ASPEN TRAILS RANCH, LLC, Appellant, v. BARRY J. SIMMONS and PETE ELLIOT, and HELENA CITY COMMISSION, Appellees.
No. DA 09-0358.
Supreme Court of Montana
Submitted on Briefs February 10, 2010. Decided April 14, 2010.
2010 MT 79 | 356 Mont. 41 | 230 P.3d 808
JUSTICE NELSON specially concurred.
JUSTICE LEAPHART dissented.
For Appellant: Colleen M. Dowdall, Jane E. Cowley, Worden Thane P.C., Missoula.
For Appellees: Jack R. Tuholske, Tuholske Law Office, P.C., Missoula.
JUSTICE COTTER delivered the Opinion of the Court.
¶1 Aspen Trails, LLC (Aspen Trails), appeals from a decision of the First Judicial District Court, Lewis and Clark County, voiding a preliminary subdivision plat which had been approved by the Helena City Commission (Commission). For the reasons set forth below, we affirm the District Court.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In August 2005, a developer named Richard Bowen (Bowen) filed an application for the Aspen Trails subdivision before the Commission. The proposed subdivision was to be located north of the city limits of Helena, Montana, and would contain approximately 325 residential lots over 260 acres. The proposed subdivision was to be adjacent to the Prickly Pear Creek, which flows through the Helena Valley into Lake Helena and then on to the Missouri River. Aspen Trails proposed that the subdivision be annexed to the city of Helena and be connected to Helena‘s water and sewer systems.
¶3 In conjunction with the application, Aspen Trails submitted an environmental assessment (EA) of the proposed subdivision prepared by Morrison-Maierle, Inc. The main body of the EA is 53 pages in length and contains several appendices. The EA includes legal and environmental descriptions of the proposed development, a community impact assessment (covering issues such as water supply, sewage disposal, roads, drainage, and land use), a summary of probable impacts and proposed mitigation measures, and other issues concerning the proposed development.
¶4 Additionally, a report (Staff Report) on the proposed subdivision was prepared by the City of Helena Planning Division. The Staff Report made findings of fact regarding the subdivision‘s impact on areas such as agriculture, local services, the natural environment, wildlife and wildlife habitat, and public health and safety. The Staff Report proposed 27 conditions in order to mitigate the potential for adverse impacts indentified in its findings and recommended the
¶5 On October 18, 2005, The Helena/Lewis and Clark County Consolidated Planning Board (Planning Board) took public comment on the proposed development. The Planning Board reviewed the EA and the Staff Report. On October 25, 2005, the Planning Board voted to deny the application. The Planning Board determined that some of the impacts from the development, such as those on agriculture, local services, and public health and safety, could be mitigated. However, the Planning Board further concluded that the development‘s impacts on the natural environment, wildlife, and wildlife habitat could not be mitigated and denied the application on this basis.
¶6 On November 21, 2005, the Commission held a public meeting to discuss the proposed development and application of the preliminary plat. At that meeting proponents and opponents gave public testimony. Appellee Pete Elliot (Elliot) spoke in opposition to approval of the preliminary plat. Elliot is a resident of the Helena Valley whose property is contiguous to the proposed subdivision. Some members of the Commission expressed concern about the proposed subdivision with respect to flooding and high groundwater in the area, but nonetheless voted to approve the preliminary plat. The Commission issued findings of fact and attached 27 conditions to the approval of the subdivision preliminary plat. The Commission determined that any detrimental impacts resulting from the subdivision could be mitigated with appropriate measures.
¶7 On December 16, 2005, Elliot, and two additional plaintiffs named Donald Zelenka and Barry J. Simmons1 (collectively Landowners) filed suit against the Commission in District Court, challenging its decision to approve the preliminary plat. A first amended complaint was filed on February 24, 2006. On April 17, 2006, the Commission moved to dismiss the complaint for the Landowners’ lack of standing and failure to state a claim for which relief could be granted.
¶8 On October 3, 2006, the District Court denied the motion to dismiss and held that the Landowners did have standing to sue the Commission. The District Court noted that Elliot was a contiguous landowner with respect to the proposed subdivision and was permitted to appeal the decision of the Commission pursuant to
¶9 At the conclusion of its order, the District Court observed that the first amended complaint had seemingly failed to tie the injury complained of to any specific action taken by the Commission. In this connection, Elliot had filed a supplemental affidavit before the court, in which he specifically alleged that the proposed subdivision would, among other things, adversely affect the enjoyment of his property, change the stream channel of Prickly Pear Creek, potentially disturb the natural recharge of the aquifer, adversely impact the quality of his water supply, and also have a long-term negative effect on the value of this property. The District Court determined that the first amended complaint, when coupled with the averments in the supplemental affidavit, sufficiently tied together the action of the Commission with a complaint of harm. Thus, the District Court authorized the plaintiffs to file a second amended complaint incorporating the specific allegations of harm as set forth in the supplemental affidavit.
¶10 Simmons and Elliot filed a second amended complaint on October 20, 2006. Ronald Zelenka was dropped from the suit. In this complaint, Landowners alleged that neither the EA nor the Staff Report adequately addressed resulting impacts from the proposed subdivision. Landowners claimed that the EA did not address resulting impacts to water quality of the Prickly Pear Creek and Lake Helena watershed from the proposed subdivision. The Landowners also claimed that the Staff Report did not adequately address the environmental and community impacts arising from the subdivision on water quality issues vis-a-vis the installation of collection systems and a proposed lift station. The Landowners argued that the Commission‘s findings of fact for conditional approval did not adequately describe the potential negative impacts from the development, and that the attached conditions did not adequately mitigate the resulting negative environmental impacts, especially with regard to impacts on wildlife,
¶11 The District Court held a one-day evidentiary hearing in this matter on December 22, 2008. The Landowners and the Commission presented testimony and evidence. The Landowners claimed the preliminary plat should be voided based on the inadequacy of the EA. Landowners argued that under the MSPA, the EA provided the only mechanism for the public and the governing body to properly review the effects of a subdivision before a preliminary plat is issued. Landowners contended the EA was inadequate in several key respects. First, they observed that the subdivision was to be located in an area of very shallow groundwater, adjacent to Prickly Pear Creek. The EA itself stated that the project area has a high groundwater table, only 2 to 10 feet below the surface. Landowners contended that the EA did not provide further information on groundwater levels beyond this statement and did not provide adequate baseline information taken from monitoring wells throughout the proposed subdivision in order to quantify the actual groundwater depths, rates, directions of flow, and seasonal fluctuations in the water table. Landowners’ expert, Chris Cerquone (Cerquone), testified that without this type of baseline information the impacts to the groundwater could not be adequately evaluated given the high water table and the size of the proposed development. Accordingly, Landowners claimed the EA did not provide “available groundwater information” as required under
¶12 Additionally, Landowners asserted that the EA did not address impacts of surface pollutants on the groundwater or Prickly Pear Creek itself. Landowners argued that the EA did not account for impacts due to “nonpoint” sources of pollution, such as fertilizers, pesticides, herbicides, and other household materials which would affect the groundwater with the addition of the subdivision. Although the connection of the subdivision to city of Helena sewer systems arguably had a lesser impact than the use of septic systems, Landowners contended that the placement of sewer lines in either water or soil would affect their leakage potential and should have been evaluated. Landowners argued the EA failed to address these impacts, as required under
¶13 Third, Landowners contended that the EA lacked adequate, site-specific information about base flood elevation in the area, and did not contain a hydraulic analysis to evaluate how the addition of new roads, new structures, the re-routing of irrigation ditches, and filling
¶14 The Commission disputed these contentions, arguing that the EA adequately addressed the impacts complained of by the plaintiffs, and that the conditions attached to the approval of the subdivision properly mitigated any adverse effects from the subdivision. For instance, regarding storm water runoff, the Commission‘s conditional approval required that infrastructure plans had to be submitted and reviewed prior to approval. To address the issue of high groundwater, the subdivision had covenants which restricted homes from having basements in high groundwater areas. With respect to flooding, the findings in the conditional approval identified the 100 and 500-year floodplains, and the subdivision plat itself did not place any lots within the 100-year floodplain. The Commission further claimed that city building codes would mitigate the impacts of locating homes within the 500-year floodplain. Finally, with respect to impacts on wetlands, the Commission noted that the conditional approval required the replacement of eliminated wetlands at a ratio of one-for-one.
¶15 On March 18, 2009, the District Court entered its findings of fact, conclusions of law and order voiding the preliminary plat for Aspen Trails’ subdivision. Citing to Keily Const., L.L.C. v. City of Red Lodge, 2002 MT 241, 312 Mont. 52, 57 P.3d 836, the District Court noted that it would review the Commission‘s decision under the “arbitrary and capricious or unlawful” standard of review. Keily, ¶ 69. The District Court noted that the MSPA required the Commission to consider the subdivision application, the preliminary plat, the EA, public hearing, and planning board recommendations.
(a) a description of every body or stream of surface water that may be affected by the proposed subdivision, together with available ground water information, and a description of the topography, vegetation, and wildlife use within the area of the proposed subdivision;
(b) a summary of the probable impacts of the proposed subdivision based on the criteria described in 76-3-608 ....
¶16 Before turning to an analysis of the adequacy of the EA, the District Court considered the appropriate standard under which to evaluate the EA. The District Court adopted the Landowners’ recommendation that the Commission‘s review of the EA be evaluated under the “hard look” standard as discussed in Clark Fork Coalition v. Mont. Dept. of Envtl. Quality, 2008 MT 407, 347 Mont. 197, 197 P.3d 482.
An agency must take a “hard look” at the environmental impacts of a given project or proposal. Implicit in the requirement that an agency take a hard look at the environmental consequences of its actions is the obligation to make an adequate compilation of relevant information, to analyze it reasonably, and to consider all pertinent data. Admittedly, court review of an agency decision, including an environmental decision, is limited. Still, while a court is not to substitute its judgment for that of the agency, the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. In other words, the Court looks closely at whether the agency has taken a hard look at the question presented. The Court does not take a hard look itself but requires that the agency does so. The Court focuses on the validity and appropriateness of the administrative decision making process without intense scrutiny of the decision itself. In this way, the Court examines the elements of the decision without interfering with the administrative authority over the decision itself.
Clark Fork Coalition, ¶ 47 (citations omitted).
¶17 The District Court then considered whether the Commission took a “hard look” at the EA submitted in conjunction with the preliminary plat. Turning to the adequacy of baseline information regarding groundwater, the District Court noted that
¶18 The District Court determined that the paucity of information in the EA regarding groundwater information prevented the Commission from taking a “hard look” at impacts on water quality. The District Court noted that water quality impacts were referenced in the EA and that the restrictive covenants prohibited the construction of basements in areas of high groundwater in order to mitigate this impact. Beyond that, no further information on groundwater depth was provided. The District Court reasoned that without knowing the specific depth of groundwater, it was plausible that sewer pipes could be placed directly in groundwater, increasing the leakage potential and possible contamination of Prickly Pear Creek. The EA, however, did not even address this issue or present the Commission the opportunity to consider this impact.
¶19 The District Court also observed that the EA did not discuss the impacts of surface pollutants on the groundwater or Prickly Pear Creek. The District Court agreed with the Landowners’ contentions that potential impacts from the use of fertilizers, pesticides, herbicides, and other deleterious products created by the addition of 325 homes in the subdivision, should have been discussed. The District Court noted Cerquone‘s testimony that storm water retention ponds would not resolve this issue because the pollutants would not bind to solid particles and settle out in the pond. The Commission‘s expert Mark Brook (Brook), a professional engineer and hydrologist with Morrison-Maierle, Inc., disagreed with Cerquone‘s assertion that these materials would be driven into the groundwater. The District Court simply noted that given the high groundwater in this area, impacts from these pollution sources should have been discussed in the EA.
¶20 Regarding the Landowners’ contentions that the EA lacked the requisite information on base flood evaluations, the District Court noted that the EA did contain a flood plain map derived from FEMA maps. While the Landowners had misgivings about the reliability of FEMA-derived maps in this context, the District Court noted that the Legislature had specifically provided that such maps create a rebuttable presumption of reasonable hydrological certainty under
¶21 The District Court then considered whether the EA was required
¶22 Finally, the District Court turned to the adequacy of the EA on the issue of “soil liquefaction.” The District Court noted that the issue was discussed in the EA and the EA suggested a geotechnical evaluation be undertaken to address this issue in order to generate recommended mitigation measures. The Commission made the geotechnical report, and the incorporation of its recommendations into all roads and engineered structures, a condition of approval. This condition would also require an evaluation of the soil liquefaction issue on home construction. The District Court found the EA was sufficient on this issue. It noted that the EA alerted the Commission to the soil liquefaction issues and addressed this impact by requiring the adoption of measures from the geotechnical report.
¶23 In sum, the District Court concluded the EA was adequate as to a base flood elevation survey, the requirement of a hydraulic analysis, and the soil liquefaction issue. The EA was inadequate, however, regarding issues related to probable impacts arising from surface pollution entering the groundwater and/or Prickly Pear Creek, and did not contain available groundwater information. For these reasons, the District Court concluded that the approval of the preliminary plat was unlawful for failure to provide available groundwater information, and arbitrary and capricious insofar as it failed to consider surface pollution impacts resulting from the subdivision.
¶24 The Commission declined to challenge the District Court‘s decision. Aspen Trails, which had not previously been a named party
¶25 Aspen Trails now appeals from the decision of the District Court. The Landowners cross-appeal from the District Court‘s decision to allow Aspen Trails to intervene in this matter. We state the issues on appeal as follows:
¶26 Issue One: Did the District Court abuse its discretion in allowing Aspen Trails to intervene after trial?
¶27 Issue Two: Did the District Court err in concluding that the Landowners had standing in this case?
¶28 Issue Three: Did the District Court commit reversible error when it voided the preliminary plat?
STANDARD OF REVIEW
¶29 A district court‘s ruling on a motion to intervene is reviewed for an abuse of discretion. Grenfell v. Duffy, 198 Mont. 90, 95, 643 P.2d 1184, 1187 (1982). A district court abuses its discretion when it acts arbitrarily, without the employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 27, 304 Mont. 356, 22 P.3d 631.
¶30 A district court‘s determination regarding standing presents a question of law which we review for correctness. In re Charles M. Bair Family Trust, 2008 MT 144, ¶ 86, 343 Mont. 138, 183 P.3d 61.
¶31 We review a district court‘s decision pursuant to
DISCUSSION
¶32 Issue One: Did the District Court abuse its discretion in allowing Aspen Trails to intervene after trial?
¶33 In their cross-appeal, Landowners contend the District Court abused its discretion in allowing Aspen Trails to intervene after final judgment was entered. Landowners note that
¶34 Aspen Trails asserts the District Court did not abuse its discretion in this instance. Aspen Trails notes that the determination of timeliness is a discretionary function of the District Court, and that the District Court acted within its discretion when it determined intervention was timely. Aspen Trails asserts its intervention did not create any delay because it was well within the time allowed for an appeal from the District Court. It also argues its delay in intervening was reasonable because it only decided to intervene after the Commission signaled that it would not pursue an appeal, and only did so in order to protect its interests. Aspen Trails also argues that Landowners are not prejudiced, because it is simply taking up an appeal which the Commission could have taken had it chosen to do so. Additionally, Aspen Trails asserts that it has a right to intervene since its interests in this matter are substantial and no longer adequately represented.
¶35 We conclude that the District Court did not abuse its discretion when it allowed Aspen Trails to intervene after judgment was entered. We agree with Aspen Trails that its intervention has not caused any delay in this matter, and that its interests are substantial and no longer adequately represented since the Commission has declined to appeal. We also agree that the Landowners cannot claim prejudice simply because they are now required to defend the District Court‘s decision on appeal. While it may be inconvenient for the Landowners to have to defend their successful judgment on appeal, we cannot say it has caused them prejudice to defend against Aspen Trails, as opposed to the Commission. The District Court has the discretion to weigh all of these factors when considering whether to grant or deny leave to intervene. Here, we cannot say that the decision to grant leave was arbitrary, without the employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice. Lee, ¶ 27. Thus, we affirm the District Court on this issue.
¶36 Issue Two: Did the District Court err in concluding that the Landowners had standing in this case?
¶37 Aspen Trails argues that neither Simmons nor Elliot had standing to pursue their claims in District Court. “To establish standing to bring suit, the complaining party must (1) clearly allege past, present, or
¶38 The MSPA provides a statutory basis for standing. Under
¶39 Aspen Trails concedes that Elliot is a contiguous landowner, but argues that he lacks standing because he has not established that he is an “aggrieved person.” Aspen Trails contends that Elliot has alleged only generalized concerns about the proposed subdivision which are insufficient to confer standing. Elliot‘s generalized concerns relate to impacts on the water table, wetlands, wildlife habitat, increased pollution to Prickly Pear Creek, and possible increased flooding. Aspen Trails contends that Simmons’ concerns are even more generalized, and limited to unquantified concerns about a decrease in the value of this property due to placing tract housing in an area of the Helena Valley which is now rural.
¶40 The District Court, relying on Clinton v. City of New York, 524 U.S. 417, 118 S. Ct. 2091 (1998), concluded that so long as one of the Landowners established standing, the jurisdictional requirement of standing was satisfied for both Landowners. Aspen Trails disputes this conclusion, arguing that both Landowners must establish standing on their own, and cannot rely on the standing established by the other.
¶41 We conclude the District Court did not err in concluding that Elliot had standing to challenge the Commission‘s decision to approve
¶42 The allegations by Elliot were sufficient to confer standing upon him to challenge the Commission‘s decision. Elliot has alleged a specific injury to both his property rights and rights as a citizen of this state. In Mont. Envtl. Information Centr. v. Dept. of Envtl. Quality, 1999 MT 248, 296 Mont. 207, 988 P.2d 1236 (MEIC), for instance, a group of plaintiffs sought to challenge the constitutionality of a statute which allowed certain discharges of water from watering or monitoring well tests, contending that the discharge was degrading the water quality in the Blackfoot River. The standing of the plaintiffs was challenged. We held that allegations of arguably adverse impacts to the headwaters of the Blackfoot River were sufficient to confer standing upon plaintiffs who fished, recreated, and relied upon the Blackfoot River as a source of potable water. MEIC, ¶ 45. We noted that whether the plaintiffs had demonstrated sufficient harm to ultimately prevail on their claims was a “separate issue.” MEIC, ¶ 45. Elliot‘s allegations of harm are similar to those of the plaintiffs in MEIC. Whether Elliot could actually prevail on his claims is a separate issue from whether he had standing to pursue them.
¶43 Furthermore, given Elliot‘s proximity to the subdivision and his specific averments, we conclude that his alleged injury is sufficiently distinguished from that of the general public, and sufficient to confer standing. Elliot has shown that the impacts from the subdivision have a more particular effect on him as a contiguous landowner than on the public at large. See MEIC, ¶ 44 (discussing Missoula City-Co. Air Pollution Control Bd. v. Bd. of Envtl. Review, 282 Mont. 255, 937 P.2d 463 (1997)). The fact that these impacts could also affect other individuals does not defeat standing for Elliot because the injury complained of need not be “exclusive to the litigant.” MEIC, ¶ 43.
¶44 We further note that in denying the Commission‘s motion to
¶45 As a practical matter, moreover, the District Court, Landowners, and the Commission were correct in agreeing that if standing was established for one of the Landowners the suit could go forward, because the Landowners both sought to void the preliminary plat. In Clinton, the City of New York, health care providers, unions, and a farmer‘s cooperative in Idaho challenged the constitutionality of an act of Congress giving the President of the United States “line item” veto power. Clinton, 524 U.S. at 425, 118 S. Ct. at 2097. The cases were consolidated before the United States Supreme Court. The United States Supreme Court concluded that because the City of New York and the Idaho farmers’ co-op had standing, the standing of the other parties did not merit further inquiry. See Clinton, 524 U.S. at 431 n. 19, 118 S. Ct. at 2100 n. 19. Here, likewise, the standing of any one of the Landowners would permit the suit to go forward. Thus, the District Court did not err in denying Aspen Trails’ motion to dismiss and concluding that the Landowners had standing to challenge the decision of the Commission.
¶46 Issue Three: Did the District Court commit reversible error when it voided the preliminary plat?
¶47 Finally, Aspen Trails challenges the District Court‘s decision to void the preliminary plat. First, it argues that the District Court impermissibly considered the testimony of Cerquone and substituted its judgment for that of the Commission by concluding that the Commission failed to consider the high groundwater in the area of the subdivision and whether storm water run-off could pollute the Prickly Pear Creek. Aspen Trails argues the Commission did consider these impacts on groundwater and mitigated this impact by restricting the construction of houses with basements. Aspen Trails asserts that surface pollution impacts were addressed and mitigated with the requirement of a city-approved storm water drainage plan.
¶48 Aspen Trails further argues the District Court had no basis to determine that the EA was inadequate and that the actions of the Commission were unlawful, arbitrary, and capricious. Aspen Trails, relying on Citizens, suggests a less stringent standard of review for an
¶49 Aspen Trails further argues the District Court erred when it voided the preliminary plat. Aspen Trails contends it should be given an opportunity to present additional information to the Commission if required, and offer measures to mitigate the impacts instead of having the preliminary plat voided outright. For these reasons, Aspen Trails argues the District Court‘s decision should be reversed.
¶50 Landowners argue the District Court did not commit reversible error by voiding the Commission‘s approval of the preliminary plat. First, Landowners contend that under Skyline Sportsmen‘s Assn. v. Bd. of Land Commsrs., 286 Mont. 108, 951 P.2d 29 (1997), the District Court properly considered the testimony of Cerquone at the evidentiary hearing in order to evaluate the adequacy of the EA. The Landowners further argue the District Court properly concluded that the EA did not comply with the requirements of the MSPA, in that it failed to adequately describe the groundwater resources and failed to provide required information about the probable impacts of the subdivision on groundwater and surface water pollution. Landowners argue that no data about groundwater depth was provided, even though the Commission was aware of extremely shallow groundwater in the project area. Landowners also point out that the EA did not include groundwater information from an available U.S.G.S. report even though
¶51 The Landowners further contend that the District Court did not err in considering whether the Commission took a “hard look” at the
¶52 Finally, Landowners contend that the remedy provided by the District Court, the voiding of the preliminary plat, was proper in this case under Citizens. Landowners argue that the MSPA does not confer a “right” on Aspen Trails to go back to the Commission and propose new mitigation measures. While Aspen Trails certainly has the right to submit an application for another preliminary plat before the Commission, the District Court‘s decision to void the preliminary plat was not in error.
¶53 As an initial matter, we conclude that the District Court did not err when it conducted an evidentiary hearing and received additional evidence concerning the adequacy of the EA. As we stated in Skyline Sportsmen‘s Assn.,
The standard of review of an informal administrative decision is whether the decision was arbitrary, capricious, or unlawful. North Fork Pres. v. Dept. of State Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867. It was appropriate for the District Court, in applying that standard, to accept new evidence and not to limit its review to the administrative record. In a proceeding to determine whether an agency decision was arbitrary, capricious, or unlawful, unless the reviewing court looks beyond the record to determine what matters the agency should have considered, it is impossible for the court to determine whether the agency took into consideration all relevant factors in reaching its decision. Asarco, Inc. v. U.S.E.P.A. (9th Cir. 1980), 616 F.2d 1153, 1160.
Skyline Sportsmen‘s Assn., 286 Mont. at 113, 951 P.2d at 32.
¶54 Second, we find no error in the District Court‘s conclusion that the Commission had to apply the “hard look” standard to the EA in this case. In Clark Fork Coalition, this Court considered a district court‘s review of an agency decision of the Montana Department of Environmental Quality (DEQ), authorizing a mining company to discharge water into the Clark Fork River. Clark Fork Coalition, ¶ 1. The Court said the agency must take a hard look at the environmental impacts of a given project. Clark Fork Coalition, ¶ 47. The district court‘s review of the DEQ‘s decision was whether it was arbitrary and capricious, or unlawful, Clark Fork, ¶ 21, the same standard of review
¶55 The governing body considering an application for a preliminary plat must consider “the impact on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat, and public health and safety ....”
Contents of environmental assessment. When required, the environmental assessment must accompany the subdivision application and must include:
(1) for a major subdivision:
(a) a description of every body or stream of surface water that may be affected by the proposed subdivision, together with available ground water information, and a description of the topography, vegetation, and wildlife use within the area of the proposed subdivision;
(b) a summary of the probable impacts of the proposed subdivision based on the criteria described in 76-3-608; and
(c) a community impact report containing a statement of anticipated needs of the proposed subdivision for local services, including education and busing; roads and maintenance; water, sewage, and solid waste facilities; and fire and police protection; and
(d) additional relevant and reasonable information related to the applicable regulatory criteria adopted under 76-3-501 as may be required by the governing body;
(2) except as provided in 76-3-609, for a minor subdivision, a summary of the probable impacts of the proposed subdivision based on the criteria described in 76-3-608.
¶56 We conclude that the District Court did not err in concluding that the Commission‘s approval of the preliminary plat was unlawful for failure to provide available groundwater information as required under
¶57 Similarly, we conclude the District Court did not err in determining that the Commission‘s decision to approve the preliminary plat without an assessment of impacts on groundwater and the Prickly Pear Creek from surface pollution was arbitrary and capricious. The EA did discuss the use of storm water ponds to control run-off. However, as stated by the District Court,
Everyone agrees that the EA must summarize probable impacts to the environment. All witnesses agreed that the construction of 300+ homes in this subdivision will result in increases in herbicides, pesticides, and other household materials in the area. Given the extremely high groundwater in this area, the nature of this possible pollution of the groundwater and its possible tie-in with Prickly Pear Creek should at least have been summarized and discussed in the EA.
¶58 Finally, we cannot conclude that the District Court‘s decision to void the preliminary plat was erroneous. In Citizens, we reversed a district court‘s decision to affirm a preliminary plat which had been approved by the Sanders County Board of County Commissioners. We did so based on our determination that the board had acted unlawfully in approving the plat. Citizens, ¶ 26. The District Court‘s remedy in this case is consistent with Citizens and the MSPA itself.
CONCLUSION
¶59 For the foregoing reasons, we affirm the District Court‘s decision to void the preliminary plat for the Aspen Trails subdivision.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT and MORRIS concur.
¶60 I concur with Issues 1 and 2. I also concur with the Court‘s ultimate determination under Issue 3 to affirm the District Court, but for different reasons. I strongly believe the District Court erred in the procedure it undertook to review the challenge to the plat, and that this Court should not condone it, as it upends the environmental assessment (EA) process-disrupting the right of agencies which use EAs to rely on them and the deference we are to accord the administrative process. I thus concur with Aspen Trail‘s argument in this regard. I begin with a discussion of general administrative law governing this issue, and conclude with this Court‘s jurisprudence.
¶61 In the seminal case of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S. Ct. 814, 825 (1971), overruled on unrelated grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984 (1977). Because review is to be limited to the administrative record, the Court reversed the decisions of the lower circuit and district courts for relying on “litigation affidavits” presented by the petitioners in the district court. The Supreme Court termed such evidence “post hoc rationalizations” not part of the record serving as “the basis for review required by [the Administrative Procedure Act].” Overton Park, 401 U.S. at 419, 91 S. Ct. at 825 (citations omitted). The Court acknowledged that lower courts may “require the administrative officials who participated in the decision to give testimony explaining their action,” but cautioned that “such inquiry into the mental processes of administrative decisionmakers is usually to be avoided,” and certainly so “where there are administrative findings.” Overton Park, 401 U.S. at 420, 91 S. Ct. at 825 (citations omitted).
¶62 In Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241 (1973). In applying the ‘arbitrary, capricious or unlawful’ standard of review, the Camp Court unanimously held that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Further, the Court explained that, in the event the administrative record was so incomplete “as to frustrate effective judicial review, the remedy was not to hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency,
¶63 The rules established in Overton Park, Camp and Lorion are recognized and well-understood by federal circuit and district courts, far too many to list here. See e.g. Sierra Club v. U.S. Army Corps of Engrs., 772 F.2d 1043, 1052-56 (2nd Cir. 1985); Cotton Petroleum Corp. v. U.S. Dept. of Int., Bureau of Indian Affairs, 870 F.2d 1515, 1527-29 (10th Cir. 1989). Relying on Overton Park and Camp, the Ninth Circuit Court of Appeals has held that the ‘predominant rule’ is that “agency action must be examined by scrutinizing the administrative record at the time the agency made its decision.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir. 1980). Although Asarco-relied upon by this Court in Skyline Sportsmen‘s Assn. v. Bd. of Land Commsrs., 286 Mont. 108, 113, 951 P.2d 29, 32 (1997), discussed below-recognized that the trial court could review relevant evidence outside the administrative record in narrow circumstances, Asarco, 616 F.2d at 1160, it actually reversed the district court‘s decision to hear and consider extra-record evidence in that case as inappropriate. Asarco, 616 F.2d at 1161, 1163.
¶64 The Ninth Circuit has steadfastly applied Overton Park and Camp to hold “that courts reviewing an agency decision are limited to the administrative record,” Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co., 470 U.S. at 743-44, 105 S. Ct. at 1606-07), while also narrowing the exceptions for trial courts to admit extra-record evidence. The Lands Council Court stated that “if an Agency‘s administrative record is incomplete, we would expect litigants to seek to supplement the record in the agency ....” Lands Council, 395 F.3d at 1030 n. 10. The court noted the exceptions, which permitted district courts to admit extra-record evidence, were to be “narrowly construed and applied.” Lands Council, 395 F.3d at 1030 (collecting cases); see Voyageurs Natl. Park Assn. v. Norton, 381 F.3d 759, 766 (8th Cir. 2004) (“[t]hese exceptions apply only under extraordinary circumstances;” emphasis added). Lands Council explained that:
The scope of these exceptions permitted by our precedent is constrained, so that the exception does not undermine the general
rule. Were the [courts] routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the [courts] would be proceeding, in effect, de novo rather than with the proper deference to agency processes, expertise, and decision-making.
Lands Council, 395 F.3d at 1030.
¶65 While the above cases were applying the
¶66 We looked to MAPA principles for non-MAPA cases, like the case before us today, when we reviewed the Flathead County Planning Board‘s decision in North 93 Neighbors, Inc. v. Bd. of Co. Commrs. of Flathead Co., 2006 MT 132, 332 Mont. 327, 137 P.3d 557. In North Fork Preservation Assn. v. Dept. of State Lands, we examined the standards of review for administrative agency decisions not subject to MAPA, and adopted the following standard: “whether the record establishes that the agency acted arbitrarily, capriciously, or unlawfully.” 238 Mont. 451, 456-59, 778 P.2d 862, 865-67 (1989) (emphasis added). We cited our decision in Langen v. Badlands Coop. State Grazing Dist., in which we held that “[t]he appeal from the commission to the district court is for the purpose merely of determining whether upon the evidence and the law the action of the commission is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious.” North Fork, 238 Mont. at 457, 778 P.2d at 866 (citing Langen, 125 Mont. 302, 308, 234 P.2d 467, 470 (1951)). We explained that we look to the administrative record to review an agency‘s decision to honor the discretion given to the boards and commissions of this State, as authorized by the legislature. North Fork, 238 Mont. at 457, 778 P.2d at 866 (citing Langen, 125 Mont. at 308, 234 P.2d at 470). We did so in Keily Constr., L.L.C. v. City of Red Lodge, affirming the district court‘s decision to exclude the City Council meeting minutes, as well as the testimony from the individual council members to explain their reasons for denying the preliminary subdivision plat application. 2002 MT 241, ¶¶ 96-97, 312 Mont. 52, 57 P.3d 836. We reasoned that the evidence was properly excluded because it “would constitute ‘post-decision’ statements, which were not properly part of the record.” Keily, ¶ 97 (emphasis added); see also Citizens for Responsible Dev. v. Bd. of Co. Commrs. of Sanders Co., 2009 MT 182, ¶¶ 26-27, 351 Mont. 40, 208 P.3d 876 (reversing the district court‘s decision approving a preliminary plat based upon a review of the record).1
¶67 The judicial function of reviewing administrative decisions by record review is tied to the limited scope of the ‘arbitrary, capricious or unlawful’ standard of review. This standard “communicates the least judicial role, short of unreviewability,” and suggests a “restrained critical mood or a high tolerance for the risk of error.” Charles H. Koch, Jr., Administrative Law and Practice vol. 3, § 10.4[1], 29 (2d ed., West 1997) (emphasis in original). Thus, “[e]xcept in a de novo review proceeding in which the court may take new testimony, review of agency action is limited to the record compiled by the agency.” Stein, Mitchell & Mezines, Administrative Law vol. 5, § 43.02[7], 43-103
¶68 The District Court‘s approach was an unfortunate departure from these bedrock principles. The danger in this approach is that it rewards gamesmanship in the administrative process, here of subdivision plat approval. Landowners succeeded in ambushing Aspen Trails and the Commission by the use of extra-record evidence. Rather than participating in the agency process and providing their concerns about surface and water pollution information to the Commission, Landowners opted to wait and fault the Commission before the District Court with extra-record evidence. Landowners’ new expert testified in the District Court, offering information not presented to the Commission. The record demonstrates that the de novo hearing before the District Court was a battle of new scientific testimony over the adequacy and appropriateness of the EA. The District Court relied heavily on the testimony of the Landowners’ expert to evaluate the Commission‘s decision, stating “Plaintiff‘s expert Chris Cerquone has a master of science degree in environmental studies[;] [h]e suggested monitoring wells throughout the property .... Cerquone felt that groundwater depth and flow information is critical to understand the potential impacts to groundwater and potential groundwater contamination of Prickly Pear Creek.” Or. at 5-6. The District Court‘s approach allowed itself, and ultimately this Court, to be asked to act as scientific experts, judging and weighing the credibility and accuracy of new competing scientific testimony regarding the environmental impacts of subdivision plat construction. See Lands Council, 537 F.3d at 988. That is not the proper role for the District Court, or this Court.
¶69 The Court quietly approves the District Court‘s approach by citation to Skyline, a decision which failed to critically analyze the issue as well as it should have. As noted above, the Asarco case in which it relied was narrowly written, and the result in that case was a reversal of the district court‘s taking of new evidence. Asarco, 616 F.2d at 1161, 1163. Indeed, the commentaries treat Skyline as the exception to the general rule. See 2 Am. Jur. 2d Administrative Law § 545 n. 12 (2004); 73A C.J.S. Public Administrative Law and Procedure § 346 n. 6 (noting only Skyline as authority for taking new evidence when reviewing under an arbitrary, capricious or unlawful standard). I agree with Judge Buyske‘s comments in Skyline that “the path the majority chose to take ... runs too broadly through a factual analysis and invites future litigants to view district court proceedings as a means to do what should have been done at the administrative agency level-develop the record.” Skyline, 286 Mont. at 116-17, 951 P.2d at 34 (Buyske, J., dissenting).
¶70 I believe the District Court reached the correct conclusion, but believe the conclusion could have been well-reached by properly reviewing the administrative record. Because I agree that the Commission failed to consider the environmental impacts related to surface pollution and possible groundwater contamination, in violation of statutory requirements, I concur with the Court and would affirm.
JUSTICE NELSON specially concurs.
¶71 I specially concur in the Court‘s Opinion, although I also agree with Landowners’ argument, on brief, that Aspen Trails’ motion to intervene after judgment was untimely. Read together, our cases hold that post-judgment motions to intervene are generally disfavored and that once the litigation has commenced and the potential intervenor has had notice and the opportunity to move to intervene, but fails to do so, then intervention after the litigation has concluded and judgment entered is untimely and should be denied. See Connell v. Dept. of Social and Rehab. Serv., 2003 MT 361, 319 Mont. 69, 81 P.3d 1279, and the cases collected and discussed therein.
¶72 Here, on the basis of our well-established jurisprudence, the trial court could have and, in my view, should have, denied Aspen Trails’ untimely motion to intervene. In doing so, the court would have saved the Landowners the time, trouble and expense of defending this appeal. I also agree with Justice Rice‘s discussion on the District Court taking new evidence.
¶73 That said, however, I concur in the ultimate result reached by the Court in this case.
JUSTICE LEAPHART, dissenting.
¶74 I dissent. In my view, the District Court erred in granting Aspen Trail‘s post-judgment motion to intervene under
¶75 Although there is nothing in
¶76 This Court has looked to four factors in evaluating the timeliness
¶77 Given my view that the District Court abused its discretion in allowing Aspen Trails to intervene as an appellant, I would not reach the merits of the appeal.