IN THE SUPREME COURT OF THE STATE OF MONTANA t. 

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No. 88-2114: I - n . 111 E: u f-ri 6. w rr. C? -. 7 

THE STATE OF MONTANA, ex rel., 1 (0 (X -I : ? 

TAMMY L. LEACH and CRAIG S. LEACH, 1 rv 

GREGORY LEACH, and SUSAN LEACH, ) OPINION AND M&R~N 

Petitioners and Appellants, PETITION FOR AqEApNG 

-v- ) O 3J -p: 0 

WILBUR VISSER, JANE JELINSKI, and ) o F 

c RAMON S. WHITE, THE GALLATIN COUNTY) w 23 

BOARD OF COMMISSIONERS, 1 -4 

Respondents and Respondents. 1 

The County Commission of Gallatin County has petitioned 

for rehearing of our opinion promulgated November 1, 1988, on 

the grounds that the opinion is in conflict with an earlier 

decision of this Court, Withers v. Beaverhead County (1985) , 

710 P.2d 1339, 42 St.Rep. 1730 and that language in our 

opinion of November 1, 1988, eliminates the discretion of a 

county commission to determine if a proposed division of land 

is an attempt to evade subdivision review. 

The Attorney General, appearing on behalf of the State 

of Montana as amicus curia, supports the petition for 

rehearing, contending that the Gallatin County regulation was 

properly found by this Court to be void, but that certain 

language in our opinion is extraneous to the decision and 

that the extraneous language is contrary to controlling 

Montana case law. Several county attorneys, acting for their 

respective counties, join in the State's brief. They are the 

county attorneys from Missoula County, Flathead County, and 

Lewis and Clark County. In addition, Flathead County has 

filed a supporting amicus curia brief, and a response to the 

amicus curia brief for the State of Montana, the latter 
directed to a fear that the State may have conceded in its 

amicus brief that under all situations the local governing 

body would be deemed to be abusing its discretion in denying 

the use of an occasional sale exemption if that exemption 

were proposed only once during a twelve-month period on a 

division of land. 

The respondents have filed a responsive brief contending 

that the petition for rehearing is groundless. 

For ease of reference, we set out the Gallatin County 

subdivision regulation in question: 

b. Exemption as an occasional sale. 

(1) An occasional sale is one (1) a sale of a 

division of land within any 12-month period. The 

12-month period commences upon sale of the division 

of land. 

(2) The proper use of an occasional sale 

exemption is to create a single division of a 

parcel from any tract or from continuous tracts of 

land. 

(3) The governing body shall declare a 

proposed division of land as an occasional sale to 

he an evasion of the act if it is determined that 

one or more of the following conditions exist: 

(a) the proposed new parcel is part of a 

parcel which was created under the occasional sale 

or family conveyance exemption of the act; or 

(b) a parcel contiguous to the parcel to be 

transferred has heen previously transferred by the 

same transferor as an occasional sale; or 

(c) the creation of the proposed parcel would 

leave 2 or more parcels of less than 20 acres. 

The pertinent statutory provision to which t.he Gallatin 

County subdivision regulations relate are these: 

76-3-207. . . . unless the method of disposition 

is adopted for the purpose of evading this chapter, 

the following division of land are not subdivisions 

under this chapter . . . 
(d) a single division of a parcel outside of 

platted subdivisions when the transaction is an 

occasional sale; . . . 

76-3-103. Definitions. As used in this chapter, 

unless the context or subject matter clearly 

requires otherwise, the following words or phrases 

shall have the following meanings: 

... 

(7) "Occasional Sale" means one sale of a 

division within any 12-month period. 

In this case, Tammy Leach proposed a division of a 

certain tract 14 as an occasional sale. The tract of the 

proposed division was contiguous to a tract which had earlier 

been transferred as an occasional sale to Tamrny Leach. The 

"governing body", the county commission of Gallatin County, 

determined that since the parcel is contiguous to a parcel 

which had earlier been transferred by the same transferor as 

an occasional sale, under the Gallatin County regulation the 

Tammy Leach proposal did not qualify as an occasional sale 

and so the division was denied. More than a year had elapsed 

from the time of the earlier transfer. 

It is obvious that the Gallatin County subdivision 

regulation which sets out a per se or automatic ru1.e to 

determine when a proposed division of land is an evasion of 

the act engrafts additional and contradictory requirements on 

the statute providing for occasional sales without regard to 

whether the purpose of the proposed divider is to evade 

subdivision review. As such the regulation is void. All of 

the amici appearing herein (but not Gallatin County) concede 

that the regulation is void. and that mandamus is proper in 

the premises. What they seek, however, is to have us delete 

from our opinion of November 1, 1988, the following language: 

For the same reasons, the contentions of the county 

commission that i-t has discretion to determine 

whet.her the method of disposition is adopted for 
the purpose of evading 5 76-3-207, MCA, has no 

merit. Plainly, under our statutes, a landowner is 

permitted a single division of a parcel outside of 

a platted subdivision if the division and any other 

division do not occur within any 12-month period. 

The county commission has no discretion to deny a 

division of land if the landowner otherwise 

complies with the exemptions provided to him under 

the statutes for a single division of land. 

All of the amici contend that the foregoing paragraph 

takes away from the county commissioners the power to 

determine whether in fact a proposed division of land 

submitted as an occasional sale or under some other exemption 

of the act is an evasion of subdivision review. Such was not 

our intention, and the point requires discussion. 

There is an inherent conflict between the statutory 

allowance of an occasional sale without subdivision review, 

and the condition "unless a method of disposition is adopted 

for the purpose of evading this chapter." A landowner 

proposing to divide land under the occasional. sale exemption 

obviously contemplates avoiding subdivision review by the 

governing body. Whether such an avoidance is for the purpose 

- of evasion is quite another factual question. Fle have no 

direct guidance from the legislature through its statutes to 

determine the difference between avoidance and evasion. 

In Withers v. Reaverhead County, supra, this Court had 

before it a situation where Barbara Withers attempted to deed 

property to her daughter Amy blithers under the immediate 

family exemption of 76-3-207 (b) , MCA. When her deed and 

certificate of survey were rejected by the county 

authorities, she sought mandamus in the district court. The 

district court considered the earlier history of the family 

pertaining to land divisions, determined that the proposed 

division to the daughter was for the purpose of evading 

suhdivisi on review, and denied ma-ndamus . This Court on 
appeal held that there was no abuse of discretion by the 

county commission in so determining, and therefore denied 

mandamus. 710 P.2d at 1339, 1341. 

In this difficult field, the word "discretion" is itself 

a confusing term. It can have two meanings, as discussed by 

this Court in Kujich v. Lillie, 327 Mont 125, 137-38, 260 

P.2d 383. There we said: 

Discretion. The term "discretion" denotes the 

absence of a hard and fast rule. (citing a case) 

The establishment of a clearly defined rule 

would be the end of discretion. (citing authority) 

1 Rouvier' s Law Dictionary, Rawle ' s 3rd Rev. , p. 884, has defined "discretion" in part as: "That 

part of the judicial function which decides 

questions arising in the trial of a cause, 

according to the particular circumstances of each 

case, and as to which the judgment of the court is 

uncontrolled by fixed rules of law. 

"'Discretion when applied to a court of 

justice means sound discretion guided by law.' 4 

Burr. 529. Judicial discretion is a mere legal 

discretion--a discretion in discerning the course 

presented by law; and what has been discerned it is 

the duty of the court to follow. (citing 

authority) . . . 'A ,-egal discretion is one that is 

regulated by well known and established principles 

of law. ' (citing authority) 

"'Rut if the word discretion in this 

connection [injunction] is used in a secondary 

sense, and by it is meant that the chancellor has 

the liberty and power of acting, in finally 

settling property rights, at his discretion, 

without the restraint of the legal and equitable 

rules governing those rights, then I denv such 

power. ' " (citing authority) . 

The use of the term "d.iscretionl' by the author of our 

opinion of November 1, 1988, in the case at bar, and by this 

Court in Withers, supra, may have been unfortunate. What is 

really meant is that the governing bodies have the power and 

duty to evaluate and determine from all the circumstances 

whether the proposed division of land is based on a purpose 
to evade the subdivision requirements. The Attorney General 

recognized this distinction in an opinion issued by him on 

July 20, 1983 (40 Opinions A.G. No. 16) in response to a 

question from the city attorney of Missoula where a developer 

had completed and submitted for filing a fourth certificate 

of survey dividing a tract into five lots, four of which were 

to be conveyed as occasional sales, and the question asked 

was, whether under these facts, are the claimed "occasional 

sales" subject to review under the act on the grounda that. 

the exemptions are claimed. "for the purpose of evading" the 

act. 

The Attorney General answered in part: 

. . . I have consistently declined to address such 

questions in the context of an advisory opinion. 

However, to assist you in analyzing the issue I 

offer the following observations. As a statute 

promoting public health and welfare, the 

Subdivision and Platting Act must be literally 

construed to effectuate its object. Its exemptions 

must be narrowly applied. State ex rel., Florence 

Carlton School District v. Board of County 

Commissioners, 180 Mont. 285, 291, 590 P.2d 602, 

605 (1978). A local government may legitimately 

require one claiming an exemption from the Act's 

requirements to make some evidentiary showing that 

the exemption is justified. . . It would also be 

legitimate for the local government to establish by 

rule some sort of hearing procedure to allow the 

local government to evaluate the evidentiarv basis 

for the claimed exemption and to allow or disallow 

it. . . . In contrast, a regulation estahlishina 

procedures for evaluati-on of a claimed exemption 

gives substance to the Act's policy of local 

government control of land use and is certainly 

consistent with the Act's requirements. 

Evaluation and determination of a factual issue is 

different from "discretion." Since the legislature has 

provided that the occasional sale exemption is subject to the 

condition that it not he for the purpose of evading 
subdivision review, a determination (not discretion) by a 

governing body based on stated facts which show such a 

purpose is within the power of the governing body. This 

Court has never intended otherwise. 

Rased on the foregoing discussion therefore we eliminate 

from our original opinion the paragraph objected to by the 

county commission and by amici. Aside from that exception, 

the opi-nion as originally promulgated stands as issued. The 

petition for rehearing is otherwise denied