Posted by: Patricia Salkin | June 27, 2016

MT Supreme Court Finds Board Acted Arbitrarily in Waiving Compliance with County Resolution Zoning Requirements

Appellants (“the Silvertip Landowners”) were a group of private landowners in Carbon County who initiated a petition to establish a “Part 1” zoning district pursuant to § 76–2–101, MCA. The Appellees were the Board of County Commissioners of Carbon County, and a group of private landowners in Carbon County who opposed the proposed zoning district (“the Neighbors”). After the Board of Commissioners denied the Appellants’ petition to create a zoning district, Appellants filed a declaratory action, requesting a judgment declaring that the “protest provision” included in the statute is unconstitutional and that the Commissioners’ actions in denying the petition were “arbitrary and capricious,” violative of the Montana constitutional environmental provisions, and therefore void. District Court granted Appellees’ motion to dismiss, dismissing the complaint without prejudice.

The Silvertip Landowners argue that the Commissioners waived the requirements of Resolution 2009–16, and, contrary to the District Court’s conclusion, the waiver was valid and did not warrant dismissal of the complaint, since no party was prejudiced by the waiver. Here, however, it was uncontested that the petition did not comply with Resolution 2009–16, as the map indicating the boundaries of the area of land to be included in the proposed district, marking the individual names of landowners, was not produced by a certified land surveyor, nor was it attached to each of the signature pages as they were circulated. Additionally, while the individual signature pages in the record appeared to satisfy the requirements for the required lines for signatures and descriptions, but the signatures were neither notarized, nor was there an affidavit attached to the petition from the person collecting the signatures. Moreover, the period for submission of additional signatures or withdrawal of signatures was cut off, potentially impacting the final tally and the validity of the petition.

The court also found that it was disconcerting that the same body that adopted Resolution 2009–16 as law could single-handedly make the determination to “waive” the Resolution when time constraints make compliance inconvenient, and upon its own assessment that no prejudice would result by its decision to do so. As such, the court found that the District Court correctly concluded that the Commissioners acted “arbitrarily and for reasons of convenience” by waiving those requirements.

Martinelli v Board of Commr’s of Carbon County, 2016 WL 3172388 (MT 6/7/2016)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: