Posted by: Patricia Salkin | November 4, 2016

MT Supreme Court Dismisses Claims Alleging that the Adoption of a Revised Growth Policy Violated State Statutes Regarding Public Participation and Process

Citizens for a Better Flathead appealed the District Court’s rejection of its challenge to Flathead County’s 2012 Revised Growth Policy. Citizens asserted that both the Flathead County Planning Board and the County Commission violated public rights protected by Montana’s constitution and statutes when they developed the revised policy without adequate public participation. Citizens also claimed that the County failed to follow its own procedures for amending the growth policy.

Citizens proffered the report of Kathleen McMahon, a professional land-use planner, as evidence of its case. McMahon reviewed the audio and video recordings of the Planning Board’s and the Commission’s public meetings, and prepared a report discussing the growth policy’s revisions and the process employed in preparing and adopting those revisions. However, the court found that rather than serving to “assist the trier of fact to understand the evidence or to determine a fact in issue,” the McMahon report primarily offered legal conclusions. By applying the law to the facts of this case, the report impermissibly offered legal conclusions. The court therefore held that the District Court did not abuse its discretion in striking this report.

Citizens argued that the Planning Board exceeded the scope of review defined in the original work plan and that the revisions constituted “amendments” to the growth policy rather than “updates.” The revised growth policy came about as part of a longstanding plan to update the growth policy every five years. Here, because both the resolution and the work plan called for an update, and the resolution directed the Planning Board to consider “insight gleaned from working with the document over the past 4 years”, the revisions to the growth policy constituted an update. Next, the court found that the Planning Board did not exceed its scope of review as determined by the work plan, as the flexible language of the work plan’s phrases, quoted above, gave the Planning Board discretion and a wide-ranging directive to revise the growth policy, rather than a rigid set of instructions. Citizens also pointed out that the Commission and the Planning Board held meetings only in Kalispell and not in additional locations throughout the county. The court determined that this failure alone did not require invalidating the revised growth policy, since the record did not suggest that limiting the meetings to Kalispell negatively affected the Planning Board’s presentation of revisions to the public, or that the public was limited in its ability to comment on the proposed changes.

The court next found that the Planning Board and the Commission met the constitutional requirements of Article II, Sections 8 and 9, since they gave adequate notice of their deliberations, allowed the public to observe the meetings, and gave the public sufficient opportunities to be informed and heard. Thus, neither the Commission nor the Planning Board infringed on the public’s right to participate or right to know. The court therefore held that the District Court did not err in determining that the Commission allowed for meaningful public participation in the revision process. Lastly, Citizens challenged the phrase “In the event of a conflict between the provisions in this part and any other provision in this Growth Policy and its amendments, this part shall control.” The court held that this clause did not violate the Constitution because the growth policy was not regulatory in nature, the clause was not inherently vague, and did not encourage a violation of the constitutional right to a clean and healthful environment. The court agreed, and therefore affirmed the holding of the District Court. 

Citizens for a Better Flathead v Board of County Commissioners of Flathead County, 2016 WL 5900204 (MT 10/11/16)


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