L. REED WILLIAMS, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS OF MISSOULA COUNTY, the governing body of the County of Missoula, acting by and through Michele Landquist, Bill Carey and Jean Curtiss, Defendants and Appellees, LIBERTY COVE, INC., PAUL ROSSIGNOL, NORMA ROSSIGNOL, and PONDEROSA DEVELOPMENT, INC., Intervenors and Appellants.
No. DA 12-0343
Supreme Court of Montana
Decided August 28, 2013
2013 MT 243 | 371 Mont. 356 | 308 P.3d 88
Argued April 17, 2013. Submitted April 23, 2013.
For Appellee L. Reed Williams: Timothy M. Bechtold (argued); Bechtold Law Firm, PLLC; Missoula.
For Appellee Missoula County: Fred Van Valkenburg; Missoula County Attorney; D. James McCubbin (argued); Deputy County Attorney; Missoula.
For Amicus Land Use Clinic: Michelle Bryan Mudd, Benjamin S. Sudduth (argued); University of Montana School of Law; Missoula.
For Amicus State of Montana: Timothy C. Fox; Montana Attorney General; Lawrence Vandyke (argued); Montana Solicitor General; Helena.
JUSTICE COTTER delivered the Opinion of the Court.
¶1 Liberty Cove, Inc., Paul and Norma Rossignol, and Ponderosa Development, Inc. (collectively Landowners“) utilized the protest provision of
ISSUES
¶2 We restate the four issues raised by Landowners on appeal as follows:
¶3 1. Did the District Court abuse its discretion in denying Landowners’ motion to dismiss Williams’ complaint for failure to join them as necessary parties under the Montana Uniform Declaratory Judgments Act?
¶4 2. Did the District Court err in determining that
¶5 3. Did the District Court err in determining that
¶6 4. Did the District Court err when it ruled that
FACTUAL AND PROCEDURAL BACKGROUND
¶7 On September 8, 2009, Commissioners and the Lolo Community Council held a joint public meeting to solicit public testimony concerning the development of a zoning proposal for an area north of Lolo, Montana. Public testimony at this meeting indicated that support existed for the development of a zoning proposal. Following the joint public meeting, Commissioners directed their staff to work with residents and landowners to create a proposal to replace the North Lolo Interim Zoning Plan. Three draft alternative plans were presented at public meetings on January 30, February 3, and February 9, 2010. Based on comments received on the alternative plans and additional staff review, Commissioners issued the Planning Board Public Hearing Draft on February 25, 2010, for public comment.
¶8 The proposed North Lolo Rural Special Zoning District consisted of 422 acres of land north of Lolo and west of U.S. Highway 93. Agricultural and forest land comprised 223 acres in the district. Prior to 2008, this area had been unzoned. On May 30, 2008, Commissioners enacted interim zoning to address public health and safety issues associated with a gravel mining and asphalt production operation proposed by Liberty Cove, Inc., who is one of the parties referred to as Landowners in the instant case. We previously upheld these interim zoning regulations as lawful in Liberty Cove, Inc. v. Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617.1 Commissioners extended the one-year interim zoning in 2009, but the interim zoning was set to expire on May 30, 2010. The proposed North Lolo Special Zoning District would have replaced the interim zoning and continued to prohibit sand and gravel mining and concrete and asphalt operations within the district.
¶10 On April 7, 2010, Commissioners held a public hearing and passed “A Resolution of Intention to Adopt Amendments to the 2002 Lolo Regional Plan as an Amendment to the Missoula County Growth Policy 2005 Update.” Commissioners published notice in accordance with
¶11 On April 20, 2010, five landowners2 who together owned more than 50 percent of the agricultural and forest land within the district filed a written protest. All parties agree that these landowners owned the requisite acreage to effectively block the zoning proposal pursuant to
¶12 On May 14, 2010, Williams filed a complaint in District Court against Commissioners. Williams requested that the District Court declare that the protest provision of
¶13 On May 20, 2010, Commissioners filed an answer. Commissioners agreed with Williams that
¶14 Without objection from Commissioners, the District Court issued an order for a preliminary injunction on May 21, 2010. The order enjoined Commissioners from taking any actions based on
¶15 Landowners filed an unopposed motion to intervene on May 24, 2010. The District Court granted Landowners’ motion to intervene on May 28, 2010. Next, Landowners filed a
¶16 On July 14, 2010, Williams filed a motion for summary judgment. Williams’ motion for summary judgment sought a declaration from the District Court that the protest provision of
¶17 On July 23, 2010, Landowners filed a motion to stay summary judgment proceedings pending the District Court‘s disposition of their motion to dismiss. Landowners filed an application to quash, vacate and dissolve the preliminary injunction on August 30, 2010. On October 15, 2010, Landowners filed a motion to quash Commissioners’ motion for summary judgment, arguing that Commissioners’ motion addressed matters outside the pleadings, and that Commissioners and Williams lacked standing to challenge the constitutionality of
¶18 On February 2, 2011, Williams filed a motion for leave to amend his complaint to add the claim that
¶19 On April 5, 2012, the District Court issued its order addressing all of the outstanding and fully briefed motions. The District Court denied Landowners’
¶20 On May 4, 2012, the District Court entered a final judgment in favor of Williams and Commissioners. Landowners appeal.
STANDARDS OF REVIEW
¶21 When considering a motion to dismiss based on the assertion that an indispensible party is absent, the court is given discretion to determine whether the action will proceed or must be dismissed. Blaze Constr. v. Glacier Elec. Coop., 280 Mont. 7, 10, 928 P.2d 224, 225 (1996); Mohl v. Johnson, 275 Mont. 167, 169, 911 P.2d 217, 219 (1996).
¶22 We review a district court‘s ruling on a motion for summary judgment de novo, applying the same criteria of
¶23 This Court‘s review of constitutional questions is plenary. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 9, 359 Mont. 346, 249 P.3d 913. The constitutionality of a statute is a question of law, and we review a district court‘s legal conclusions for correctness. Walters, ¶ 9. Legislative enactments are presumed to be constitutional, and the party challenging the provision bears the burden of proving beyond a reasonable doubt that it is unconstitutional. DeVoe v. City of Missoula, 2012 MT 72, ¶ 12, 364 Mont. 375, 274 P.3d 752; State v. Ergdorf, 2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d 517.
¶24 The severability of an unconstitutional provision from a statute is a matter of statutory interpretation. See Finke v. State ex rel. McGrath, 2003 MT 48, ¶¶ 25-26, 314 Mont. 314, 65 P.3d 576. We review a district court‘s interpretation of a statute for correctness. Blanton v. Dep‘t of Pub. HHS, 2011 MT 110, ¶ 21, 360 Mont. 396, 255 P.3d 1229; Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 24, 358 Mont. 474, 247 P.3d 244.
DISCUSSION
¶25 Did the District Court abuse its discretion in denying Landowners’ motion to dismiss Williams’ complaint for failure to join them as necessary parties under the Montana Uniform Declaratory Judgments Act?
¶26 When Williams filed his initial complaint on May 14, 2010, seeking declaratory relief pursuant to the UDJA, he did not include Landowners as parties to the action. Landowners claim that they were “necessary parties” to Williams’ action because their interests as protesting property owners would be affected by the District Court‘s declaration as to the constitutionality of
¶27 On June 3, 2010, Landowners filed a
¶28 While the District Court‘s decision on Landowners’ motion to dismiss addressed the matter in the context of
¶29
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
A court‘s decision as to whether a non-party must be included in a matter depends on the facts and circumstances of the particular case in question. John Alexander Ethen Trust Agreement v. River Res. Outfitters, LLC, 2011 MT 143, ¶ 49, 361 Mont. 57, 256 P.3d 913.
¶30 John Alexander Ethen Trust Agreement involved a boundary dispute between neighboring property owners. One of the property owners attempted to invalidate the trial court‘s decision concerning the location of the property boundary for failure to join an indispensable
¶31 Williams commenced the action in District Court in direct response to Landowners’ use of the protest provision to prevent Commissioners from adopting the proposed North Lolo Rural Special Zoning District. As the parties who exercised their rights under the protest provision, Landowners had a clear interest in the outcome of the District Court‘s declaration concerning the constitutionality of
¶32 The absence of Landowners from Williams’ lawsuit created additional problems likely to result in prejudice. The Commissioners, as the defendants in Williams’ lawsuit, agreed with Williams that
¶33 Although we agree with Landowners that they were a necessary party under
¶34 Here, the District Court granted Landowners’ motion to intervene in the early stages of the litigation. Landowners fully participated in all substantive briefing regarding the constitutionality of the protest provision. Even though the District Court granted a preliminary injunction shortly before Landowners intervened, the preliminary injunction and the Commissioners’ adoption of the North Lolo Rural Special Zoning District were subject to the District Court‘s later determination of the constitutionality of the protest provision. Granting the preliminary injunction was necessary to prevent the issue of the constitutionality of
¶35 This Court‘s adherence to the harmless error doctrine requires that “[a]t every stage of the proceeding, the court must disregard all errors and defects that do not affect any party‘s substantial rights.”
¶36 Did the District Court err in determining that
¶38
¶39 The procedure for establishing district boundaries and adopting or revising zoning regulations, which includes notice and public hearing requirements, is set forth in
Within 30 days after the expiration of the protest period, the board of county commissioners may in its discretion adopt the resolution creating the zoning district or establishing the zoning regulations for the district. However, if 40% of the real property owners within the district whose names appear on the last-
completed assessment roll or if real property owners representing 50% of the titled property ownership whose property is taxed for agricultural purposes under 15-7-202 or whose property is taxed as forest land under Title 15, chapter 44, part 1, have protested the establishment of the district or adoption of the regulations, the board of county commissioners may not adopt the resolution and a further zoning resolution may not be proposed for the district for a period of 1 year.
¶40
¶41 Courts have long recognized zoning as a valid form of regulation to promote public health, safety, and welfare. In Freeman v. Board of Adjustment, 97 Mont. 342, 351, 34 P.2d 534, 536 (1934), this Court noted that when zoning ordinances were first enacted, they were often challenged as unconstitutionally depriving property owners of liberty and property without due process of law, or attacked as a violation of equal protection rights. Back in 1934, the Court recognized that the “modern trend” nationwide was to uphold the validity of such ordinances and the statutes that authorize them. Freeman, 97 Mont. at 351, 34 P.2d at 537. The Court went on to explain that zoning statutes and ordinances are “generally sustained upon the theory that they constitute a valid exercise of the police power; that is to say, they
¶42 One important way that zoning promotes public health, safety, and the general welfare of a community is by separating incompatible land uses, such as industrial and residential. See Euclid, 272 U.S. at 394, 47 S. Ct. at 120. In Montana, gravel and sand mining operations present a common example of this conflict between contrary land uses. The State does not require permitting for certain categories of gravel pits, so counties must rely on zoning to protect residential areas from the industrial impacts often associated with gravel and sand mining operations. See
¶43 The instant case is not the first time that the constitutionality of
¶44 In Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056 (1960), this Court set forth the standard for a delegation of legislative power as
The law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid.
Bacus, 138 Mont. at 78, 354 P.2d at 1061 (quoting 73 C.J.S. Public Administrative Bodies & Procedure § 29).
¶45 In the context of zoning, this Court has previously held that a lawful delegation of legislative authority “must contain standards or guidelines” to inform the propriety of the exercise of that power. Shannon v. City of Forsyth, 205 Mont. 111, 114, 666 P.2d 750, 752 (1983). When no standards or guidelines are present, the exercise of the delegated power may result in “arbitrary and capricious” actions, “dependent wholly on the will and whim” of others. Shannon, 205 Mont. at 115, 666 P.2d at 752. The existence of an appellate body with the power to consider exceptional cases is essential to the proper exercise of police power. Shannon, 205 Mont. at 115, 666 P.2d at 752. Unlawful delegations of legislative authority run afoul of the due process guarantees of the Fourteenth Amendment to the United States Constitution and
¶46 In Shannon, mobile home owners filed a petition with the City of Forsyth seeking a waiver to locate a mobile home in a zoning district which prohibits mobile homes. Shannon, 205 Mont. at 112, 666 P.2d at 751. The local ordinance required a successful petition for a variance to include the signatures of at least 80 percent of the landowners residing within 300 feet of the proposed location of the mobile home and also required the signatures of all adjoining landowners. Shannon, 205 Mont. at 112, 666 P.2d at 751. We held that the ordinance was unconstitutional as an unlawful delegation of legislative authority and police power. Shannon, 205 Mont. at 115, 666 P.2d at 753. We reasoned that the ordinance provided no standard whatsoever by which to judge the neighbors’ consents. Shannon, 205 Mont. at 115, 666 P.2d at 752. We determined that the ordinance was arbitrary and capricious because the negative vote by a single adjoining landowner could defeat the petition. Shannon, 205 Mont. at 115, 666 P.2d at 752.
¶47 This Court has struck down several other statutes and ordinances outside the context of zoning as unconstitutional delegations of legislative authority. See e.g. In the Petition to Transfer Territory, 2000 MT 342, 303 Mont. 204, 15 P.3d 447 (holding that a statute giving a superintendent the authority to grant or deny petitions to transfer territory among school districts was an unconstitutional delegation of legislative power because the superintendent‘s broad discretion was “unchecked by any standard, policy, or rule of decision“); Ingraham v. Champion Int‘l, 243 Mont. 42, 793 P.2d 769 (1990) (deeming a workers’ compensation statute an unconstitutional delegation of legislative power because it granted the insurer “absolute discretion” as to what terms, under what circumstances, and in what amounts a lump-sum conversion payment could occur); In the Matter of Savings & Loan Activities, 182 Mont. 361, 597 P.2d 84 (1979) (declaring a statute granting the Department of Business Regulation the power to approve or disapprove applications for the merger of savings and loan associations was an unconstitutional delegation of legislative power because it lacked guidelines or substantive criteria); Douglas v. Judge, 174 Mont. 32, 568 P.2d 530 (1977) (holding unconstitutional a statute authorizing the Department of Natural Resources and Conservation to make loans to farmers and ranchers who proposed “worthwhile” renewable resource development projects because the statute lacked adequate parameters).
¶48 The U.S. Supreme Court has similarly struck down laws as unconstitutional delegations of legislative power when the law “creates no standard by which the power thus given is to be exercised.” Eubank v. Richmond, 226 U.S. 137, 143-44, 33 S. Ct. 76, 77 (1912). In Eubank, a property owner challenged a city ordinance that required municipal authorities to establish building setback lines when such action was requested by two-thirds of the property owners on a street. Eubank, 226 U.S. at 141, 33 S. Ct. at 76. The Court determined that the ordinance, by “conferring the power on some property holders to virtually control and dispose of the property rights of others,” unlawfully empowered [o]ne set of owners [to] determine not only the extent of use but the kind of use which another set of owners may
¶49 In reaching its decision that
¶50 Relying in part on the Montana decisions Shannon and Freeman, the South Dakota Supreme Court determined that the protest provision was unconstitutional. Cary, 559 N.W.2d at 895-96. The Court reasoned that the protest provision did not provide the necessary guidelines or standards for a protest and as a result, it allowed the use of a person‘s property “to be held hostage by the will and whims of neighboring landowners” without reason or justification. Cary, 559 N.W.2d at 895. As the Court observed, “[s]uch a standardless protest statute allows for unequal treatment under the law and is in clear contradiction of the protections of the due process clause of the Fourteenth Amendment.” Cary, 559 N.W.2d at 895. Moreover, the
¶51 We agree with the District Court that the protest provision in
¶52 Without any standards or guidelines for the exercise of the delegated power, the protest provision of
¶53 The protest provision also lacks provision for review by a legislative body with the power to consider exceptional cases, which was noted as essential to the proper exercise of police power in Shannon and Cary. Without a legislative bypass provision, a small number of agricultural or forest landowners, or even a single landowner, is granted absolute discretion to make the ultimate determination concerning the public‘s best interests with no opportunity for review. Not only does the statute lack a provision allowing a legislative body to take action notwithstanding the protest, it actually prohibits the board of county commissioners from even proposing an alternative zoning resolution for a period of one year. In contrast, Montana‘s Municipal Zoning Act contains an example of a proper legislative bypass.
¶54 Therefore, we conclude that the District Court did not err in determining that the protest provision at issue in this case represents an unlawful delegation of legislative power.
¶55 In his Dissent, Justice Rice touts the rights of the Landowners to acquire and protect their land as reason for upholding the protest provision. The legislative history of
76-2-901. Agricultural activities-legislative finding and purpose. (1) The legislature finds that agricultural lands and the ability and right of farmers and ranchers to produce a safe, abundant, and secure food and fiber supply have been the basis of economic growth and development of all sectors of Montana‘s economy. In order to sustain Montana‘s valuable farm economy and land bases associated with it, farmers and ranchers must be encouraged and have the right to stay in farming.
(2) It is therefore the intent of the legislature to protect agricultural activities from governmental zoning and nuisance ordinances.
The goals of the Legislature are surely salutary. It bears noting, however, that Landowners were not utilizing the protest provision to preserve their ability to produce a safe, abundant, and secure food and fiber supply” or protect their “right to stay in farming.” Rather, Landowners wielded the power of the protest provision to block regulations that would limit their ability to transform their agricultural and forest land into a large industrial gravel pit. Thus, Justice Rice‘s invocation of “safeguards for agricultural property” as a basis for upholding the protest provision rings somewhat hollow.
¶56 While Justice Rice expresses concern for the property rights of Landowners, his Dissent utterly ignores the property rights of the remaining property owners in the zoning district. These neighboring
¶57 Justice Rice attempts to distinguish the instant case by arguing that “Landowners held only the ability to protect and prevent their own land from being zoned, not to approve or impose conditions on their neighbors’ property.” Dissent, ¶ 78. We disagree with this characterization of the protest provision. The protest power of
¶58 We now turn to Justice McKinnon‘s Dissent. Contrary to the plain language of the statute, Justice McKinnon argues that
¶59 Contrary to the impression left by the Dissents, the sky is not falling. We have concluded that the statute as written unlawfully vests private individuals with legislative power. It bears repeating that appropriate legislative bypass language has been employed over the
last century around the country to alleviate similar concerns. The Montana Legislature is certainly free to consider whether and how to reenact the protest provision so that it will pass constitutional muster.¶60 For these reasons, we respectfully reject the arguments presented by the Dissents.
¶61 Did the District Court err in determining that
¶62 Based on our resolution of Issue 2 and our determination that the protest provision in question constitutes an unconstitutional delegation of legislative power, we decline to address Landowners’ equal protection and right to suffrage constitutional challenges.
¶63 Did the District Court err when it ruled that
¶64 We must now consider whether the protest provision of
¶65 The District Court began its analysis by determining that
¶66 Landowners argue that if the protest provision is found to be unconstitutional, this Court must strike down
¶67 Our review of the history of
The provisions of this act shall be severable and, if any of its sections, provisions, exceptions, clauses or parts be held unconstitutional or void, the remainder of this act shall continue in full force and effect.
1963 Mont. Laws 782, ch. 246, § 11. In 1971, the Legislature amended the statute to clarify its language. 1971 Mont. Laws 1176, ch. 273, § 19. The 1971 amendments did not substantively alter It is the intent of the legislative assembly that if a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. 1971 Mont. Laws 1176, ch. 273, § 21. ¶68 According to the Montana Bill Drafting Manual published by the Montana Legislative Services Division, severability clauses are not codified but are published in the annotations. In 1977, the statute at issue was identified as § 16-4705, R.C.M., and was located in Title 16: Counties, Chapter 47: Zoning Districts. At the end of this chapter, the ¶69 Even given the checkered background and unclear history of ¶70 When the protest provision is severed from the statute, the remaining provisions are complete and capable of fulfilling the legislative intent underlying the statute. The stated purpose of county zoning is to promote “the public health, safety, morals, and general welfare.” See ¶71 For the foregoing reasons, we affirm the District Court‘s grant of CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and MORRIS concur. JUSTICE RICE, dissenting. ¶72 In its analysis, I believe the Court misses the big picture: the Landowners have a constitutional right to property and to protect their property rights from infringement; Missoula County has no constitutional right to zone. ¶73 The Court holds that the protest provision in ¶74 Landowners enjoy the inalienable right of lawfully “acquiring, possessing and protecting property.” ¶75 A delegation of legislative power must confer upon a designated group or agency the ability to create or enact a law. The Court quotes the standard provided in Bacus for delegation of legislative powers, Opinion, ¶ 44, but overlooks the point that, for delegation to occur, an agency or group must be given “law-making power” to enact, make, or create a law. Bacus, 138 Mont at 78-79, 354 P.2d at 1061. This point was discussed in Eubank, where two-thirds of the neighbors petitioned the local government to institute a setback restriction that affected the landowner‘s use of his property. Eubank, 226 U.S. at 141, 33 S. Ct. at 76. It was in this context of law-making power that the Supreme Court held, as rephrased by the Court, that “‘conferring the power on some property holders to virtually control and dispose of the property rights of others’ unlawfully empowered ‘[o]ne set of owners [to] determine not only the extent of use but the kind of use which another set of owners may make of their property,‘” and struck down the ordinance as unconstitutional. Opinion, ¶ 48 (quoting Eubank, 226 U.S. at 143, 33 S. Ct. at 77). The Court has here misapplied the holding in Eubank by twisting it to support the opposite conclusion. ¶76 This is further illustrated by the U.S. Supreme Court‘s subsequent explanation. Three years after Eubank, the Supreme Court considered whether a Chicago ordinance was an unconstitutional delegation of legislative power in Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917). The Chicago ordinance required consent from a majority of residential property owners on the affected city block before a person or company could construct a billboard on the city block. Thomas Cusack Co., 242 U.S. at 527-28, 37 S. Ct. at 190. The Supreme Court held that this landowner check on the city‘s zoning power was not an unconstitutional delegation of legislative power, and compared Chicago‘s ordinance to the ordinance at issue in Eubank: The [ordinance in Eubank] permits two-thirds of the lot owners to impose restrictions upon the other property in the block, while the [ordinance in Thomas Cusack Co.] permits one-half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances. Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 192 (emphasis added). The constitutional ordinance in Thomas Cusack Co. allowed a particular kind of property owners—residential—to block or remove a zoning restriction, Thomas Cusack Co., 242 U.S. at 531, 37 S. Ct. at 190, while the unconstitutional ordinance in Eubank conferred power to a group of property owners to enact new property restrictions, Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77. ¶77 Section ¶78 The Court fails to recognize that Landowners held only the ability to protect and prevent their own land from being zoned, not to approve or impose conditions on their neighbors’ property. The Court correctly presents the applicable principles articulated in Shannon and Cary, but does so in errant oversimplification. In Shannon and Cary, the neighboring landowners were granted the ability to prevent the plaintiff from taking a proposed action on the plaintiffs’ own property. Shannon, 205 Mont. at 112, 666 P.2d at 751 (plaintiff landowners sought a variance to place a mobile home on their own land, which neighbors would not approve); Cary, 559 N.W.2d at 892 (plaintiff landowner sought to rezone her land from agricultural to medium density residential, which neighbors protested). Here, the protest power used by the Landowners to prevent zoning of their own land in no way deprived their neighbors from any right to use their own property. ¶79 Finally, ¶80 In response to this Dissent, the Court fails to acknowledge the clear analysis of the U.S. Supreme Court distinguishing the constitutionally flawed ordinances in the cases relied upon by the Court from the statute at issue here. The Court instead invokes the property rights “of the remaining property owners in the zoning district,” Opinion, ¶ 56, as if this case somehow involved a balancing of rights between property owners. However, there is no balancing of constitutional rights here—at least, there is not supposed to be. Under ¶81 I agree with the Court‘s conclusion that the District Court erred by rejecting Landowners’ claim that they were necessary parties, but disagree that the District Court‘s error was harmless. By the time the Landowners were allowed to intervene, the District Court had already granted the preliminary injunction and the County Commissioners had already enacted the North Lolo Rural Special Zoning District. The failure to join Landowners denied them an opportunity to argue against the preliminary injunction and in favor of the constitutionality of the statutory protest provisions. By the time Landowners got to make their arguments, the zoning was enacted. ¶82 The District Court should have known that Landowners were both interested and necessary parties to this action from the beginning. The complaint and the answer agreed that Landowners had availed themselves to the protest provision in ¶83 The County had no constitutional power to zone; it had only the powers given by the Legislature. The District Court first marginalized the Landowners procedurally and then failed to protect their substantive constitutional rights, granting new powers for government to override property rights. ¶84 I would reverse. JUSTICE McKINNON, dissenting. ¶85 In my opinion, the Court today fails to distinguish between a zoning regulation and a statute that enables zoning to take place in the first instance. The latter does not implicate considerations of an unconstitutional delegation of legislative authority, while the former may. In failing to make a distinction between enabling provisions of the zoning statute and its substantive provisions, the Court has declared unconstitutional a condition precedent to zoning which the Legislature, as representatives of its citizens, determined was proper to have. We tell the Legislature and Montana citizens today that you must have zoning in your counties even though 50 percent of agricultural landowners do not want to be zoned. We tell the Legislature and Montana citizens today that we find offensive a statute which prioritizes land ownership, perhaps at the expense of a large number of county residents. ¶86 The Court‘s decision today allows county commissioners in rural counties to implement zoning measures impacting farm and agricultural land based upon a resolution of county commissioners—normally three individuals in our rural counties. We make these declarations in spite of the Legislature‘s finding and ¶87 Landowners own the majority of the property subject to the proposed regulations. They own agricultural and forest land and are taxed accordingly. One of the Landowners, Liberty Cove, wanted to build a lake on their property and entered into a purchase agreement with a contractor for the gravel mining operations. On March 8, 2006, Missoula County granted a zoning compliance permit, noting that the site location was not zoned. County commissioners received complaints from Lolo residents requesting the county enact interim zoning to address environmental and traffic concerns at the site. The Court today notes that Landowners are attempting to “transform their agricultural and forest land into a large industrial gravel pit” and that Landowners were not “utilizing the protest provision to preserve their ability to ‘produce a safe, abundant, and secure food and fiber supply’ or protect their ‘right to stay in farming.‘” Opinion, ¶ 55. I do not believe it is for this Court to decide which uses of property have merit and which do not. It seems to me such an analysis is akin to the notion of choosing what speech someone may or may not hear. I, for one, am uncomfortable with the notion that my rights depend on the value another individual gives to the particular use I make of my property, as long as it is lawful. Landowners pay taxes on their agricultural and farm land and their standing under ¶88 Zoning regulations are enacted pursuant to the police power of the state. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926). The power to zone is exercised primarily by local units of the government. However, local governments have no inherent police powers of their own and therefore no inherent power to zone. 6 Patrick J. Rohan, Zoning and Land Use Controls, § 35.01 (Matthew Bender 2013). There is thus no inherent power to zone except as has been delegated to local government by its enabling statutes or constitution. Transamerica Title Ins. Co. v. Tucson, 757 P.2d 1055 (Ariz. 1988); Riggs v. City of Oxnard, 154 Cal. App. 3d 526, 201 Cal. Rptr 291 (1984); Nopro Co. v. Cherry Hills Village, 504 P.2d 344 (Colo. 1972); Stucki v. Plavin, 291 A.2d 508 (Me. 1972); Sun Oil Co. v. New Hope, 220 N.W.2d 256 (Minn. 1974); State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo. Ct. App. 1975); Nemeroff Realty Corp. v. Kerr, 38 A.D.2d 437, 330 N.Y.S.2d 632 (N.Y. App. Div. 1972), aff‘d 299 N.E.2d 897 (1973). The action taken by the local government must not exceed that provided for in its delegation and must be consistent with the enabling legislation. Smith v. Zoning Bd. of Appeals of Greenwich, 629 A.2d 1089 (Conn. 1993); Board of Township Trustees v. Funtime, Inc., 563 N.E.2d 717 (Ohio 1990); Riggs v. Long Beach, 538 A.2d 808 (N.J. 1988); Ramsey v. Portland, 836 P.2d 772 (Or. 1992); Jachimek v. Superior Ct., 819 P.2d 487 (Ariz. 1991); Ripso Realty & Dev. Co. v. Parma, 564 N.E.2d 425 (Ohio 1990). The Supreme Court of North Carolina has aptly described the nature of the delegation of authority to zone: Thus, the power to zone is the power of the State and rests in the General Assembly originally. There, it is subject to the limitations imposed by the Constitution upon the legislative power forbidding arbitrary and unduly discriminatory interference with the rights of property owners. A municipal corporation has no inherent power to zone its territory and restrict to specified purposes the use of private property in each such zone.... Obviously, the General Assembly cannot delegate to a municipal corporation more extensive power to regulate the use of private property than the General Assembly, itself, possesses. Consequently, the authority of a city or town to enact zoning ordinances is subject both to the above mentioned limitations imposed by the Constitution and to the limitations of the enabling statute. Zopfi v. Wilmington, 160 S.E.2d 325 (N.C. 1968) (internal citations omitted). ¶89 Land-use restriction was assumed to be a problem which could be solved more efficiently on the local level. The rationale of this policy was articulated as early as 1929 by Chief Judge Cardozo of the New York Court of Appeals: “A zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values.” ... The growing state participation in land-use regulation has been generated by a combination of problems of a regional nature and local inability to provide solutions. The typical fragmentation of the zoning power, which created numerous zoning authorities in urban areas sharing a common regional problem, made orderly control of development improbable. Legislative bodies, amenable to electors from a small geographic district, predictably enacted zoning regulations which served the provincial interest of their district. They disregarded the broad interests of the regional community, making solution of area-wide problems difficult, if not impossible. This invited state regulation by legislators who were answerable to a broader constituency. State legislators began to realize that ecological problems would be solved, if at all, only on a state wide basis. This encouraged the adoption of measures to control land use which threatened natural resources, including places of natural beauty or historic interest. In addition, state land use controls were inspired by such other factors as land shortages, fiscal crises, urban deterioration, and a wide variety of community ills which seemed unlikely to be cured by purely local regulation. 1 Robert M. Anderson, American Law of Zoning 3d, § 2.03 (1986). ¶90 Pursuant to [t]here is no controlling decisional law in Montana pertaining to the questions ... presented and the law of other jurisdictions has limited application given the unusual nature of the Montana statute. Opinions of other jurisdictions are premised on the recognition that the protest provisions of those jurisdictions pertain to the amendment of an existing zoning regulation. The courts recognize that those protest provisions are a form of protection afforded property owners in the stability and continuity of preexisting zoning regulations. Such reasoning is not applicable to the Montana statute, which operates as a form of extraordinary protection afforded property owners to prevent the legislative body from adopting zoning regulations in the first instance. As such, the statute operates more like a “consent provision” than a protest provision. Consistent with these observations, the statute‘s “protest” rights discussed within this opinion are so identified only for purposes of consistency with the actual language of the statute. 46 Mont. Op. Att‘y 22 (July 22, 1996) (emphasis added; footnotes omitted). ¶91 Initially, it is significant to point out that this Court has previously held valid, as against an attack that the statute was an unlawful delegation of legislative authority, the statutory forerunner to We shall not quote the entire act, but, with respect to the procedure, the law provides definite outlines and limitations. The zoning district may come into being only upon petition of sixty percent of the freeholders in the area. The adoption of the development district must be by a majority of the Commission, after definitely prescribed public notice and public hearing. The resolution must refer to maps, charts, and descriptive matters. In other words, quite adequate procedural matters are contained in the act itself. City of Missoula, 139 Mont. at 260-61, 362 P.2d at 541. Although City of Missoula did not directly address the contention raised here, this Court recognized the validity of the statutory provision that prevented the creation of a zoning district until 60% of the freeholders petitioned for its establishment. Significantly, these prior enabling provisions, found to be valid by the Court, “denied the power to regulate the use of land for grazing, horticulture, agriculture, or the growing of timber.” City of Missoula, 139 Mont. at 258, 362 P.2d at 540 (emphasis added). The Legislature‘s limitation of zoning authority to a county and its zoning commission has thus been part of our statutory scheme since 1953. Our current zoning statute, ¶92 I agree with Justice Rice in his Dissent when he states that “the Court has gotten it exactly backwards” in describing our analysis of cases construing protest provisions. Dissent, ¶ 73. While it is true that the Supreme Court in Eubank v. Richmond, 226 U.S. 137, 33 S. Ct. 76 (1912), found an unconstitutional delegation of legislative authority to particular landowners in determining the location of a building line, the authority to establish the building line was not challenged and had already been conferred. Thus the question was not whether the City of Richmond had authority to create the ordinance, but rather, once conferred, whether that authority was constitutionally exercised. The action of the committee is determined by two-thirds of the Eubank, 226 U.S. at 143-44, 33 S. Ct. at 77 (emphasis added). Five years later, the Supreme Court explained, in declaring constitutional an ordinance that required consent by a majority of the property holders before billboards could be erected in residential areas, that: A sufficient distinction between the ordinance [in Eubanks] and the one at bar is plain. The former left the establishment of the building line untouched until the lot owners should act and then made the street committee the mere automatic register of that action and gave to it the effect of law. The ordinance in the case at bar absolutely prohibits the erection of any billboards in the blocks designated, but permits this prohibition to be modified with the consent of the persons who are to be most affected by such modification. The one ordinance permits two-thirds of the lot owners to impose restrictions upon the other property in the block, while the other permits one-half of the lot owners to remove a restriction from the other property owners. This is not a delegation of legislative power, but is, as we have seen, a familiar provision affecting the enforcement of laws and ordinances. Thomas Cusack Co. v. Chicago, 242 U.S. 526, 531, 37 S. Ct. 190, 192 (1917) (emphasis added). See also Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121-22, 49 S. Ct. 50, 52 (1928), where the Court held that “[t]he right of [a property owner] to devote [his] land to any legitimate use is properly within the protection of the Constitution” and thus the consent provision for issuance of a permit to accommodate a larger home for the elderly poor was an unconstitutional delegation of power and “repugnant to the due process clause of the Fourteenth Amendment.” ¶93 ¶94 Other jurisdictions have observed a distinction between consent and protest provisions which impermissibly delegate legislative authority and those that condition the exercise of legislative authority on particular conditions having been established. In O‘Brien v. St. Paul, 173 N.W.2d 462 (Minn. 1969), the Court determined that a provision requiring an owner to obtain written consent of two-thirds of the adjoining property owners prior to rezoning was valid. Consent was determined to be not a delegation of power, but merely a condition precedent to an exercise of power by the city council. The Court referred to rules enunciated from other jurisdictions and adopted the following distinction: If the action of the property owners has the effect of legislation—if it creates the restriction or prohibition, then it is deemed to fall within the forbidden “delegation of legislative power.” On the other hand, if the consents are used for no greater purpose than to waive or modify a restriction which the legislative authority itself has lawfully created and in which creation it has made provisions for waiver or modification, then such consents are generally regarded as being within constitutional limitations. O‘Brien, 173 N.W.2d at 465-66 (citing 2 Metzenbaum, Law of Zoning, c. X-b-1, p. 1067 (2d ed.). See also 1 Yokley, Zoning Law and Practice § 7-13, p. 358 (3d ed.). The Washington Supreme Court upheld a similar consent statute and explained: Spokane v. Camp, 97 P. 770, 771 (Wash. 1908) (emphasis added.). The Illinois Supreme Court explained in 1896 that “[i]t is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend upon a contingency .... The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” Chicago v. Stratton, 44 N.E. 853, 855 (Ill. 1896). The distinction drawn was this: In the case at bar, the ordinance provides for a contingency, to-wit: the consent of a majority of the lot owners in the block, upon the happening of which the ordinance will be inoperative in certain localities. The operation of the ordinance is made to depend upon the fact of the consent of a majority of the lot owners, but the ordinance is complete in itself as passed. What are known as local option laws depend for their adoption or enforcement upon the votes of some portion of the people, and yet are not regarded as delegations of legislative power. Delegation of power to make the law is forbidden, as necessarily involving a discretion as to what the law shall be; but there can be no valid objection to a law, which confers an authority or discretion as to its execution, to be exercised under and in pursuance of the law itself. Chicago, 44 N.E. at 855 (internal citations omitted). ¶95 A careful and close reading of these cases demonstrates that there exists a clear distinction between those protest and consent provisions ¶96 I respectfully dissent.
CONCLUSION