DENNIS THORNTON, DONNA THORNTON, and MISTY CLIFF II CONDOMINIUMS ASSOCIATION, and BLOMGREN FAMILY TRUST, BILL B. BLOMGREN and LARILYN A. BLOMGREN, TRUSTEES, and MISTY CLIFF I CONDOMINIUMS ASSOCIATION, JIM ETZLER and BEVERLY ETZLER, Plaintiffs and Appellants, v. FLATHEAD COUNTY, a political subdivision, BOARD OF COUNTY COMMISSIONERS OF FLATHEAD COUNTY, in its official capacity, CLERK AND RECORDER OF FLATHEAD COUNTY, in her official capacity, et al., Defendants and Appellees.
No. DA 09-0141
Supreme Court of Montana
Decided November 3, 2009
2009 MT 367 | 353 Mont. 252 | 220 P.3d 395
Submitted on Briefs August 12, 2009.
For Appellees: Alan F. McCormick; Garlington, Lohn & Robinson, Missoula (for Flathead County); Peter A. Steele; Office of the County Attorney, Kalispell.
¶1 Jim and Beverly Etzler (Etzlers), Blomgren Family Trust (Blomgrens), and Dennis аnd Donna Thornton (Thorntons) (collectively Appellants) appeal from an order of the Eleventh Judicial District Court, Flathead County, granting Flathead County‘s (County) motion for summary judgment. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 Whether Appellants’ properties were correctly required to complete subdivision review for their condominium projects.
¶4 Whether the District Court correctly granted summary judgment to Flathead County.
¶5 Whether recording certain condominium documents bars Flathead County‘s actions under theories of estoppel or waiver.
¶6 Whether the District Court abused its discretion by denying Etzlers’ motion to amend their complaint.
BACKGROUND
¶7 This is a case about condominium exemptions from subdivision review. The District Court consolidated two cases challenging the County‘s refusal to allow the filing of transfer deeds for condominiums until the projects completed subdivision review. The particular facts presented by Appellants are similar, but addressed separately here.
¶8 On October 19, 2006, Etzlers recorded a declaration and bylaws for a residential condominium project containing 31 buildings and 124 condominium units on real property near Lakeside. The Clerk and Recorder‘s Office accepted the documents for recording. Etzlers previously obtained subdivision approval on the same real property for a five-lot subdivision (plus one remainder lot) for single-family dwellings. The original subdivision approval did not contemplate construction of condominiums. The real property comprising the proposed Osprey Ridge condominium project is located in the County‘s Scenic Corridor Zoning District.
¶9 On August 1, 2006, Blomgrens recorded a declaratiоn of residential condominiums and related documents with the Flathead County Clerk and Recorder for a residential condominium project containing four buildings and 105 condominium units. The Clerk and Recorder‘s Office accepted the documents for recording. The real property comprising the proposed Misty Cliff I condominium project is not within any zoning district and the project has not been constructed. The parcel for the condominium project was created prior to enactment of the Montana Subdivision and Platting Act of 1973 (Subdivision Act).
¶10 On July 25, 2006, Thorntons recorded a declaration of residential
¶11 When the County learned that Appellants recorded the documents purporting to create condominium projects without subdivision review, the County informed the Clerk and Recorder‘s Office not to accept deeds for the condominium developments and posted a reminder notice in order to prevent construction of the projects and transfers of any condominium units until Appellants obtained subdivision approval in accordance with the Subdivision Act. Appellants sued. The District Court granted summary judgment to the County on January 14, 2009. Appellants appeal from that order.
STANDARD OF REVIEW
¶12 This Court reviews a district court‘s conclusions of law to determine whether its interpretation is correct. Bitterrooters for Planning v. Bd. of Co. Commrs. of Ravalli Co., 2008 MT 249, ¶ 12, 344 Mont. 529, 189 P.3d 624.
¶13 This Court reviews summary judgment rulings de novo, applying the same criteria as the district court based on
¶14 This Court reviews a district court‘s denial of a motion to amend pleadings to determine if the district court abused its discretion. Peuse v. Malkuch, 275 Mont. 221, 226, 911 P.2d 1153, 1156 (1996). Pursuant to
DISCUSSION
¶15 Whether Appellants’ properties were correctly required to complete subdivision review for their condominium projects.
¶16 This issue turns on the interpretation of a statutory exemption frоm subdivision review for certain condominiums. The Subdivision Act defines condominiums as subdivisions:
“Subdivision” means a division of land or land so divided that it creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and includes any resubdivision and further includes a condominium or area, regardlеss of its size, that provides or will provide multiple space for recreational camping vehicles or mobile homes.
Exemption for certain condominiums. Condominiums constructed on land divided in compliance with this chapter are exempt from the provisions of this chapter if:
(1) the approval of the original division of land expressly contemplated the construction of the condominiums and any applicable park dedication requirements in 76-3-621 are complied with; or
(2) the condominium proposal is in conformance with applicable local zoning regulations where local zoning regulations are in effect.
Etzlers
¶17 The Osprey Ridge condominium project fulfills the first prerequisite of
¶18 Etzlers argue that the Osprey Ridge condominium project is exempt from additional subdivision review because the property is located within the Scenic Corridor Zoning District. Flathead County Zoning Regulations (Zoning Regulations) define the Scenic Corridor as:
An overlay or standing district intended to protect the scenic vistas and provide greater traffic safety along the highway corridors by restricting the number, size and location of outdoor advertising signs and billboards. This district can function as a standing district or can be applied to zoned areas. If zoned, this district will only regulate off-premise advertising signs.
No other land use restrictions apply in this district other than those relating to signs.
Section 3.32.010. The Zoning Regulations only regulate signs and cellular towers within the Scenic Corridor Zoning District. Etzlers interpret the рrovision that “[n]o other land use restrictions apply in this district other than those relating to signs” as inferring that condominiums are permitted in the Scenic Corridor, since the Scenic Corridor only regulates signs and cellular towers. Etzlers claim that the Osprey Ridge condominium project is exempt from subdivision review, because, pursuant to
¶19 Etzlers misconstrue the Scenic Corridor Zoning District‘s application to
¶20 Furthermore, the legislative history of
The legislative history of Section 76-3-203, M.C.A., makes the intent of the exemption provisions clear. The amendment was intended to address situations involving lands already subject to zoning regulations. Where a local government has completed the public, legislative process to determine appropriate land uses for an area, the subsequent construction of condominiums in conformance with those zoning regulations should not require subdivision review. However, where zoning has not been enacted, condominium projects should undergo subdivision review because the local government has not yet had an opportunity to determine whether the property is suitable for any particular land use or for the condominium project such as in the case at bar.
See Mont. Sen. Comm. on Loc. Govt., HB 589, 57th Leg., Reg. Sess. 7-8 (Mar. 27, 2001). Clearly the exemption provided in
Thorntons/Blomgrens
¶21 Thorntons and Blomgrens argue that their real properties have never been subject to the Subdivision Act becausе their parcels were created prior to enactment of the Subdivision Act in 1973. They contend that the Subdivision Act does not affect their pre-1973 “tract land,” therefore they receive a “wholesale blanket exemption” from subdivision review and are free to construct condominium developments without government intervention.
¶22 Thorntons and Blomgrens base this argument on a tortured interpretation of
¶23 Thorntons and Blomgrens do not meet the prerequisites for an exemption from subdivision review under
¶24 In 1993, Flathead County adopted zoning regulations pursuant to Title 76, Chapter 2, Part 2, MCA. The Zoning Regulations specifically provide that “[t]hese regulations may be applied throughout the County, regardless of planning jurisdictions, wherever a County zoning district is created.” Section 1.04.040. Thus, zoning is only applied to those zoning districts created by the County. The Zoning Regulations establish specific use districts “[f]or the purpose of applying these
¶25 Appellants devote much attention to their perceived deprivation of property rights. To clarify our holding in this respect, Appellants are not deprived of their potential to develop condominiums on their property, they are merely denied an exemption from subdivision review under
¶26 Whether the District Court correctly granted summary judgment tо Flathead County.
¶27 Etzlers attempt to raise various issues of disputed facts to challenge the District Court‘s summary judgment ruling. Etzlers claim that an affidavit of County Planning Director Jeff Harris (Harris) fails to state that it is based on personal knowledge. Etzlers thus attempt to elevate their affidavits as the only proper consideration, even suggesting that their interpretations of the law become the undisputed facts for purposes of summary judgment. Etzlers further attempt to create disputes of material fact under
¶28 Etzlers’ arguments are unpersuasive. The factual disputes that Etzlers describe are not material to the dispositive issue regarding the
¶29 More importantly, Etzlers’ affidavits are not relevant to the material facts at issue. All applicable statutes, including the entire text of the Zoning Regulations with sections providing for the Scenic Corridor District, were presented to the District Court, which reached its own conclusions regarding their effect on the condominium projeсts without citation to the affidavits. Removing all affidavits from consideration does not change the fact that all undisputed material facts necessary for resolution of this case were before the District Court.
¶30 Thorntons and Blomgrens raise the issue of whether the District Court erred in granting summary judgment to the County, but fail to develop any clear argument to address the issue. This Court‘s Rules of Appellate Procedure provide that “[t]he argument shall contain the contentions of the appellant with respect to the issues presented, and thе reasons therefor, with citations to the authorities, statutes, and pages of the record relied on....” M. R. App. P. 12(1)(f). The closest that Thorntons and Blomgrens come to developing their argument is to blame the County for incomplete discovery that contributed to their
¶31 We conclude that the District Court correctly granted summary judgment to the County.
¶32 Whether recording certain condominium documents bars Flathead County‘s actions under theories of estoppel or waiver.
¶33 Etzlers challenge the District Court‘s conclusion that Montana law is clear that the recording of a document does not establish the document‘s validity. Etzlers maintain that they relied upon the approval and recordation by the County. However, Etzlers fail to cite any authority for their contention that the County reviewed and approved their declaration prior to recordation. In fact, the only approval the Etzlers obtained was from the Montana Department of Revenue. The Department of Revenue lacks discretion to deny approval of a condominium declaration if the name of the project is unique and the landowner has paid all taxes and assessments due.
¶34 Montana law provides that the act of recording a document, such as a deed or a condominium declaration, does not establish the document‘s validity simply because the clerk and recorder‘s office accepted and recorded it. For example, this Court held that void one-party deeds could not legitimately transfer property simply because they were accepted and filed with the clerk and recorder‘s office. Elk Park Ranch, Inc. v. Park Co., 282 Mont. 154, 164, 935 P.2d 1131, 1136-37 (1997). “The Landowners cannot seriously argue that the void one-party deеds somehow serve to accomplish a legitimate property transfer simply because the void deeds were accepted and filed with the clerk and recorder‘s office. The recording of a deed does not establish the deed‘s validity.” Elk Park Ranch, 282 Mont. at 164, 935 P.2d at 1136-37.
¶35 Equitable estoppel does not apply here. “Equitable estoppel, by its terms, requires the misrepresentation of a material fact.” Elk Park Ranch, 282 Mont. at 166, 935 P.2d at 1138. Etzlers do not allege the County made any express representations that the condominium projects were entitled to an exemрtion from subdivision review. The County‘s only representation to Etzlers was that the condominium projects would require subdivision review. The mere recording of the
¶36 Etzlers’ waiver argument is similarly unpersuasive. Etzlers fail to point to any authority that would permit the County to waive a requirement of state law or its own local rеgulations. The County correctly interpreted
¶37 Whether the District Court abused its discretion by denying Etzlers’ motion to amend their complaint.
¶38 After the County‘s motiоn for summary judgment was fully briefed, but before the time for oral argument, Etzlers filed a motion to amend their complaint to add a claim for equal protection violations. Etzlers argued that other condominium projects have been approved that did not meet any statutory exemptions, therefore the County impermissibly applied restrictions to Etzlers. The District Court denied Etzlers’ motion to amend, citing Peuse v. Malkuch for the proposition that the court should not allow amended pleadings or a change in legal theories after a dispositive motion for summary judgment has been fully briefed. On appeal, Etzlers maintain that “newly discovered evidence” found during the course of litigation has always been recognized as a reasonable basis for a motion to amend, citing Hobble-Diamond Cattle Co. v. Triangle Irr. Co., 249 Mont. 322, 815 P.2d 1153 (1991).
¶39 Etzlers fail to adequately present any “newly discovered evidence” to support their claim. Etzlers mentioned the alleged discrimination in their brief opposing the County‘s summary judgment motion. The supporting evidence for this claim is limited to an affidavit with a list of condominium projects allegedly approved through rеcordation without subdivision or other approval from the County. As the County notes, this list fails to provide dates, legal descriptions, or condominium declarations for these projects sufficient to determine what statutes or local regulations may have applied. The list merely includes condominium projects created in unzoned areas or within the Scenic Corridor District. Such projects could have been eligible for statutory
¶40 We conclude that the District Cоurt did not abuse its discretion in denying Etzlers’ motion to amend their complaint. Etzlers sought to add an equal protection claim to their complaint. This Court has concluded that “litigants should be allowed to change legal theories after a motion for summary judgment has been filed only in extraordinary cases.” Peuse, 275 Mont. at 228, 911 P.2d at 1157. This is not such an extraordinary case. The “newly discovered evidence” here was never fully developed and was available to Etzlers when they filed their complaint. Allowing Etzlers to add a legal theory after the County filed its motion for summary judgment would unduly prejudice the County.
¶41 For the reasons stated herein, the decisions of the District Court are affirmed.
JUSTICES LEAPHART, COTTER, MORRIS and NELSON concur.