*1 MONTANA, REL., L. LEACH EX TAMMY Thе STATE OF Craig Gregory Leach, Leach, Leach, Susan Peti- S. and VISSER, Appellants, Jelinski, v. WILBUR Jane tioners County Commissioners, White, and Ramon S. The Gallatin Respondents. Respondents No. 88-211. Aug. 11, 1988.
Submitted on Briefs
Nov.
1988.
Decided
Rehearing Denied Feb.
MR. Opinion JUSTICE SHEEHY delivered the Court. permits parcel outside of State law of land when the platted local subdivision review subdivisions without a one An “occasional sale” means transaction is an occasional sale. law also within 12 month State of a division land parcel disposi- if “the method of land limits adopted evading” subdivision review. tion is 2.b.(3)(b) Regulation Subdivision Gallatin of local subdivision the effect an oсcasional sale an evasion be transferred has review “a previously same transferor as an occasional been transferred sale.”
Tammy Tract 14 as an occa- proposed a of a certain Leach contiguous to a proposed division was sional sale. The tract of the occasional sale which earlier been transferred traсt Court, Eighteenth basis, Judi- On that the District Leach. District, County, attempted divi- cial Gallatin determined that qualify of land and sion 14 did for an occasional sale of Tract not, therefore, The Dis- exempt review. from local subdivision peremptory writ mandamus. trict Court denied a Regulation We determine here that Subdivision Gallatin 76-3-207, 2.b.(3)(b) provisions directly of Section conflicts with the MCA, parcels outside of рermitting single divisions of land We therefore re- they qualify as occasional sales. subdivisions when *3 District Court to verse and remand this cause with directions to the respondents permit proposed the issue a writ mandate to the to of of division land. findings adequately describe the
The of the District Court fact in 1981, family purchased acres of land problem. In Leach the 12, purchase, Tract was County. A within the Gallatin 20-acre tract two 10-acre tracts. review in 1983 into divided without subdivision 1984, away. 12B In Tract 13 was divided with- conveyed Tract was and Tract 13A out into two 10-acre tracts local subdivision review 1985, Tammy Leach ac- conveyed away. May, petitioner was In 1984, conveyed Tract 14 to quired family Tract In the Leach 13B. 1984, Later, Don, Tract 14 was Tammy in Craig, Gloria and Leach. present contro- рetitioners sold Leach. The Gregory to and Susan Tammy versy attempt 14. Petitioner an divide Tract involves to proposed 14A. In 1986 the would of Tract Leach become the owner by Tammy rejected the 14A Leach was division of land of Tract to contiguous County proposed transfer was Commission because the County 13B; sub- Gallatin so under the transfer of Tract Another regulations as sale.” quаlify not an “occasional did request of Tract 14A to transfer Leach consid- by County February, ered the Commission denied in 1987. The County approve decision of the Commission divi- the proposed by conveyed by sion of land the Leaches was to them by 25, signed Commissioners, February letter dated 1987. The history letter recited the as enu- the transfers the tracts above pointed merated and out that subdivision rules “do not allow if it to be transferred previously been an transferred the same transferor as history, sale.” Based on that the Commission “determined disposition method of the land was evading (the requirements of Title Ch. Pt. MCA requirements). subdivision review petitioners
The filed action the District for a Court writ directing permit mandate County Commission to the division of proposed. Court, land The entering findings District aftеr of fact law, and conclusions peremptory denied the writ of January 23, peti- mandamus on 1988. From that order of denial the appealed tioners have Court. this presented issues the Leaches are:
In1. 76-3-103(7), MCA, accordance with Sections 76-3-207 and may landowner year enter into every one occasional each sale without being or subject series sales deemed tо local subdivision review.
2. The Gallatin Subdivision is void as eliminat- ing exemption for occasional sales. County’s Gallatin regulations subdivision violate Montana
and United States Constitutions. answer, (1) the Commission contends that: the Gallatin are reasonable and not conflict with state (2) law; given Commission is discretion to determine whether a of land is for the Act; (3) and, Subdivision and Platting arguments the constitutional should they not be presented considered in the because were not District Court. principal issue in this case is controlled our decision Casne,
State Montana ex rel. Swart al. (1977), et *4 302, case, 564 P.2d provisions 983. In that the same now contained 76-3-207, MCA, MCA, in 76-3-103(7), Section in- and Section were volved, though case, in In contained earlier statutes. numbered Gallatin ex- to the effect that the 442 apply the resub-
emption contained in did not 76-3-207] [Section platted clerk or filed with the redesign division or of a subdivision platted in a which owned lots and recorder. Swart five dividing line each by drawing straight he had to divide substantially equal transferring one the halves parts, lot into property. proposal His as an sale of the denied occasional Commission, for a writ applied and he to the District Court mandate, permit the directing the Commission to division. mandate, the decision was af- granted District Court a writ of appeal affirming, said: firmed on to this Court. this Court provisions regulations in of the “These are direct conflict with in Platting Act heretofore set forth Section Subdivision and [76-3- applied They statutory exemption to ‘resub- eliminate the as 207]. They re- redesign’ divisions or and recorded subdivisions. plat approved quire an amended reviеwed body to be with the and recorded direct contradiction filed clerk exemption. They engraft additional and contradic- tory requirements implementing guise on the statute They statutory requirements. frustrate the of the evasion such, . . exemption ‘occasional Act. As . sale’ of the City, v. 145 399 are void on See Bartels Miles Mont. their face. changed by P.2d 768. It is statute cannot be admin- axiomаtic that a Graham, Ariz. regulation. Begay App. 18 501 istrative See P.2d 964.”
172 at P.2d Mont. at 986. case, problem In this that came we are faced with the exact Here, qual this in Swart. divisions of tracts before Court earlier elapsed be ified as sales more than months occasional because us, directly parcels. each In the tween division of the case before contiguous it transfer tо Leach has been refused because sale, although qualified to a tract had earlier as present case, year elapsed from the time more than a provision in the earlier transfer. The effect tract Swart, is, Regulations in the words of Gallatin Subdivision contradictory the statute “engraft requirements on additional and statutory requirements.” guise implementing in the the evasion оf because, County regulation impermissible The Gallatin is therefore language in the Swart: right promulgate authority grant
“This not include the does Where, here, Act regulations in direct conflict with Act. re- provides from the subdivision occasional sales *5 quirements, prescribe DCA eliminat- cannot subdivision ing the for An the reasons heretofore stated. administra- agency “super legislature” change tive not empowered is a to delegated power.” law under the of an cloak assumed 308-09, at 564 P.2d at reasons, County
For same the contention of the Commis sion that it has to discretion determine whether method of dis position 76-3-207, for Section MCA, Plainly, statutes, no per merit. our under a landowner mitted a division a outside of a any division and other -division do occur within deny month Commission has no to discrеtion complies of land if the landowner otherwise ex with the emptions provided to him under the statutes for a land.
There no need to address the constitutional issues raised Leaches county since we determine is void. Commission, however, declaratory further contends that a judgment proper remedy rather than a writ of mandate is a in this cause. The points Commission to decisions оther states declaratory which hold that a judgment proper action method challenging zoning ordinance and writ that a of mandamus in this inappropriate case is duty since the legal disregard had no to its own regulations. Again, this in Swart: contention answered
“Here
legal duty
there was
clear
required
the defendants were
perform
declaratory judgment
for
reasons
A
heretofore stated.
necessarily
action would not
get
survey
in the
the certificate of
filed
light
previous
difficulties between
and the
and re-
clerk
corder in getting such
in State ex rel.
certificates filed as evidenced
Stuckey, supra.
Swart v.
declaratory
A
judgment
would not
action
petitioner
make
whole
attorneys
such an
fees are not allowable
only remedy
action. A writ of mandаte is the
available to secure
—
sought
ultimate relief
petitioner
compel
lifting
sanitary restrictions,
survey,
filing
certificate
attorney
award of relator’s
fees.”
309, 310,
at
Mont.
mandate is Accordingly, this cause. we reverse remand to the District Court with instructions to issue a writ mandate permit directed to the of land as Commission the division ap- Leach, may be by Tammy other relief as and for such propriate in this cause. for a writ of mandate HARRI- MR. JUSTICES
MR. CHIEF JUSTICE TURNAGE and SON, WEBER, GULBRANDSON, McDONOUGH HUNT and concur. PETITION FOR REHEARING
OPINION AND ORDER ON Opin- delivered the Order and MR. CHIEF JUSTICE TURNAGE Rehearing. ion on Petition
County County petitioned for rehear- Commission of Gallatin has grounds opinion on the ing promulgated of our November Court, opinion of this that the is in conflict with an earlier decisiоn (Mont. 1985), 447,] Mont. Withers v. Beaverhead [218 opinion language in of No- St.Rep. P.2d 1730 and that our 1, 1988, county commission to vember the discretion of a eliminates attempt to evade subdi- propose determine if a division of land is an vision review. General, Attorney of the State of Mon- appearing
The on behalf curia, contending petition rehearing, supports tana as amicus for proрerly found this County regulation that the Gallatin void, language in is extrane- Court to be that certain our but contrary to language is ous to the decision and that the extraneous acting county attorneys, controlling Several Montana case law. counties, They respective join their brief. are the State’s County, attorneys County, and Lewis and from Flathead Missoula addition, supporting County. has filed a Clark Flathead brief, for the response curia brief amicus curia and a to the amicus may Montana, that the State State of the latter directed to a fear under all situations have conceded its amicus brief that in de- body abusing discretion governing to be its would be deemed exemption were exemption if that nying the use of an sale occasional proposed only period on a division during once a twelve-month land. contending respondents responsive
The brief have filed a rehearing groundless. is reference, County subdivision For ease of we set out the Gallatin question: Exemption as an “b. occasional sale.
“(1) (1) An occasional sale is sale within one of division land any period upon The 12-month 12-month commences land.
“(2) propеr The use occasional sale to create parcel division of a from tract or continuous tracts from of land.
“(3) body proposed shall declare a land as an occasional sale to be an evasion the act it determined following one or more exist: conditions
“(a) parcel part parcel new of a which was created family act; under the conveyance exemption occasional sale or or
“(b) parcel be transferred been previously sale; transferred the same transferor anas or
“(c) the creation of proposed parcel par- would leave 2 or more cels of less than 20 acres.” pertinent statutory provision to which the Gallatin relate are these:
“76-3-207 .... dispositiоn unless the method chapter, following this division of land are chapter subdivisions under . . this . “(d) outside of subdivisions when sale; transaction is an occasional . . . chapter, “76-3-103. As used this unless the context Definitions. subject clearly otherwise, or requires matter following or words *7 phrases shall following meanings: have the
“(7) any ‘Occasional Sale’ means one sale of a division 12- within period.” month case, Tammy
In this proposed Leach tract 14 a certain as an contig- occasional proposed sale. tract of the uous to a tract which an had earlier been transferred as Tammy body,” county sale to “governing Leach. The commis- County, sion parcel contigu- of Gallatin determined that since the ous to a which had been transferred the same earlier sale, County regula- transferor as an occаsional under the Gallatin tion the proposal qualify Leach sale did not as an occasional year elapsed from and so the division was denied. More than a the time of the earlier transfer. regulation the Gallatin subdivision
It obvious that per pro se automatic rule to determine when a which sets out a or posed engrafts is an evasion of the act additional division of land contradictory requirements providing the statute for occa on purpose proposed regard sional sales without to whether the regulation void. divider is to evade subdivision review. As such (but County) appearing All concede of the amici herein not Gallatin proper in that the and that mandamus is is void however, premises. they seek, is to have us delete from our What 1, 1988, following language: of November reasons, county commission “For the same the contentions of disposi- that it has discretion determine whether the method of 76-3-207, MCA, adopted tion is Section for the statutes, permitted Plainly, has merit. a landowner is no under out if the divi- division of a outside of a subdivision sion and other division do not occur within a 12-month county deny commission has a division of land no discretion exеmptions provided complies the landowner with the otherwise to him land.” under the statutes for a away foregoing paragraph All takes amici contend that the county power from the commissioners the to determine whether fact a as an occasional sale or division of land submitted exemption under some other of the act is an evasion of subdivision intention, point requires review. Such and the was not our discussion.
There is an allowance of inherent conflict between review, “unless occasional sale without subdivision and the condition evading this disposition a method of chapter.” proposing A under the occasional landowner to divide land avoiding exemption obviously contemplates review pur- body. such an is for Whether avoidance direct pose quite question. evasion is We have no another factual guidance legislature through determine from the its statutes to difference between avoidance and evasion. County, supra, it a v. Beaverhead this Court had before Withers attempted property to her
situation where to deed Barbara Withers daughter Amy family Withers under the immediate survey 76-3-207(b), and certificаte of Section MCA. When her deed authorities, sought mandamus rejected were she
447
history
the district court. The district court
the earlier
of
considered
divisions,
family pertaining
pro-
the
the
to land
determined that
posed
daughter
purpose
was
division to the
subdi-
review,
appeal
vision
and denied mandamus. This Court on
held
by
abuse
in
there
no
of discretion
commission
1339,
determining,
so
and therefore denied mandamus.
In this difficult the word “discretion” is itself a by meanings, term. can in Ku- It have two as discussed this Court Lillie, jich 137-38, we P.2d There said: “Discretion. term ‘discretion’ denotes the of a hard absence rule, case) (citing and fast a clearly “The establishment of a defined rule would be the end of discretion, (citing authority) Rev., Dictionary, p. 884, “1 Bouvier’s Law 3rd Rawle’s has defined in part part judicial ‘discretion’ as: ‘That funсtion which de- questions arising cause, cides according par- in the trial a case, ticular judgment circumstances of each and as to which the by court uncontrolled fixed rules of law.’ ” ‘ applied justice ’’Discretion when a to court means sound dis- guided by cretion law.” 4 Burr. 529. is a mere Judicial discretion — legal discerning by discretion in presented discretion the course law; what duty and has been is the discerned it the court to fol- (citing authority) low. “A legal regu- ... discretion one that is by (citing lated well principles known and established of law.” authority)’ “ ’ “But the word [injunction] discretion in this connection secondary sense, used in by and it is meant that the chancellor has liberty power acting, finally settling property rights, and in at discretion, his legal equitable without the restraint and rules governing rights, deny power.”' (сiting authority).” those then I such opinion
The use of term “discretion” author our bar, of November With the case at this Court ers, supra, may really have been unfortunate. What is meant power duty bodies have and de evaluate termine from all the circumstances whether the requirements. land is based on a to evade the subdivision Attorney recognized General in an is this distinction (40 16) July 20, response Opinions sued him on A.G. No. question developer to a city attorney from the where of Missoula survey completed filing certificate submitted fourth conveyed lots, be which were to dividing into five four of tract was, under these sales, question asked whether and the facts, subject review under sales” are the claimed “occasional exemptions are claimed”for grounds act on the that the evading” the act. *9 part: Attorney answered General questions in such consistently to address “. . . I have declined However, analyzing you advisory opinion. to assist context of an promoting following I As a statute the issue offer the observations. welfare, platting Act must be public health and the Subdivision exemptions must be object. Its literally to its construed effectuate rel., School District narrоwly Florence Carlton applied. State ex Commissioners, 285, 291, 590 P.2d Board of (1978). may require one claim- government legitimately A local requirements make some eviden- ing exemption Act’s from the also be exemption justified ... It would tiary showing sort of rule some legitimate government to establish for the local evi- evaluate the hearing procedure government to allow local оr disallow it dentiary exemption and to allow basis for the claimed contrast, evalua- establishing procedures for .... policy Act’s exemption gives substance to the tion of a claimed certainly with and is consistent government control of land use requirements.” the Act’s different of a factual issue is
Evaluation and determination provided the occa legislature has from “discrеtion.” Since the it not be for subject to the condition that sional sale (not review, dis a determination cretion) show such by governing body on stated facts which based body. This Court power within the never intended otherwise. from our we eliminate foregoing
Based discussion therefore on commis- original opinion paragraph objected origi- exception, the sion and amici. Aside from that rehearing is nally petition for promulgated stands as issued. The otherwise denied. HUNT, SHEEHY, HARRISON, GULBRAND-
MR. JUSTICES SON, concur. WEBER and McDONOUGH