No. 13817 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

PHIL YOUNG et al.,Petitioners and Respondents,

-vsSTILLWATER COUNTY COMMISSIONERS 

### et al., Respondents and Appellants.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judgepresiding. Counsel of Record: For Appellants: Anderson, Syrnmes, Brown, Gerbasq,Cebull & Jones,

Billings, Montana Joseph Gerbase argued, Billings, Montana For Respondents: Moulton, Bellingham,Longo & Mather, Billings, Montana Ward Swanser argued, Billings, Montana ForAmicus Curiae: Milodragovich, Dale and Dye,Missoula,Montana

Submitted: June 8, 1978 Decided: 

# Au ' -Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court

# . Respondents desired to plat two tracts of land, located within Stillwater County,which are part of the larger parcel, owned and subdivided by respondents. There is no dispute that the plats in question are "minorplats" within the meaning of the subdivision laws of the State of Plontana, specifically section 11-3863(5), R.C.M. 1947. On March 8, 1976,respondents submitted the two plats to appellant StillwaterCounty Planning Board for approval. On March 15, 1976, the Board denied summary approval of the plats and set thematter for a public hearing. Notice of said hearing was given pursuant to section 11-3866(3), R.C.M. 1947 and the hearing held onApril 6, 1976. On April 19, 1976, the Planning Board disapproved the plats. Respondents appealed to appellant Stillwater County Commissioners,who,

onMay 17, 1976,affirmed the disapproval. Respondents then petitioned for a writ of certiorari to the District Court, StillwaterCounty. Then both parties moved for summary judgment. On February 28, 1977, the District Court,Honorable C. 

### B. Sande presiding, granted summary judgment for respondents, reversing the decision of appellants and concluding as a matter of law: "That the County Commissionersand County Planning Board of Stillwater County attempted to apply the provisions relative to amajor plat to a minor plat in violation of Montana law.

"Theminimum requirements of Montana law did not require or authorize a public hearing to be held on the plat to obtain input in accordance with requirementsof a major under R.C.M. 11-3866."That the minor plats compliedwith all the requirementsof Montana law and were eligible for summary approval and should have been approved by the County Commissioners and the County Planning Board of Stillwater County. 

## * * * " Appellants appeal the order of the District Court granting summary judgment as aforesaid. The District Court further ordered that the Stillwater County Clerk and Recorder file theplats of record. Pursuant to that order,the plats were filed. Thereafter, the land

was sold. Appellants made no attempt to stay the order of the District Court,or to enjoin the filing of the plats or the sale of land pending appeal. Considering the applicable statutes in effect at the time of the decision of District Court, this Court must affirm the decision and hold there is no statutory authority for public hearings on "minor" plats absent local regulations to that effect. Section 11-3863 (5),R.C.M. 1947,makes clear that subdivision plats containing five or fewer parcels (a "minor" plat) where there isproper access,where no land in the subdivisionwill be dedicated to public use, and which have been approved by the Departmentof Health and Environmental Sciences where such approval is required, shallbe subject to summary review and approval. The only statutory requirement for a public hearing in any reviewprocedure for a subdivisionplat is provided in section 11-3866,R.C.M. 1947. However that section excepts from its procedural review requirements any "plat eligible for summary approval." Section 11-3866 

### (I),R.C.M. 1947. 

### A public hearing may be had on a minor subdivisionplat if such a hearing is required by localregulationsas indicated by the proviso to subsection (5) of section 11-3863,R.C.M. 1947: "reasonablelocal regulations may contain additional requirements for summary approval." In the instant case the parcels in question were identified by the planning board asminor subdivision plats and eligible for summary review and approval. Therefore, unless the local regulations required a public hearing, no suchpublic hearing was necessary under the statutory scheme set forth in section 11-3866. The planning board here admitted that ithad no local regulations in effect at the time of the board action. Appellants have argued that regulationspromulgated by the Department of CommunityAffairs pursuant to the legislative direction given in section 11-3863 (2),R.C.M. 1947, are regulations the county can enforce as subdivision regulations in lieu of its own. This argument rests on a directive contained in section 11-3863(8), R.C.M. 1947, stating that if

a county by July 1, 1974 had not adopted regulations regarding subdivisions, the Department of CommunityAffairs was to formulate reasonable regulations that the county could then be required to enforce until its ownwere adopted. Appellant contends that the regulation set forth at 

### M.A.C. 1975 822-2.4

(B)(6) -S420 (1)(n)

### ,requiring local regulations to provide for summary reviewand approval procedures and forwaiver of preliminary plat, environmental assessment and public hearing requirements, is such a regulation and under its authority the county can require a public hearing. Such is not the

case. The regulations contained in Title 22,M.A.C. relating to subdivision are those regulations required by section 11-3863(2), tobe prescribed to establish minimum requirements for subdivision regulations. They are not 

### -the regulations

### required by section 11-3863(8), R.C.M. 1947 tobe prescribed in the event the county did not meet the July 1, 1974 deadline. Apparently no such regulationswere made for or adopted by Stillwater County. Therefore, in the absence of any local regulations requiring a public hearing, the appellants could only look to the statutory scheme for authority to hold a public hearing and none existed. The District Court was correct in its conclusion that no public hearing in this case was required or authorized tobe held on the minor plats before summary approval. The question has been raised by amici curiae briefs whether thepublic interest finding requirements in section 11-3866(4), R.C.M. 1947,should be read into section 11-3866 (6),R.C.M. 1947, which sets forth the rev,iewprocedure for

aminor plat, orwhether the separate procedural requirements formajor andminor plats mean separate standards for approval. Because section 11-3866(6), R.C.M. 1947,was not in effect

on the datespertinent to this appeal,we will not address that question at this time. Affirmed.

We concur:

Chief Justice

Mr. Chief Justice Frank I. 

### Haswell deems himself disqualified in this case.