, crushing and asphalt production operation on property owned by Liberty Cove. JTL, hired to put a lake on the property, requested a zoning compliance permit from the County as part of the mining permit application process.  The county granted the permit noting that the location was not zoned. The residents of the area requested that the County enact interim zoning to address concerns at the site including environmental and traffic concerns. At the public meeting, it was decided that there was no emergency to justify interim zoning because there were to be further review of the operation by other groups. The environmental concerns were to be reviewed by the Department of Environmental Quality (DEQ) and the traffic concerns were to be reviewed by the Montana Department of Transportation. JTL sued DEQ seeking a court order to produce a permit for their mining operations. The County was concerned that this suit would result in DEQ issuing a permit to JTL without properly reviewing the environmental concerns of the residents, so following another meeting in which they decided that an emergency existed because of the changed circumstances, the County instituted an interim zoning law.

The Montana Attorney General has stated that both emergency and urgency measures exist if there is some exigent circumstances impacting the public health, safety, and welfare and zoning is required to address the exigency. It is left to the local governing body to decide what is in exigency. Liberty Cove argues that there was no emergency to warrant the interim zoning especially because there are no facts or expert testimony to support the finding. The court found that in light of the fear of DEQ not completing a thorough environmental review, a reasonable emergency did exist. Originally, the Board had found that an emergency did not exist because they were under the impression that DEQ and MDT would address the concerns of the residents.

Liberty Cove also argued that the County did not give proper notice that they were considering the interim zoning. The Court, however, found that Liberty Cove received actual notice and attended the hearings regarding the interim zoning. The Court noted that actual attendance and participation at the hearing may constitute a waiver of alleged deficiencies in notice.

Lastly, Liberty Cove argued that the interim zoning adopted by the County constituted an illegal reverse spot zoning. Liberty Cove argued that the land was improperly singled out to receive detrimental treatment. Since the test for spot zoning requires consideration of factors that may not apply to interim zoning, in particular, the third part of the test considers whether the requested change is more in the nature of special legislation. This prong requires there to be a comprehensive plan, and since a local government may adopt interim zoning without this comprehensive plan, the Court found that spot zoning challenges are inapplicable to interim zoning measures.

Liberty Cove v Missoula County, 2009 WL 3764086 (MT. 11/10/2009).

The opinion can be accessed at:^doaisd510&ID=003821762

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