MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

_____ ___ BDV-08-480

PLAINS GRAINS LIMITED PARTNERSHIP, a      )          Judge E. Wayne Phillips

Montana limited partnership; PLAINS GRAINS, INC.,   )

a Montana corporation; ROBERT E. LASSILA and            )

EARLYNE A. LASSILA; KEVIN D. LASSILA and )

STEFFANI J. LASSILA; KERRY ANN (LASSILA)            )

FRASER; DARYL E. LASSILA and LINDA K.                     )

LASSILA; DOROTHY LASSILA; DAN LASSILA;  )

NANCY LASSILA BIRTWISTLE; CHRISTOPHER            )

LASSILA; JOSEPH W. KANTOLA and MYRNA R.           )

KANTOLA; KENT HOLTZ; HOLTZ FARMS, INC.,           )

a Montana corporation; MEADOWLARK FARMS, a         )

Montana partnership; JON C. KANTOROWICZ and         )

CHARLOTTE KANTOROWICZ; JAMES FELDMAN        )         

and COURTNEY FELDMAN; DAVID P. ROEHM and       ) ORDER ON MOTIONS FOR

CLAIRE M. ROEHM; DENNIS N. WARD and                      ) SUMMARY JUDGMENT AND

LaLONNIE WARD; JANNY KINION-MAY;                       ) WRIT OF MANDAMUS/

C LAZY J RANCH; CHARLES BUMGARNER and ) WRIT OF REVIEW

KARLA BUMGARNER; CARL W. MEHMKE and   )

MARTHA MEHMKE; WALTER MEHMKE and       )

ROBIN MEHMKE; LOUISIANA LAND &                  )

LIVESTOCK, LLC, a limited liability corporation;                        )

GWIN FAMILY TRUST, U/A DATED                                    )

SEPTEMBER 20, 1991; FORDER LAND & CATTLE          )

CO.; WAYNE W. FORDER and DOROTHY              )

FORDER; CONN FORDER and JEANINE FORDER;         )

ROBERT E. VIHINEN and PENNIE VIHINEN;      )

VIOLET VIHINEN; ROBERT E. VIHINEN,             )

TRUSTEE OF ELMER VIHINEN TRUST; JAYBE D.         )

FLOYD and MICHAEL E. LUCKETT, TRUSTEES  )

OF THE JAYBE D. FLOYD LIVING TRUST;                       )

ROBERT M. COLEMAN and HELEN A. COLEMAN;         )

GARY OWEN and KAY OWEN; RICHARD W.                   )

DOHRMAN and ADELE B.DOHRMAN; CHARLES            )

CHRISTENSEN; and YULIYA CHRISTENSEN;     )

WALKER S. SMITH, JR. and TAMMIE LYNNE     )

SMITH; MICHAEL E. HOY; JEREOME R.                 )

THILL: and MONTANA ENVIRONMENTAL                     )

INFORMATION CENTER, a Montana nonprofit                )

public benefit corporation,                                                         )

                                                                                                )

Plaintiffs,                 )

)

vs.                                                                                          )

                                              )

BOARD OF COUNTY COMMISSIONERS OF             )

CASCADE COUNTY, the governing body of the                 )

County of Cascade, acting by and through Peggy S.                      )

Beltrone, Lance Olson and Joe Briggs,                         )

)

Defendants.             )

                                                                                                )

and                                                                                         )

                                                                                                )

SOUTHERN MONTANA ELECTRIC                          )

GENERATION and TRANSMISSION                         )

COOPERATIVE, INC.; the ESTATE OF                                )

DUANE L. URQUHART; MARY URQUHART;                    )

SCOTT URQUHART; and LINDA URQUHART,     )

                                                                                                )

                                                            Defendants and      )

                                                            Intervenors.                        )

____________________________________________________________

FINDINGS OF FACT

            1.        On October 30, 2007, Duane and Mary E. Urquhart and Scott and Linda Urquhart (hereinafter “Urquharts”) submitted an Application for Rezoning to the Cascade County Planning Department requesting that 668.394 acres of their agricultural land, located approximately eight miles east of the City of Great Falls and just south of the Missouri River, be rezoned “from Agricultural (A-2) to Heavy Industrial (I-2).” (Exhibit 1 at p. 1.)[1] The Urquharts submitted their Application for Rezoning for the stated purpose of allowing for the construction and operation of SME’s coal-fired electric power generating complex, known as the Highwood Generating Station (hereinafter “HGS”). (Id.)

            2.        Throughout the course of the rezoning proceedings, which culminated in the Commissioners’ rezoning the 668.395 acres of farmland from Agricultural (A-2) to Heavy Industrial (I-2), both SME and the Urquharts jointly participated in pursuing approval of the Application to rezone the land. In fact, the Application for Rezoning was prepared by Bison Engineering, SME’s engineering firm, and Ugrin, Alexander, Zadick & Higgins, P.C., the law firm which jointly represents SME and the Urquharts. (Id.) The majority of the materials submitted with the Application for Rezoning consisted of materials describing the Highwood Generating Station, the coal fired power plant which SME plans to construct on the rezoned land. (Id.) As stated in the “Application for Rezoning” (Exhibit 1):

The requested zoning to heavy industrial use is a prerequisite to the planned construction and operation of an electric generating station, known as the Highwood Generating Station (hereafter, “HGS”). Applicants intend to sell the rezoned property to Southern Montana Electric Generation and Transmission Cooperative, Inc. (hereafter, “SME”), which plans to permit, construct and operate HGS, a 215-250 mW electrical generating facility.

 

            As will be noted later in this Order, the Application was in error with regard to the rezoning being “a prerequisite”, except for purposes of Tax Increment Financing.

            3.        Prior to the Commissioners’ approval of Urquharts’ request to rezone the land from agricultural to heavy industrial, the Urquharts had already agreed to sell the property to SME. The “Option to Purchase” agreements entered into between SME and the Urquharts in 2004 recite: “The Seller and Buyer acknowledge that Buyer is engaged in acquisition of the property upon which it intends to construct electric generating facilities.” (Exhibit 21) The purpose of SME entering into these agreements was so that it could demonstrate to finance and regulatory agencies that it had a property interest in the subject property. (See Exhibit 21, ¶ 2.)

            4.        The Application for Rezoning states that all of the property which is sought to be rezoned from Agricultural to Heavy Industrial is used for agricultural purposes. (Exhibit 1 at p. 3.)

            5.        The Cascade County Planning Department adopted and made available its initial Staff Report on November 19, 2007. Testimony, Mr. Clifton, Planning Director at November 26, 2008 hearing. That Staff Report was placed on file for public review with the Cascade County Clerk and Recorder. Id.

            6.        The Staff Report explains that the purpose of the rezoning from Agricultural (A-2) to Heavy Industrial (I-2) is to allow for the construction and operation of HGS. (Exhibit 2 at p. 4.) It also explains that such rezoning was not necessary for replacement of an electrical generating plant. Staff Report, p. 17, ¶ 9.

            7.        The complete Recommendation set forth in the Staff Report provided as follows:

RECOMMENDATION

 

It is recommended that the Planning Board recommend to the County Commission approval of the request to rezone Parcels #5364100, #5364200, and #5364300 in Section 24, and Parcel #5365200 in Section 25, Township 21 North Range 5 East, P.M.M., Cascade County, Montana from “A-2” Agricultural to “I-2” Heavy Industrial.

 

(Exhibit 2 at p. 3; underlining added, bolding in original.)      

8.        The Cascade County Zoning Regulations (hereinafter “CCZR”) include their requirements for publication of the notice of public hearing before both the Planning Board and the Commissioners the requirement that the notice must state “the boundaries of the proposed district,” and that the proposed zoning regulations or maps “are on file for public inspection” at the office of the County Clerk and Recorder and the Planning Board Office. (CCZR § 14.2, et seq., and § 14.3, et seq.) (emphasis added) The maps, the County’s overall zoning regulations, the Staff Report, and the Planning Board recommendation to the Cascade County Commissioners entitled “Agenda Action Report” were on file. Testimony, Mr. Clifton, Cascade County Planning Director and Ms. Sickels, Deputy Cascade County Clerk and Recorder, November 26, 2008 hearing.

            9.        As the property description is a contested issue in this matter, the Notice of Public Hearing that was published for the Planning Board hearing (Exhibit 3) is attached as Exhibit “A” to these Findings of Fact. The publication for the Cascade County Commissioners’ public hearing contained an identical property description (Exhibit 5).

            10.      In the motions approving the Resolution of Intention to rezone and the Final Resolution to Rezone, the County Commissioners made the rezoning “subject to the eleven conditions offered by Tim Gregori of Southern Montana Electric, representing the Applicants, dated January 9, 2008, and attached hereto.” (Exhibit 15; Disk 1, Binder 11, p. 110445.) Included among the eleven conditions was that, “SME agrees, as a condition of rezoning to heavy industrial use, that such use shall be solely for purposes of an electrical power plant.”

11.      SME’s letter dated January 9, 2008 (Exhibit 7), sets forth the eleven conditions. These were iterations reflecting existing Planning Board staff analysis of the twelve-step rezoning analysis process set forth in both the Staff Report and the Agenda Action Report to which, this Court specifically finds, SME was responding.

12.      According to § 76-2-204(1), MCA, the Planning Board “shall make written reports of their recommendations to the board of county commissioners. . . .” The Planning Board’s written report to the Cascade County Commissioners was titled “Agenda Action Report.” Testimony, November 26, 2008 hearing, Mr. Clifton, Planning Director.

13.      The first time the Plaintiffs learned of the SME letter (Exhibit 7) and its eleven proposed conditions of rezoning was during the course of the January 15, 2008, public hearing before the County Commissioners on the proposed rezoning. (Second Affidavit of Anne Hedges at ¶ 11.) However, Plaintiffs had access to both the Staff Report and the Action Agenda Report because they were on file with the Clerk and Recorder. As noted, the SME “conditions” were required iterations of matters raised by the Planning Board staff throughout the planning process (both the Staff Report and the Agenda Action Report). The documentation submitted by SME at the Cascade County Commissioners’ public hearing included a traffic impact study, a baseline noise study, a review of scientific studies concerning coal-fired power plants and children’s health, a report on whether organic farming will be harmed by HGS emissions, material on the effects of the Colstrip power plant on range resources and stack emissions, a property appraisal report, and a landscape plan.

            14.      On January 31, 2008, the County Commissioners met to consider a motion to approve passage of a Resolution of Intent to rezone the Urquharts’ property from “A-2” Agricultural to “I-2” Heavy Industrial. The motion stated:

COMMISSIONER BRIGGS: Mr. Chairman, I move the Cascade County Commission approve the Resolution of Intention to rezone Parcels Number 5364100, 5364200 and 5364300 in Section 24 and Parcel Number 5365200 in Section 25 all located in Township 21 North, Range 5 East, from A-2 agricultural to I-2 heavy industrial, subject to the 11 conditions offered by Tim Gregori of Southern Montana Electric, representing the applicants, dated January 9th, 2008, and attached hereto.

 

(Transcript of January 31, 2008 Commission Meeting at p. 2; Disk 1, Binder 11, p. 110445; emphasis added.)

15.      The motion to approve passed 2 to 1, with Commissioners Lance Olson and Joe Briggs voting in favor, and Commissioner Peggy Beltrone opposing.

            16.      This Court specifically finds that the Agenda Action Report establishes a record of the facts relied upon by the Cascade County Commissioners in making its decision to pass the Resolution of Intention and the later Final Resolution, to rezone the Urquharts’ land.

17.      Following passage of the above-described Resolution of Intention, a “public notice of passage of Resolution of Intention to Amend County Zoning District Map” was published on February 2, 3, 9, and 10, 2008. (Exhibit 12.)

18.      The Resolution of Intention (Exhibit 11) identified in the notice does not reference either the eleven conditions or SME’s letter dated January 9, 2008 (Exhibit 7). However, that Resolution (and the Final Resolution) contains whereas clauses which clearly demonstrate review of the “conditions” as contained in the Staff Report and Agenda Action Report. According to the motion passed by the Commissioners, the rezoning was “subject to the 11 conditions offered by Tim Gregori of Southern Montana Electric, representing the applicants, dated January 9th, 2008, and attached hereto.” This Court specifically finds that these eleven conditions were reflections of and responses to precise Planning Board staff analysis of the twelve factor requirements of CCZR and statute and which directly required response that took the form of these eleven conditions.

19.      On March 11, 2008, the County Commissioners met to consider Final Resolution 08-22, to rezone the Urquharts’ parcels from “A-2” Agricultural to “I-2” Heavy Industrial, which passed on a 2 to 1 vote. (See Transcript of March 11, 2008, meeting at pp. 2-3; Exhibit 15.) The County Commissioners adopted the Agenda Action Report as its findings in regards to the proposed rezoning. Testimony, November 26, 2008 hearing, Mr. Clifton, Planning Director.

            20.     According to the Transcript of the March 11, 2008, meeting (Exhibit 15 at pp. 2-3), the motion that was approved stated as follows:

COMMISSIONER BRIGGS: Mr. Chairman, I move the Cascade County Commission approve the final resolution to rezone Parcels Number 5364100, 5364200, and 5364300 in Section 24, and Parcel Number 5365200 in Section 25, all located in Township 21 north, Range 5 east, from A-2 agricultural to I-2 heavy industrial subject to the 11 conditions offered by Tim Gregoire (sic) of Southern Montana Electric representing the applicants dated January 9th, 2008, attached hereto. (Emphasis added.)

 

21.      Over 1,900 concerned citizens commented or protested in one form or another on the proposed rezoning. (See Cascade County’s Disk 1, Binder 12, pp. 228-91; Disk 1, Binder 11, pp. 13-14; and Disk 1, Binder 9, p. 1018.) Citizen concerns, fire suppression as an example, were considered by the Cascade County Commissioners and the conditions necessary for a Location Conformance Permit (see discussion below) and the rezoning were adjusted by the staff accordingly. Testimony, Mr. Clifton, Planning Director, November 26, 2008 hearing.

PROCEDURAL STANCE

            Outstanding issues before this Court are:

            1.        Plaintiffs’ Writ of Mandate, April 10, 2008.

            2.        Plaintiffs’ Writ of Review, April 10, 2008.

            3.        Defendants’ Motion to Dismiss or Alternative Motion for Summary Judgment, August 28, 2008, translated to Motion for Summary Judgment September 10, 2008.

 

            4.        Plaintiffs’ Motion for Summary Judgment, September 26, 2008.

            5.        Plaintiffs’ Request for Immediate Preemptory Writ or Writ of Review, October 20, 2008.

 

            6.        Defendants’ Request for Protective Order, November 5, 2008.

            7.        Plaintiffs’ Rule 37 and Rule 56 Motions, November 7, 2008.

            8.        Defendants’ Motion to Strike, November 17, 2008.

            This Court has taken every possible measure to expedite consideration and ruling on this matter despite an exceptionally foreshortened calendar. To a large extent, that calendar has been driven by the imminent November 30, 2008 expiration of one or more of Defendants’ permits and circumscribed by briefs which amounted in one case to 75 pages plus affidavits. Credible representations led this Court to believe that significant hardship would inure to Defendants if this Court’s decisions on outstanding issues were filed beyond that date. Given the right to and likely exercise of appellate review, that deadline appears a bit amorphous. Nevertheless, this Court believes that the trial courts have a responsibility to render decisions in a timely manner so as not to prejudice either party’s rights to resolution by the courts. Given those constraints, this Order addresses only the Motions for Summary Judgment and the Applications for Writs.

            While the Plaintiffs in their request for Preemptory Writ “incorporated by reference” the arguments set forth in their Motion for Summary Judgment, that is procedurally unacceptable. The Motion for Summary Judgment as been denied (see below). Therefore, the only arguments properly before this Court are those presented in the Application for Writ of Mandamus/Review and the Request for Preemptory Writ of Mandamus/Review.

ANALYSIS AND ORDER

            Defendants’ Motion to Dismiss/Motion for Summary Judgment. Essentially, Defendants contend that the appeal by Plaintiffs of the county’s zoning decision is moot because Defendant Urquharts’ sold the zoned property to Defendant Southern Montana Electric (“SME”) and/or the Plaintiffs’ failure to seek a stay. Mootness is a threshold issue which must be addressed prior to determination of the substantive merits of a dispute. Grabow v. MT High School Ass’n, 2000 MT 159, ¶ 14, 300 Mont. 227, 3 P.3d 650.

            Within the quite narrow confines of Defendants’ precise Motion for Summary Judgment, there are no issues of fact outstanding, only the legal issue of mootness. Given that stance, this Court has authority to either grant or deny summary judgment. Rule 56 (c), M.R.Civ.P., Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 37-38, 345 Mont. 12, ___ P.3d ___ (Citations omitted).

            The substance of Defendants’ argument relies on Turner v. MT Engr. & Constr., Inc. (1996), 276 Mont. 55, 915 P.2d 799, Mills v. Alta Vista Ranch, LLC, 2008 MT 214, 344 Mont. 212, 187 P.3d 627, and Henesh v. Bd. Of Commr’s of Gallatin Co., 2007 MT 335, 340 Mont. 239, 173 P.3d 1188. What is interesting about each of those cases is that the transfer/sale of property which precipitated a mootness ruling occurred after a determinative procedural action (Sheriff’s sale in Turner, failure to act after a District Court Order, which act could be either an injunction, a stay or an appeal, in Henesh). While Defendants are correct that the procedural failure in Mills was obtaining a stay, that stay could have prevented a transfer of property. Mills at ¶ 22.

            These holdings were founded on the impossibility of the Court granting effective relief or returning the parties to the status quo. Id., Henesh at ¶ 5-6. Defendants construe this to mean that Plaintiffs’ failure to obtain a stay precludes a return to status quo due to the sale of the property to SME. Defendants’ Memo in Support, August 27, 2008, p. 11. However, the question is to which status quo are the Defendants referring? The underlying status quo is not property ownership but the re-zoning determination by the Cascade County Commissioners. That is not moot for either Defendant SME or any of the Plaintiffs. Now that the Urquharts no longer own the property, it is arguable that the re-zoning decision is moot for them, e.g., what interests remain that require return to status quo? The Court certainly has not been presented with any legal argument that the land sale should be overturned.

            Furthermore, Defendants’ constant references to and reliance upon Plaintiffs’ failure to seek a stay is based on reasoning familiar to both parties. A stay would require a bond that would cover the prospective damages to Defendants due to delayed construction. Both parties acknowledge such a bond could be astronomical, depending on this Court’s assessment. Plaintiffs plainly and simply argue that as citizens, they have a right to access the courts for remedies and not have to assume such astronomical costs as a prerequisite to that right. This assumes, of course, that the other remedies sought (the Writs here) are appropriate. This Court agrees primarily because the rights afforded under Article II, Section 16 are worthless if they become dependent upon large expenditures of money.

            Therefore, with regard to Defendants SME and the Board of County Commissioners, the Motion for Summary Judgment is Denied. With regard to the various Defendants Urquhart, the Motion for Summary Judgment is Granted.

            Plaintiffs’ Motion for Summary Judgment. Plaintiffs have adopted a “kitchen sink” approach to their arguments for summary judgment and/or the Writs. Consequently, this Court has spent very valuable time considering those that are substantive and those that may be fairly described as less so.

            Two key contentions of the Plaintiffs are first, that a number of critical zoning related conditions (eleven in total) proposed by SME were not available during critical decision making by the Planning Board. Plaintiffs’ Brief for Summary Judgment, September 26, 2008, p. 9, passim. Second, Plaintiffs contend the County Commissioners “did not adopt the [Planning Board] staff report as its findings in regards to the proposed re-zoning.” Id., p. 10, passim.

            Both of these are factual contentions in dispute. Summary Judgment is, consequently in apropos. Therefore, Plaintiffs’ Motion for Summary Judgment is Denied.

            Plaintiffs’ Petition for Writ of Mandate, Writ of Review, Immediate Preemptory Writs of Mandate or Review. This Court holds that it has jurisdiction to proceed to consideration of the Writs requested based on the following rationale. All procedural requirements necessary have been satisfied. Complaint and Application, Affidavit of Anne Hedges. The re-zoning decision on appeal and at issue here was made pursuant to § 76-2-201, MCA, and has no attendant right of appeal under statute. That establishes a preliminary basis to determine that no speedy and adequate remedy at law exists. Section 27-26-102, MCA. As noted in the Court’s introduction, a serious and consequential deadline looms. As noted in the Plaintiffs’ Application for Preemptory Writs, groundbreaking has occurred with construction preliminaries imminent because of that deadline. Given these considerations, no alternative, speedy and adequate remedy is available. Id.

            Another threshold consideration is the application of the Writs requested. This is made more poignant because the Plaintiffs have not sought an injunction or stay (see discussion above). Are these Writs appropriate remedies for the cause at bar?

            The gravamen of Plaintiffs’ Application for either Writ is the contention that the Cascade County Commissioners and their agency arm the Cascade County Planning Board failed to follow proper procedure in granting the request for re-zoning. Plaintiffs rightfully note that the Montana Supreme Court has considered either Writ appropriate in such circumstances. See State ex rel. Christian v. Miller (1976), 169 Mont. 242, 545 P.2d 660, Bryant Developm. Assoc. v. Dagel (1975), 166 Mont. 252, 531 P.2d 1320. Defendants disagree, of course, countering that the re-zoning decision was either a discretionary or legislative act not subject to mandamus or that the decision, being a fait accompli, cannot be undone by mandamus. See State ex rel. Diehl Co. v. City of Helena (1979), 181 Mont. 306, 593 P.2d 458, Greens at Ft. Missoula, UC v. City of Missoula (1995), 271 Mont. 398, 897 P.2d 1078, State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 684 P.2d 495, State ex rel. Popham v. Hamilton City Counsel 1979), 185 Mont. 26, 604 P.2d 312.

            There are distinct strengths and weaknesses to applying the two lines of precedent. Considering those substantive allegations of procedural error promulgated by the Plaintiffs, in particular the Public’s Right to Know, Article II, Section 9 of the Montana Constitution, and the Public’s Right to Participate, Article II, Section 8 of the Montana Constitution, the balance is tipped heavily by those Constitutional Rights and, therefore, this Court holds that the Writs are properly before the Court. In reaching that holding, this Court relies upon Kadillak v. Anaconda Co. (1979), 184 Mont. 127, 602 P.2d 147, Christian v. Miller, supra. Now, the question becomes whether they should issue?

            A detailed analysis of that question is contained in the paragraphs which follow. Each attempts to address counts and arguments raised by Plaintiffs in their Writ Applications. The Court notes candidly that it has not addressed each and every argument or sub-argument. Some of those might be considered substantive by an objective eye possessed with either infinite time or a more comprehensive factual record. Having neither of those blessings, all exclusions were consciously made. Given the four corners of the Writ Applications and the facts available, a global perspective emerged from the record, which this Court believes and holds answers the considerations at issue.

            1.        First and foremost is the necessity to review the interplay of a Location Conformance Permit (hereinafter “LCP”) and the zoning change at issue here. The Court notes that the SME letter indicates that only item #1 relates to the rezoning while the remainder relate to the LCP. The LCP and the rezoning consideration are at one and the same time independent, yet tandem processes. Testimony, Mr. Clifton, November 26, 2008 hearing (hereinafter “Clifton”). Independent because the LCP is designed to respond to public concerns raised during both the Planning Board process (the Staff Report) and the Cascade County Commissioners’ review of its Planning Board recommendations (the Agenda Action Report) and holding of public hearings regarding the Planning Board recommendation. Clifton.

            They are independent in that the rezoning is made with these separate LCP considerations in mind, thus the Cascade County Commissioners’ constant reference to the eleven SME conditions, but that rezoning decision is made and final before the LCP is actually issued. As noted, “it (the LCP) is a final step we use to ensure that there is compliance with all concerns raised in the public process.” Clifton.

            As will be discussed below in more detail, the Plaintiffs repeatedly characterize the Cascade County Commissioners’ decision as an act of “conditional zoning.” In doing so, they reference these eleven SME conditions. In fact, there is only one condition related to rezoning and the rest relate to the LCP. The one outstanding has to do with limitation of the rezoning to the HGP facility. (See SME letter reproduced below) Staff Report, p. 17, ¶ 9. As indicated by the staff, zoning is not required for such a plant because “electrical generation facilities are appropriate land uses within the agricultural zoning district.” Id. The key for rezoning was the “character” of the current land uses. Id. Only the HGP would be within that character. Id. Consequently, SME addressed one condition to that land character issue and the rest to the LCP.

            2.        Probably the most oft repeated and relied upon argument of the Plaintiffs is that “material elements of the proposed zoning regulations . . . were not on file for public inspection.” App., p. 15, passim. This allegation implicates the Article II, Sections 8 and 9 rights mentioned above, as the Montana Supreme Court has ruled that the right to participate is dependent on the fulfillment of the right to know. Bryan v. Yellowstone Co. Elem. Schl. Dist., 2002 MT 264, ¶¶ 43-46, 312 Mont. 257, 60 P.3d 381. In other words, if there is a violation of the right to know, the right to participate becomes a paper tiger, a mere formality. Id.

            The material element referred to by Plaintiffs is a letter written by Defendant SME to Brian Clifton, Cascade County Planning Department Director, dated January 9, 2008. As the contents of this letter are crucial to all considerations, it is reproduced here:

 

Dear Mr. Clifton:

 

            This letter responds to issues which have arisen in connection with the rezoning application referenced above. All of these issues concern the location conformance permit, with the exception of one, which regards the rezoning.

 

            In response to these issues, SME provides the following representations.

 

1. SME agrees, as a condition of rezoning to heavy industrial use, that such use shall be solely for purposes of an electrical power plant.

 

2. SME agrees, as a condition to issuance of the location conformance permit, to enter into a mutual aid agreement for fire protection with the City of Great Falls.

 

3. SME agrees, as a condition to issuance of the location conformance permit, to install a state of the art internal emergency fire suppression system.

 

4. SME agrees, as a condition to issuance of the location conformance permit, to train and staff its own internal fire response team.

 

5. SME agrees, as a condition to issuance of the location conformance permit, to develop and work with the County in finalizing a traffic mitigation plan for Salem Road.

 

6. SME agrees, as a condition to issuance of the location conformance permit, to maintain Salem Road during construction in accordance with and as required by County standards.

 

7. SME agrees, as a condition to issuance of the location conformance permit, to pave Salem Road to County standards, within one year of substantial completion of the construction of Highwood Generating System. SME further agrees that it will execute an irrevocable letter of credit, or other similar financial instrument, as security for the agreement to pave the road.

 

8. SME agrees, as a condition to issuance of the location conformance permit, to comply with all local, state and federal laws, rules and regulations which relate to the location conformance permit.

 

9. SME agrees, as a condition to issuance of the location conformance permit, to develop and work with the County in finalizing a landscaping plan which complies with the County’s landscaping regulations and which may, as directed by the County, consider issues of visual impact.

 

10. SME agrees, as a condition to issuance of the location conformance permit, to develop and work with the County in finalizing a mitigation plan to reduce glare.

 

11. SME agrees, as a condition to issuance of the location conformance permit, to develop and work with the County in finalizing a mitigation plan to reduce noise.

 

            SME will present testimony and documentation on each of these areas as the rezoning hearing on January 15. In particular, City of Great Falls Fire Chief Randy McCamley will speak about fire safety and his department’s plan for fire protection services to SME. He will also be submitting a letter to the same effect. Construction-related issues will be addressed by Stanley Consultants. SME’s landscape architect will present the landscaping plan

 

Sincerely,

 

Tim Gregori

SME General Manager

 

 

            The Plaintiffs repeatedly characterize the information in this letter as a “proposal to add eleven conditions to the proposed rezoning”, Plaintiffs’ Brief in Support of Summary Judgment, p. 26, passim. Consequently, the “conditions” set forth must be traced to determine their existence or lack thereof in the entirety of the planning process and the Cascade County Commissioners’ decision making.

            The Planning Board Staff Report (to the Planning Board) and the Agenda Action Report (from the Planning Board to the Cascade County Commissioners) both contain identical language relevant to Plaintiffs’ contentions. Each and every matter raised in the letter was a direct response to matters articulated in the Staff Report and the Agenda Action Report and relevant to the LCP, but #1 (about which, see discussion above). As the language of the Planning Board staff specifically and forthrightly indicates, SME had to respond to the conditions outlined.

            1.        Sole Purpose. See p. 17, ¶ 9, p 10; p. 18, p 12.

            2 - 4.  Fire Protection, Response, & Suppression. See p. 14, ¶ 3.

            5 – 7. Road Mitigation, Construction, and Paving. See p. 13, ¶ 2, p. 16, ¶ 8, p. 14, ¶4.

 

            8.        Laws, Rules, & Regulations. See p. 15, ¶ 4.

            9.        Landscaping. See p. 15, ¶ 4.

            10.      Glare. See p. 15, ¶ 5.

            11.      Noise. See p. 15, ¶ 4.

            Thus, to say that the eleven “conditions” were “not available to the public, the Planning Department or the Planning Board”, Writ. P. 16, ¶ 30, is incorrect, unless, of course, they were not “on file with the Clerk and Recorder”, CCZR, § 14.2.1.4.

            Testimony by Ms. Sickels, Deputy Clerk and Recorder, at hearing on November 26, 2008 clearly and convincingly demonstrates that the Staff Report and the Agenda Action Report, hence the staff articulated conditions deemed necessary in the LCP process, were on file with the Cascade County Clerk and Recorder. Ms. Sickels’ Testimony (hereinafter “Sickels”). This was affirmed by Mr. Clifton. Clifton.

Plaintiffs make much of whether such documents were “on file” because they were not stamped “filed.” As noted in testimony, the Clerk and Recorder policy was that reports of this nature (as opposed to deeds, etc.) were not stamped “filed.” Sickels. They were “filed” however for purposes of public viewing. Sickels. Testimony revealed that Ms. Sickels was well aware of the public interest, specifically notified the staff of the receipt of the documents, where they were located (her desk), and was prepared to make them available on request. Id.

            3.        Plaintiffs’ next contention is that “the Planning Board did not make a written report of its recommendation to the County Commissioners, nor did the Planning Board adopt the Staff Report as its report or findings in regard to the zone change.” Writ, p. 16, ¶ 31, p. 22, ¶ 48. This is a most curious argument. The Planning board did produce and promulgate to the public a “Staff Report”, as Plaintiffs acknowledge elsewhere. Anne Hedges Second Affidavit, p. 2, ¶ 9. Plaintiffs certainly rely on that Staff Report themselves, Writ, ¶¶ 22-24, ¶¶ 26-27, passim, to raise substantive issues in direct reference to the Cascade County Commissioners’ decision to rezone, in particular their contention that the staff imposed “conditions” which created, in Plaintiffs’ eyes, “conditional rezoning.” In the Second Affidavit of Anne Hedges, she states: “. . . Cascade County Planning staff prepared Agenda Action Reports for the County Commission meetings which contained identical language to the Staff Report . . ..” Anne Hedges Second Affidavit, p. 3. Plaintiffs clearly understood this report to be the product of and therefore the recommendation of the Planning Board. As Mr. Clifton testified, this was a volunteer board that may not have dotted every “I” or crossed every “t”, but they clearly adopted the Staff Report and recommended its content and conditions to the Cascade County Commissioners. Clifton.

            Plaintiffs next contend that testimony and documentation regarding each of these areas, which SME stated would be presented to the Cascade County Commissioners at hearing, were not available to the public, the Planning Department or the Board. This misconstrues the nature of a public hearing and, particularly, the LCP process. Such evidence and testimony is exactly the purpose of hearings. The Staff Report/Agenda Action Report language makes clear the issues which must be addressed with regard to noise, fire prevention, glare, etc. They were not a surprise to Plaintiffs. They make clear the old saying that the “devil is in the detail.” It is important to note again, with regard to that detail, that every “condition” but one related to the location conformance permit. As stated by the staff, this required review and approval prior to the LCP’s final issuance, Staff Report, p. 14, ¶ 3, yet the rezoning would be completed prior to that issuance. Clifton..

            A further aspect of this contention is that the final Cascade County Commissioners’ motion made no reference to either the eleven “conditions” or standards and procedures for adoption and enforcement of the “conditions.” Writ, p. 28, ¶ 65. However, that contention relies solely on one paragraph of the motion. Their resolution contains much more than the paragraph presented, Writ, p. 28, ¶ 64. It also contained numerous “Whereas” clauses which laid out the specific grounds relied upon for final adoption. Those grounds included a “written report” to the Commissioners (the Agenda Action Report). That written report, as outlined above, articulated fully and completely the “conditions” and, particularly, the procedures for adoption and enforcement of them, the LCP. Review of the staff language and its relation to the LCP is critical here. This Court specifically holds that such language and its relationship to the LCP, address the conditions, procedure, and enforcement, e.g. the LCP was the procedure and the hammer of enforcement! The Motion to Approve the Resolution of Intent to rezone articulated the eleven conditions in SME’s letter. This Court’s fundamental holding is that the SME letter/conditions were mere reiterations of the Planning Board’s LCP requirements as outlined above.

            4.        Next, Plaintiffs argue that this action by the Cascade County Commissioners was “conditional” zoning. Writ, p. 28, ¶ 66. Such a claim has required this Court to use that term in this Order with quotation marks, advisedly as it were. While Plaintiffs do not hesitate to cite cases or argument in support of other arguments, here there is only the bold assertion. What zoning worth its salt would proceed without consideration of fire, glare, noise, traffic, etc.? These “conditions” were in fact responses to considerations specifically required by the CCZR through the LCP process. While those CCZR may not allow for “conditional zoning” in the Plaintiffs’ words, they certainly require consideration of each and every factor addressed through the LCP process. See CCZR.

            5.        Plaintiffs contend that the required public notices of the boundaries of the proposed district were “erroneous and misleading”, citing CCZR, § 14 and § 76-2-205, MCA. Writ App., p. 15, ¶ 21. Specifically, the published notices do not “include” a half section of land that is part of the application project.

            Plaintiffs are correct to an extent. The official Notice of Public Hearing (see Exhibit “A”, attached hereto and incorporated by reference) published by the Planning Board and the Cascade County Commissioners does erroneously leave out Section 24, W ½ in one part of the announced property descriptors. However, the published descriptions contain two additional descriptors which include the allegedly missing ½ section. This Court holds that this is not “a major discrepancy”, Writ, p. 15, ¶ 29.

It is important to note here that this Court has conducted several hearings in this matter. This Court specifically and repeatedly provided the Plaintiffs with opportunities to present any factual evidence necessary for their contentions. Plaintiffs did not offer any evidence that they protested during either the Planning Board process or the Cascade County Commissioners’ decision process that the published “boundary” notices made it impossible for them to be aware of the property at issue in the rezoning. Using a fine tooth comb after the process does not create a legally sufficient basis for objecting in a timely manner. Consequently, this Court holds that the language of the Public Notice and the legal descriptions are sufficient for purposes of satisfying the CCZR and for informing the public of what land was at issue. They are not perfect but they comprise substantial compliance. See Dover Ranch v. County of Yellowstone (1980), 187 Mont. 276, 280, 609 P.2d 711, 714.

            6.        No letter signed by a landowner in the rezone area. Writ, p. 24, ¶ 52. Here Plaintiffs mix the “Application” requirement with the SME letter of January 9, 2008 and its “conditions.” The Application does have the letter required. Application 1), Urquhart letter.

7.        Without explication or facts, Plaintiffs state that some people were not allowed to protest during the rezoning process and this implicates and corrupts the change in zoning. Writ, p. 20, ¶ 42, p. 23, ¶ 51. However precisely which additional landowners were thus disenfranchised is not argued.

This Court has previously ruled and holds in this case that the following ruling by the Montana Supreme Court is applicable to filings in the District Court. As the Montana Supreme Court has stated, “it is fundamentally unfair to fault a trial court for failing to rule correctly on an issue that it was never given the opportunity to consider.” Matter of T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, 54 P.3d 38. If this Court has never had an opportunity to consider facts, authority or analysis for the position advanced, it follows logically that it has never been given the opportunity to craft a considered ruling on the merits. Again, given the opportunity to present facts, the Plaintiffs did not substantiate this claim. Thus, this contention is rejected for lack of support, foundation, and argument.

8.        The Planning Board did not “adopt the Staff Report as its report or findings.” Writ, p. 22, ¶ 48. Given the analysis presented above that the Staff Report was identical, for all intents and purposes on the issues to be addressed by this Court, as the Agenda Action Report and was presented to the Cascade County Commissioners by the Planning Director, this argument is without merit. See Agenda Action Report, p. 1, p. 2, ¶ 8. Additionally, Mr. Clifton unequivocally testified that the Board adopted the report. Clifton.

9.        The rezoning decision was not made in accordance with the mandatory criteria for amending a zoning district. Writ, pp. 24-27, ¶ 59. As noted by the Plaintiffs in their Application, the Montana Supreme Court has required consideration of a twelve-step analysis. Little v. Flathead Co., (1981), 193 Mont. 334, 352, 631 P.2d 1282, 1292. Even the most cursory review of the Planning Staff Report and the subsequent Agenda Action Report shows that Plaintiffs are in error where they claim “the zone change will not secure safety from fire, panic and other dangers”, Writ, p. 26, ¶ 59. See analysis above, ¶ 2. The same with provision of adequate light and air, over crowding, undue concentration of population, etc. Id. Giving the Plaintiffs’ argument the most possible credence, the legal question from Little and other precedent is whether the twelve-step test and the CCZR were considered. The Staff Report clearly and convincingly establishes they were considered, Id., and this Court so holds.

10.      Plaintiffs next argue that the zoning decision was “Spot Zoning.” Writ, p. 29, ¶ 68, f.f. There is a three-part test established by the Montana Supreme Court to determine if, in fact, spot zoning occurred. Little, supra. The first part is change of use. Unquestionably, there is a change of use but the Plaintiffs failed to draw to the Court’s attention or to distinguish the Staff Report and the Agenda Action Report conclusions that “the construction of the HGS is permitted within the existing A-2 zoning district with the approval of a special use permit and the conversion to I-2 is not necessarily incongruous with the allowable land uses.” Agenda Action Report, p. 11. (emphasis added) Further, the Report states: “When the county adopted its countywide zoning, the county determined that electrical generation facilities are appropriate land uses within the Agricultural zoning district . . . converting the subject property to I-2, so long as it is limited to the HGS facility, would not be significantly different than allowing such a facility in the existing A-2 district with a special use permit.” Id., pp. 12-13.

Thus, while the coal fired plant will be a different use than agricultural, it certainly was already permissible in that agricultural area prior to the rezoning request. Thus, spot zoning is not implicated in this case.

11.      Size of Area is the second criteria. Writ, p. 30 f.f., ¶¶ 73 f.f. On the surface, Plaintiffs appear to have a compelling argument. The proposed rezone area would comprise “less than .05% of the total Zoning District area, Writ, p. 31, ¶ 75, and it looks to benefit only one landowner which is now SME. See Greater Yellowstone Coalition v. Bd. Of Co. Commiss. Of Gallatin Co., 2001 MT 99, 305 Mont. 232, 25 P.3d 168. However, this zoning “change” was not required for the intended uses. Agenda Action Report, p. 11. Consequently, no spot zoning occurred where such use was already allowed by existing zoning regulations. Id.

12.      Special Legislation. As noted by the Court in Little, if the zoning request benefits one or a few landowners at the expense of others and if the requested use is inconsistent with the comprehensive land use plan, then it is spot zoning. Little at 347, 631 P.2d at 1290. Taking the latter issue first, the use was totally consistent with the existing land use plan. Agenda Action Report, p. 11, passim.

A truly substantive argument of the Plaintiffs is that one landowner (be it viewed as either SME, the current deed holder, or the Urquharts, the applicants) will benefit at the expense of others. That expense is not merely the location of a power plant in the “Back 40” but the power lines, rail spurs, and other industrial detritus of a large, power generating facility. As noted at hearing, these accessory impacts will be imposed on some landowners by way of eminent domain. Writ, p. 12, ¶ 21. To that extent, this aspect of the Little test distinctly favors Plaintiffs’ position.

As noted, the Court concludes this last aspect of the Little test indicates special legislation, thus spot zoning. The others distinctly do not. The Court resists the temptation to take the global view of Plaintiffs or of the Defendants regarding the benefits or detriments of a coal fired power plant but looks to the very persuasive conclusions that this zoning change was in name only and did not change the uses allowed under existing Cascade County Master Planning, this was not spot zoning and this Court so holds.

13.      Findings of Fact. Plaintiffs reiterate several times that the Cascade County Commissioners failed to make findings of fact and that the two reports did not contain such findings. Both reports contain extensive analysis and facts. While not labeled as such, they clearly and convincingly have provided more than sufficient basis to facilitate this judicial review, and this Court so holds.

14.      Cascade County Commissioners’ failure to consider public comments and to evaluate within the framework of the CCZR. The Cascade County Commissioners clearly and convincingly adopted the Agenda Action Report which incorporated issues within the requirements of the CCZR. As indicated by testimony of the Cascade County Planning Director, Mr. Clifton, at hearing on November 26, 2008, public comments were incorporated into the final requirements for a Location Conformance Permit and the zone change. The LCP was the framework and it was integral to the Cascade County Commissioners’ decision.

15.      Documentation submitted at Cascade County Commissioners’ hearing was required to be submitted ahead of time. Writ, p. 37-38, ¶ 93. Plaintiffs have made no showing to this Court that they requested a delay in consideration by the Cascade County Commissioners due to such submissions. Failure to object at the time is a tough hurdle for Plaintiffs. More importantly, the LCP process was the focus of the documentation submitted as they referenced the “conditions.” Plaintiffs have made no showing that they were excluded from that process.

16.      As noted, a zoning change was not even required. The zone change was requested pursuant to Montana statute allowing for tax increment financing. Staff Report, p. 17, ¶¶ 9-10. See § 7-15-4282, et seq., MCA.

Given the Findings of Fact and Conclusions of Law reached above, the Application for Writ of Mandamus is Denied. The Application for Writ of Review is Denied. The Applications for Preemptory Writs are Denied.

            The Clerk of Court is directed to file this Order On Motions For Summary Judgment And Writ of Mandamus/Writ of Review and provide copies to counsel of record.

            DATED this 28^th day of November 2008.

________________________________

DISTRICT COURT JUDGE

Hon. E. Wayne Phillips

P. O. Box 1124

Lewistown, Montana 59457

Telephone:   (406) 535-8028

Facsimile:    (406) 535-6076

 

c:         Robert M. Sullivan, Esq. and John F. Lacey, Esq.

c:         Elizabeth A. Best, Esq.

c:         Alan F. McCormick, Esq.

c:         Brian Hopkins, Esq.

c:         Gary M. Zadick, Esq. and Mary K. Jaraczeski, Esq.                                    ADV-08-480.b