No. 90-377 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

MARY W. McELWAIN, 

Plaintiff and Appellant, 

THE COUNTY OF FLATHEAD, 

a political subdivision 

of the State of Montana, 

Defendant and Respondent. 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

.PPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marshall Murray, Esq.; Murray & Kaufman, P.C., 

Kalispell, Montana 

For Respondent: 

Thomas J. Murphy, Esq. ; Conklin, Nybo & Leveque, 

P.C., Great Falls, Montana 

Submitted on Briefs: November 15, 1990 

Decided: May 2, 1991 

Filed: 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Plaintiff and appellant, Mary McElwain, appeals the judgment 

of the District Court, Eleventh Judicial District, Flathead County, 

denying her claim for damages for the reduction in value of her 

property caused by the enactment of septic regulations by Flathead 

County. The District Court, sitting without a jury, held that the 

regulations served a legitimate State interest in protecting the 

health and safety of the public, and that appellant was not 

entitled to any compensation. We affirm. 

The issue on appeal is whether the District Court erred in 

finding that the regulations imposed on appellant's property did 

not constitute a taking of property. 

Appellant purchased approximately fourteen acres of real 

property along the Flathead River in 1979 for the purpose of 

building a home in which to retire. At the time of the purchase, 

the property was subject to the 1975 county regulations for 

subsurface sewage treatment systems. These regulations made it 

unlawful to construct or alter an individual sewage system within 

Flathead County without first obtaining a valid permit for the 

specific construction proposed. The regulations further set forth 

a setback requirement of 100 feet from the Flathead River, as well 

as other requirements dealing with septic tank capacity, minimum 

absorption area standards, and quality of material used for 

construction of the system. Nowhere in the 1975 regulations is 

there a setback requirement from the 100-year flood plain. The 

appellant would have been able to build her home substantially as 
originally contemplated, with a 200-foot setback from the edge of 

the Flathead River, without violating any of the 1975 regulations. 

On August 6, 1984, Flathead County adopted a resolution, known 

as the Flathead County Flood Plain Regulations, and official flood 

plain maps which showed appellant's property to lie within the 100- 

year flood plain. These 1984 regulations required a 100-foot 

setback between the septic system drain field and the flood plain. 

On August 23, 1984, appellant applied for a permit to install a 

below-ground septic system on the property in order to begin 

construction of the retirement home. Her application was denied 

on the grounds that all of her property was in or within 100 feet 

of the 100-year flood plain as designated by the flood plain maps. 

On July 21, 1986, after appellant had hired a civil engineer to 

prove that a portion of her property was outside the flood plain, 

the Flathead County Flood Plain Manager agreed that a portion of 

the appellant's property did in fact lie outside the flood plain. 

Appellant reapplied for a below-ground septic system permit 

on November 6, 1986. The application was denied on the basis that 

a 100-foot setback between the septic system drain field and the 

100-year flood plain could not be attained on the appellant's 

property. Appellant's drain field as proposed would have been 80 

feet from the flood plain. Her request for a twenty foot variance 

was denied by the county on May 13, 1988. Flathead County advised 

appellant that the only proposal that may be permitted would be a 

mounded septic system. 

Testimony at trial revealed that the home initially 
contemplated by appellant was a three-bedroom home and that a 

properly designed drain field for a three-bedroom home could have 

been configured to fit within appellant's property without 

violating the 100-foot setback from the flood plain requirement and 

without the need for a mounded septic system. The plans denied by 

Flathead County contemplated a drain field for a four-bedroom home. 

Appellant appealed the denial of her variance request through 

the entire administrative process before pursuing this action in 

District Court. No issue as to the appropriateness of the denial 

of the variance has been raised. 

The sole issue on appeal is whether the District Court erred 

in finding that the reduction in value of appellant's property is 

not a taking for which compensation is due. 

Before we can directly address this issue, however, a brief 

discussion of the proper standard to be used in police power 

actions where "takingsf1 challenges are raised is necessary. 

The United States Supreme Court has wrestled with the question 

of what the proper standard should be in police power actions for 

quite some time. In Penn Central Transportation Co. v. New York 

City (1978), 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 

631, 648, the Court said, 

[Tlhis Court, quite simply, has been unable to develop 

any ''set formula1' for determining when lljustice and 

fairness1' require that economic injuries caused by public 

action be compensated by the government. 

The Court settled on a standard that states if the regulation is 

llsubstantially related to the promotion of the general welfare, 

it does not constitute a taking. Penn Central, 438 U.S. at 138, 

4 
98 S. Ct. at 2666, 57 L.Ed. 2d at 657. The Court added a second half 

to this standard, requiring that the owner not be denied 

 economically viable use" of his or her land. Agins v. Tiburon 

(1980), 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 

112. This is the standard currently used by the United States 

Supreme Court in examining taking challenges. Nollan v. California 

Coastal Commission (1987), 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 

677. See also Keystone Bituminous Coal Assln v. DeBenedictis 

(1987), 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472. 

Previous opinions by this Court have applied a standard of 

reasonableness to the question of whether a taking has occurred 

when a land-use regulation is imposed through an exercise of police 

power. Yellowstone Valley ~lectric v. ~stermiller (1980), 187 

Mont. 8, 15, 608 P.2d 491, 496; Western Energy Co. v. Genie Land 

Co. (1987), 227 Mont. 74, 78, 737 P.2d 478, 481. We have stated 

that a regulation adopted through an exercise of police power must 

be "reasonably adapted to its purpose and must injure or impair 

property rights only to the extent reasonably necessary to preserve 

the public welfare. Yellowstone Valley ~lectric, 187 Mont. at 15, 

608 P.2d at 496. 

Although "reasonableI1 is the language this Court has applied 

to our analysis of taking issues, it is nonetheless a standard of 

equivalent merit and significance to the federal standard of 

flsubstantial." As the United States Supreme Court points out in 

Nollan, 483 U.S. at 835, 107 S.Ct. at 3147, 97 L.Ed.2d at 688, the 

standards to be applied to taking challenges are not the same 
standards as those applied to due process or equal protection 

claims. "Reas~nableness~~ as used in the former situation does not 

necessarily carry the same distinction from llsubstantialll as it 

does when used in the latter situations. 

We applied our standard of reasonableness to a taking issue 

in Western Enerqy Co. and held that the statute in question did 

not meet the standard. There we said Ifthe means chosen to advance 

the interest must be reasonable,'' and yet several paragraphs later 

stated, "[tlhe statute does not bear the requisite 'substantial 

relation to the public health, safety, morals, or general 

welfare. 'I' (Emphasis added; citations omitted.) Western Enerqv 

Co., 227 Mont. at 78, 737 P.2d at 481. (See also Anderson 

Insurance v. City of Belgrade (Mont. 1990), 803 P.2d 648, 47 

St. Rep. 2287, where this Court used llreasonablell and wsubstantialll 

in like context.) Therefore, to clarify this standard and further 

conform with the federal standard we expressly state that the 

question to determine whether a land-use regulation is properly 

invoked is whether the regulation i.s substantially related to the 

legitimate State interest of protecting the health, safety, morals, 

or general welfare of the public, and utilizes the least 

restrictive means necessary to achieve this end without denying the 

owner economically viable use of his or her land. 

Appellant contends that the regulation fails to meet either 

part of this standard. Appellant argues that the regulation fails 

to satisfy the first part because it does not substantially advance 

the legitimate State interest in public health in the Flathead 
River Basin. In support of this argument appellant contends that 

the county has failed to demonstrate that the 100-foot setback 

requirement from the flood plain would be any more effective than 

a lesser distance. Appellant maintains that the county has not 

presented any evidence or scientific data that would allow the 

court to determine that a 100-foot setback from a flood plain is 

necessary to substantially advance the State's interest in keeping 

sewage out of the river. 

There are several shortcomings in this reasoning. The first 

is appellant's assertion that the District Court applied the 

incorrect standard. Appellant contends that the issue is not 

whether the regulation is reasonable, as the District Court found, 

but whether the regulation substantially advances public health. 

As we stated above, the terms llreasonable" and llsubstantialll have 

been used by this Court and the United States Supreme Court 

interchangeably in the context of police power actions and taking 

challenges for many years. The District Court relied on the 

previous opinions by this Court that contain the language 

llreasonable,ll and the standard as read from these opinions is the 

correct standard. 

A second flaw in appellant's position is her belief that the 

county maintains the burden of proving that the regulation meets 

the necessary standard. 

The District Court found that appellant had failed to overcome 

the presumption that the regulations as adopted were reasonable. 

Appellant asserts that the District Court erred in relying on 
Whistler v. Burlington Northern Railroad Co. (1987), 228 Mont. 150, 

741 P.2d 422, to reach this conclusion. Appellant insists that 

such a presumption is inapplicable to this case, and it is the 

county that must demonstrate the regulation is substantially 

related to a legitimate State interest. It is her contention that 

Whistler does not apply here because the plaintiffs in Whistler 

were requesting that an administrative order be declared unlawful, 

and in this case appellant is not challenging the legality of the 

regulation, but rather is seeking compensation under the Fifth 

Amendment. 

The presumption of validity spoken of in Whistler refers to 

the general rule that all legislative enactments are presumed valid 

and the burden of proving their invalidity is on the plaintiff. 

Reeves v. Ille Electric Company (1976), 170 Mont. 104, 109, 551 

P. 2d 647, 650. This principle is equally applicable in cases where 

the legislation in issue is an exercise of the police power, as in 

this case. Goldblatt v. Hempstead (1962), 369 U.S. 590, 596, 82 

S.Ct. 987, 991, 8 L.Ed.2d 130, 135. Therefore, this presumption 

is indeed applicable to the land-use regulation before us. 

Appellant's argument that appellant is not seeking a 

declaration that the regulation is invalid, as was the situation 

in Whistler, appears to be an attempt to distinguish Whistler based 

solely on the fact that appellant is seeking a different remedy. 

If a regulation is not properly invoked under the police power 

and is found to constitute a taking, the remedies available to the 

government include abandoning its position and discontinuing the 
regulation or compensating the landowner for the taking. First 

Lutheran Church v. Los Angeles County (1987), 482 U.S. 304, 317, 

107 S.Ct. 2378, 2387, 96 L.Ed.2d 250, 265. It is when the 

government insists on retaining a regulation notwithstanding the 

fact it constitutes a taking that compensation will be required. 

Appellant is requesting this latter remedy and appears to have no 

interest in seeking to have the regulation declared invalid. 

Appellant is nevertheless challenging the regulation on the grounds 

of an unconstitutional taking, and requesting compensation as a 

remedy, rather than declaring the regulation invalid, cannot serve 

to distinguish Whistler. The burden of proof lies with appellant 

and appellant cannot expect to shift this burden of proof over to 

the county by merely requesting a different remedy. 

A review of the record shows the evidence supports a finding 

that the regulation is substantially related to the legitimate 

State interest of protecting public health and safety. Requiring 

a reasonable distance between sewage drain fields and the 100-year 

flood plain in order to allow adequate soil cleansing of the sewage 

prevents the public from the endangerment of sewage contaminants. 

The testimony supported a conclusion that 100 feet was a reasonable 

distance. In the event of a 100-year flood this regulation helps 

make certain the river will still be adequately protected from 

septic systems that comply with these regulations. It is appellant 

who has failed to show that some distance less than 100 feet would 

be just as effective in cleansing the sewage. The facts here as 

applied to the standard to be met indicate a clear substantial 
relation to the interest of preventing water contamination. 

Appellant's contention that current regulations do not protect 

the public from sewage contamination in any event, and therefore, 

the enforcement of the regulation cannot possibly serve to advance 

the State interest in public health, is unpersuasive. Two wrongs 

have never made a right and do not do so now. The fact that 

contaminants may currently be entering the river does not prevent 

the county from initiating measures to help retard and attempt to 

eventually stop these problems. 

Appellant argues that the regulation in question has failed 

to satisfy the second part of the standard as well. Specifically, 

appellant contends that the diminution in value of the property 

from $75,000 to $25,000, clearly meets the constitutional standard 

of loss of economically viable use. 

Appellant cites Knight v. City of Billings (1982), 197 Mont. 

165, 642 P. 2d 141, in support of her argument that diminution in 

value of two-thirds is of sufficient constitutional magnitude to 

constitute a taking. However, past decisions that have found landuse regulations substantially related to the State interest of 

public health, safety, and general welfare have rejected the 

argument that diminution in property value by itself establishes 

a taking. Penn Central, 438 U.S. at 131, 98 S.Ct. at 2663, 57 

L.Ed.2d at 653. Diminutions in value of amounts much greater than 

the two-thirds found here have been held not to constitute a 

taking. See Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 

S-Ct. 114, 71 L.Ed. 303; Hadacheck v. Sebastian (1915), 239 U.S. 
394, 36 S.Ct. 143, 60 L.Ed. 348. The issue of economic viability 

must be resolved by focusing on the remaining use available to the 

landowner and the nature of the interference with the overall 

rights in the property, in addition to any reduction in value. 

Keystone Coal, 480 U.S. at 497, 107 S.Ct. at 1248, 94 L.Ed.2d at 

496. In a careful reading of Knisht, it is evident that the 

conclusion reached in that case was based on consideration of these 

other factors, not solely on the 20 to 30 percent reduction in 

property value that had occurred. 

In view of these additional factors appellant fails to show 

she has been deprived of the economically viable use of her 

property. The evidence indicates appellant is still able to 

utilize the property for the purposes originally intended, that of 

building home in which to retire, although not as near the river 

as appellant would have liked. The evidence also reveals the fact 

that other options are available to appellant. A mounded septic 

system could be constructed which would allow the appellant more 

discretion in a building site. The 100-foot setback rule 

apparently does not apply if a four-foot vertical separation can 

be achieved between the bottom of the drain field and the 100-year 

flood elevation. This vertical separation can be created through 

a mounded system. 

We hold that the public interest involved here outweighs the 

encroachment upon appellant's property. As was stated in 

Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 413, 43 S.Ct. 

158, 159, 67 L.Ed. 322, 325: 
Government hardly could go on if to some 

extent values incident to property could not 

be diminished without paying for every such 

change in the general law. As long 

recognized, some values are enjoyed under an 

implied limitation and must yield to the 

police power. 

The land use regulation in question has been properly invoked under 

the police power of the State. 

Affirmed. 

We concur: 

I 

1 1 Justices 
Justice John C. Sheehy (retired, but called to participate) 

dissenting: 

This is a lltakingll case; that is, the issue on appeal is 

whether the plaintiff's property has been inversely condemned for 

a public use, which requires the payment to plaintiff of just 

compensation under federal and state constitutions. 

As the state and local regulations are applied in this case, 

I find a ''takingW of private property by the public has occurred, 

and so I dissent. 

There is no dispute as to the damages done to the plaintiff Is 

property. The findings of the District Court (No. 18) show that 

''plaintiff has suffered damages to her property of a permanent and 

irreparable nature by means of the diminution of value of the 

property, based upon fair market value, in the sum of $50,000.00.11 

These damages, the District Court found, resulted from the adoption 

and imposition on plaintiff's property of the limitations and 

servitude of the regulations. The damages represent approximately 

two-thirds of the fair market value of plaintiff's property without 

the servitude and limitations. 

Such damages must be compensated by the public authority 

unless, as the majority say, (1) the land-use regulation is 

substantially related to the governmental interest of protecting 

the public health, and (2) the regulation utilizes the least 

restrictive method to achieve that end without denying the owner 
economically viable use of the land. The regulation, and its 

application here, do not meet either prong of the standard. 

The District Court founded its decision on a finding of fact 

that the activity prohibited, i.e., a septic system within 100 feet 

of the 100-foot flood plain, would be injurious to the health and 

safety of the community. The evidence in this record is completely lacking that the regulation (1) is substantially related to the 

state's interest in protecting public health, and (2) is the least 

restrictive method to attain that end. 

The original regulation (the 1975 rules) required the septic 

system to be set back 100 feet from the stream. This provision 

agreed with the later-adopted 1980 Environmental protection Agency 

Design Manual. That manual sets out a 100-foot distance from water 

supply sources such as wells, surface water, springs, and so on, 

but makes no reference at all to 100-year flood plain boundaries. 

In other words, the EPA did not recognize a need for a set-back 

from flood plain boundaries. To justify such a rule, the record 

should show some degree of scientific study on which to base the 

need or a health basis for the flood plain set-back. None appears 

here. All other 100-foot space rules are related to some source 

of potable water. Adoption of a rule relating to a theoretical 

boundary, without reference to any studies showing danger to 

waters, is arbitrary and capricious. No issue of public health is 

presented. 
To escape the import of the lack of scientific basis for the 

100-foot flood plain rule, the majority rely on the "presumption1' 

that all legislative enactments are valid. As one judge has said, 

presumptions are the bats of the law; they disappear in the 

sunlight of evidence to the contrary, or the showing of no 

foundation for their existence. 

Nor is lljudicial deference" to the legislating body any excuse 

for upholding a baseless regulation. Courts should jealously 

insist on the right to examine judicially the actions of public 

bodies without any deferment or subordination of judicial function 

to other branches of government. 

This dissenter was the author of the opinions in Knight v. 

City of Billings (1982), 197 Mont. 165, 642 P.2d 141, and Western 

Energy Co. v. Genie Land Co. (1987), 227 Mont. 74, 737 P.2d 478. 

The majority attempt to distinguish Kniqht, where the plaintiffs 

suffered a 30 percent loss in the value of their properties, on the 

basis that here the plaintiff still has a possibility of use for 

her property. Knisht cannot be so distinguished, for even there 

the plaintiffs still had use of their properties as residences. 

Here, the plaintiff is severely limited in the use of her property 

under the 100-foot flood plain rule. Her only possibility is to 

build 1200 to 1400 feet back from the river, or to undertake very 

expensive devices for sewage disposal. Western Energy is not in 

accord with this decision. Western Enerqv was not a lltakingll case. 
It related to the due process implication of the regulation 

involved. 

I find no evidence in the record which translates to a basis 

that the 100-foot flood plain set-back rule is substantially 

related to the public health. Under the record here, that rule 

could have been set at 30 feet or a mile. Either is as justifiable 

here as the 100-foot rule. No studies support the regulation. I 

therefore dissent and would reverse and remand for judgment in 

favor of the plaintiff. 

/" Justice 

I 

,/