No. 03-229

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 262

JAMES R. GREGG, et al.; DOUGLAS L. OLIVER, et al.; MARK 

VANNYHUIS, et al.; DAVID R. LAUBER, et al.; KAY DEAN DENNING, et al.,

Plaintiffs and Appellants,

v.

THE WHITEFISH CITY COUNCIL and THE 

CITY OF WHITEFISH,

Defendants and Respondents and Cross-Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead, Cause Nos. DV-99-037, 99-038, 99-039,

99-040 and 99-041

The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

William E. Astle, Astle & Astle, Kalispell, Montana

For Respondents:

John M. Phelps, Hedman, Hileman & Lacosta, Whitefish, Montana

 Submitted on Briefs: October 30, 2003

 Decided: September 21, 2004 

Filed:

__________________________________________

Clerk
2

Justice John Warner delivered the Opinion of the Court.

¶1 James R. Gregg is one of 277 property owners (Property Owners) who collectively

appeals from an order of the Eleventh Judicial District Court, Flathead County, upholding

the proceedings of the City of Whitefish (City) to annex their property. The City crossappeals the District Court’s order holding the Property Owners properly sought court review

of the annexation proceedings. We affirm.

¶2 We address the following issues:

¶3 1. Did the District Court err in concluding a recorded waiver of protest to annexation

executed by a previous landowner is a covenant running with the land that precludes a

current landowner from protesting annexation? 

¶4 2. Did the District Court err in concluding the City could require consent to

annexation for continued receipt of utility services by enacting City of Whitefish Resolution

98-43?

¶5 3. Did the District Court err in concluding that in following City of Whitefish

Resolution 98-43, the City could imply consent to annexation from Property Owners who

continued to receive utility services after the City gave notice requiring them to disconnect

the utilities? 

¶6 4. Did the District Court err in concluding the Property Owners could secure judicial

review of the City’s annexation procedures under § 7-2-4741, MCA, even though a majority

did not successfully protest the annexation under § 7-2-4710, MCA? 

¶7 5. Did the District Court err in concluding the City met the statutory annexation

requirements of Title 7, Chapter 2, Part 47?
1 The Property Owners do not contest the City properly invalidated protests from

current property owners who signed waiver of protest agreements.

3

I. FACTUAL AND PROCEDURAL BACKGROUND

¶8 During the final four months of 1998, the City took steps to annex six residential areas

contiguous to existing City boundaries. In order to stop the annexations, a majority of

property owners in each of the areas protested under § 7-2-4710, MCA. However, after the

protests were submitted, the City invalidated a number of the protests on certain grounds,

two of which are at issue here. First, the City invalidated protests if a previous landowner

had waived the right to protest annexation and the waiver was properly recorded with the

county clerk and recorder.1

 Second, the City implied consent to annexation and invalidated

protests from property owners who failed to arrange to disconnect from the City water and

sewer services after notice of such requirement from the City. After discounting protests,

the City determined that a majority of property owners failed to protest in five of the areas,

while one of the areas successfully protested the annexation. Of the landowners in those five

areas, approximately 78% are on City water or sewer or both, and the majority have been on

the City’s system for at least 37 years. These five areas were then annexed pursuant to City

Ordinance No. 98-11. The City also adopted an Extension of Services Plan and addressed

the annexation of each area pursuant to statute. 

¶9 In January 1999, a majority of the property owners in the five annexed areas filed five

separate lawsuits challenging the process of annexation and the sufficiency of the City’s

Extension of Services Plan. Upon stipulation of the parties, the five cases were consolidated

into one. The Property Owners complained in two counts that give rise to this appeal. Count
4

I alleged the City improperly invalidated a number of their protests to annexation. Count II

alleged the City’s annexation Extension of Services Plan failed to meet specific requirements

of Title 7, Chapter 2, Part 47. In response, the City asserted, in part, that if a given Property

Owner’s protest to annexation was invalid, that property owner could not then request

judicial review of the City’s subsequent annexation proceedings. Therefore, the City

asserted that because a majority of Property Owners failed to protest annexation, the majority

required for judicial review was not met and the Property Owners had no standing to assert

Count II. The parties stipulated to various facts and submitted the issues to the District Court

for decision. 

¶10 Regarding Count I, the District Court held the City properly invalidated both the

protests of landowners whose predecessors in interest had waived the right to protest and the

protests of landowners whose consent the City deemed was implied because they did not

make plans to disconnect from City water and sewer. 

¶11 The court held the right to protest annexation was separate from the right to request

judicial review. Therefore, the court held the Property Owners could still request judicial

review of the City’s compliance with Title 7, Chapter 2, Part 47, as alleged in Count II

because a majority of property owners were joined in the suit. Regarding Count II, the

District Court reviewed ten separate challenges to the City’s annexation procedures and held

the City properly met the statutory requirements of each one. 

¶12 The court then upheld all five annexations. 

¶13 The Property Owners now appeal the rulings invalidating their protests and the rulings

upholding the annexations under Title 7. The City cross-appeals the ruling allowing the
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Property Owners to request judicial review of the statutory annexation requirements. Further

facts are discussed below.

II. STANDARD OF REVIEW

¶14 Section 7-2-4742, MCA, provides for court review of whether statutory annexation

procedures were followed and requirements met. To seek the District Court’s review under

§ 7-2-4742, MCA, the parties stipulated to numerous facts and then simultaneously

submitted “trial” briefs on the issues and then both submitted “reply” briefs. In those cases

reviewing the propriety of municipal actions under § 7-2-4742, MCA, the proper procedure

would be for a party to move for summary judgment if that party believes there are no

genuine issues of material fact. 

¶15 As to our review of whether the City’s annexation procedures and plans were in

conformity with the law, the parties disagree on the applicable standard of review. The

Property Owners assert the District Court and this Court must strictly construe the statutes

when reviewing whether an annexation was proper. They cite Pool v. Town of Townsend

(1920), 58 Mont. 297, 191 P. 385; Gregory v. City of Forsyth (1980), 187 Mont. 132, 609

P.2d 248; and Nilson Enter., Inc. v. City of Great Falls (1980), 190 Mont. 341, 621 P.2d

466, in support of their strict construction argument. In addition, the Property Owners argue

that even though the City is a charter government with self governing powers, the statutory

directives of § 7-1-114(1)(a) & (2), MCA, and § 7-2-4742, MCA, limit the City’s authority

so it must strictly comply with all portions of the annexation statutes. 

¶16 The City asserts that because it is a self-governing municipality, it is entitled to a

presumption that its actions were proper and reasonable doubts are to be resolved in its favor.
6

Art. XI, Sec. 6, Mont. Const.; § 7-1-106, MCA. In addition, the City cites State ex rel. Swart

v. Molitor (1981), 190 Mont. 515, 621 P.2d 1100, to argue that although the City must

comply with the annexation statutes as indicated by § 7-1-114, MCA, it may act where the

statutes are silent. Under Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67, and

§ 7-2-4743, MCA, the City argues its annexation ordinances, like legislative enactments, are

entitled to a presumption of reasonableness. Finally, the City asserts two of the cases cited

by the Property Owners, Gregory and Nilson, do not stand for strict and complete

compliance, but instead stand for substantial compliance.

¶17 In Gregory, a case in which the City of Forsyth argued the method provided for

annexation of territory to a municipality was not exclusive, we stated:

The general rule is that municipal boundaries may be extended only as

prescribed by law. 2 McQuillin, Municipal Corporations § 7.14 at 317 (3rd

rev. ed. 1979). Since the jurisdiction of a city to extend its boundaries is a

special power, conferred by the legislature, a substantial compliance with all

the mandatory requirements of statutory law is essential. McQuillin, supra, §

7.29 at 422; Pool v. Town of Townsend (1920), 58 Mont. 297, 304, 191 P. 385,

386.

Gregory, 187 Mont. at 135, 609 P.2d at 250. Thus, we concluded the only way to extend

municipal boundaries was that provided by statute. The standard requiring substantial

compliance with mandatory statutes was established.

¶18 In Nilson, the City of Great Falls annexed land without filing either a land description,

a certificate of ownership, or an owner’s consent to annexation, as specifically required by

statute. The Gregory standard of substantial compliance was reaffirmed by inserting the

above quotation. Then, the Court went on to say:

Moreover, we reaffirm this Court's decisions in Pool, Balock and Gregory,
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supra. When statutory language provides the manner in which a city or town

may annex a portion of contiguous property, it must completely and strictly

comply with the statute's requirements. Annexation, and the taxation

implications that accompany it, should not be approached lightly. The

procedure should not be haphazard. Although Gregory reaffirmed the rule of

substantial compliance, the complete failure to secure the documents necessary

to the proper annexation of property is not substantial compliance. The

complete disregard of the mandates of what is now section 7-2-4403, MCA,

was an error fatal to the City's power to annex.

Nilson, 190 Mont. at 347, 621 P.2d at 470. Thus, as the City of Great Falls did not comply

at all with the mandatory requirements of the annexation statute, and the owner of the

property did not consent to the annexation, it was declared void. In this context, the words

“completely and strictly” were added in discussing the standard of substantial compliance

with the annexation statutes.

¶19 Both Gregory and Nilson involved facts where the respective cities did not follow a

mandatory statutory procedure at all. Thus, in those cases both of the phrases “substantial

compliance” and “completely and strictly comply” were appropriate. In this case the City

did comply with each and every one of the statutory mandates as we discuss below. It is the

degree of such compliance that is called into question by the Plaintiffs.

¶20 The municipal annexation statutes contain numerous and detailed requirements for

a city to annex property. Some of these, especially those concerning plans for the future,

charge city planners to make subjective value judgments and statements of opinion. The

cardinal considerations for requiring substantial compliance with the annexation laws are

public notice and participation, particularly for those affected by a proposed annexation.

Gregory, 187 Mont. at 136, 609 P.2d at 251. If all of the substantive and procedural

requirements of the annexation statutes are included and complied with by a municipality in
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the annexation procedure, the law will necessarily have been followed. And, in addition, if

each of the statutory mandates that contain a subjective component are considered and

included in the required plans, i.e., substantially complied with, those citizens whose

property is in the annexed area, as well as the residents of the entire city, will have notice

and the opportunity to participate. We hold compliance with the annexation statutes must

be complete and municipalities must follow all of the directives of the statutes. Compliance

must be substantial where a statute requires a municipality to exercise discretion in making

its planning decisions. If there are no disputed issues of fact, this Court will review a district

court’s decision on whether there was compliance with the law de novo. 

III. DISCUSSION

ISSUE ONE

¶21 Did the District Court err in concluding a recorded waiver of protest to

annexation executed by a previous landowner is a covenant running with

the land that precludes a current landowner from protesting annexation?

¶22 Under Montana’s statutory scheme for annexation of land adjoining a city, a

landowner has the right to protest a proposed annexation. This right is codified at § 7-2-

4710, MCA, which reads: 

Protest. (1) For a period of 45 days after the public hearing provided for in

7-2-4707 through 7-2-4709, the governing body of the municipality shall

accept written comments approving or disapproving the proposed annexation

from real property owners of the area proposed to be annexed.

(2) If a majority of the real property owners disapprove of the proposed

annexation in writing, further proceedings under this part relating to the area

or any part of the area proposed to be annexed may not be considered or acted

upon by the governing body on its own initiative, without petition, for a period

of 1 year from the date of disapproval. 

At the same time, a municipality may require consent to annexation as a condition of
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initiating service to a parcel of land. Section 7-13-4314, MCA, provides: 

Annexation as a requirement for receiving service. Any person, firm, or

corporation receiving water or sewer service outside of incorporated city limits

may be required by the city or town, as a condition to initiate such service, to

consent to annexation of the tract of property served by the city or town. The

consent to annexation is limited to that tract or parcel or portion of tract or

parcel that is clearly and immediately, and not potentially, being serviced by

the water or sewer service. 

¶23 In 1966, the City adopted a policy requiring that in order to receive City water and

sewer utilities a landowner outside City boundaries had to agree to waive their right to

protest a later annexation by the City. The waivers used by the City are entitled either

“Consent to Annex Agreement” or “Waiver of Protest Agreement” (collectively referred to

as waiver of protest agreements or waivers). Despite the difference in title, both waiver of

protest agreements read as follows: 

That for and in consideration of the sum of One Dollar and other good

and valuable consideration ($1.00 o.v.c) to us in hand paid, and certain

premises, mutual terms, covenants, provisions, conditions, and agreements, we

do hereby waive any and all right to protest which we may have in regard to

any attempt made or to be made by the City of Whitefish, Montana, to annex

to and make a part of the said City of Whitefish, and incorporate within its

boundaries the following described real property situated in the County of

Flathead, State of Montana, to-wit: . . . 

We do hereby further agree that this covenant shall run to, with, and be

binding upon the title of the said real property, and shall be binding upon our

heirs, assigns, successors in interest, purchasers, and any and all subsequent

holders or owners of the above-described real property. 

These waivers were properly recorded after being executed by previous landowners. The

waivers were used by the City to invalidate protests submitted by current Property Owners.

As a result, two of the areas no longer had a majority of property owners protesting

annexation and the City annexed those areas. 
10

¶24 The District Court concluded the waivers constitute covenants running with the land

because the waivers were for the direct benefit of the property itself. The District Court also

stated the statutory right of protest is premised on property ownership and that when such

right was waived and recorded, it runs with the land. Finally, the District Court noted the

consent requirements of § 7-13-4314, MCA, allow a city to extend water and sewer service

to a specific tract of land if the owner of the land consents to annexation. The court held that

because this statute is also tied to a specific parcel of land based on ownership, the waivers

constitute a covenant that runs with the land. 

¶25 On appeal, the Property Owners argue the statutory right to protest in § 7-2-4710,

MCA, resides with the current landowner and therefore a recorded waiver executed by a

previous landowner cannot invalidate a protest to annexation. They argue the statutory

consent to annexation authorized by § 7-13-4314, MCA, only applies to the initiation of

service and therefore cannot transfer to subsequent purchasers. The Property Owners again

cite Pool, Gregory, and Nilson, to assert that in order for such a waiver to be valid, the

Legislature must expressly authorize municipalities to record these waivers by enacting

another annexation statute. 

¶26 The City argues such waivers are valid and binding on subsequent owners of the

property because the waivers were executed by the previous owners to secure a benefit for

the land, because the waivers were properly recorded, and because the language of the

waivers indicates an intent that subsequent purchasers of the land be bound by the waiver.

Finally, the City argues if future purchasers are not bound by the covenants, the entire

process of development and subdivision of land would break down and property would have
11

to be annexed one parcel at a time.

¶27 Molitor addressed an analogous situation in which a self-governing county enacted

an ordinance requiring the payment of a fee to the examining land surveyor. Molitor, 190

Mont. at 520-24, 621 P.2d at 1103-05. The plaintiff asserted that under § 7-1-114, MCA,

a self-governing entity must follow the state planning and zoning laws and therefore, the fee

was improper because those laws did not expressly provide for such a fee. We disagreed,

holding § 7-1-113, MCA, allows a self-governing entity to act even where there are

controlling state laws as long as the local government’s actions are not inconsistent with or

“lower or less stringent” than state requirements. We held § 7-1-103, MCA, and § 7-1-106,

MCA, both require that we give self-governing powers a broad interpretation. 

¶28 The same reasoning applies to this case. Section 7-1-114(1)(a), MCA, requires the

City to comply with the state annexation laws. Section 7-13-4314, MCA, allows the City

to require consent to annexation for supplying its utility service. The waiver of protest

agreements are executed to obtain this consent. Recording the waivers in order to create

covenants that run with the land and bind subsequent purchasers is not inconsistent with or

less stringent than the state requirements. The purpose of § 7-13-4314, MCA, is to ensure

that property owners outside a municipality can request utility service and to ensure that a

local government can later require annexation in exchange for its utilities. Creating a

covenant that runs with the land furthers these purposes. The alternative would be to require

utilities to be disconnected every time a property changes hands so that the City can again

require consent to annexation for its utilities under § 7-13-4314, MCA. Such a result is not

contemplated by the statutory language of § 7-2-4710, MCA, or § 7-13-4314, MCA.
12

¶29 The Property Owners argue there is no statutory authority for such covenants. We

disagree. Section 70-17-203, MCA, provides that “Every covenant . . . which is made for

the direct benefit of the property or some part of it then in existence, runs with the land.”

The plain language of this statute indicates the present waivers are allowed as they directly

benefit the property. Hampton v. Lewis & Clark County, 2001 MT 81, ¶ 25, 305 Mont. 103,

¶ 25, 23 P.3d 908, ¶ 25. Therefore, the waivers are proper because the waivers directly

benefit the property and are not inconsistent with or “lower or less stringent” than the state

annexation requirements. We note here the Property Owners focused only on their statutory

argument that the annexation statutes do not allow for such covenants. They did not argue

the waivers do not meet all the necessary elements of a covenant running with the land.

Therefore, we need not assess all the elements of covenants running with the land. 

¶30 In sum, the District Court properly concluded the waiver of protest agreements

recorded by the City constitute covenants that run with the land that comply with the state

annexation statutes. These covenants are binding on subsequent purchasers including the

Property Owners joined in this case. Therefore, the City properly invalidated protests from

these Property Owners and two of the areas annexed by the City did not have a majority of

property owners protest the annexation. 

ISSUE TWO

¶31 Did the District Court err in concluding the City could require consent to

annexation for continued receipt of utility services by enacting City of

Whitefish Resolution 98-43?

¶32 A number of tracts in the areas to be annexed have been receiving utility services

since before 1966 when the waiver of protest agreements were initiated. In order to address
13

the continuation of services to property that receives water and sewer utilities from the City,

the City adopted Resolution 98-43 (the Utility Rule) in September 1998. The Utility Rule

provides that upon notice to the property owner, the City can imply consent to annexation

if the property owner continues to use the utility services. The rule reads in part as follows:

The City may, at any time, require a property owner’s consent to annexation

as a condition of continued sewer and/or water service. When the City

determines to require such consent from a particular property owner, the City

may notify the property owner, in writing, that the City seeks such consent,

and that if such consent is not given, the City will require that the property

owner discontinue receiving sewer and water service. . . . If . . . the property

owner has not, within ten (10) days, made firm written arrangements to

discontinue sewer and water service, then the City shall be entitled to treat the

property owner as having consented to annexation of his or her property upon

expiration of such 10-day period. . . . If the property owner consents to

annexation [by failing to make arrangements to disconnect], then the City shall

be entitled to disregard any protest that such property owner makes to a

proposed annexation of his or her property.

This rule is based on 46 Op. Att’y Gen. No. 12 (1995) (AG Opinion) which held that

municipalities can establish rules requiring consent to annexation for continuing service.

¶33 Pursuant to the Utility Rule, the City gave notice to the affected Property Owners that

it would imply their consent to annexation if they failed to make written arrangements to

disconnect from the City’s utilities. Although numerous Property Owners protested the

annexations in writing, few made arrangements to disconnect their utilities. Because they

did not make arrangements as required by the Utility Rule, the City invalidated these protests

and implied consent to annexation. When these protests were subtracted by the City, none

of the five areas had a majority of landowners protest annexation. 

¶34 The District Court held that § 7-13-4314, MCA, and the AG Opinion properly

supported the City’s position that consent to annexation may be required for receipt of
14

continued utility service. 

¶35 Analogous to their first argument, the Property Owners assert § 7-13-4314, MCA,

does not provide statutory authority for the Utility Rule and that the City cannot by virtue

of the rule equate receipt of services to consent to annexation. Further, the Property Owners

disagree with the AG Opinion that a municipality can require consent to annexation as a

condition of continued receipt of services. The City argues it properly relied on the AG

Opinion when it adopted the Utility Rule.

¶36 The District Court is correct. The AG Opinion concludes a municipality “may adopt

a rule for the operation of its municipal sewer and/or water utility requiring a property

owner’s consent to annexation as a condition of continued sewer and/or water service.” This

conclusion is based on § 69-7-201, MCA, which governs the operation of public municipal

utilities. This statute reads: 

Rules for operation of municipal utility. Each municipal utility shall adopt,

with the concurrence of the municipal governing body, rules for the operation

of the utility. The rules shall contain, at a minimum, those requirements of

good practice which can be normally expected for the operation of a utility. .

. . The rules shall outline the utility's procedure for discontinuance of service

and reestablishment of service as well as the extension of service to users

within the municipal boundaries and outside the municipal boundaries. The

rule shall provide that rate increases for comparable classifications and zones

outside the municipal boundaries may not exceed those set within the

municipal limits under the provisions of this chapter.

As the Attorney General noted, the provisions of this statute indicate a legislative intent to

give municipalities broad authority to adopt rules for the operation of water and sewer

utilities. 

¶37 Specifically, § 69-7-201, MCA, makes clear a municipality has authority to establish
15

rules regarding users outside its boundaries. Further, the “requirements of good practice

which can be normally expected for the operation of a utility” must, by necessity, include

rules governing continued use. Therefore, § 69-7-201, MCA, gives a municipality authority

to set rules for continued use of its utilities by users outside its boundaries. So, § 7-13-4314,

MCA, allows a municipality to require consent to annexation in order to initiate service, and

§ 69-7-201, MCA, allows a municipality to make rules regarding the discontinuance and

reestablishment of service. Therefore, a municipality may require consent to annexation for

continued use as well as initial use.

¶38 Rules of statutory construction support this interpretation. We interpret related

statutes to harmonize and give effect to each. Chain v. Mont. DMV, 2001 MT 224, ¶ 15, 306

Mont. 491, ¶ 15, 36 P.3d 358, ¶ 15. Different language is to be given different construction.

In re Kesl's Estate (1945), 117 Mont. 377, 386, 161 P.2d 641, 646. Given these rules, the

phrase “extension of service” in § 69-7-201, MCA, does not have the same meaning as the

word “initiate” in § 7-13-4314, MCA. In addition, we avoid statutory construction that leads

to absurd results if a reasonable construction will avoid it. Chain, ¶ 15. By allowing a

municipality to demand consent to annexation as a requirement of continued service, all

parties avoid the duplicative and unnecessary step of discontinuing service if the landowner

wishes to continue to receive service and consent to annexation. At the same time, a

landowner who does not want to consent to annexation can simply make arrangements to

disconnect from service. We affirm the District Court’s determination that the City complied

with the state annexation statutes when it adopted the Utility Rule in Resolution 98-43 and

thereby required consent to annexation as a condition of continued service. 
16

ISSUE THREE

¶39 Did the District Court err in concluding that by following City of Whitefish

Resolution 98-43, the City could imply consent to annexation from

Property Owners who continued to receive utility services after the City

gave notice requiring them to disconnect the utilities? 

¶40 Under the Utility Rule set out above, after notice property owners must make “firm

written arrangements to discontinue sewer and water service” if they do not wish to consent

to annexation. If a property owner fails to do so, “the City shall be entitled to treat the

property owner as having consented to annexation.” Further, the City is entitled to

“disregard any protest” submitted by such a property owner. 

¶41 The District Court held that because § 7-13-4314, MCA, does not require a specific

type of consent such as express, written or implied, implied consent was a valid form of

consent. The court also held implied consent was proper under § 28-2-503, MCA. 

¶42 The Property Owners argue there is no statutory authority for implying consent to

annexation under the annexation statutes. They also assert that under the contract statute

regarding voluntary acceptance of a benefit codified at § 28-2-503, MCA, there can be no

meeting of the minds given that the Property Owners submitted written protests. Finally, the

Property Owners argue ambiguity and confusion in the City’s letters prevented any meeting

of the minds that would validate implied consent by the Property Owners. The City argues

the implied consent provided for in the Utility Rule is allowed by § 28-2-503, MCA. 

¶43 As already decided above, the Utility Rule properly requires consent to annexation

for continued service. The rule simply establishes a procedure which puts the burden on the

property owner to make written arrangements to disconnect if they wish to express their
17

protest to annexation. Contrary to the Property Owners’ argument, there is statutory

authority for this approach. Pursuant to § 7-2-4710, MCA, a property owner’s consent to

annexation is implied if they fail to file written protest. Indeed, a property owner must file

written protest under § 7-2-4710, MCA, in order to be counted towards a majority protesting

annexation. Section 7-2-4710, MCA, and the Utility Rule simply embody the procedure that

once proper notice is given, both action and inaction constitute a decision. Finally, as the

District Court noted, nothing in the language of § 7-13-4314, MCA, requires a specific type

of consent regarding annexation. Therefore, the Utility Rule’s procedure which implies

consent from failure to submit written arrangements to disconnect upon notice from the City

is acceptable. 

¶44 The Property Owners’ argument that no meeting of the minds occurred under § 28-2-

503, MCA, misses the point. While it is true that implied consent can form a contract under

Montana law as indicated by § 28-2-503, MCA, this statute is inapplicable here as the City

was not seeking to form a contract with the Property Owners. The City was simply giving

the Property Owners notice regarding their options. Indeed, no meeting of the minds was

ever to occur and no contract was ever to be formed. Finally, any ambiguities in the letters

from the City are irrelevant because no contract was to be formed. The Property Owners do

not assert the letters failed to inform them that written arrangements to disconnect were

required. 

¶45 We conclude the City’s procedure to imply consent as allowed in the Utility Rule is

a proper method to determine if a property owner wishes to continue receiving City services

or, in the alternative, wishes to protest annexation. We affirm the District Court’s conclusion
18

the City properly invalidated protests from users who did not make arrangements to

disconnect from the City’s utilities. Therefore, none of the five areas annexed by the City

had a majority of property owners protest the annexation.

ISSUE FOUR

¶46 Did the District Court err in concluding the Property Owners could secure

judicial review of the City’s annexation procedures under § 7-2-4741,

MCA, even though a majority did not successfully protest the annexation

under § 7-2-4710, MCA? 

¶47 The City argues the Property Owners cannot challenge the remaining annexation

proceedings because a majority of property owners did not successfully protest. The District

Court disagreed with the City and concluded:

The right to protest under Section 7-2-4710, M.C.A., and the right for judicial

review for failure of the governing body to comply with the statutory

procedures and requirements under Section 7-2-4741, M.C.A., are separate

and distinct rights. Section 7-2-4710, M.C.A., provides that a majority of the

real property owners who validly protest may stop or block annexation.

Section 7-2-4741, M.C.A., is available after annexation and allows a majority

of the property owners to seek judicial review to force or compel the municipal

governing body to comply with statutory procedures. The relief available to

[the Property Owners] is controlled by Section 7-2-4742, M.C.A., and appears

to be limited to forcing conformance by the governing body. Since the rights

are separate and distinct, clearly, failure to exercise the right to protest and a

waiver of the right to protest, would not waive any property owner’s right to

seek judicial review. 

¶48 The City asserts the Property Owners subject to a waiver of protest agreement cannot

challenge the annexation because they bargained away that right in exchange for city

services. The City also argues the Property Owners who were deemed to have consented to

annexation under the Utility Rule cannot challenge annexation because they impliedly agreed

to accept city services in exchange for their consent. 
19

¶49 The City also argues it is unfair to allow a property owner to consent to annexation

to receive the City’s services and then allow that same person to reverse their position and

file suit against the annexation. The City argues if such action is allowed, municipalities will

have to annex one property at a time in order to avoid costly litigation. The City asserts there

is no societal benefit in making annexation even more difficult than it already is because

municipalities still have to comply with Title 7. The City points out after discounting these

Property Owners, there is no longer the required majority for judicial review under §

7-2-4741, MCA. 

¶50 The Property Owners assert the District Court properly determined the right to request

judicial review under § 7-2-4741, MCA, is separate from the right to protest annexation

under § 7-2-4710, MCA. 

¶51 The right to protest under § 7-2-4710, MCA, is set out above. Section 7-2-4741,

MCA, reads: 

Right to court review when area annexed. (1) Within 30 days following the

passage of an annexation ordinance under authority of this part, either a

majority of the real property owners of the area to be annexed or the owners

of more than 75% in assessed valuation of the real estate in the area who

believe that they will suffer material injury by reason of the failure of the

municipal governing body to comply with the procedures set forth in this part

or to meet the requirements set forth in 7-2-4734 and 7-2-4735, as applied to

their property, may file a petition in the district court of the district in which

the municipality is located seeking review of the action of the governing body.

We interpret related statutes to harmonize and give effect to each and to avoid absurd results.

Chain, ¶ 15. To hold that property owners must meet the protest requirements of § 7-2-4710,

MCA, in order to request judicial review under § 7-2-4741, MCA, would fail to give effect

to the separate language of § 7-2-4741, MCA. Such a holding would also mean newly
20

annexed citizens of a municipality could not make sure the municipality substantively and

procedurally complied with the annexation statutes. Such results are not in accord with the

statutes. 

¶52 Regarding the waiver of protest agreements, the language clearly indicates the

Property Owners waived the right to protest, not the right to request judicial review. The

waivers read: 

[W]e do hereby consent to and waive any and all right to protest which we

may have in regard to any attempt made or to be made by the City of

Whitefish, Montana, to annex to and make a part of said City of Whitefish,

and incorporate within its boundaries . . . . [Emphasis added]. 

Protest, as is indicated by § 7-2-4710, MCA, can be made before an annexation occurs. In

contrast, the language of § 7-2-4741, MCA, indicates the right to request judicial review is

activated after a municipality completes an annexation. Therefore, although the waiver of

protest agreements unconditionally waived protest rights, the owners simply made no

agreement regarding their right to demand judicial review. 

¶53 We disagree with the City’s assertion that the obligation of good faith and fair dealing

implied in every contract requires the Property Owners to refrain from interfering with

annexation in any way. This obligation cannot be so broadly construed as to waive a

statutory right to judicial review. 

¶54 Regarding the consent implied by continued use under the Utility Rule, as discussed

above in ¶ 44, we disagree that any contract regarding annexation was formed. The “offer”

to continue service in exchange for consent was not an offer to enter into a contract, but was

a means to inform the Property Owner how to register a valid protest. Therefore, these
21

Property Owners did not waive their right to judicial review. 

¶55 The judicial review allowed by § 7-2-4741, MCA, is how residents confirm the City’s

actions in annexing their homes comply with the law. We note the City does not dispute the

Property Owners met the other requirements of § 7-2-4741, MCA. Therefore, we affirm the

District Court’s determination that although the Property Owners did not stop the annexation

process under § 7-2-4710, MCA, they properly petitioned to assure the City met statutory

annexation requirements of Title 7, Chapter 2, Part 47.

ISSUE FIVE

¶56 Did the District Court err in concluding the City met the statutory

annexation requirements of Title 7, Chapter 2, Part 47?

¶57 The Property Owners contend the City’s Extension of Services Plan (Plan)

specifically violates the requirements of § 7-2-4731(1)(a)(i), MCA; § 7-2-4731(1)(a)(ii),

MCA; § 7-2-4731(1)(a)(iii), MCA; § 7-2-4731(1)(b), MCA; § 7-2-4731(1)(c), MCA; § 7-2-

4732(1), MCA; § 7-2-4732(2)(b), MCA; § 7-2-4732(2)(c), MCA; § 7-2-4732(3), MCA; §

7-2-4732(4), MCA; and § 7-2-4733, MCA. The Property Owners’ challenge is the same

with respect to the five areas to be annexed. Although we address each statute specifically

below, we note, as did the District Court, the Property Owners essentially wish to establish

the City may not annex their properties unless the entire City pays for the extension of new

water and sewer mains. As discussed more fully below, because the City has already

planned and provided for sufficient water and sewer capacity for the annexed areas, because

the City’s policy to require private parties to pay for main extensions is allowable under §

76-3-510, MCA, and because the Plan sets forth how new mains can be provided, we hold
22

the City’s annexation Plan substantially complies with state statute. 

¶58 We address the statutes out of numerical sequence, in order to more clearly present

the parties’ arguments. 

A. Does the Plan include the statement regarding the extension of

municipal services required by § 7-2-4731(1)(c), MCA?

¶59 Section 7-2-4731(1)(c), MCA, reads: 

Plans and report on extension of services required. (1) A municipality

exercising authority under this part shall make plans for the extension of

services to the area proposed to be annexed and shall, prior to the public

hearing provided for in 7-2-4707 through 7-2-4709, prepare a report setting

forth its plans to provide services to such area. This report shall include:

. . . . 

(c) a statement setting forth the plans of the municipality for extending to the

area to be annexed each major municipal service performed within the

municipality at the time of annexation.

The parties stipulated that the only municipal services at issue are water mains, sewer mains

and roads, and that all other municipal services are adequately provided for in the Plan. 

¶60 The Plan and the Addendum to the Plan (Addendum) document the extensive water

and sewer mains and roads that already exist within the annexed areas. These water and

sewer mains already exist in the annexed areas because the City has been extending its

municipal services to properties outside its boundaries for over 80 years. Regarding

anticipated municipal service needs for those properties within the annexed areas that do not

have access to existing mains, the Plan states that construction of any new water or sewer

mains will be paid for by the private party desiring the development. This has been the

City’s policy both within and outside City boundaries since 1977. The Plan also states the

City has no plans to extend any new services into the areas to be annexed because the need
23

for any additional water and sewer mains and roads will be initiated and driven by private

demand and therefore cannot be predicted by the City. In addition, the Plan notes the City

is not aware of any requests for and does not propose any capital improvements over the next

five years that would be funded by a Special Improvement District (SID). Finally, the Plan

notes that properties within the annexed areas that are currently served by their own wells

and septic systems will remain on those systems until upgrades become necessary. 

¶61 The parties stipulated the City’s water plant and sewer plant capacities are already

large enough to serve all properties in the annexed areas. In addition, the parties stipulated:

It is a reasonable possibility that one or more individual properties within the

five annexed areas, as a result of future development of individual property

within those annexed areas, developed to densities authorized by present

Whitefish zoning, will necessitate the extension of the Whitefish municipal

water [and sewer] mains, within five years from the date of the annexation of

the five areas. 

The parties also stipulated it would cost approximately $2.275 million to extend water and

sewer mains to reach every property in all five of the annexed areas. 

¶62 In holding the Plan meets the requirements of § 7-2-4731(1)(c), MCA, the District

Court concluded:

[A] substantial number of lots within the five areas to be annexed already

receive City water and sewer, or else have private water and septic systems.

Those lots which are not currently receiving City water and sewer may

connect at any time, and the City water and sewer facilities have adequate

capacity to service those additional lots. The City has no plans to extend

services in those annexed areas, as the services presently exist or are not being

requested.

¶63 The Property Owners assert that because the City stipulated there is a reasonable

possibility construction of water or sewer mains will be necessary within the next five years,
24

the Plan does not comply with § 7-2-4731(1)(c), MCA, when it states the City has no plans

for the extension of these services. They argue a statement that present services are

sufficient is not enough to meet the statute’s requirements. The Property Owners also argue

the statute does not exempt its requirement for a plan when part of the area to be annexed

already receives municipal services, when part of the area to be annexed is on a private well

or septic system, or for when no one is requesting additional service. The Property Owners

essentially argue the City must, as a part of its annexation plan, specifically show how water

and sewer mains will be extended to all unserved properties within the annexed areas. 

¶64 The City argues the Plan conforms to § 7-2-4731(1)(c), MCA, because it states in the

Addendum the City has no plans to extend services at this time in each area. The City also

asserts the Plan conforms to the statute because the Plan also states that if properties are

developed, the mains and streets will only be extended when private parties request and pay

for an extension. The City notes its longstanding policy, in accord with § 76-3-510, MCA,

that developers and property owners who wish to extend a main are responsible for its cost

whether inside or outside City boundaries. The City also points out that because of the

existing extensive urban development in the areas to be annexed, water and sewer mains are

already in place through or beside much of each area. Regarding roads, the City notes the

Plan states the City will assume maintenance of all existing roads in the annexed areas.

Finally, the City asserts it cannot predict future extensions because as the Plan states, new

mains and roads are initiated by private demand. 

¶65 We hold the Plan substantially complies with § 7-2-4731(1)(c), MCA. Even though

the City agrees it is reasonable to expect that private landowners in the annexed areas may
25

develop their property so that water or sewer main extensions become necessary in the near

future, the statute does not require the City to address each specific property within the

annexed area. Rather, the statute requires the City to set forth the City’s plans for the

extension of municipal services into the area. In this case, the City’s plan regarding new

water and sewer mains and roads is that the City does not intend to undertake any new

construction unless requested and paid for by a landowner. This approach, when considered

along with the agreed fact that the City now has adequate water and sewer plants,

substantially complies with the statute for a number of reasons. 

¶66 First, the City’s policy to require private parties to pay for new water and sewer mains

and roads is permissible under § 76-3-510, MCA, which allows local governments to require

developers to pay for the extension of capital facilities. Given this policy, the City does not

initiate development, nor does the City finance development. Rather, such construction is

only undertaken when a private property owner decides to request it and pay for it. Although

the City can assist in the financing of construction by setting up a SID so local landowners

can pay the costs over time, the Plan mentions the City is not currently aware of any requests

for a SID. 

¶67 Second, to the extent the City can influence the decisions of local landowners within

the annexed areas on whether to develop their property such that new main extensions and

roads are required, the Plan illustrates the City has already done so. The Plan includes the

comprehensive City-County zoning applicable to land within one mile of the City boundary

and the planning district applicable to land within four and one-half miles of the City

boundary. The Plan also discusses the City’s predictions and preferences regarding when
26

and where growth will occur. This discussion addresses each possible development direction

north, south, east and west of the City and also discusses the reasons for the existing

development. 

¶68 Third, because of the extensive development that already exists within the annexed

areas in this case, this situation is distinguishable from annexation of a newly proposed

subdivision. In the latter situation, the plans for the extension of services into the annexed

areas would be coordinated with government approval of the subdivision itself as directed

under Title 76. 

¶69 Finally, as the parties stipulated, the City already has sufficient water and sewer

capacity to serve each property in the newly annexed areas. This stipulation is critical

because it indicates the City has in fact already addressed a very expensive component of

extending new municipal services into the annexed areas. Therefore, no plan for expanding

the City’s overall water and sewer capacity is necessary in the Plan. 

¶70 In sum, contrary to the Property Owners’ argument, § 7-2- 4731(1)(c), MCA, does

not require the City to extend services. Rather, it requires the City to set forth its plans as

to how new services will be extended to the annexed area so that the public is informed

before the hearings required by §§ 7-2-4707-4709, MCA. The City’s Plan in this case

complies with § 7-2-4731(1)(c), MCA, because it properly sets forth the City’s plans for the

extension of new water, sewer, and road services. 

B. Does the Plan provide for future development in conformance with § 7-

2-4732(2)(b), MCA?

¶71 Section 7-2-4732(2)(b), MCA, reads:
27

[The Plan shall] provide for future extension of streets and of major trunk

water mains, sewer outfall lines, and other utility services into the area to be

annexed, so that when such streets and utility lines become necessary and are

constructed, property owners in the area to be annexed will be able to secure

such services, according to the policies in effect in such municipality for

extending such services to individual lots or subdivisions.

¶72 The District Court held the Plan meets this statute because it sets out the City’s policy

to extend water and sewer mains only when the property owner pays the cost. The court also

noted it would be unfair to current City residents if the City were to change this policy as the

policy has always applied within City boundaries.

¶73 The Property Owners again argue the Plan fails to meet the statute. They argue the

specific statutory language requires the Plan to provide plans for when future utility lines

“become necessary” even if not currently necessary. The Property Owners again point to the

stipulation between the parties that it is probable new water and sewer mains will be needed

within five years. 

¶74 The City argues the Plan complies with the statute because the policy for future

extensions is in line with the current policy to require the property owner to pay for the

extension. The City also argues because it has water and sewer capacity to serve the

annexed areas and a grid of mains beside or through the annexed areas that can be accessed

for future development, its Plan complies with the statute. 

¶75 We hold the Plan substantially complies with § 7-2- 4732(2)(b), MCA, because it says

that future development will have to meet the current “policies in effect” for extension of

services and the policy is stated. In other words, the policy for landowners inside and

outside the City is that new water mains, sewer mains, and roads will be financed by the
28

property owner requesting the construction. 

C. Does the Plan include a financing method in conformance with § 7-2-

4732(3), MCA?

¶76 Section 7-2-4732(3), MCA, reads: 

A method must be set forth by which the municipality plans to finance

extension of services into the area to be annexed. If the area is serviced

currently by adequate water and sewage services, streets, curbs, and gutters

and no capital improvements are needed to provide adequate services

stipulated by this section and 7-2-4731, the municipality must provide the area

to be annexed with a plan of how they plan to finance other services to be

included within the district--mainly, police protection, fire protection, garbage

collection, street, and street maintenance services, as well as continued utility

service.

¶77 The District Court held the Plan meets this requirement because the areas to be

annexed are currently serviced by adequate water and sewer lines. The court also held the

parties’ stipulations indicated no capital improvements were needed. 

¶78 The Property Owners argue the Plan fails to meet this requirement because no

financing method is set forth and because, contrary to the District Court’s holding, capital

improvements will be needed in the future to extend water and sewer mains. The Property

Owners assert the District Court mischaracterized the stipulations of the parties regarding

existing services and ignored the fact that the parties also stipulated there is a reasonable

possibility future development will require the extension of water and sewer mains. The

Property Owners point out that the City stipulated the cost to extend water to all unserved

lots in all five areas would be $966,713 and the cost to extend sewer to all unserved lots

would be $1,308,387. The Property Owners also argue the City should not be able to rely

on the fact that some of the newly annexed properties have their own septic systems or wells
29

in order to avoid addressing plans for the extension of services to those properties that will

need service in the future. 

¶79 The City asserts sufficient financing methods are set forth in the Plan. First, the City

points out the Plan provides that new extensions must be paid for by the developer or

property owner. The City also notes it is also part of the Plan to provide for “Latecomers

Agreements” which allow the City to partially reimburse developers’ utility costs from other

properties that connect to a new main extension within ten years. The Plan also allows for

the formation of SIDs to spread the cost of a main extension over all the benefitting

properties. The City argues it now has water and sewer capacity to serve the annexed areas

even with new development. This capacity is currently funded by already established taxes

and fees as set out in the Plan. Finally, the City asserts the Plan also sets out the current

revenue sources for street maintenance. 

¶80 We conclude the Plan substantially complies with § 7-2-4732(3), MCA. The Plan sets

forth the City’s plans for financing methods that sufficiently describe how needed

improvements and extensions will be paid for in the annexed areas. Further, we will not

disturb the District Court’s decision that the annexed areas are “serviced currently by

adequate water and sewage services [and] streets” and that no capital improvements are

needed to provide the services stipulated by § 7-2- 4732 and -4731, MCA, because the Plan

makes clear the City has no plans to extend new services as discussed above. 

D. Does the Plan include tax burden statements and voting methodology

statements in conformance with § 7-2-4732(4), MCA, and § 7-2-4733,

MCA?

¶81 Section 7-2-4732(4), MCA, reads: 
30

In this annexation plan, it must be clearly stated that the entire municipality

tends to share the tax burden for these services, and if so, the area may be

annexed without a bond issue under the provisions of this part. 

Section 7-2-4733, MCA, reads: 

Vote required on proposed capital improvements. Included within the plan

must be methodology whereby the area to be annexed may vote upon any

proposed capital improvements. Should a negative vote be cast by over 50%

of the residents in the section or sections to be annexed in such election, the

area may not be annexed. 

¶82 The District Court held these two provisions must be read together. The court noted

the Plan states the entire City will share in the tax burden for the services that will be

provided. The court went on to hold that in this instance, because no new capital

improvements were proposed in the Plan that would require a bond or a SID, no

methodology for a vote was necessary. 

¶83 The Property Owners argue the Plan does not comply with these sections. Essentially,

the Property Owners argue that because the language of § 7-2-4732(4), MCA, requires a

statement that the tax burden for municipal services is shared by the entire community, the

City is responsible for paying for new sewer and water main extensions and new roads. As

a result, the Property Owners assert the City’s policy to require private parties to pay for new

main extensions or roads must be void. Further, they argue the language of § 7-2-4732(4),

MCA, prevents the City from using a SID to fund development because a SID is paid for

only by those properties immediately benefitted by the extended utility mains rather than the

“entire municipality.” They assert the City is evading the law by not proposing any new

capital improvements in order to avoid the statutory requirements.

¶84 In support of their arguments, the Property Owners misquote § 7-2-4732(4), MCA.
31

Their brief states: “The language of § 7-2-4732(4), MCA, requires that the ‘entire

municipality must share the tax burden for the extension of water and sewer mains.’” This

quote is in error because the statute actually reads as set out above. 

¶85 The City argues the Plan complies because for each of the areas to be annexed, the

Addendum states the entire community tends to share the tax burden. The City asserts § 7-2-

4732(4), MCA, allows annexation without a methodology for voting because no bond issue

is necessary as no capital improvements were proposed. 

¶86 We conclude the City’s annexation Plan substantially complies with subsections 7-2-

4732(4) and -4733, MCA. The Plan and the Addendum describe various funding sources

and methods for financing each of the municipal services. The Plan and Addendum also

describe the City’s method of financing future extensions of water, sewer, and roads by

following the policy that the developer or homeowner pays for the installation when needed.

The Addendum also contains the statement for each annexed area: “Nevertheless, the entire

community tends to share the tax burden for City services.” Further, the Plan states the City

has no plans for specific capital improvements related to the annexations. 

¶87 These statements in the Plan make it apparent nothing about the annexations requires

special or new funding sources. Instead, all municipal services provided to the newly

annexed areas, including water capacity, sewer capacity, road maintenance, police and fire

protection, storm drainage, garbage disposal, recreation, and other services, will be paid for

by the general tax burden shared by the entire community. Any new main extensions or

roads must be paid for by the party requiring the new construction. The tax burden for the

continuing cost of all municipal services extended under the Plan is to be shared by all City
32

residents. Therefore, the Plan complies with § 7-2-4732(4), MCA, because it sets forth the

City’s plan for the extension of municipal services such that no special funding sources are

required to accomplish the annexations. As a result, no bond issue was necessary to proceed

with the annexation as allowed under § 7-2-4732(4), MCA. Further, no voting methodology

was required pursuant to § 7-2-4733, MCA, because no capital improvements were proposed

by the City. 

¶88 We disagree with the Property Owners’ argument that § 7-2-4732(4), MCA, requires

the City and its current residents “must” pay for new main extensions for annexed residents

because of the Plan’s statement the entire municipality tends to share the tax burden. As

mentioned, the Property Owners misquote § 7-2-4732(4), MCA. “Must” is used in the

statute to indicate the Plan must contain the required statement in order to annex without a

bond issue. “Must” is not used in the statute to indicate the City is required to pay for new

main extensions. Such an interpretation would directly contradict § 76-3-510, MCA. 

¶89 Rather, the statute requires a statement the municipality “tends” to share the tax

burden for services. “Tends” as used in the statute gives the City latitude to decide to

finance new construction for newly annexed areas in accordance with § 76-3-510, MCA,

which allows the City to charge individuals for infrastructure needed to specifically benefit

their property. Again, we will not interpret § 7-2-4732(4), MCA, in a way that invalidates

the plain language of § 76-3-510, MCA. Further, the City’s policy to require the party

requesting a new main extension to pay for it does not conflict with this statute because, as

the parties stipulated, the entire municipality still tends to share the tax burden of the overall

water and sewer capacity of the system, which are expensive and continuing components of
33

supplying water and sewer.

¶90 As to the Property Owners’ argument that the City is purposefully subverting the

statute by not planning capital improvements, this argument fails to recognize the City has

acted within its legal authority. Perhaps in hindsight one could argue from a planning

perspective the City should not have extended services to properties without annexing them.

Or perhaps the City should not annex without forming a SID so that all the newly annexed

properties must pay for new main extensions to be installed immediately upon annexation

even if such are not currently needed. However, hindsight does not guide our review. We

only review whether the City’s actions substantially complied with the statute such that its

annexation Plan properly informs the public how the extension of services into the annexed

areas will be both planned and financed. We hold that it does. 

E. Does the Plan contain a long range plan as required by § 7-2-4732(1),

MCA?

¶91 Section 7-2-4732(1), MCA, reads: 

Contents of plan for extension of services. (1) Specifically, the plans for the

extension of services shall provide a long-range plan for extension of services

and the acquisition of properties outside the corporate limits. This plan must

show anticipated development a minimum of 5 years into the future, showing

on a yearly basis how the municipality plans to extend services, develop and

add sections to the city.

¶92 The District Court concluded the City’s Plan was in compliance stating: 

[The Property Owners’ position] flies in the face of present-day city

expansion. [Their] position ignores the fact that development and resulting

annexation are driven by property owners, not by the cities. Whitefish is no

longer “Stumptown,” when the City initiated development; now it is the

landowner, who, wishing to maximize investment in land, is developing the

land and thereafter seeking municipal services. Further, as noted above, the

services in the form of water, sewer, and roads already exist in all the areas to
34

be annexed. There is no extension of services which can occur, beyond the

individual landowner or developer paying to connect with the existing utilities.

¶93 The Property Owners argue there is no long range plan in the Plan and no statement

showing anticipated development five years into the future. They assert the District Court

improperly exempted the City from this unambiguous requirement and that the court’s

holding ignores the statutory directive. The Property Owners also argue that if the statute

no longer fits the times, it is up to the Legislature to change it, not the District Court. 

¶94 The City asserts the Plan conforms to § 7-2-4732(1), MCA, because it discusses

factors likely to influence growth over the next five years by including sections entitled

Economic Conditions and Trends, Physical Growth Trends, Impediments to Growth, Growth

Stimulants, Prevailing Growth Patterns, and a map of the Projected Growth Area. The City

also argues the Plan identifies three contemplated annexations that will occur within five

years. Finally, the City argues the District Court correctly noted development and

annexations are currently driven by property owners, not cities. 

¶95 We hold the City’s Plan substantially complies with § 7-2-4732(1), MCA, because

it does include careful consideration of future needs. Inter alia, the Plan details two

additional areas that will likely be annexed within five years. In addition, the part of the Plan

discussing growth patterns by direction from the City mentions the City’s preferred growth

areas and notes where water and sewer mains would be most easily extended to facilitate

new growth. This section also mentions that although the City anticipates growth, much of

the growth that is expected to occur beyond the limit of current City services will most likely

occur after more than five years has passed. The Plan also discusses anticipated growth
35

influences over a period longer than five years. Finally, the Plan makes clear the City, in

conformity with a long existing policy, will not extend its services unless such is paid for by

the developer. Therefore, again, to the extent the City can make long range plans without

knowing the plans of private landowners, the Plan does so. 

¶96 The District Court is wrong to the extent its holding implies the City can ignore the

statutory mandate because “the times have changed.” However, because the Plan itself

substantially complies with the statute in this instance, we will affirm. 

F. Does the Plan include a timetable as required by § 7-2-4732(2)(c),

MCA?

¶97 Section 7-2-4732(2)(c), MCA, requires the Plan to set forth a proposed timetable for

construction to extend streets, water, sewer, or other utility lines if such extension is

“necessary.” The District Court held that no timetable was required because no new utility

extensions were “necessary.” The court noted its agreement with the City that private

development determines when extensions will occur and also noted the City has water and

sewer capacity to meet the needs of the annexed areas. 

¶98 The Property Owners argue a timetable is not in the Plan contrary to the plain

language and that because the City acknowledges there will likely be development in the

future, the Plan must have a timetable. They assert that even though development will be

fueled by private entities, the City has an obligation to predict both the location and timing

of this development. They point out the Plan is an informational document for the public

that can be changed as predictions change. 

¶99 The City asserts a timetable is only required when extensions are “necessary.” The
36

City asserts because it has no plans for new water or sewer services or for new roads,

extensions are not necessary and therefore a timetable is not necessary. The City argues it

cannot predict future development by private parties more than it already has. 

¶100 We hold the Plan does comply with § 7-2-4732(2)(c), MCA, because no timetable

must be included in the Plan when no extensions are “necessary.” Further, as mentioned, to

the extent the City can predict or direct the timing of growth, the Plan does so by referring

to the City’s zoning requirements, by discussing factors influencing growth patterns, and by

discussing possible growth directions outside the City. 

G. Does the Plan include maps of the City’s present and proposed

boundaries in conformance with § 7-2-4731(1)(a)(i), MCA?

¶101 Section 7-2-4731(1)(a)(i), MCA, requires the Plan to include a map or maps showing

the present and proposed boundaries of the municipality.

¶102 The Property Owners argue the Plan does not include a map of the present and

proposed boundaries because the maps of the proposed boundaries are not in the Plan itself.

The City asserts maps of the City are in the Plan and the proposed boundaries are shown on

maps in the Addendum which includes a detailed statement for each specific area to be

annexed. 

¶103 We hold the Plan complies with § 7-2-4731(1)(a)(i), MCA, because the Plan includes

maps of the City and because maps with a “proposed annexation boundary” for each

annexation area are attached to the Plan in the Addendum so that any member of the public

who wishes to know the proposed boundaries can easily determine such by reference to the

Addendum.
37

H. Does the Plan include maps of the present and proposed streets and

water mains in conformance with § 7-2-4731(1)(a)(ii), MCA?

¶104 Section 7-2-4731(1)(a)(ii), MCA, reads the Plan shall include a map of: 

the present streets, major trunk water mains, sewer interceptors and outfalls,

and other utility lines and the proposed extension of such streets and utility

lines as required in subsection (1)(c).

¶105 The Property Owners assert there is no map meeting these requirements. The City

asserts the Addendum maps show the existing streets, water mains, and sewer mains. The

City also argues it did not have to show any proposed streets or utility mains on its maps

because it is not proposing any as the areas to be annexed are already fully developed urban

areas. 

¶106 We hold the Plan complies with § 7-2-4731(1)(a)(ii), MCA, because the maps in the

Addendum show the present streets, water mains, and sewer mains for each area to be

annexed. Further, the Plan complies because no new streets or utility mains are proposed

as discussed above.

I. Does the Plan include maps of the general land use in conformance with

§ 7-2-4731(1)(a)(iii), MCA?

¶107 Section 7-2-4731(1)(a)(iii), MCA, reads the Plan shall include a map of “the general

land use pattern in the areas to be annexed.” The Property Owners argue there is no such

map included in the Plan itself and that the District Court erred in relying on the maps in the

Whitefish City-County Master Plan (Master Plan). The City asserts the Plan includes such

a map because Exhibit C to the Plan is labeled with zoning codes that correspond to the CityCounty zoning districts applicable to land within one mile of its boundaries. The City also

asserts the Plan explicitly incorporates the Master Plan by reference in the introduction and
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by specific references in the Addendum. 

¶108 We hold the Plan complies with § 7-2-4731(1)(a)(iii), MCA, because Exhibit C to the

Plan shows the “Zoning Use Designations.” These designations indicate general land use

by showing already applicable zoning as adopted by Flathead County in coordination with

the City. Further, while we hold there must be some map showing general land use patterns

in the Plan as is done in Exhibit C, we agree with the District Court that the Plan can refer

to the Master Plan for more detailed information. 

J. Does the Plan include the statement regarding boundaries required by

§ 7-2-4731(1)(b), MCA?

¶109 Section 7-2-4731(1)(b), MCA, requires the Plan to include “a statement showing that

the area to be annexed meets the requirements of 7-2-4734 and 7-2-4735.” Sections 7-2-

4734 and -4735, MCA, address, as the District Court noted, “the location of the area to be

annexed in relation to the existing city limits” and other boundary requirements. The

Property Owners assert the District Court erred because it concluded the Plan complies with

§ 7-2-4734 and § 7-2-4735, MCA, even if it does not have a specific statement asserting that

it complies as is required by § 7-2-4731(1)(b), MCA. The City argues the Addendum has

such a statement for each of the areas to be annexed. The City further argues that because

§ 7-2-4734, MCA, and § 7-2-4735, MCA, contain at least six requirements, it is impossible

to state complete compliance in one statement. Finally, the City argues it complied with §

7-2-4734, MCA, and § 7-2-4735, MCA. 

¶110 We hold the Plan complies with § 7-2-4731(1)(b), MCA, because the Addendum

contains the required statement for each of the annexed areas. Each of the five areas has a
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statement which reads: “CONCLUSION As shown in the preceding text, the area to be

annexed meets the requirements of Section 7-2-4734 and Section 7-2-4735 MCA.” 

IV. CONCLUSION

¶111 In sum, the District Court correctly determined the City’s procedures to invalidate

protests based on waiver of protest agreements and based on the Utility Rule are proper.

Further, the District Court correctly determined the Property Owners retained their right to

request judicial review even though they failed to successfully protest annexation. Finally,

the District Court correctly determined the City’s Plan conforms with the requirements of

Title 7, Chapter 2, part 47. Therefore, the annexations at issue are proper and are effective

as provided by statute. We affirm.

/S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA O. COTTER

/S/ JIM REGNIER

/S/ JAMES C. NELSON