NO. 88-211 ? 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, ex rel., 

TAMMY L. LEACH and CRAIG S. LEACH, 

GREGORY LEACH, and SUSAN LEACH, 

Petitioners and Appellants, 

-vsWILBUR VISSER, JANE JELINSKI, and 

RAMON S. WHITE, THE GALLATIN COUNTY 

BOARD OF COMMISSIONERS, 

Respondents and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Eula Compton, Bozeman, Montana 

For Respondent : 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana; James D. McKenna, Deputy County Attorney 

Submitted on Briefs: Aug. 11, 1988 

Decided: November 1, 1988 

-- J - ,U L~S Clerk 

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Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

State law permits a single division of a parcel of land 

outside of platted subdivisions without a local subdivision 

review when the transaction is an occasional sale. An 

"occasional sale" means one sale of a division of land within 

any 12 month period. State law also limits a single division 

of a parcel of land if "the method of disposition is adopted 

for the purpose of evading" local subdivision review. 

Gallatin County has adopted Subdivision Regulation 2.b.(3)(b) 

to the effect that an occasional sale is an evasion of local 

subdivision review if "a parcel contiguous to the parcel to 

be transferred has been previously transferred by the same 

transferor as an occasional sale." 

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. On that basis, the 

District Court, Eighteenth Judicial District, Gallatin 

County, determined that the attempted division of Tract 14 

did not qualify for an occasional sale of land and was not, 

therefore, exempt from local subdivision review. The District 

Court denied a petition for a peremptory writ of mandamus. 

We determine here that Gallatin County Subdivision 

Regulation 2.b. (3) (b) directly conflicts with the provisions 

of S 76-3-207, MCA, permitting single divisions of land 

parcels outside of platted subdivisions when they qualify as 

occasional sales. We therefore reverse and remand this cause 

with directions to the District Court to issue a writ of 

mandate to the respondents to permit the proposed division of 

land. 
The findings of fact of the District Court adequately 

describe the problem. In 1981, the Leach family purchased 

265 acres of land in Gallatin County. A 20-acre tract within 

the purchase, Tract 12, was divided without subdivision 

review in 1983 into two 10-acre tracts. Tract 12B was 

conveyed away. In 1984, Tract 13 was divided without local 

subdivision review into two 10-acre tracts and Tract 13A was 

conveyed away. In May, 1985, petitioner Tammy Leach acquired 

Tract 13B. In 1984, the Leach family conveyed Tract 14 to 

Craig, Don, Gloria and Tamrny Leach. Later, in 1984, Tract lA 

was sold to petitioners Gregory and Susan Leach. The present 

controversy involves an attempt to divide Tract 14. 

Petitioner Tammy Leach would become the owner of Tract 14A. 

In 1986, the proposed division of land of Tract 14A to Tamrny 

Leach was rejected by the County Commission because the 

proposed transfer was contiguous to the transfer of Tract 

13B; and so under the Gallatin County subdivision regulations 

did not qualify as an "occasional sale." Another request for 

the transfer of Tract 14A to Tammy Leach was considered by 

the County Commission and denied in February, 1987. 

The decision of the County Commission not to approve the 

division of land proposed by the Leaches was conveyed to them 

by a letter signed by the Commissioners, dated February 25, 

1987. The letter recited the history of the transfers of the 

tracts as above enumerated and pointed out that the county 

subdivision rules "do not allow a parcel contiguous to the 

parcel to be transferred if it has been previously 

transferred by the same transferor as an occasional sale." 

Based on that history, the Commission "determined that the 

method of disposition of the land was adopted for the purpose 

of evading the requirements of Title 73, Ch. 2, Pt. 2, MCA 

(t.he local subdivision review requirements). 
The petitioners filed an action in the District Court 

for a writ of mandate directing the County Commission to 

permit the division of land as proposed. The District Court, 

after entering findings of fact and conclusions of law, 

denied the petition for peremptory writ of mandamus on 

January 23, 1988. From that order of denial the petitioners 

have appealed to this Court. 

The issues presented by the Leaches are: 

1. In accordance with 5s 76-3-207 and 76-3-103(7), MCA, 

a landowner may enter into one occasional sale each and every 

year without the sale or a series of sales being deemed 

subject to local subdivision review. 

2. The Gallatin County Subdivision regulation is void 

as eliminating the statutory exemption for occasional sales. 

3. Gallatin County's subdivision regulati-ons violate 

the Montana and United States Constitutions. 

In answer, the Commission contends that: (1) the 

Gallatin County subdivision regulations are reasonable and 

not in conflict with state law; (2) the County Commission is 

given discretion to determine whether a proposed division of 

land is for the purpose of evading the Subdivision and 

Platting Act; and, (3) the constitutional arguments should 

not be considered because they were not presented in the 

District Court. 

The principal issue in this case is controlled by our 

decision in State of Montana ex rel. Swart v. Casne, et al. 

(1977), 172 Mont. 302, 564 P.2d 983. In that case, the same 

provisions now contained in 76-3-207, MCA, and § 

76-3-103 (7) , MCA, were involved, though contained in earlier 

numbered statutes. In that case, Gallatin County had adopted 

a regulation to the effect that the exemption contained in [S 

76-3-2071 did not apply to the resubdivision or redesign of a 

subdivision platted or filed with the clerk and recorder. 
Swart owned five lots in a platted subdivision which he had 

proposed to divide by drawing a straight line dividing each 

lot into substantially equal parts, and transferring one of 

the halves as an occasional sale of the property. His 

proposal was denied by the County Commission, and he applied 

to the District Court for a writ of mandate, directing the 

Commission to permit the division. The District Court 

granted a writ of mandate, and the decision was affirmed on 

appeal to this Court. In affirming, this Court said: 

These regulations are in direct conflict with the 

provisions of the Subdivision and Platting Act 

heretofore set forth in S [76-3-2073. They 

eliminate the statutory exemption as applied to 

"resubdivisions or redesign" of platted and 

recorded subdivisions. They require an amended 

plat reviewed and approved by the governing body to 

be filed with the clerk and recorded in direct 

contradiction to the statutory exemption. They 

engraft additional and contradictory requirements 

on the statute in the guise of implementing the 

evasion of statutory requirements. They frustrate 

the purpose of the "occasional sale" exemption of 

the Act. As such, the . . . regulations are void 

on their face. See Bartels v. Miles City, 145 

Mont. 116, 399 P.2d 768. It is axiomatic that a 

statute cannot be changed by administrative 

regulation. See Begay v. Graham, L8 Ariz. App. 

336, 501 P.2d 964. 

172 Mont. at 308, 564 P.2d at 986. 

In this case, we are faced with the exact problem that 

came before this Court in Swart. Here, the earlier divisions 

of tracts qualified as occasional sales because more than 12 

months elapsed between each division of the parcels. In the 

case directly before us, the transfer to Tammy Leach has been 

refused because it is contiguous to a tract that had earlier 

qualified as an occasional sale, although in the present 

case, more than a year has elapsed from the time of the 

earlier transfer. The effect of the continguous tract 
provision in the Gallatin County Subdivision Regulations is, 

in the words of Swart, to "engraft additional and 

contradictory requirements on the statute in the guise of 

implementing the evasion of statutory requirements." The 

Gallatin County regulation is therefore impermissible 

because, in the language of Swart: 

This grant of authority does not include the right 

to promulgate regulations in direct conflict with 

the Act. Where, as here, the Act provides for 

exemption of occasional sales from the subdivision 

requirements, DCA cannot prescribe subdivision 

regulations eliminating the exemption for the 

reasons heretofore stated. An administrative 

agency is not a "super legislature" empowered to 

change statutory law under the cloak of an assumed 

delegated power. 

172 Mont. at 308-09, 564 P.2d at 986. 

For the same reasons, the contention of the County 

Commission that it has discretion to determine whether 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 und.er the statutes for a single division of land. 

There is no need to address the constitutional issues 

raised by the Leaches since we determine that the county 

regulation is void. 

The Commission, however, further contends that a 

declaratory judgment rather than a writ of mandate is a 

proper remedy in this cause. The County Commission points to 

decisions in other states which hold that a declaratory 

judgment action is a proper method of challenging a zoning 
ordinance and that a writ of mandamus in this case is 

inappropriate since the county had no legal duty to disregard 

its own regulations. Again, this contention was answered in 

Swart : 

Here there was a clear legal duty the defendants 

were required to perform for the reasons heretofore 

stated. A declaratory judgment action would not 

necessarily get the certificate of survey filed in 

the light of previous difficulties between petition 

and the clerk and recorder in getting such 

certificates filed as evidenced in State ex rel. 

Swart v. Stuckey, supra. A declaratory judgment 

action would not make petitioner whole as attorneys 

fees are not allowable in such an action. A writ 

of mandate is the only remedy available to secure 

the ultimate relief sought by the petitioner--to 

compel the lifting of sanitary restrictions, the 

filing of a certificate of survey, and an award of 

relator's attorney fees. 

172 Mont. at 309, 310, 564 P.2d at 987. 

In order for the petitioners to obtain complete relief, 

a writ of mandate is proper in this cause. Accordingly, we 

reverse and remand to the District Court with instructions to 

issue a writ of mandate directed to the County Commission to 

permit the division of land as proposed by Tamrny Leach, and 

for such other relief as may be appropriate for a writ of 

mandate in this cause. 

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, -. Justice 

We Concur: / 
Justices