Williams v. Board of County Commissioners , 371 Mont. 356 ( 2013 )

August 28 2013
DA 12-0343
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 243L. REED WILLIAMS,
Plaintiff and Appellee,
v.
BOARD OF COUNTY COMMISSIONERS OF MISSOULA COUNTY,
the governing body of the County of Missoula, acting by and
through Michele Landquist, Bill Carey and Jean Curtiss,
Defendants and Appellees,
LIBERTY COVE, INC., PAUL ROSSIGNOL, NORMA ROSSIGNOL,
and PONDEROSA DEVELOPMENT, INC.,
Intervenors and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-10-673
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Intervenors and Appellants:
Cory R. Gangle (argued); Gangle Law Firm, P.C.; Missoula, Montana
For Appellee L. Reed Williams:
Timothy M. Bechtold (argued); Bechtold Law Firm, PLLC;
Missoula, Montana
For Appellee Missoula County:
Fred Van Valkenburg; Missoula County Attorney; D. James McCubbin
(argued); Deputy County Attorney; Missoula, Montana
For Amicus Land Use Clinic:
Michelle Bryan Mudd, Benjamin S. Sudduth (argued); University of
Montana School of Law; Missoula, Montana
For Amicus State of Montana:
Timothy C. Fox; Montana Attorney General; Lawrence Vandyke (argued);
Montana Solicitor General; Helena, Montana
Argued: April 17, 2013
Submitted: April 23, 2013
Decided: August 28, 2013
Filed:
__________________________________________
Clerk
2
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Liberty Cove, Inc., Paul and Norma Rossignol, and Ponderosa Development, Inc.
(collectively “Landowners”) utilized the protest provision of § 76-2-205(6), MCA, to
block the Board of County Commissioners of Missoula County (Commissioners) from
establishing a special zoning district north of Lolo, Montana. L. Reed Williams
(Williams) challenged the constitutionality of § 76-2-205(6), MCA, by filing a complaint
against Commissioners in Montana’s Fourth Judicial District Court, Missoula County,
seeking declaratory and injunctive relief. Landowners intervened in the action at the
District Court and now appeal from the District Court’s order denying their motion to
dismiss and granting summary judgment to Williams and Commissioners. We affirm.
ISSUES
¶2 We restate the four issues raised by Landowners on appeal as follows:
¶3 1. Did the District Court abuse its discretion in denying Landowners’ motion to
dismiss Williams’ complaint for failure to join them as necessary parties under the
Montana Uniform Declaratory Judgments Act?
¶4 2. Did the District Court err in determining that § 76-2-205(6), MCA, was an
unconstitutional delegation of legislative power?
¶5 3. Did the District Court err in determining that § 76-2-205(6), MCA, was an
unconstitutional violation of the right to equal protection and the right to suffrage?
¶6 4. Did the District Court err when it ruled that § 76-2-205(6), MCA, was
severable from the remainder of the statute?
FACTUAL AND PROCEDURAL BACKGROUND
3
¶7 On September 8, 2009, Commissioners and the Lolo Community Council held a
joint public meeting to solicit public testimony concerning the development of a zoning
proposal for an area north of Lolo, Montana. Public testimony at this meeting indicated
that support existed for the development of a zoning proposal. Following the joint public
meeting, Commissioners directed their staff to work with residents and landowners to
create a proposal to replace the North Lolo Interim Zoning Plan. Three draft alternative
plans were presented at public meetings on January 30, February 3, and February 9, 2010.
Based on comments received on the alternative plans and additional staff review,
Commissioners issued the Planning Board Public Hearing Draft on February 25, 2010,
for public comment.
¶8 The proposed North Lolo Rural Special Zoning District consisted of 422 acres of
land north of Lolo and west of U.S. Highway 93. Agricultural and forest land comprised
223 acres in the district. Prior to 2008, this area had been unzoned. On May 30, 2008,
Commissioners enacted interim zoning to address public health and safety issues
associated with a gravel mining and asphalt production operation proposed by Liberty
Cove, Inc., who is one of the parties referred to as Landowners in the instant case. We
previously upheld these interim zoning regulations as lawful in Liberty Cove, Inc. v.
Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617.1 Commissioners
1
Liberty Cove challenged the interim zoning on three grounds: (1) Whether the District Court
erred in concluding there was an emergency to justify interim zoning; (2) Whether the District
Court erred in concluding that Missoula County gave proper notice before adopting interim
zoning; and (3) Whether the District Court erred in concluding that the interim zoning adopted
by Missoula County did not constitute illegal reverse spot zoning. We affirmed the District
Court on all three issues and upheld the interim zoning.
4
extended the one-year interim zoning in 2009, but the interim zoning was set to expire on
May 30, 2010. The proposed North Lolo Special Zoning District would have replaced
the interim zoning and continued to prohibit sand and gravel mining and concrete and
asphalt operations within the district.
¶9 Legal notice concerning the North Lolo Growth Policy Amendment and North
Lolo Rural Special Zoning District was published on multiple occasions in Missoula
newspapers, posted in five locations, mailed to property owners in and near the proposed
district, and emailed to interested members of the public in the Lolo area. The Missoula
Consolidated Planning Board held public hearings on March 16 and 23, 2010, and
recommended approval of the proposed zoning amendment and special zoning district to
Commissioners on a 5 to 1 vote.
¶10 On April 7, 2010, Commissioners held a public hearing and passed “A Resolution
of Intention to Adopt Amendments to the 2002 Lolo Regional Plan as an Amendment to
the Missoula County Growth Policy 2005 Update.” Commissioners published notice in
accordance with § 76-2-205(5), MCA, on April 15, 2010. The publication included
notice that the written protest period provided for in § 76-2-205(6), MCA, would expire
in 30 days. Section 76-2-205(6), MCA, is a protest provision that allows landowners to
prevent the board of county commissioners from adopting a zoning resolution when
protests are received from one of the following two groups: (1) 40 percent of the real
property owners within the district; or (2) real property owners representing 50 percent of
property taxed for agricultural purposes or as forest land in the district. When a
successful protest is received, it prevents the board of county commissioners from
5
proposing any further zoning resolutions with respect to the subject property for one year.
Section 76-2-205(6), MCA.
¶11 On April 20, 2010, five landowners2 who together owned more than 50 percent of
the agricultural and forest land within the district filed a written protest. All parties agree
that these landowners owned the requisite acreage to effectively block the zoning
proposal pursuant to § 76-2-205(6), MCA.
¶12 On May 14, 2010, Williams filed a complaint in District Court against
Commissioners. Williams requested that the District Court declare that the protest
provision of § 76-2-205(6), MCA, was unconstitutional because it violated equal
protection, due process, and voting rights. Williams also asked for a temporary
restraining order and preliminary and permanent injunctions preventing Commissioners
from taking any action pursuant to the allegedly unconstitutional protest provision.
¶13 On May 20, 2010, Commissioners filed an answer. Commissioners agreed with
Williams that § 76-2-205(6), MCA, was unconstitutional for the reasons set forth by
Williams. However, Commissioners admitted that they would apply the protest provision
to prevent adoption of the zoning regulations absent an order from the District Court
directing otherwise.
¶14 Without objection from Commissioners, the District Court issued an order for a
preliminary injunction on May 21, 2010. The order enjoined Commissioners from taking
any actions based on § 76-2-205(6), MCA, but permitted Commissioners to proceed in
2
Four of these five landowners are the Appellants in this case, designated “Landowners.”
6
accordance with the remaining provisions of § 76-2-205, MCA. On May 26, 2010,
Commissioners adopted the North Lolo Rural Special Zoning District.
¶15 Landowners filed an unopposed motion to intervene on May 24, 2010. The
District Court granted Landowners’ motion to intervene on May 28, 2010. Next,
Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss on June 3, 2010, arguing
that Williams failed to join all of the proper parties pursuant to M. R. Civ. P. 19, which
governs joinder of required parties, and Montana’s Uniform Declaratory Judgments Act
(UDJA), § 27-8-301, MCA, which requires inclusion of all parties who have an interest
which would be affected by the declaration.
¶16 On July 14, 2010, Williams filed a motion for summary judgment. Williams’
motion for summary judgment sought a declaration from the District Court that the
protest provision of § 76-2-205(6), MCA, was an unconstitutional violation of equal
protection and voting rights. Williams requested permanent injunctive relief to prevent
Commissioners from enforcing the protest provision. Commissioners agreed that
§ 76-2-205(6), MCA, was unconstitutional and they supported issuance of a permanent
injunction. On September 21, 2010, Commissioners filed a separate motion for summary
judgment, challenging the constitutionality § 76-2-205(6), MCA, as an unconstitutional
delegation of legislative power.
¶17 On July 23, 2010, Landowners filed a motion to stay summary judgment
proceedings pending the District Court’s disposition of their motion to dismiss.
Landowners filed an application to quash, vacate and dissolve the preliminary injunction
on August 30, 2010. On October 15, 2010, Landowners filed a motion to quash
7
Commissioners’ motion for summary judgment, arguing that Commissioners’ motion
addressed matters outside the pleadings, and that Commissioners and Williams lacked
standing to challenge the constitutionality of § 76-2-205(6), MCA, on the grounds that it
represented an unconstitutional delegation of legislative power. In response to Williams’
and Commissioners’ motions for summary judgment, Landowners maintained that the
protest provision was constitutional.
¶18 On February 2, 2011, Williams filed a motion for leave to amend his complaint to
add the claim that § 76-2-205(6), MCA, constituted an unconstitutional delegation of
legislative power. Williams alleged that this claim was merely a new theory of recovery
that arose from the same set of facts contained in the original complaint. The District
Court granted Williams’ motion to amend his complaint on April 18, 2011.
¶19 On April 5, 2012, the District Court issued its order addressing all of the
outstanding and fully briefed motions. The District Court denied Landowners’
M. R. Civ. P. 12(b)(7) motion to dismiss, denied Landowners’ application to quash,
vacate and dissolve the preliminary injunction, and denied Landowners’ motion to quash
Commissioners’ motion for summary judgment. The District Court granted Williams’
and Commissioners’ motions for summary judgment and concluded that § 76-2-205(6),
MCA, was unconstitutional on three grounds: (1) it violated the fundamental right to
vote because not all landowners within the district were permitted to participate equally
in the zoning process; (2) it violated equal protection rights because there was no
compelling state interest in providing some landowners with a vote against zoning
regulations while depriving other landowners of the opportunity to vote in favor of the
8
zoning regulations; and (3) it constituted an unconstitutional delegation of legislative
power because it failed to provide any standards or guidelines for the application of a
protest and failed to provide a legislative bypass to allow for review of a protest.
Furthermore, the District Court determined that the protest provision, § 76-2-205(6),
MCA, was severable from the remainder of the statute.
¶20 On May 4, 2012, the District Court entered a final judgment in favor of Williams
and Commissioners. Landowners appeal.
STANDARDS OF REVIEW
¶21 When considering a motion to dismiss based on the assertion that an indispensible
party is absent, the court is given discretion to determine whether the action will proceed
or must be dismissed. Blaze Constr. v. Glacier Elec. Coop., 280 Mont. 7, 10, 928 P.2d
224, 225 (1996); Mohl v. Johnson, 275 Mont. 167, 169, 911 P.2d 217, 219 (1996). We
review such discretionary rulings for an abuse of discretion. Blaze Constr., 280 Mont. at
10, 928 P.2d at 225; Mont. Rail Link v. Byard, 260 Mont. 331, 337, 860 P.2d 121, 125
(1993).
¶22 We review a district court’s ruling on a motion for summary judgment de novo,
applying the same criteria of M. R. Civ. P. 56 as the district court. Steichen v. Talcott
Props., LLC, 2013 MT 2, ¶ 7, 368 Mont. 169, 292 P.3d 458; Brown & Brown of MT, Inc.
v. Raty, 2012 MT 264, ¶ 17, 367 Mont. 67, 289 P.3d 156. Summary judgment “should be
rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).
9
¶23 This Court’s review of constitutional questions is plenary. Walters v. Flathead
Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality
of a statute is a question of law, and we review a district court’s legal conclusions for
correctness. Walters, ¶ 9. Legislative enactments are presumed to be constitutional, and
the party challenging the provision bears the burden of proving beyond a reasonable
doubt that it is unconstitutional. DeVoe v. City of Missoula, 2012 MT 72, ¶ 12, 364
Mont. 375, 274 P.3d 752; State v. Ergdorf, 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d
517.
¶24 The severability of an unconstitutional provision from a statute is a matter of
statutory interpretation. See Finke v. State ex rel. McGrath, 2003 MT 48, ¶¶ 25-26, 314
Mont. 314, 65 P.3d 576. We review a district court’s interpretation of a statute for
correctness. Blanton v. Dep’t of Pub. HHS, 2011 MT 110, ¶ 21, 360 Mont. 396, 255 P.3d
1229; Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 24, 358 Mont. 474, 247 P.3d
244.
DISCUSSION
¶25 Did the District Court abuse its discretion in denying Landowners’ motion to
dismiss Williams’ complaint for failure to join them as necessary parties under the
Montana Uniform Declaratory Judgments Act?
¶26 When Williams filed his initial complaint on May 14, 2010, seeking declaratory
relief pursuant to the UDJA, he did not include Landowners as parties to the action.
Landowners claim that they were “necessary parties” to Williams’ action because their
interests as protesting property owners would be affected by the District Court’s
declaration as to the constitutionality of § 76-2-205(6), MCA. Landowners moved to
10
intervene on May 24, 2010, and the District Court granted Landowners’ motion on May
28, 2010. However, by the time Landowners were allowed to intervene, the District
Court had already granted Williams’ request for a preliminary injunction.
¶27 On June 3, 2010, Landowners filed a M. R. Civ. P. 12(b)(7) motion to dismiss
premised on Williams’ failure to join all of the proper parties. Landowners asserted that
both M. R. Civ. P. 19 and the UDJA required that Landowners must be included as
parties to Williams’ action. The District Court discussed the application of M. R. Civ. P.
19(a)(1), and determined that “[a]lthough Intervenors [Landowners] may have an interest
in the instant action, their interest is not one that is within the provisions of Rule
19(a)(1).” The District Court reasoned that Williams’ action was a constitutional
challenge to the protest provision of a zoning statute and not a property rights dispute.
After concluding that it was not mandatory under M. R. Civ. P. 19(a)(1) to join
Landowners, the District Court denied Landowners’ motion to dismiss. The District
Court noted that “as property owners with an interest in the constitutionality of the zoning
statute at issue, Intervenors [Landowners] were properly granted leave to intervene.”
¶28 While the District Court’s decision on Landowners’ motion to dismiss addressed
the matter in the context of M. R. Civ. P. 19, it is completely bereft of any analysis of
necessary parties under the UDJA. On appeal, Landowners do not challenge the District
Court’s conclusions concerning M. R. Civ. P. 19. Instead, they assert that the District
Court abused its discretion by failing to consider that Landowners were necessary parties
under the UDJA.
11
¶29 Section 27-8-301, MCA, governs “necessary parties” to an action brought under
the UDJA and provides as follows:
When declaratory relief is sought, all persons shall be made parties who
have or claim any interest which would be affected by the declaration, and
no declaration shall prejudice the rights of persons not parties to the
proceeding.
A court’s decision as to whether a non-party must be included in a matter depends on the
facts and circumstances of the particular case in question. John Alexander Ethen Trust
Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 49, 361 Mont. 57, 256 P.3d
913.
¶30 John Alexander Ethen Trust Agreement involved a boundary dispute between
neighboring property owners. One of the property owners attempted to invalidate the
trial court’s decision concerning the location of the property boundary for failure to join
an indispensable party. John Alexander Ethen Trust Agreement, ¶ 22. The property
owner argued that other neighboring landowners who owned parcels along the same
creek and whose property was divided by the same survey were indispensible. John
Alexander Ethen Trust Agreement, ¶ 52. This Court disagreed, reasoning that while the
other neighboring landowners had an interest in the interpretation of the surveys, they
held no legal interest in the disputed acreage at issue in the case. John Alexander Ethen
Trust Agreement, ¶ 52. Since the only boundary in dispute in the case was between the
two parties to the action and the decision would not determine the rights of any other
neighboring landowners, we held that the trial court did not abuse its discretion in
12
declining to join the neighboring landowners. John Alexander Ethen Trust Agreement,
¶ 52.
¶31 Williams commenced the action in District Court in direct response to
Landowners’ use of the protest provision to prevent Commissioners from adopting the
proposed North Lolo Rural Special Zoning District. As the parties who exercised their
rights under the protest provision, Landowners had a clear interest in the outcome of the
District Court’s declaration concerning the constitutionality of § 76-2-205(6), MCA. If
the District Court declared the protest provision unconstitutional, Landowners’ property
would be zoned according to the proposed North Lolo Rural Special Zoning District, and
Landowners’ use of their property would be limited. On the other hand, if the District
Court declared that the protest provision was constitutional, Landowners’ property would
remain unzoned and they would be permitted to develop their property free of regulation.
Unlike in John Alexander Ethen Trust Agreement, Landowners’ legal rights and interests
as protesting property owners were directly at issue in Williams’ lawsuit.
¶32 The absence of Landowners from Williams’ lawsuit created additional problems
likely to result in prejudice. The Commissioners, as the defendants in Williams’ lawsuit,
agreed with Williams that § 76-2-205(6), MCA, was unconstitutional. The Attorney
General was given notice of the constitutional challenge to § 76-2-205(6), MCA, but
declined to defend the statute.3 Accordingly, before Landowners intervened, all of the
parties before the District Court were of the same mind that the protest provision was
3
Though the Attorney General declined to participate in 2010 in District Court, the Attorney
General did participate by filing an amicus curiae brief on appeal and appeared at oral argument
before this Court defending the constitutionality of § 76-2-205(6), MCA.
13
unconstitutional. Allowing the lawsuit to continue in the absence of Landowners and
without the presence any other party similarly situated would likely have prejudiced
Landowners.
¶33 Although we agree with Landowners that they were a necessary party under
§ 27-8-301, MCA, we do not agree with Landowners that the proper remedy for
Williams’ failure to name them as a party in his initial complaint is dismissal.
M. R. Civ. P. 19 is instructive in determining the appropriate remedy when a required
party is absent. Rule 19(a)(2) states that “[i]f a person has not been joined as required,
the court must order that the person be made a party.”
¶34 Here, the District Court granted Landowners’ motion to intervene in the early
stages of the litigation. Landowners fully participated in all substantive briefing
regarding the constitutionality of the protest provision. Even though the District Court
granted a preliminary injunction shortly before Landowners intervened, the preliminary
injunction and the Commissioners’ adoption of the North Lolo Rural Special Zoning
District were subject to the District Court’s later determination of the constitutionality of
the protest provision. Granting the preliminary injunction was necessary to prevent the
issue of the constitutionality of § 76-2-205(6), MCA, from becoming moot. Without the
preliminary injunction, Landowners could have built gravel pits in the interim while the
case was pending before the District Court, thus rendering the question regarding the
validity of the protest provision moot.
¶35 This Court’s adherence to the harmless error doctrine requires that “[a]t every
stage of the proceeding, the court must disregard all errors and defects that do not affect
14
any party’s substantial rights.” M. R. Civ. P. 61; see e.g. Liberty Cove, ¶ 21. Under the
circumstances of this case, we find it unnecessary to dismiss the action in its entirety
because the Landowners cannot demonstrate that their substantial rights were harmed in
any way by Williams’ failure to include them as a party in his original complaint.
Landowners’ timely intervention remedied Williams’ error of failing to initially include
them as necessary parties under the UDJA. We therefore conclude that the District Court
did not abuse its discretion in denying Landowners’ motion to dismiss Williams’
complaint.
¶36 Did the District Court err in determining that § 76-2-205(6), MCA, was an
unconstitutional delegation of legislative power?
¶37 In Montana, the establishment of local zoning districts is governed by statute. A
local zoning district can be created in two different ways: (1) by citizen petition to the
board of county commissioners under § 76-2-101, MCA, known as “Part 1 zoning,” or
(2) directly by the board of county commissioners under § 76-2-201, MCA, referred to as
“Part 2 zoning.” See Helena Sand & Gravel, Inc. v. Lewis & Clark County Planning &
Zoning Comm’n, 2012 MT 272, ¶ 6, 367 Mont. 130, 290 P.3d 691. This case involves
Part 2 zoning pursuant to § 76-2-201, MCA.
¶38 Section 76-2-201, MCA, provides that a board of county commissioners may
adopt zoning regulations “[f]or the purpose of promoting the public health, safety,
morals, and general welfare.” The board of county commissioners is authorized by
§ 76-2-202, MCA, to “regulate the erection, construction, reconstruction, alteration,
repair, location, or use of buildings or structures or the use of land” in zoning districts. In
15
adopting zoning regulations, the board must consider reasonable provision of adequate
light and air, effects of motorized and non-motorized transportation systems, compatible
urban growth in the vicinity of cities and towns, the character of the district and its
peculiar suitability for particular uses, conserving the value of buildings, and encouraging
the most appropriate use of land. Section 76-2-203(2), MCA. Zoning regulations must
be made in accordance with relevant growth policies and must, as nearly as possible, be
compatible with the zoning ordinances of nearby municipalities. Section 76-2-203,
MCA. The county and city-county planning boards serve an advisory role to the board of
commissioners by recommending boundaries and appropriate regulations for the zoning
district. Section 76-2-204, MCA.
¶39 The procedure for establishing district boundaries and adopting or revising zoning
regulations, which includes notice and public hearing requirements, is set forth in
§ 76-2-205, MCA. Section 76-2-205(6), MCA, contains a protest provision that provides
two ways for real property owners within the proposed zoning district to prevent the
board of county commissioners from adopting zoning regulations. The protest provision
reads as follows:
Within 30 days after the expiration of the protest period, the board of
county commissioners may in its discretion adopt the resolution creating
the zoning district or establishing the zoning regulations for the district.
However, if 40% of the real property owners within the district whose
names appear on the last-completed assessment roll or if real property
owners representing 50% of the titled property ownership whose property is
taxed for agricultural purposes under 15-7-202 or whose property is taxed
as forest land under Title 15, chapter 44, part 1, have protested the
establishment of the district or adoption of the regulations, the board of
county commissioners may not adopt the resolution and a further zoning
resolution may not be proposed for the district for a period of 1 year.
16
Section 76-2-205(6), MCA. At issue in this case is the constitutionality of the provision
allowing agricultural and forest landowners representing 50 percent of the titled
agricultural or forest land within the district to block a board of county commissioners
from adopting a zoning resolution and prevent another from being proposed for one year.
¶40 Section 76-2-205, MCA, was originally adopted in 1963. At that time, the statute
contained the language that allowed 40 percent of property owners in a district to protest
the establishment of a zoning district or imposition of zoning regulations and effectively
prevent the board of county commissioners from taking any action. However, the
original version of the statute did not contain the protest provision concerning agricultural
and forest land property owners. In 1995, the Legislature debated and ultimately adopted
the protest provision at issue in this case. Based on the legislative history, Landowners
note that the protest provision was enacted to give large agricultural and forest land
property owners more power in the zoning process, and the ability to protect their
property interests from unwanted regulation by residential property owners who often
greatly outnumber agricultural and forest land property owners in a district.
¶41 Courts have long recognized zoning as a valid form of regulation to promote
public health, safety, and welfare. In Freeman v. Board of Adjustment, 97 Mont. 342,
351, 34 P.2d 534, 536 (1934), this Court noted that when zoning ordinances were first
enacted, they were often challenged as unconstitutionally depriving property owners of
liberty and property without due process of law, or attacked as a violation of equal
protection rights. Back in 1934, the Court recognized that the “modern trend” nationwide
17
was to uphold the validity of such ordinances and the statutes that authorize them.
Freeman, 97 Mont. at 351, 34 P.2d at 537. The Court went on to explain that zoning
statutes and ordinances are “generally sustained upon the theory that they constitute a
valid exercise of the police power; that is to say, they have a substantial bearing upon the
public health, safety, morals and general welfare of a community.” Freeman, 97 Mont. at
352, 34 P.2d at 537 (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114(1926)).
¶42 One important way that zoning promotes public health, safety, and the general
welfare of a community is by separating incompatible land uses, such as industrial and
residential. See Euclid, 272 U.S. at 394, 47 S. Ct. at 120. In Montana, gravel and sand
mining operations present a common example of this conflict between contrary land uses.
The State does not require permitting for certain categories of gravel pits, so counties
must rely on zoning to protect residential areas from the industrial impacts often
associated with gravel and sand mining operations. See § 82-4-431, MCA (providing
limited exemptions from state permitting requirements for mining, processing and
reclamation); see also § 76-2-209, MCA (authorizing reasonable conditions or
prohibitions against sand and gravel mining operations in areas zoned as residential, and
reasonable conditions on operations in areas not zoned residential). This Court has
decided numerous zoning cases in recent years concerning gravel and sand mining
operations. See e.g. Helena Sand & Gravel; Gateway Opencut Mining Action Group v.
Bd. of County Comm’rs, 2011 MT 198, 361 Mont. 398, 260 P.3d 133; Liberty Cove;
Beasley v. Flathead County Bd. of Adjustments; 2009 MT 120, 350 Mont. 171, 205 P.3d
18812; Flathead Citizens for Quality Growth, Inc. v. Flathead County Bd. of Adjustment,
2008 MT 1, 341 Mont. 1, 175 P.3d 282; Merlin Myers Revocable Trust v. Yellowstone
County, 2002 MT 201, 311 Mont. 194, 53 P.3d 1268.
¶43 The instant case is not the first time that the constitutionality of § 76-2-205(6),
MCA, has been questioned before this Court. In Gateway Opencut Mining Action Group,
an advocacy group challenged the protest provision as an unconstitutional delegation of
legislative authority to private parties. However, this Court did not reach the merits of
the constitutional challenge. We determined that the proposed zoning regulations failed
because the board of county commissioners did not act within the statutorily-prescribed
deadlines. Gateway Opencut Mining Action Group, ¶ 24. Therefore, we held that the
constitutional question presented to the Court was moot. Gateway Opencut Mining
Action Group, ¶ 25.
¶44 In Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056 (1960), this Court set forth
the standard for a delegation of legislative power as follows:
The law-making power may not be granted to an administrative body to be
exercised under the guise of administrative discretion. Accordingly, in
delegating powers to an administrative body with respect to the
administration of statutes, the legislature must ordinarily prescribe a policy,
standard, or rule for their guidance and must not vest them with an arbitrary
and uncontrolled discretion with regard thereto, and a statute or ordinance
which is deficient in this respect is invalid.
Bacus, 138 Mont. at 78, 354 P.2d at 1061 (quoting 73 C.J.S. Public Administrative
Bodies & Procedure § 29).
¶45 In the context of zoning, this Court has previously held that a lawful delegation of
legislative authority “must contain standards or guidelines” to inform the propriety of the
19
exercise of that power. Shannon v. City of Forsyth, 205 Mont. 111, 114, 666 P.2d 750,
752 (1983). When no standards or guidelines are present, the exercise of the delegated
power may result in “arbitrary and capricious” actions, “dependent wholly on the will and
whim” of others. Shannon, 205 Mont. at 115, 666 P.2d at 752. The existence of an
appellate body with the power to consider exceptional cases is essential to the proper
exercise of police power. Shannon, 205 Mont. at 115, 666 P.2d at 752. Unlawful
delegations of legislative authority run afoul of the due process guarantees of the
Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the
Montana Constitution. Shannon, 205 Mont. at 114, 666 P.2d at 752.
¶46 In Shannon, mobile home owners filed a petition with the City of Forsyth seeking
a waiver to locate a mobile home in a zoning district which prohibits mobile homes.
Shannon, 205 Mont. at 112, 666 P.2d at 751. The local ordinance required a successful
petition for a variance to include the signatures of at least 80 percent of the landowners
residing within 300 feet of the proposed location of the mobile home and also required
the signatures of all adjoining landowners. Shannon, 205 Mont. at 112, 666 P.2d at 751.
We held that the ordinance was unconstitutional as an unlawful delegation of legislative
authority and police power. Shannon, 205 Mont. at 115, 666 P.2d at 753. We reasoned
that the ordinance provided no standard whatsoever by which to judge the neighbors’
consents. Shannon, 205 Mont. at 115, 666 P.2d at 752. We determined that the
ordinance was arbitrary and capricious because the negative vote by a single adjoining
landowner could defeat the petition. Shannon, 205 Mont. at 115, 666 P.2d at 752.
Additionally, we concluded that the ordinance represented an unwarranted application of
20
police power because the City Council had no power to determine whether a variance
should be granted unless a petition was submitted containing all of the required
signatures. Shannon, 205 Mont. at 115, 666 P.2d at 752-53.
¶47 This Court has struck down several other statutes and ordinances outside the
context of zoning as unconstitutional delegations of legislative authority. See e.g. In the
Petition to Transfer Territory, 2000 MT 342, 303 Mont. 204, 15 P.3d 447 (holding that a
statute giving a superintendent the authority to grant or deny petitions to transfer territory
among school districts was an unconstitutional delegation of legislative power because
the superintendent’s broad discretion was “unchecked by any standard, policy, or rule of
decision”); Ingraham v. Champion Int’l, 243 Mont. 42, 793 P.2d 769 (1990) (deeming a
workers’ compensation statute an unconstitutional delegation of legislative power
because it granted the insurer “absolute discretion” as to what terms, under what
circumstances, and in what amounts a lump-sum conversion payment could occur); In the
Matter of Savings & Loan Activities, 182 Mont. 361, 597 P.2d 84 (1979) (declaring a
statute granting the Department of Business Regulation the power to approve or
disapprove applications for the merger of savings and loan associations was an
unconstitutional delegation of legislative power because it lacked guidelines or
substantive criteria); Douglas v. Judge, 174 Mont. 32, 568 P.2d 530 (1977) (holding
unconstitutional a statute authorizing the Department of Natural Resources and
Conservation to make loans to farmers and ranchers who proposed “worthwhile”
renewable resource development projects because the statute lacked adequate
parameters).
21
¶48 The U.S. Supreme Court has similarly struck down laws as unconstitutional
delegations of legislative power when the law “creates no standard by which the power
thus given is to be exercised.” Eubank v. Richmond, 226 U.S. 137, 143-44, 33 S. Ct. 76,
77 (1912). In Eubank, a property owner challenged a city ordinance that required
municipal authorities to establish building setback lines when such action was requested
by two-thirds of the property owners on a street. Eubank, 226 U.S. at 141, 33 S. Ct. at
76. The Court determined that the ordinance, by “conferring the power on some property
holders to virtually control and dispose of the property rights of others,” unlawfully
empowered “[o]ne set of owners [to] determine not only the extent of use but the kind of
use which another set of owners may make of their property.” Eubank, 226 U.S. at 143,
33 S. Ct. at 77. In fact, under the ordinance, a single landowner who owned two-thirds of
a city block could assert her will against the remaining property owners on the block
solely for her own interest or even capriciously, without any standard to guide the
exercise of her power. Eubank, 226 U.S. at 144, 33 S. Ct. at 77. The ordinance left the
Court questioning, “In what way is the public safety, convenience or welfare served by
conferring such power?” Eubank, 226 U.S. at 143, 33 S. Ct. at 77. A similar result
followed in Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct.
50 (1928), in which the Court concluded that an ordinance requiring the consent of
two-thirds of neighboring property owners to allow a facility for the elderly to expand
was unconstitutional because it conferred absolute discretion over whether to issue a
permit to property owners without prescribing any standards or rules or providing for
review of their decision.
22
¶49 In reaching its decision that § 76-2-205(6), MCA, represented an unconstitutional
delegation of legislative power, the District Court relied heavily on an analogous decision
from the South Dakota Supreme Court, Cary v. City of Rapid City, 559 N.W.2d 891 (S.D.
1997). Cary petitioned the city to rezone her property from a general agricultural
classification to medium density residential. Cary, 559 N.W.2d at 892. The city granted
Cary’s request, but prior to the changes going into effect, certain neighboring property
owners filed a written protest to the rezoning pursuant to a statutory protest provision.
Cary, 559 N.W.2d at 892. The statute provided that if 40 percent of the property owners
within and around the district filed written protests against the proposed zoning, it would
fail. Cary, 559 N.W.2d at 893. Cary challenged the statute as an unconstitutional
delegation of legislative power. Cary, 559 N.W.2d at 895.
¶50 Relying in part on the Montana decisions Shannon and Freeman, the South
Dakota Supreme Court determined that the protest provision was unconstitutional. Cary,
559 N.W.2d at 895-96. The Court reasoned that the protest provision did not provide the
necessary guidelines or standards for a protest and as a result, it allowed the use of a
person’s property “to be held hostage by the will and whims of neighboring landowners”
without reason or justification. Cary, 559 N.W.2d at 895. As the Court observed,
“[s]uch a standardless protest statute allows for unequal treatment under the law and is in
clear contradiction of the protections of the due process clause of the Fourteenth
Amendment.” Cary, 559 N.W.2d at 895. Moreover, the Court determined that the
absence of a legislative bypass or review provision impermissibly allowed a potentially
23
small number of neighboring property owners to make the ultimate determination of the
public’s best interest. Cary, 559 N.W.2d at 895-96.
¶51 We agree with the District Court that the protest provision in § 76-2-205(6), MCA,
which allows property owners representing 50 percent of the agricultural and forest land
in a district to block zoning proposals, is an unconstitutional delegation of legislative
power. First, the protest provision provides no standards or guidelines to inform the
exercise of the delegated power. Second, the protest provision contains no legislative
bypass.
¶52 Without any standards or guidelines for the exercise of the delegated power, the
protest provision of § 76-2-205(6), MCA, contains the same constitutional infirmities as
discussed in Shannon, Eubank, and Cary. The protest provision allows a minority of
landowners, or even one landowner, to strike down proposed zoning regulations without
any justification or for no reason at all. There is no requirement that the protesting
landowners consider public health, safety, or the general welfare of the other residents of
the district when preventing the board of county commissioners from implementing
zoning regulations. As a result, agricultural and forest landowners can exercise their
unfettered power in a proper manner, or in an arbitrary and capricious manner, making
zoning decisions dependent wholly on their will and whim.
¶53 The protest provision also lacks provision for review by a legislative body with the
power to consider exceptional cases, which was noted as essential to the proper exercise
of police power in Shannon and Cary. Without a legislative bypass provision, a small
number of agricultural or forest landowners, or even a single landowner, is granted
24
absolute discretion to make the ultimate determination concerning the public’s best
interests with no opportunity for review. Not only does the statute lack a provision
allowing a legislative body to take action notwithstanding the protest, it actually prohibits
the board of county commissioners from even proposing an alternative zoning resolution
for a period of one year. In contrast, Montana’s Municipal Zoning Act contains an
example of a proper legislative bypass. Section 76-2-305, MCA, allows a city or town
council or legislative body of a municipality to override a citizen protest to a zoning
proposal by a two-thirds vote. When the legislative body retains the authority to make
the final decision on a zoning proposal, courts have often determined that the statute or
ordinance falls within constitutional bounds. See e.g. Hope v. Gainesville, 355 So. 2d
1172 (Fla. 1977); Trumper v. Quincy, 264 N.E.2d 689 (Mass. 1970). Section
76-2-205(6), MCA, unlawfully vests this final decision-making power in private
individuals.
¶54 Therefore, we conclude that the District Court did not err in determining that the
protest provision at issue in this case represents an unlawful delegation of legislative
power.
¶55 In his Dissent, Justice Rice touts the rights of the Landowners to acquire and
protect their land as reason for upholding the protest provision. The legislative history of
§ 76-2-205(6), MCA, reveals that the protest provision was enacted to protect agricultural
production and the traditional uses of forest and agricultural land. In fact, as Justice Rice
acknowledges, the Legislature enacted another statute the same year that the protest
25
provision was adopted, expressly declaring the Legislature’s intent to protect agricultural
property from governmental zoning:
76-2-901. Agricultural activities—legislative finding and
purpose. (1) The legislature finds that agricultural lands and the ability
and right of farmers and ranchers to produce a safe, abundant, and secure
food and fiber supply have been the basis of economic growth and
development of all sectors of Montana’s economy. In order to sustain
Montana’s valuable farm economy and land bases associated with it,
farmers and ranchers must be encouraged and have the right to stay in
farming.
(2) It is therefore the intent of the legislature to protect agricultural
activities from governmental zoning and nuisance ordinances.
The goals of the Legislature are surely salutary. It bears noting, however, that
Landowners were not utilizing the protest provision to preserve their ability to “produce a
safe, abundant, and secure food and fiber supply” or protect their “right to stay in
farming.” Rather, Landowners wielded the power of the protest provision to block
regulations that would limit their ability to transform their agricultural and forest land
into a large industrial gravel pit. Thus, Justice Rice’s invocation of “safeguards for
agricultural property” as a basis for upholding the protest provision rings somewhat
hollow.
¶56 While Justice Rice expresses concern for the property rights of Landowners, his
Dissent utterly ignores the property rights of the remaining property owners in the zoning
district. These neighboring property owners also have a constitutional right to possess
their property and protect it from harm. When zoning regulations are designed to “have a
real and substantial bearing upon the public health, safety, morals and general welfare of
a community,” such regulations do not unduly interfere with the fundamental nature of
26
private property ownership and can in fact bolster the use, enjoyment, and value of
property. Freeman, 97 Mont. at 355, 34 P.2d at 538.
¶57 Justice Rice attempts to distinguish the instant case by arguing that “Landowners
held only the ability to protect and prevent their own land from being zoned, not to
approve or impose conditions on their neighbors’ property.” Dissent, ¶ 78. We disagree
with this characterization of the protest provision. The protest power of § 76-2-205(6),
MCA, granted Landowners the ability to prevent any zoning regulations from being
adopted for the entire North Lolo Rural Special Zoning District, regardless of how or
whether the proposed regulations might affect their own land. The protest provision did
not merely give Landowners the ability to gain a variance for their own property; it
allowed them to block an entire zoning plan from being implemented. Moreover,
Landowners could presumably invoke the protest provision year after year so as to
indefinitely block zoning. Contrary to the assumption implicit in ¶ 79 of Justice Rice’s
Dissent, nothing in the protest provision prevents Landowners from engaging in
successive protests whenever the board might again attempt to establish zoning
regulations.
¶58 We now turn to Justice McKinnon’s Dissent. Contrary to the plain language of
the statute, Justice McKinnon argues that § 76-2-205(6), MCA, functions as a “condition
precedent to zoning.” This is simply not the case. This Court has previously defined a
condition precedent as “one which is to be performed before some right or obligation
dependent thereon accrues.” Holter Lakeshores Homeowners Ass’n v. Thurston, 2009
MT 146, ¶ 22, 350 Mont. 362, 207 P.3d 334. Section 76-2-205, MCA, contains no
27
provision allowing, let alone requiring, property owners to vote to approve zoning
regulations before a board of county commissioners may act. This mischaracterization of
the nature of the protest provision derails much of the analysis that follows in Justice
McKinnon’s Dissent.
¶59 Contrary to the impression left by the Dissents, the sky is not falling. We have
concluded that the statute as written unlawfully vests private individuals with legislative
power. It bears repeating that appropriate legislative bypass language has been employed
over the last century around the country to alleviate similar concerns. The Montana
Legislature is certainly free to consider whether and how to reenact the protest provision
so that it will pass constitutional muster.
¶60 For these reasons, we respectfully reject the arguments presented by the Dissents.
¶61 Did the District Court err in determining that § 76-2-205(6), MCA, was an
unconstitutional violation of the right to equal protection and the right to
suffrage?
¶62 Based on our resolution of Issue 2 and our determination that the protest provision
in question constitutes an unconstitutional delegation of legislative power, we decline to
address Landowners’ equal protection and right to suffrage constitutional challenges.
¶63 Did the District Court err when it ruled that § 76-2-205(6), MCA, was severable
from the remainder of the statute?
¶64 We must now consider whether the protest provision of § 76-2-205(6), MCA, is
severable from the remainder of the statute. This Court attempts to construe statutes in a
manner that avoids unconstitutional interpretation whenever possible. State v. Samples,
2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803; City of Great Falls v. Morris, 2006
28
MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692. If a law contains both constitutional and
unconstitutional provisions, we examine the legislation to determine if there is a
severability clause. Finke, ¶ 25; Sheehy v. Public Employees Retirement Div., 262 Mont.
129, 141, 864 P.2d 762, 770 (1993). The inclusion of a severability clause in a statute is
an indication that the drafters desired a policy of judicial severability to apply to the
enactment. Finke, ¶ 26; Sheehy, 262 Mont. at 141, 864 P.2d at 770. In the absence of a
severability clause, this Court “must determine whether the unconstitutional provisions
are necessary for the integrity of the law or were an inducement for its enactment.”
Finke, ¶ 25; Sheehy, 262 Mont. at 141, 864 P.2d at 770. When unconstitutional
provisions are severed, the remainder of the statute must be complete in itself and capable
of being executed in accordance with the apparent legislative intent. Finke, ¶ 26; Sheehy,
262 Mont. at 141, 864 P.2d at 770. Though “the presumption is against the mutilation of
a statute,” Sheehy, 262 Mont. at 142, 864 P.2d at 770, if removing the offending
provisions will not frustrate the purpose or disrupt the integrity of the law, we will strike
only those provisions of the statute that are unconstitutional. Mont. Auto Ass’n v. Greely,
193 Mont. 378, 399, 632 P.2d 300, 311 (1981).
¶65 The District Court began its analysis by determining that § 76-2-205(6), MCA,
does not contain a severability clause. Next, the District Court reviewed the legislative
history of § 76-2-205, MCA, and noted that there was very little discussion in 1963 when
the statute was first enacted concerning the 40 percent protest provision. Since the
protest provision for 50 percent of agricultural and forest landowners was not added until
1995, the District Court concluded that this protest provision was neither necessary for
29
the integrity of the law nor did it induce the statute’s enactment. The District Court
determined that the protest provision contained in § 76-2-205(6), MCA, was severable
from the statute.
¶66 Landowners argue that if the protest provision is found to be unconstitutional, this
Court must strike down § 76-2-205, MCA, in its entirety. Landowners argue that the
statute contained a severability clause until 1995, and the subsequent removal of the
severability clause should be viewed as evidence that the Legislature did not intend for
the statute to be severable.
¶67 Our review of the history of § 76-2-205, MCA, demonstrates that when the statute
was enacted in 1963, it did in fact contain a severability clause. 1963 Mont. Laws 782,
ch. 246, § 11. The severability clause read as follows:
The provisions of this act shall be severable and, if any of its sections,
provisions, exceptions, clauses or parts be held unconstitutional or void, the
remainder of this act shall continue in full force and effect.
1963 Mont. Laws 782, ch. 246, § 11. In 1971, the Legislature amended the statute to
clarify its language. 1971 Mont. Laws 1176, ch. 273, § 19. The 1971 amendments did
not substantively alter § 76-2-205, MCA. The Legislature once again expressed its intent
that the statute be severable by including the following severability clause:
It is the intent of the legislative assembly that if a part of this act is invalid,
all valid parts that are severable from the invalid part remain in effect. If
part of this act is invalid in one or more of its applications, the part remains
in effect in all valid applications that are severable from the invalid
applications.
1971 Mont. Laws 1176, ch. 273, § 21.
30
¶68 According to the Montana Bill Drafting Manual published by the Montana
Legislative Services Division, severability clauses are not codified but are published in
the annotations. In 1977, the statute at issue was identified as § 16-4705, R.C.M., and
was located in Title 16: Counties, Chapter 47: Zoning Districts. At the end of this
chapter, the code contained an annotation noting the severability clause. However, in
1978, the code was renumbered and reorganized. The statute at issue was renumbered as
§ 76-2-205, MCA, and moved to Title 76: Land Resources and Use, Chapter 2: Planning
and Zoning, Part 2: County Zoning. The annotation noting the existence of a
severability clause was removed from the code, but the legislative history does not
demonstrate that the Legislature took any specific action to remove the severability
clause. Severability was not mentioned in later revisions of the statute in 1995 and 2009.
The current version of § 76-2-205, MCA, does not include an annotation noting the
existence of a severability clause.
¶69 Even given the checkered background and unclear history of § 76-2-205, MCA,
several facts are apparent. First, when the Legislature enacted the statute in 1963, it
expressly included a severability clause. The original version of the statute contained the
protest provision allowing 40 percent of property owners within the district to block a
zoning proposal, but it did not include the protest provision concerning agricultural and
forest landowners. The protest provision applicable to agricultural and forest landowners
was not enacted until 32 years after the original statute was approved. Since the statute
existed for 32 years without the protest provision at issue in this case, we reject
Landowners’ argument that the protest provision was necessary for the integrity of the
31
law or served as an inducement for its enactment. Furthermore, the Legislature never
took any action at any point in the statute’s history that expressly demonstrated its intent
to remove the severability clause.
¶70 When the protest provision is severed from the statute, the remaining provisions
are complete and capable of fulfilling the legislative intent underlying the statute. The
stated purpose of county zoning is to promote “the public health, safety, morals, and
general welfare.” See § 76-2-201, MCA. In the absence of the protest provision, the
purposes of the statute can still be achieved. The process set forth in § 76-2-205, MCA,
adequately protects the rights of property owners within the district by requiring notice of
any proposed changes and by allowing public comment and participation. Under these
circumstances, the District Court correctly determined that the protest provision at issue
is severable from § 76-2-205, MCA.
CONCLUSION
¶71 For the foregoing reasons, we affirm the District Court’s grant of summary
judgment to Williams and Commissioners. We hold that the protest provision in
§ 76-2-205(6), MCA, is an unconstitutional delegation of legislative power.
Accordingly, we strike the protest provision that allows agricultural and forest property
owners representing 50 percent of such land within a district to block the board of county
commissioners from adopting a zoning proposal and prohibiting the board from
proposing further zoning regulations for one year. Since the protest provision utilized by
Landowners was unconstitutional and thereby ineffective, we uphold the Commissioners’
adoption of the North Lolo Rural Special Zoning District.
32
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
Justice Jim Rice, dissenting.
¶72 In its analysis, I believe the Court misses the big picture: the Landowners have a
constitutional right to property and to protect their property rights from infringement;
Missoula County has no constitutional right to zone.
¶73 The Court holds that the protest provision in § 76-2-205(6), MCA, is an
unconstitutional delegation of legislative power that violates due process guarantees in
Article II, Section 17 of the Montana Constitution and the Fourteenth Amendment of the
United States Constitution. Opinion, ¶ 51. However, the purported due process
violation—that the protest provision confers “the power on some property holders to
virtually control and dispose of the property of others,” Opinion, ¶ 48 (citing Eubank)—
did not occur here. Indeed, the Court has gotten it exactly backwards. Landowners are
not disposing the property of others, but are protecting their own property from
disposition. By the Court’s striking of the right to protest zoning restrictions upon their
land, it is the Landowners who have been denied due process and their constitutional
property rights.
33
¶74 Landowners enjoy the inalienable right of lawfully “acquiring, possessing and
protecting property.” Mont. Const. art. II, § 3; see also e.g. Roberge, 278 U.S. at 121, 49
S. Ct. at 52 (a landowner’s right “to devote its land to any legitimate use is properly
within the protection of the Constitution.”). As mentioned above, there is no
constitutionally-based right to zone, and we have recognized the principle that “zoning
laws and ordinances are in derogation of the common law right to free use of private
property . . .” Whistler v. Burlington N. R.R., 228 Mont. 150, 155, 741 P.2d 422, 425
(1987) (citations omitted). In 1995, the Montana Legislature provided additional
safeguards for agricultural property from governmental zoning and nuisance ordinances,
see § 76-2-901, MCA, which included the protest provision challenged here.
¶75 A delegation of legislative power must confer upon a designated group or agency
the ability to create or enact a law. The Court quotes the standard provided in Bacus for
delegation of legislative powers, Opinion, ¶ 44, but overlooks the point that, for
delegation to occur, an agency or group must be given “law-making power” to enact,
make, or create a law. Bacus, 138 Mont at 78-79, 354 P.2d at 1061. This point was
discussed in Eubank, where two-thirds of the neighbors petitioned the local government
to institute a setback restriction that affected the landowner’s use of his property.
Eubank, 226 U.S. at 141, 33 S. Ct. at 76. It was in this context of law-making power that
the Supreme Court held, as rephrased by the Court, that “‘conferring the power on some
property holders to virtually control and dispose of the property rights of others’
unlawfully empowered ‘[o]ne set of owners [to] determine not only the extent of use but
the kind of use which another set of owners may make of their property,’” and struck
34
down the ordinance as unconstitutional. Opinion, ¶ 48 (quoting Eubank, 226 U.S. at 143,
33 S. Ct. at 77). The Court has here misapplied the holding in Eubank by twisting it to
support the opposite conclusion.
¶76 This is further illustrated by the U.S. Supreme Court’s subsequent explanation.
Three years after Eubank, the Supreme Court considered whether a Chicago ordinance
was an unconstitutional delegation of legislative power in Thomas Cusack Co. v. City of
Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917). The Chicago ordinance required consent
from a majority of residential property owners on the affected city block before a person
or company could construct a billboard on the city block. Thomas Cusack Co., 242 U.S.
at 527-28, 37 S. Ct. at 190. The Supreme Court held that this landowner check on the
city’s zoning power was not an unconstitutional delegation of legislative power, and
compared Chicago’s ordinance to the ordinance at issue in Eubank:
The [ordinance in Eubank] permits two-thirds of the lot owners to impose
restrictions upon the other property in the block, while the [ordinance in
Thomas Cusack Co.] permits one-half of the lot owners to remove a
restriction from the other property owners. This is not a delegation of
legislative power, but is, as we have seen, a familiar provision affecting the
enforcement of laws and ordinances.
Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192 (emphasis added). The
constitutional ordinance in Thomas Cusack Co. allowed a particular kind of property
owners—residential—to block or remove a zoning restriction, Thomas Cusack Co., 242
U.S. at 531, 37 S. Ct. at 190, while the unconstitutional ordinance in Eubank conferred
power to a group of property owners to enact new property restrictions, Eubank, 226 U.S.
at 143-44, 33 S. Ct. at 77.
35
¶77 Section 76-2-205(6), MCA, is a landowner protection device akin to that in
Thomas Cusack Co., because the protest provision does not confer power to enact or
create a law, as defined in Bacus. The protest provision merely permits Landowners,
who have a constitutional right to possess and protect their own property, to preserve the
status quo by blocking proposed zoning for one year. The fact that some may resent the
device enacted by the Legislature to protect property rights does not render it
unconstitutional.
¶78 The Court fails to recognize that Landowners held only the ability to protect and
prevent their own land from being zoned, not to approve or impose conditions on their
neighbors’ property. The Court correctly presents the applicable principles articulated in
Shannon and Cary, but does so in errant oversimplification. In Shannon and Cary, the
neighboring landowners were granted the ability to prevent the plaintiff from taking a
proposed action on the plaintiffs’ own property. Shannon, 205 Mont. at 112, 666 P.2d at
751 (plaintiff landowners sought a variance to place a mobile home on their own land,
which neighbors would not approve); Cary, 559 N.W.2d at 892 (plaintiff landowner
sought to rezone her land from agricultural to medium density residential, which
neighbors protested). Here, the protest power used by the Landowners to prevent zoning
of their own land in no way deprived their neighbors from any right to use their own
property.
¶79 Finally, § 76-2-205(6), MCA, does not grant to Landowners the power to make a
final arbitration necessary to constitute an unconstitutional delegation of legislative
power. Rather, a successful protest provides for a one-year suspension of the
36
implementation of new zoning. The County may again engage in zoning after the one
year period has passed, with or without modifications. Section 76-2-205(6), MCA. In
light of a proper understanding of the mechanism of the protest provision and applicable
federal and state precedent, the Court’s striking of § 76-2-205(6), MCA, significantly
expands the governmental power to zone and erodes the ability of the Legislature and
property owners to protect the constitutional rights to lawfully acquire, possess, and
protect their property. Mont. Const. art. II, § 3. Many such similar protest provisions in
Montana law will now be called into question. In the words of the U.S. Supreme Court,
the statutory protest here is “a familiar provision affecting the enforcement of laws and
ordinances.” Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192.
¶80 In response to this Dissent, the Court fails to acknowledge the clear analysis of the
U.S. Supreme Court distinguishing the constitutionally flawed ordinances in the cases
relied upon by the Court from the statute at issue here. The Court instead invokes the
property rights “of the remaining property owners in the zoning district,” Opinion, ¶ 56,
as if this case somehow involved a balancing of rights between property owners.
However, there is no balancing of constitutional rights here—at least, there is not
supposed to be. Under § 76-2-205(6), MCA, other property owners had the same right as
the Landowners to protest or not protest the zoning proposed by the County. The
Landowners exercised their right of protest. The issue thus raised and litigated is the
right of property owners to resist the government’s restrictions on the use of their
property. The legal conflict is one, not between citizens, but between citizens and the
37
government. And it is a conflict in which the citizens, under the Court’s decision, come
out the big losers.
¶81 I agree with the Court’s conclusion that the District Court erred by rejecting
Landowners’ claim that they were necessary parties, but disagree that the District Court’s
error was harmless. By the time the Landowners were allowed to intervene, the District
Court had already granted the preliminary injunction and the County Commissioners had
already enacted the North Lolo Rural Special Zoning District. The failure to join
Landowners denied them an opportunity to argue against the preliminary injunction and
in favor of the constitutionality of the statutory protest provisions. By the time
Landowners got to make their arguments, the zoning was enacted.
¶82 The District Court should have known that Landowners were both interested and
necessary parties to this action from the beginning. The complaint and the answer agreed
that Landowners had availed themselves to the protest provision in § 76-2-205(6), MCA,
to protect their property from being zoned. By its preliminary injunction, the District
Court voided § 76-2-205(6), MCA, without notice to or hearing from the Landowners,
whose efforts pursuant to the protest provision were thereby negated. To me, such
exercise of raw judicial power is astonishing. The District Court should have engaged in
the precisely opposite presumptions—that the statutory protest provision was
constitutional and that the constitutional right of property reinforced the need to uphold
the statute until demonstrated beyond a reasonable doubt that it was unconstitutional.
Landowners’ constitutional right to protect their property from governmental intrusion
was thereby prejudiced. The Landowners should have come before the District Court as
38
successful protestants who were entitled to rely on the presumption of constitutionality of
the protest statute. Instead, they came before the District Court having already lost the
battle: the protest provision was struck down, the presumption of the statute’s
constitutionality was eliminated, and the zoning was already enacted. Landowners had “a
snowball’s chance” before the District Court.
¶83 The County had no constitutional power to zone; it had only the powers given by
the Legislature. The District Court first marginalized the Landowners procedurally and
then failed to protect their substantive constitutional rights, granting new powers for
government to override property rights.
¶84 I would reverse.
/S/ JIM RICE
Justice Laurie McKinnon, dissenting.
¶85 In my opinion, the Court today fails to distinguish between a zoning regulation
and a statute that enables zoning to take place in the first instance. The latter does not
implicate considerations of an unconstitutional delegation of legislative authority, while
the former may. In failing to make a distinction between enabling provisions of the
zoning statute and its substantive provisions, the Court has declared unconstitutional a
condition precedent to zoning which the Legislature, as representatives of its citizens,
determined was proper to have. We tell the Legislature and Montana citizens today that
39
you must have zoning in your counties even though 50 percent of agricultural landowners
do not want to be zoned. We tell the Legislature and Montana citizens today that we find
offensive a statute which prioritizes land ownership, perhaps at the expense of a large
number of county residents.
¶86 The Court’s decision today allows county commissioners in rural counties to
implement zoning measures impacting farm and agricultural land based upon a resolution
of county commissioners—normally three individuals in our rural counties. We make
these declarations in spite of the Legislature’s finding and purpose “to protect agricultural
activities from governmental zoning and nuisance ordinances,” § 76-2-901(2), MCA, and
the Legislature’s recognition that agricultural lands in Montana are a basis of Montana’s
growth and development, § 76-2-901(1), MCA. While recognizing Montana’s unique
heritage as a basis for upholding statutes in other contexts, we strike down today one of
Montana’s “unique” statutes designed to protect agricultural lands from governmental
zoning. We are obliged as jurists, as compared to legislators, to recognize these
distinctions in the law, and to not allow our preference for zoning, in particular
circumstances, to confuse our analysis.
¶87 Landowners own the majority of the property subject to the proposed regulations.
They own agricultural and forest land and are taxed accordingly. One of the
Landowners, Liberty Cove, wanted to build a lake on their property and entered into a
purchase agreement with a contractor for the gravel mining operations. On March 8,
2006, Missoula County granted a zoning compliance permit, noting that the site location
was not zoned. County commissioners received complaints from Lolo residents
40
requesting the county enact interim zoning to address environmental and traffic concerns
at the site. The Court today notes that Landowners are attempting to “transform their
agricultural and forest land into a large industrial gravel pit” and that Landowners were
not “utilizing the protest provision to preserve their ability to ‘produce a safe, abundant,
and secure food and fiber supply’ or protect their ‘right to stay in farming.’ ” Opinion,
¶ 55. I do not believe it is for this Court to decide which uses of property have merit and
which do not. It seems to me such an analysis is akin to the notion of choosing what
speech someone may or may not hear. I, for one, am uncomfortable with the notion that
my rights depend on the value another individual gives to the particular use I make of my
property, as long as it is lawful. Landowners pay taxes on their agricultural and farm
land and their standing under § 76-2-205(6), MCA, has not been challenged. We ought
not qualify our analysis by questioning whether they are endeavored in “agricultural
production and the traditional uses of forest and agricultural land.” Opinion, ¶ 55.
¶88 Zoning regulations are enacted pursuant to the police power of the state. Euclid v.
Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926).
The power to zone is exercised primarily by local units of the government.
However, local governments have no inherent police powers of their own
and therefore no inherent power to zone. Before a local government can
legally exercise the zoning power, it must receive a delegation of that
power from the sovereign entity inherently possessing it. Most typically,
that entity is the state.
6 Patrick J. Rohan, Zoning and Land Use Controls, § 35.01 (Matthew Bender 2013).
There is thus no inherent power to zone except as has been delegated to local government
by its enabling statutes or constitution. Transamerica Title Ins. Co. v. Tucson, 757 P.2d
411055 (Ariz. 1988); Riggs v. City of Oxnard, 154 Cal. App. 3d 526, 201 Cal. Rptr 291
(1984); Nopro Co. v. Cherry Hills Village, 504 P.2d 344 (Colo. 1972); Stucki v. Plavin,
291 A.2d 508 (Me. 1972); Sun Oil Co. v. New Hope, 220 N.W.2d 256 (Minn. 1974);
State ex rel Ellis v. Liddle, 520 S.W.2d 644 (Mo. Ct. App. 1975); Nemeroff Realty Corp.
v. Kerr, 38 A.D.2d 437, 330 N.Y.S.2d 632 (N.Y. App. Div. 1972), aff’d 299 N.E.2d 897(1973). The action taken by the local government must not exceed that provided for in its
delegation and must be consistent with the enabling legislation. Smith v. Zoning Bd. Of
Appeals of Greenwich, 629 A.2d 1089 (Conn. 1993); Board of Township Trustees v.
Funtime, Inc., 563 N.E.2d 717 (Ohio 1990); Riggs v. Long Beach, 538 A.2d 808 (N.J.
1988); Ramsey v. Portland, 836 P.2d 772 (Or. 1992); Jachimek v. Superior Ct., 819 P.2d
487 (Ariz. 1991); Ripso Realty & Dev. Co. v. Parma, 564 N.E.2d 425 (Ohio 1990). The
Supreme Court of North Carolina has aptly described the nature of the delegation of
authority to zone:
Thus, the power to zone is the power of the State and rests in the General
Assembly originally. There, it is subject to the limitations imposed by the
Constitution upon the legislative power forbidding arbitrary and unduly
discriminatory interference with the rights of property owners.
A municipal corporation has no inherent power to zone its territory
and restrict to specified purposes the use of private property in each such
zone. . . . Obviously, the General Assembly cannot delegate to a municipal
corporation more extensive power to regulate the use of private property
than the General Assembly, itself, possesses. Consequently, the authority
of a city or town to enact zoning ordinances is subject both to the above
mentioned limitations imposed by the Constitution and to the limitations of
the enabling statute.
Zopfi v. Wilmington, 160 S.E.2d 325 (N.C. 1968) (internal citations omitted).
42
¶89 Involvement by state legislatures in land-use regulation has been growing since
the 1960s. Robert M. Anderson offers the following analysis for the growth of state
legislatures’ involvement, by way of enabling legislation, into the land-use control field:
Land-use restriction was assumed to be a problem which could be solved
more efficiently on the local level. The rationale of this policy was
articulated as early as 1929 by Chief Judge Cardozo of the New York Court
of Appeals: “A zoning resolution in many of its features is distinctively a
city affair, a concern of the locality, affecting, as it does, the density of
population, the growth of city life, and the course of city values.”
. . .
The growing state participation in land-use regulation has been
generated by a combination of problems of a regional nature and local
inability to provide solutions. The typical fragmentation of the zoning
power, which created numerous zoning authorities in urban areas sharing a
common regional problem, made orderly control of development
improbable. Legislative bodies, amenable to electors from a small
geographic district, predictably enacted zoning regulations which served the
provincial interest of their district.
They disregarded the broad interests of the regional community,
making solution of area-wide problems difficult, if not impossible. This
invited state regulation by legislators who were answerable to a broader
constituency. State legislators began to realize that ecological problems
would be solved, if at all, only on a state wide basis. This encouraged the
adoption of measures to control land use which threatened natural
resources, including places of natural beauty or historic interest. In
addition, state land use controls were inspired by such other factors as land
shortages, fiscal crises, urban deterioration, and a wide variety of
community ills which seemed unlikely to be cured by purely local
regulation.
1 Robert M. Anderson, American Law of Zoning 3d, § 2.03 (1986).
¶90 Pursuant to Montana’s Constitution, county commissioners have only that
legislative authority specifically granted by the Legislature. Mont. Const. art. XI, § 3(1).
The Legislature conditioned their grant of legislative authority to zone by allowing 40%
of real property owners or 50% of agricultural land owners to reject any proposed zoning.
43
While popularly elected county commissioners can vote for or against zoning proposals,
they cannot enact zoning ordinances when they have not been granted the authority to do
so. The Legislature specifically limited the authority of county commissioners to zone by
allowing those most affected by the zoning—the property owners—to reject any
proposed zoning. The 1995 protest provision was sponsored by Rep. Trexler who, in his
opening statement on HB 358, explained the bill was “not a zoning bill” and was not
intended to address public health, safety and welfare because county governments already
had in place mechanisms to protect public health and safety. The purpose of the bill was
to address if “a group of people are imposing their wishes on their neighbors, they must
sit down and talk with their neighbors to reach an agreement.” Owners of agricultural
land “should be allowed to [manage their property] and not be zoned to [prevent] that.”
Senate Committee Hearing on HB 358 (March 21, 1995). Then Attorney General Joe
Mazurek opined in 1996 that
[t]here is no controlling decisional law in Montana pertaining to the
questions . . . presented and the law of other jurisdictions has limited
application given the unusual nature of the Montana statute. Opinions of
other jurisdictions are premised on the recognition that the protest
provisions of those jurisdictions pertain to the amendment of an existing
zoning regulation. The courts recognize that those protest provisions are a
form of protection afforded property owners in the stability and continuity
of preexisting zoning regulations. Such reasoning is not applicable to the
Montana statute, which operates as a form of extraordinary protection
afforded property owners to prevent the legislative body from adopting
zoning regulations in the first instance. As such, the statute operates more
like a “consent provision” than a protest provision. Consistent with these
observations, the statute’s “protest” rights discussed within this opinion are
so identified only for purposes of consistency with the actual language of
the statute.
46 Mont. Op. Att’y 22 (July 22, 1996) (emphasis added; footnotes omitted).
44
¶91 Initially, it is significant to point out that this Court has previously held valid, as
against an attack that the statute was an unlawful delegation of legislative authority, the
statutory forerunner to § 76-2-205, MCA. In City of Missoula v. Missoula County, 139
Mont. 256, 362 P.2d 539 (1961), this Court found that zoning statutes which created a
zoning commission and enabled the county commissioners to enact zoning ordinances
validly delegated administrative authority and provided sufficiently clear, definite and
certain standards to enable the agency to know its rights and obligations. See Montana
Wildlife Federation v. Sager, 190 Mont 247, 258, 620 P.2d 1189, 1196 (1980). We said
in City of Missoula:
We shall not quote the entire act, but, with respect to the procedure,
the law provides definite outlines and limitations. The zoning district may
come into being only upon petition of sixty percent of the freeholders in the
area. The adoption of the development district must be by a majority of the
Commission, after definitely prescribed public notice and public hearing.
The resolution must refer to maps, charts, and descriptive matters. In other
words, quite adequate procedural matters are contained in the act itself.
City of Missoula, 139 Mont. at 260-61, 362 P.2d at 541. Although City of Missoula did
not directly address the contention raised here, this Court recognized the validity of the
statutory provision that prevented the creation of a zoning district until 60% of the
freeholders petitioned for its establishment. Significantly, these prior enabling
provisions, found to be valid by the Court, “denied the power to regulate the use of land
for grazing, horticulture, agriculture, or the growing of timber.” City of Missoula, 139
Mont. at 258, 362 P.2d at 540 (emphasis added). The Legislature’s limitation of zoning
authority to a county and its zoning commission has thus been part of our statutory
scheme since 1953. Our current zoning statute, § 76-2-205, MCA, actually provides less
45
protection to owners of agricultural and farm lands by not prohibiting zoning outright of
these lands, but instead conditioning it upon there being no objection from at least 51% of
the landowners of agricultural and farm land.
¶92 I agree with Justice Rice in his Dissent when he states that “the Court has gotten it
exactly backwards” in describing our analysis of cases construing protest provisions.
Dissent, ¶ 73. While it is true that the Supreme Court in Eubank v. Richmond, 226 U.S.
137, 33 S. Ct. 76 (1912), found an unconstitutional delegation of legislative authority to
particular landowners in determining the location of a building line, the authority to
establish the building line was not challenged and had already been conferred. Thus the
question was not whether the City of Richmond had authority to create the ordinance, but
rather, once conferred, whether that authority was constitutionally exercised.
The action of the committee is determined by two-thirds of the property
owners. In other words, part of the property owners fronting on the block
determine the extent of use that other owners shall make of their lots, and
against the restriction they are impotent. This we emphasize. One set of
owners determine not only the extent of use but the kind of use which
another set of owners may make of their property. In what way is the
public safety, convenience or welfare served by conferring such power?
The statute and ordinance, while conferring the power on some property
holders to virtually control and dispose of the proper rights of others,
creates no standard by which the power thus given is to be exercised; in
other words, the property holders who desire and have the authority to
establish the line may do so solely for their own interest or even
capriciously.
Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77 (emphasis added). Five years later, the
Supreme Court explained, in declaring constitutional an ordinance that required consent
by a majority of the property holders before billboards could be erected in residential
areas, that:
46
A sufficient distinction between the ordinance [in Eubanks] and the one at
bar is plain. The former left the establishment of the building line
untouched until the lot owners should act and then made the street
committee the mere automatic register of that action and gave to it the
effect of law. The ordinance in the case at bar absolutely prohibits the
erection of any billboards in the blocks designated, but permits this
prohibition to be modified with the consent of the persons who are to be
most affected by such modification. The one ordinance permits two-thirds
of the lot owners to impose restrictions upon the other property in the
block, while the other permits one-half of the lot owners to remove a
restriction from the other property owners. This is not a delegation of
legislative power, but is, as we have seen, a familiar provision affecting the
enforcement of laws and ordinances.
Thomas Cusack Co., v. Chicago, 242 U.S. 526, 531, 37 S. Ct. 190, 192 (1917) (emphasis
added). See also Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,
121-22, 49 S. Ct. 50, 52 (1928), where the Court held that “[t]he right of [a property
owner] to devote [his] land to any legitimate use is properly within the protection of the
Constitution” and thus the consent provision for issuance of a permit to accommodate a
larger home for the elderly poor was an unconstitutional delegation of power and
“repugnant to the due process clause of the Fourteenth Amendment.”
¶93 The Court’s reliance on Cary v. City of Rapid City, 559 N.W.2d 891 (S.D. 1997),
and Shannon v. Forsyth, 205 Mont. 111, 666 P.2d 750 (1983), is also misplaced. In
Cary, the issue was not the authority to zone, but rather whether the authority delegated
was constitutionally exercised. Cary sought to have her property rezoned which,
following protests from neighbors, was denied by the City. The Court determined that
the absence of a legislative bypass and a standardless statute regarding her neighbors’
protests “allows for unequal treatment under the law.” Cary, 559 N.W.2d at 895.
Similarly, in Shannon, several zoning districts had already been established. The issue
47
was whether there were sufficient standards imposed upon adjoining landowners in
denying a petition seeking a waiver to locate a mobile home within a “Residential A”
zoning district. This Court determined that the consent ordinance was unconstitutional as
an unlawful delegation of legislative authority and police power. Shannon, 205 Mont. at
115, 666 P.2d at 753.
¶94 Other jurisdictions have observed a distinction between consent and protest
provisions which impermissibly delegate legislative authority and those that condition the
exercise of legislative authority on particular conditions having been established. In
O’Brien v. St. Paul, 173 N.W.2d 462 (Minn. 1969), the Court determined that a provision
requiring an owner to obtain written consent of two-thirds of the adjoining property
owners prior to rezoning was valid. Consent was determined to be not a delegation of
power, but merely a condition precedent to an exercise of power by the city council. The
Court referred to rules enunciated from other jurisdictions and adopted the following
distinction:
If the action of the property owners has the effect of legislation—if it
creates the restriction or prohibition, then it is deemed to fall within the
forbidden “delegation of legislative power.”
On the other hand, if the consents are used for no greater purpose
than to waive or modify a restriction which the legislative authority itself
has lawfully created and in which creation it has made provisions for
waiver or modification, then such consents are generally regarded as being
within constitutional limitations.
O’Brien, 173 N.W.2d at 465-66 (citing 2 Metzenbaum, Law of Zoning, c. X-b-1, p. 1067
(2d ed.). See also 1 Yokley, Zoning Law and Practice § 7-13, p. 358 (3d ed.). The
Washington Supreme Court upheld a similar consent statute and explained:
48
In this case it may readily be seen that the council, recognizing the rights of
the residents of the city to be consulted in matters purely local, matters
affecting the comfort and even the health of the residents, and the right to
have their will reflected in the enactments of their representatives, provided
the ordinance for the purpose of meeting the desires of the residents in that
regard. The ordinance is prohibitive, but leaves the right to the citizen to
waive the prohibition if he chooses. Statutes of this character are common,
and while it is generally conceded that the legislature cannot delegate its
legislative function, it is well established that it may provide for the
operation of a law which it enacts upon the happening of some future act or
contingency. The local option laws in their various phases are common
instances. While these laws were violently assailed, and in some instances
received judicial condemnation, they are now almost universally sustained.
Spokane v. Camp, 97 P. 770, 771 (Wash. 1908) (emphasis added.). The Illinois Supreme
Court explained in 1896 that “[i]t is competent for the legislature to pass a law, the
ultimate operation of which may, by its own terms, be made to depend upon a
contingency . . . . The legislature cannot delegate its power to make a law; but it can
make a law to delegate a power to determine some fact or state of things upon which the
law makes, or intends to make, its own action depend.” Chicago v. Stratton, 44 N.E. 853,
855 (Ill. 1896). The distinction drawn was this:
In the case at bar, the ordinance provides for a contingency, to-wit: the
consent of a majority of the lot owners in the block, upon the happening of
which the ordinance will be inoperative in certain localities. The operation
of the ordinance is made to depend upon the fact of the consent of a
majority of the lot owners, but the ordinance is complete in itself as passed.
What are known as local option laws depend for their adoption or
enforcement upon the votes of some portion of the people, and yet are not
regarded as delegations of legislative power. Delegation of power to make
the law is forbidden, as necessarily involving a discretion as to what the law
shall be; but there can be no valid objection to a law, which confers an
authority or discretion as to its execution, to be exercised under and in
pursuance of the law itself.
Chicago, 44 N.E. at 855 (internal citations omitted).
49
¶95 A careful and close reading of these cases demonstrates that there exists a clear
distinction between those protest and consent provisions that impermissibly delegate
legislative authority and those that require a condition precedent to the exercise of
legislative authority in the first instance. In my opinion, we have failed to recognize this
distinction. I believe it is the role of the Legislature to chart the course of this State in
land development and growth. Ultimately, it is up to the citizens to craft their own
destiny, but they must do so in the Legislature and not the courts. If they are displeased
with zoning provisions in our statutes, then their remedy is to petition their
representatives for a change in the law. While I would have no problem scrutinizing a
statute for an unconstitutional delegation of authority, that analysis is not called for here.
The statute merely imposes a condition precedent to the grant of legislative authority to
the counties to zone. I believe courts “should be wary of substituting their economic and
business judgment for that of legislative bodies, and should avoid the temptation,
however attractive, to sit as a ‘super-legislature to weigh the wisdom of legislation.’ ”
McCallin v. Walsh, 64 A.D.2d 46, 59, 407 N.Y.S.2d 852, 859 (N.Y. App. Div. 1st Dept.
1978) (quoting Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S. Ct. 405, 407
(1952)).
¶96 I respectfully dissent.
/S/ LAURIE McKINNON
50