Posted by: Patricia Salkin | February 12, 2011

Montana Supreme Court Finds Rezoning of Land from Agricultural to Heavy Industrial to Permit Electric Generating Station Amounts to Spot Zoning

The Urquharts owned 668 acres of land that they agreed to sell to Southern Montana Electrical (SME), a public utility which sought to construct a natural gas fired electric generating station on the land. In 2007 the Urquharts requested that the county rezone the land from Agricultural (A-2) to Heavy Industrial (I-2). The planning department noted that the A-2 zone permitted electrical generation facilities through the special use permit process and concluded that although the operation of an electric station would be “out of character with the existing agricultural land uses in the vicinity of the proposed rezoning,” it would not necessarily be “out of character with the land uses allowed under the existing A-2 zoning district.” The Board of Commissioners approved the requested rezoning. The Plains Grains Limited Partnership challenged the rezoning, alleging among other things, that it amounted to illegal spot zoning. The district court ruled in favor of the county on the grounds that the special use permit option had rendered the rezoning request unnecessary. 

The Montana Supreme Court reversed, holding that the rezoning was illegal spot zoning. The Court said, “[t]he fact that SME arguably could have pursued a special use permit [did] not undermine Plains Grains’ spot zoning claim.” Whether a special use permit would have been granted to SME would have been at the discretion of the county’s board of adjustment. Also, the Urquharts and SME opted to pursue the rezoning option rather than the special permit option. Therefore, said the court, the special use permit option did not render unnecessary the zone change request.

The court then set to determine whether the rezone constituted illegal spot zoning by applying a three-part test. A rezone constitutes illegal spot zoning, explained the court, “regardless of variations in factual scenarios,” if the following three conditions are met: (1) the requested use differs significantly from the prevailing land use in the area; (2) the area requested for rezone is “‘rather small’ in terms of the number of landowners benefitted by the requested zone change”; and (3) the requested zone change is “in the nature of ‘special legislation’ designed to benefit one or a few landowners at the expense of the surrounding landowners or the public.” The court found that in this instance, these three conditions were met: (1) The proposed rezone to facilitate construction of the Electric Station would have “create[d] an island of heavy industrial zoning within a large area zoned for agricultural use.” The requested use of the 668 acres for the Electric Station would have “differ[ed] significantly from surrounding uses.” (2) The 668 acres “comprise [d] a … small percentage of the land zoned for agriculture in [the county].” Also, the number of landowners affected by the rezone was one–“viewed either as the Urquharts or SME.” (3) Given the number of landowners affected, the zoning constituted “special legislation designe d to benefit one person” at the expense of others since “[n]o discernible benefit for the rezone would [have] accrue[d] to the neighboring farmers and ranchers.”

Plains Grains Ltd. Partnership v. Board of County Com’rs of Cascade County, 2010 MT 155, 2010 WL 2796441 (MT 2010)

The opinion can be accessed at: http://searchcourts.mt.gov/view/DA%2009-0322%20Published%20–%20Opinion?id={6BB64A39-8CAC-4210-A725-E3C1775BF44C}

This abstract is edited from the Quinlan Zoning Bulleting, vol. 58 no. 16


Responses

  1. I am in law school at UNM studying planning and environment law as an elective course. I am very interested in your rake as to why the land owner opted to pursue the rezoning option rather than the special permit option. I presume there are advantages in their approach because the district court held for them. I also wanted to know why the power company invested all that time and money. What were the advantages of building on range land instead of an industrial park. I own land in the high desert of NM and have been restoring it to pre bean farm and over grazed uses. Thank you.

    • Greg, it is difficult to know for sure why an applicant chooses one route over another. In this case, the difference may have been where the property owner thought they would have a better change…before the local legislative body or before the board of adjustment. As to the motivations of the power company, I think they would have to answer that question for you.


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