No. 87-485 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

JACK PETTY, 

Plaintiff and Appellant, 

FLATHEAD COUNTY BOARD OF COUNTY 

COMMISSIONERS, ALLEN JACOBSON, 

KENNETH KRUEGER, and HOWARD GIPE, 

and FLATHEAD COUNTY, MONTANA, 

a political body, 

Defendants and Respondents. 

APPEAL FROM: DISTRICT Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard DeJana, Kalispell, Montana 

For Respondents: 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Dennis Hester, Deputy County Attorney 

Submitted on Briefs: March 11, 1988 

Decided: April 25, 1988 

Filed: 'APR 2 5 1988 

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Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This case involves the creation of a zoning district by 

the Flathead County Board of County Commissioners (Board). 

Appellant Jack Petty sued the Board claiming that the Board's 

failure to follow the proper 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 complied with the procedures 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 the district be 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 development pattern. 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 development pattern. 

After the hearing the Zoning Commission made 

recommendations to the Board of County Commissioners, and the 
Board 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 

recommended by the Zoning Commission. 

Following the hearing the Board effectuated the Zoning 

Commission's recommendations by 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 the district. 

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 

county use the same commission for each zone without separate 

appointment? 

(4) Were the notice provisions complied with? 

(5) May the adoption of a resolution by the County 

Commissioners creating a zone moot the failure to follow the 

process prescribed by the enabling legislation? 

(6) Need there be a developmental pattern prepared by 

the Planning and Zoning Commission of each district and what 

is that pattern? 
(7) Need a plaintiff bring an action prior to such time 

as his use for his land is threatened in order to avoid the 

doctrine of latches? 

Issue I. 

Mr. Petty claims generally that the District Court erred 

by failing to strictly construe the procedural requirements 

for establishing zoning districts as mandated by SS 76-2-101 

to -112, MCA. However, Mr. Petty fails to point out any 

specific error under his discussion of this issue. 

In its memorandum 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 zoning districts. Dover Ranch 

v. County of Yellowstone (1980), 187 Mont. 276, 284, 609 P.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 ~ublic .. interest or 

convenience may require and upon petition of 60% of 

the freeholders affected thereby, the board of 

county commissioners is hereby authorized and 

empowered to order and create a planning and zoning 
district and to appoint a commission consisting of 

five members. 

To support his contention, Mr. Petty cites cases decided 

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., Allen v. Flathead County (1969), 184 Mont. 58, 601 

P.2d 399. The statute reads: 

76-2-201. County zoning authorized. For the 

purpose of promoting the health, safety, morals, 

and-general welfare of the the people in-cities and 

towns and counties whose governing bodies have 

adopted a comprehensive development an for 

jurisdictional areas pursuant to chapter 1, the 

boards of county commissioners in such counties are 

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, authorize what 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 

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 Montana 
Wildlife 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 to be created, which petition and 

the notices that follow adequately describe the district. 

See City of Missoula v. Missoula County (1961), 139 Mont. 

256, 260, 362 P.2d 539, 541. Thus, we affirm on this issue. 

Issue 111. 

Mr. Petty argues that the district at issue here is void 

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 consist of 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 Zoning District (#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 appoint a 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 were 
required 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's Reply Memorandum and Rebuttal Memorandum", filed 

in response to the Board's motion for summary judgment in the 

lower court. The followinq discussion on the notices occurs 

in this brief: 

While visiting the Defendants facts it is 

useful to examine exhibit 6 "Notice of Hearing" for 

the April 11, 1978 "Zoning Commission" Meeting. 

This is dated March 28, 1978. (14 days 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 zone was and is void. 

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 since Mr. 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, 692 P.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 zoning process were rendered moot bv the Board's adoption 

of the development pattern in Resolution No. 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 cannot be assigned as error on appeal. 

The statement objected to by Mr. Petty is in the 

conclusion of the lower court's Memorandum. It reads: 

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 Zoning District 

Commission and that the provisions of Part 1, 

County Planning and Zoning Commission, of Chapter 

2, Planning and 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 several years without challenge until the filing 

of Plaintiff's Complaint. 

The essential conclusion here is that the Board substantially 

complied with the procedures mandated by Montana law for the 

creation of the district at issue. The findings supporting 

this conclusion are that: (1) a valid petition signed by over 

60% of the freeholders in the area was 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 a public meeting on the issue that 

the Board proposed to adopt the Zoning Commission's 

development pattern. Thus, the lower court's comments on the 
significance 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 District No. 6 

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

affirm on this issue. 

Issue VI. 

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 allowing multiple uses. 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 

development pattern 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 the planning and zoning district. 

(2) Such development pattern, with the 

accompanying maps, plats, charts, and descriptive 

matter, shall show the planning and zoning 

commission's recommendations for the development of 

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 spaces and 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 residential uses. We 

disagree. Subsection 1 of this statute refers in the 

singular to a "district" and its development pattern. 

Subsection 2, upon which Mr. Petty relies for his 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 argument under this issue. 

The second argument Mr. 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 or part thereof. The development 

pattern recommended a single land use 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 to maps, charts, 
and descriptive matters was substantially complied with. 

Doull, 377 P.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 case was 

the District Court's finding that the Board had substantially 

complied with the procedures for creating districts under the 

40 acre law. Thus, there is no issue which requires our 

determination. Affirmed. 

We Concur: // 

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