Posted by: Patricia Salkin | January 10, 2017

MT Supreme Court Finds Commission Failed to Consider the County Growth Policy in Implementing “On-The-Ground” Zoning Change

The Board of County Commissioners of Flathead County appealed from an order of the Eleventh Judicial District Court, which granted summary judgment to the Appellees and Cross-Appellants Citizens for a Better Flathead and Sharon DeMeester, who had challenged zoning actions taken by the Commission. By Resolution No. 955 HL, the Commission enacted a “Text Amendment” to the Flathead County Zoning Regulations (FCZR) that created a new zoning classification, called the General Business Highway Greenbelt, or B-2HG. By Resolution No. 837 BX, the Commission approved an “on-the-ground” zoning change known as the “Map Amendment”, applying the new B-2HG classification to particular property bordering Highway 93, north of Kalispell. The District Court held that “the map amendments along with the zone change on the land in question are voided” for failing to substantially comply with the Flathead County Growth Policy, and that the Commissioners’ actions in rezoning the 63 acres constituted illegal spot zoning.

The court found that the Map Report and the Commission’s analysis failed to consider possible conflicts between proposed B-2HG zoning and the Growth Policy, and other pertinent factors raised by the Growth Policy. Despite the Map Report noting that the B-2HG zone would “utilize standards for the site development similar to standards used by the cities to mitigate impacts of strip development,” consideration was not given to whether re-zoning this property along the highway would either limit or enhance the kind of development disfavored by the Growth Policy. Furthermore, there was no evidence indicating that Flathead County consulted the Montana Department of Transportation for guidance on development along Highway 93, nor did the Map Amendment analysis address how the newly allowed uses, such as banks, food stores, hotels, churches, etc. would impact traffic as the property directly abutting Highway 93 was developed. Accordingly, the court concluded the Commission abused its discretion in implementing the Map Amendment, and therefore did not reach the spot zoning issue.

As to the validity of the Text Amendment, the court noted that when the Text Amendment public hearing was held, public comment was received and the Commissioners orally responded with comments acknowledging the public input. The Commissioners then responded to public concerns by explaining that the Text Amendment would not automatically zone any given property, and made multiple changes to the language of the Text Amendment that came out of public workshops conducted about the proposed ordinance. Thus, the court held that the Commission satisfied the statutory obligation to permit the public to be heard and thus satisfied the obligations of the Flathead County ordinance by summarizing the concerns raised and explaining its position in light of those concerns. Accordingly, the Text Amendment was found not invalid for failure to comply with public participation requirements.

Citizens for a Better Flathead v Flathead Board of County Commissioners, 2016 WL 7239506 (MT 12/13/2016)

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