No. 87-485

INTHE SUPREME COURTOF THE STATE OFMONTANA
1988

JACK PETTY, PlaintiffandAppellant,

FLATHEAD COUNTYBOARD OF COUNTY COMMISSIONERS,ALLEN JACOBSON, KENNETH KRUEGER,and HOWARD GIPE, and FLATHEAD COUNTY, MONTANA, apoliticalbody,
Defendantsand Respondents.

APPEAL FROM: DISTRICT Court of the Eleventh Judicial District, Inand for the County of Flathead, TheHonorable C. B. McNeil, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Richard DeJana,Kalispell,Montana
ForRespondents:
Ted 0. Lympus,CountyAttorney, Kalispell,Montana Dennis Hester,Deputy County Attorney

Submitted onBriefs: March 11, 1988 Decided: April 25, 1988 Filed: 

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## q# %J$:*-Mr. Justice R. C. McDonough delivered the Opinion of the Court.

This case involves the creation of a zoningdistrictby the Flathead County Board of County Commissioners (Board). AppellantJack Petty sued the Board claiming that the Board's failureto followtheproper procedures for creating a zoning district voided the zoning district where Mr. Petty had recently purchased property. The District Court granted a motion for summary judgment made by the Board holding that the Board had substantially compliedwith theprocedures for creating a zoning district under 55 76-2-101 to -112, MCA. Mr. Petty appeals the summary judgment order. We affirm. The following facts are undisputed: The property at issue is called the Two Bridges Zoning District. Prior to the creation of the district, the Board received a valid petition from 60% of the freeholders in the area requesting that thedistrictbe created. After receipt of the petition, the Board passed a motion on March 10, 1978, creating the district and ordering a meeting of the County Zoning Commission to determine the district's development pattern. On March 

### 13, 1978, and March 20, 1978, the Zoning Commission met to consider the district's development pattern. After the second meeting the Zoning Commission scheduled a hearing for April 11, 1978, to receive public comment on proposals for the developmentpattern. Notice of the hearing was published in the local paper on April 3, 1978, and April 10, 1978. The record is unclear as to whether any notice of the hearing was posted in public places. At the hearing interested parties commented on the district's boundaries and developmentpattern. After the hearing the Zoning Commission made recommendations to theBoard ofCounty Commissioners,and theBoard scheduled its own public hearing. Notice of the Board's hearing was published in the local paper on May 5, 1978,and May 12, 1978. The record fails to disclose whether or not notice of this hearing was posted in public places. At the hearing the Board heard public comment on the development pattern and boundaries of the district as recommendedby the Zoning Commission. Following the hearing the Board effectuated the Zoning Commission's recommendationsby adopting Resolution No. 298. The resolution omitted acreage that had been included under the description of the district as set out in the motion creating thedistrict. The following are assigned as issues on appeal by Mr. Petty: 

### (1) For a proper exercise of the police power in the act of zoning, must the enabling legislation be strictly followed? (2) At the time of creation of a planning and zoning district, must the area to be included in the district be defined and described? (3) Must a specific commission be appointed for each planning district as stated in S 76-2-101, MCA, or may a countyuse the same commission for each zone without separate appointment? 

### (4) Were the noticeprovisions compliedwith? (5) May the adoption of a resolution 

### by the County Commissioners creating a zonemoot the failure to follow the processprescribed by the enabling legislation? (6) Need there be a developmentalpattern prepared by the Planning and Zoning Commission of each district and what is thatpattern?(7) Need aplaintiffbring an actionprior to such time

as his use for his land is threatened in order to avoid the doctrine of latches? Issue I.

Mr. Petty claimsgenerally that the District Court erred by failing to strictly construe the procedural requirements for establishing zoning districts asmandated by SS 76-2-101 to -112, MCA. However, Mr. Petty fails to point out any specificerror under his discussionof this issue. In itsmemorandum the District Court concluded that the Board had "substantially complied" with the procedural requirements. The proper issue facing a district court interpreting these statutes is whether or not a board of county commissioners substantially complied with the procedural steps for creating zoningdistricts. Dover Ranch

v. County ofYellowstone (1980),187Mont. 276, 284, 609P.2d 711, 716. Thus, the District Court's decision as to the standard for reviewing the procedures set out in the zoning statutes correctly interpreted Montana law, and we affirm on this issue. Issue 11.

Mr. Petty contends that when the Commissioners passed the motion creating the district, the district was not adequately defined and described. The subsection of the statute authorizing Flathead County's creation of the district at issue here reads:
76-2-101. Planning and zoning commission and district. (1) Whenever the ~ublicinterest or

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## .. conveniencemay require and uponpetition of 60%of the freeholders affected thereby, the board of county commissioners is hereby authorized and empowered to order and create aplanning and zoningdistrict and to appoint a commission consisting of fivemembers.

To supporthis contention,Mr. Petty cites casesdecided under another statute, $ 76-2-201, MCA. According to Mr. Petty, this statute requires the establishment of an actual jurisdictional area prior to adoption of zoning regulations. See,e.g., Allenv. Flathead County (1969),184Mont. 58, 601 P.2d 399. The statutereads:
76-2-201. County zoning authorized. For the purpose of promoting the health, safety, morals, and-generalwelfare of the the people in-citiesand towns and counties whose governing bodies have adopted a comprehensive development anfor jurisdictional areas pursuant to chapter 1, 

### the boards of county commissioners in such countiesare authorized to adopt zoning regulations for all or parts of such jurisdictional areas in accordance with the provisions of this part. (Emphasis added).

Sections 76-2-101 -112, MCA, the statutes at issue in this case, authorizewhat has been "referred to as the rural zoning law or the forty acre law, [which] gives county commissioners the power to zone in a given district which exceeds 40 acres and which has been called into existence

a petition of at least sixty percent of the freeholders 

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### - -- within the district." (Emphasis added). Lundberg, County Zoning

## in Montana, 33 Mont. L. Rev. 63, 65. In contrast, zoning under §$ 72-2-201 to -228, MCA, involves county-wide planning and zoning by county commissioners working with county planning boards. Lundberg,County Zoning 

### - in Montana, 33 Mont. L. Rev. 63, 68. Our interpretations of the procedural requirements for zoning jurisdictional areas under the county wide zoning statutes have no application to the requirements for the creation of zoning districts under the rural zoning laws in $§ 76-2-101 to -112,MCA. See MontanaWildlife Federation v. Sager (Mont. 1980), 620 P.2d 1189, 1197, 37 St.Rep. 1897, 1905. And nothing in the record demonstrates noncompliance with the applicable procedure, i.e., the existence of a petition signed by 60% of the freeholders in the district tobe created,which petition and the notices that follow adequately describe the district. See City of Missoula v. Missoula County (1961), 139 Mont. 256, 260, 362P.2d 539, 541. Thus,we affirmon this issue.

Issue 111.

Mr. Petty argues that thedistrict at issuehere isvoid because the Board failed to appoint a zoning commission at the time the district was created. The Board responds that since the Zoning Commission already existed, there was no need for an appointment. Section 76-2-101, MCA, (set out above) requires the appointment of a zoning commission at the time the zoning district is created. Section 76-2-102, MCA, mandates that the commission consistof the three county commissioners, the county surveyor,and the county assessor. The motion by the Board creating the district is recorded in the Commissioners1 Journal. The motion reads: Motion by Guay, seconded by Deist and carried to create the Two Bridges ZoningDistrict (#32). A meeting of the Zoning Commission will be called to determine a development pattern for this area.
We hold that the Board's motion is sufficient to satisfy the requirement that the Board appointa zoning commission at the time the district is created. The statute mandates the zoning comrnissionls membership, and it is obvious from subsequent events in this case that the membership of the Flathead County Zoning Commission had notice that they wererequired by the motion to meet and determine a development pattern for the district. Thus, we affirm on this issue.

Issue IV.

Mr. Petty contends that the notices of the public hearings on the district's development pattern were not publicly posted as required by S 76-2-106, MCA. The Board responds that this issue was not raised in the lower court., and thus cannot be raised on appeal. Mr. Petty contends that the issue was raised in his "Plaintiff'sReplyMemorandum and RebuttalMemorandum", filed inresponse to the Board'smotion for summary judgment in the lower court. The followinq discussionon the notices occurs in thisbrief:
While visiting the Defendants facts it is useful to examine exhibit 6 "NoticeofHearing" for the April 11, 1978 "Zoning Commission" Meeting. This is dated March 28, 1978. (14days before the hearing, if the date of the notice and date of hearing are included.) Further on its face the notice reflects that it wasn't published until April 3 and 10, 1978. Section 76-2-106 MCA requires 15 days prior notice. The county again violates the law. The zonewas and isvoid. Nothing in this argument refers to the requirement that the notice be posted in public places. Nothing in the District Court's memorandum suggests that the issue was tried in the lower court. Furthermore, there is no evidence to show that the public notices were not posted, and sinceMr. Petty has not proved whether or not they were posted, there can be no proof as to whether or not the posting was timely. Thus, there is no issue here for this Court to consider in regard to notice. Bowman

### v. Prater (Monk. 19841, 692P.2d 9,11-12, 41 St.Rep. 2236, 2739-40.Issue

### V.

Mr. Petty argues that the District Court erred in concluding that any irregularities in the initial stages of the zoningprocesswere renderedmootbv the Board's adoption of the development pattern in ResolutionNo. 298, and by the passage of several years without objection. The Board responds that the District Court discussion of mootness did not form the basis for its grant of summary judgment, and thus cannotbe assigned as error on appeal. The statement objected to by Mr. Petty is in the conclusionof the lower court'sMemorandum. Itreads:
Based on the foregoing findings, the Court holds that the Two Bridges Zoning District was validly created, that the Flathead County Zoning Commission is also the Two Bridges ZoningDistrict Commission and that the provisions of Part 1, County Planning and Zoning Commission, of Chapter 2,Planningand Zoning, of Title 76,Land Resources and Use of the Montana Code Annotated have been substantially complied with. Any inconsequential, procedural irregularities became moot upon the adoption of Resolution 298 in 1978 and the passage of severalyearswithout challengeuntil the filing of Plaintiff's Complaint.
The essential conclusionhere is that theBoard substantially complied with the proceduresmandated by Montana law for the creation of the district at issue. The findings supporting this conclusion are that: (1)avalid petition signed by over 60%of the freeholders in the areawas submitted to the Board prior to creation of the district, (2) the Zoning Commission proposed a development pattern, and (3) the public was properly noticed prior to apublic meeting on the issue that the Board proposed to adopt the Zoning Commission's developmentpattern. Thus,the lower court's commentson thesignificance of Resolution No. 298, and the passage of time between creation of the district and the bringing of the law suit, do not form the basis for its judgment, and are not relevant to this appeal. See Sink v. School DistrictNo. 6

(1982), 199 Mont. 352, 361-62, 649 P.2d 1263, 1268. And we affirm on this issue.

IssueVI.

There are actually two issues advanced here by Mr. Petty. First, Mr. Petty contends that the Zoning Commission's development pattern for the district violates S 76-2-104(2), MCA, because the development pattern allowed only one use as opposed to allowingmultipleuses. Mr. Petty also contends that the development pattern violates S 76-2-104(2), MCA, because maps, plats, charts, and descriptive matter did not accompany the adoption of the developmentpattern by the Zoning Commission. Section 76-2-104,MCA, states: Development Pattern: (1) For the purpose of furtherinq the health, safety, and general welfare of the people of the county, the county planning and zoning commission hereby is empowered and it shall be its duty to make and adopt a development pattern for the physical and economic development of theplanning and zoningdistrict. (2) Such development pattern, with the accompanying maps, plats, charts, and descriptive matter, shall show the planning and zoning commission's recommendations for the developmentof the districts, within some of which it shall be lawful and within others of which it shall be unlawful to erect, construct, alter, or maintain certain buildings or to carry on certain trades, industries, or callings or within which the height and bulk of future buildings and the area of the yards,courts,and other open spacesand the future uses of the land or buildings shall be limited and fu-t-ure building setback lines shall be established.Mr. Petty argues that the language in subsection 2 of this statute requires multiple districts with varying uses within each zoning district created by boards of county commissioners, and that the district at issue in this case violates that mandate by allowing only residentialuses. We disagree. Subsection 1 of this statute refers in the singular to a "district" and its development pattern. Subsection 2,upon whichMr. Petty relies forhis theory that multiple uses must accompany the creation of every district, refers in the plural to a development pattern for "districts". This Court has held previously that the reference to districts in subsection 2 does not require zoning commissions to conduct a county wide survey prior to the establishment of a particular district. See Doull v. Wohlschlager (1963), 141 Mont. 354, 363, 377 P.2d 758, 763. Similarly, the use of the plural in subsection 2 does not mandate that each district, which may be as small as 40 acres,be fractionalized into several smaller districts with different regulations for each fraction. Such an interpretation "would create an absurd result where a reasonable construction would avoid it." McClanathan v. Smith (1980), 186 Mont. 56, 62, 606 P.2d 507, 511. Thus,we affirm on the first argumentunder this issue. The second argumentMr. Petty groups under this issue is that the district is void because the Zoning Commission failed to refer expressly to maps, charts and descriptive matters forming the pattern orpart thereof. The development pattern recommended a single landuse classification,and the notice of the public hearing held prior to the Zoning Commission's recommendation on the development pattern contained a legal description of the district. Under these circumstances,we agree with the District Court's conclusion that the statutory requirement for reference tomaps, charts,and descriptive matters was substantially complied with. Doull, 377P.2d at 763.

Issue

### VII.

Mr. Petty contends that the District Court erred by relying on latches to find for the Board on its motion for summary judgment. As pointed out in our discussion of issue V, the essential conclusion for resolution of this casewas the DistrictCourt's finding that the Board had substantially compliedwith theprocedures for creating districts under the 40 acre law. Thus, there is no issue which requires our determination. Affirmed.

We Concur: 

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