Botz v. Bridger Canyon Planning & Zoning Commission , 367 Mont. 47 ( 2012 )

November 20 2012
DA 12-0131
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 262KEVIN BOTZ, RANDY THEKEN, and FPR PROPERTIES, LLC,
Petitioners and Appellants,
v.
BRIDGER CANYON PLANNING AND ZONING COMMISSION,
Respondent and Appellee,
and
BRIDGER CANYON PROPERTY OWNERS ASSOCIATION, INC.,
Intervenor and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause Nos. DV 10-1076B and
DV 10-1174CX
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Thomas J. Karem, Karem Law Firm, P.C., Bozeman, Montana
For Appellee:
Jennifer L. Farve, Moore, O’Connell & Refling, P.C., Bozeman, Montana
For Intervenor:
Brian K. Gallik, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana
Submitted on Briefs: September 4, 2012
Decided: November 20, 2012
Filed:
__________________________________________
Clerk
2
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 This appeal pertains to the location of a horse barn in the Brass Lantern Planned
Unit Development in Bridger Canyon, Montana. The owner of the barn, Randy Theken
and FPR Properties, and Theken’s contractor, Kevin Botz, assert the partially-constructed
barn complies with both the zoning regulations and the covenants of the Brass Lantern
development. After notification by the Gallatin County Code Compliance Specialist that
the barn did not comply with the regulations and the covenants and must be removed,
FPR submitted an application to modify the conditional use permit of Brass Lantern
development to bring the location of the barn into compliance. Following public
hearings, the Bridger Canyon Planning and Zoning Commission1 affirmed the Code
Compliance Specialist’s (CCS) determination that the barn violated zoning regulations
and applicable covenants. The Commission also denied FPR’s request to modify the
conditional use permit for Brass Lantern. FPR appealed the Commission’s orders to the
Eighteenth Judicial District Court. The District Court affirmed the Commission’s
rulings. FPR also argued to the District Court that the Commission’s rulings amounted to
a constitutional taking. The District Court dismissed this claim without conducting a
trial. FPR appeals. We affirm.
ISSUES
1
The Respondent/Appellee in this case is Bridger Canyon Planning and Zoning Commission.
We note from the record, however, that certain proceedings were conducted before the Gallatin
County Planning and Zoning Commission. The parties do not distinguish between the two
commissions; rather, they simply refer to “Commission” when referencing the administrative
proceedings. For purposes of simplicity, we shall do the same.
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¶2 A restatement of the issues on appeal is:
¶3 Did the District Court abuse its discretion by affirming the Bridger Canyon
Planning and Zoning Commission’s determination that the partially-constructed barn
violated applicable zoning regulations and covenants and must be removed?
¶4 Did the District Court abuse its discretion by affirming the Bridger Canyon
Planning and Zoning Commission’s denial of FPR’s application to modify the Brass
Lantern Conditional Use Permit?
¶5 Did the District Court err in dismissing FPR’s constitutional takings claim?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The Brass Lantern Planned Unit Development (PUD) was created in Bridger
Canyon in 1984 by Donald Turner. Turner submitted an application to the Bridger
Canyon Planning and Zoning Commission (Commission) requesting a conditional use
permit (CUP) to create the Brass Lantern development, consisting of 100 acres, divided
into five twenty-acre parcels. A diagram of the land and designated parcels was shown
on Certificate of Survey (COS or Survey) 1154 filed with the Gallatin County Clerk and
Recorder.
¶7 Turner explained in the application that each parcel would accommodate a single
family dwelling located on a designated two-acre site. The application required that all
areas other than the building site would remain open space. Both Gallatin County and the
Bridger Canyon Property Owners Association (BCPOA or Owners Association) agreed
with the provisions and supported creation of the PUD with minor alterations. Restrictive
covenants were prepared and approved. These covenants indicated that the maximum
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amount of land that could be covered by buildings was 17,424 square feet per parcel. In
December 1984, the CUP was granted, the PUD was approved and the necessary
documents were filed with the proper authorities.
¶8 The legend included on the recorded Survey expressly identified the two-acre
building site for each parcel, stated that the maximum coverage for buildings per site was
17,424 square feet, and advised the viewer to see the Bridger Canyon zoning regulations
pertaining to “open space.” Additionally, the recorded restrictive covenants clearly stated
that “All building sites are required to be located per the plat designation as described on
‘Exhibit A’. . . . Homes and all outbuildings are to be limited to a ‘square footage’ of no
more than 17,424 square feet per twenty (20) acre tract, perameters [sic] set forth in
attachment, ‘Exhibit B’.” Exhibits A and B were not recorded with the covenants but
were on file at the Gallatin County Planning Department.
¶9 In 2004, Kevin Botz, the owner of Tract E of the Brass Lantern PUD, applied to
Gallatin County Planning Department for a permit, as required by the PUD covenants and
Bridger Canyon Zoning Ordinance, to build a 7,676 square foot single family home on
his property. Describing the setbacks for his proposed construction, Botz wrote “As Per
Brass Lantern Building Envelope.” He thereafter built his home in accordance with the
permit and the designated building site, as approved by the Planning Department. In
2009, Botz sold Tract E to Randy Theken and FPR Properties. The Warranty Deed
indicated that the property and sale were subject to “all building and use restrictions,
covenants, easements, agreements, conditions and rights of way of record and those
which would be disclosed by an examination of the property.”
5
¶10 Upon completion of the purchase, FPR hired Botz to build a horse barn on Tract
E. Without obtaining the required Land Use Permit (LUP), Botz began constructing the
barn approximately 175 feet from the house. Neighbors complained to the Owners
Association that the barn site was outside the approved building site for Tract E as set out
on COS 1154-A. The Owners Association in turn complained to the Commission.
¶11 On January 28, 2010, after an investigation, a Gallatin County CCS notified FPR
that the barn was located “outside the designated building envelope” and therefore
violated the terms and covenants of the Brass Lantern CUP. The Compliance Specialist
further determined that the barn violated two separate Bridger Canyon Zoning
Regulations (BCZR): (1) it was constructed in designated open space, and (2) it was built
prior to obtaining a required LUP. The CCS provided Botz with an after-the-fact LUP
application and an application to request an amendment to the conditional use permit of
the PUD as it pertained specifically to Tract E or for amendments to the CUP of the PUD
as a whole. The Code Specialist requested that construction of the barn cease until the
Commission ruled on the applications.
¶12 FPR did not appeal the CCS’s decision; rather, it submitted the application for a
CUP to modify the existing building site on Tract E by creating two smaller building
sites. On May 11, 2010, before a hearing could be held on FPR’s application, the CCS
issued an order to remove the barn. The CCS explained that her recent review of the
enforcement procedures in the BCZR revealed that the regulations do “not describe an
application process as a means to resolve a zoning violation.” Her order further stated:
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Section 17.4.c provides that the Gallatin County Planning and Compliance
Departments may issue cease and desist orders and require corrective action
to remedy a violation, which may include an order to remove a
noncompliant structure. As directed by the Gallatin County Attorney’s
Office and Gallatin County Commission, I am hereby ordering you to
remove the noncompliant horse barn in accordance with Section 17.4.c.
(Emphasis in original.) On May 25, 2010, FPR appealed the removal order to the
Commission.
¶13 On August 12, 2010, the Commission held a public hearing on FPR’s appeal of the
CCS’s orders. The Commission issued its Findings, Conclusion and Order on September
7, 2010, in which it affirmed the CCS’s January non-compliance decision, placed a hold
on the CCS’s May removal order until the Commission completed its review of FPR’s
CUP-modification application, and fined Botz $200 for failing to obtain the required
Land Use Permit before initiating construction of the barn.
¶14 On September 9, 2010, the Commission conducted a hearing on FPR’s application
for modification to the CUP for Brass Lantern PUD to allow the building site of Tract E
to be reconfigured. At this hearing a substantial amount of public opposition was
expressed. By vote of 5-2, the Commission denied FPR’s application to modify the CUP.
¶15 On October 8, 2010, FPR filed its petition and complaint in the District Court
appealing the Commission’s decision that FPR’s barn was not in compliance with
applicable zoning regulations and the PUD covenants. FPR also posited a constitutional
takings claim. In January 2011, FPR filed a second amended petition and complaint,
adding an appeal of the Commission’s removal order.
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¶16 The District Court affirmed the Commission’s orders that the location of FPR’s
barn constituted a zoning and covenant violation and must be removed. The court also
affirmed the Commission’s decision to deny FPR’s application for modification of the
Brass Lantern PUD’s CUP. The court did not hold a trial on FPR’s constitutional claim,
finding that FPR did not present a legal argument or legal authority to support the claim.
FPR appeals.
STANDARD OF REVIEW
¶17 Under applicable planning and zoning statutes, a district court, and in turn this
Court, reviews a zoning authority’s decision for an abuse of discretion. An abuse of
discretion occurs when the information upon which the municipal entity based its
decision is so lacking in fact and foundation that it is clearly unreasonable. DeVoe v. City
of Missoula, 2012 MT 72, ¶ 10, 364 Mont. 375, 274 P.3d 752.
¶18 The interpretation and application of an ordinance are questions of law that this
Court reviews de novo to determine whether they are correct. Devoe, ¶ 11. This Court
does not sit as a super-legislature or super-zoning board. Englin v. Board of County
Comm’rs, 2002 MT 115, ¶ 16, 310 Mont. 1, 48 P.3d 39.
¶19 This Court exercises plenary review of constitutional issues and a district court’s
decisions on constitutional issues are reviewed for correctness. Devoe, ¶ 12.
DISCUSSION
¶20 Did the District Court abuse its discretion by affirming the Bridger Canyon
Planning and Zoning Commission’s determination that the partially-constructed
barn violated applicable zoning regulations and covenants and must be removed?
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¶21 Following the August 12, 2010 Commission public hearing, the Commission
issued its findings of fact, legal conclusions and order. Its findings addressed relevant
provisions from the BCZR including, but not limited to, definitions, the purpose of
planned unit developments, and standards for development. The Commission also
summarized public comments submitted during the hearing.
¶22 The Commission concluded that (1) it could not discern the intent of the Planning
and Zoning Commission’s 1984 approval of the PUD; (2) the 1984 Planning and Zoning
Commission found that the Brass Lantern PUD complied with the zoning regulations and
emphasized the agricultural character of the valley; (3) a livestock barn is an agricultural
structure; (4) buildings on Tract E will affect the skyline regardless of where they are
constructed; and (5) the zoning regulations pertaining to open space contain conflicting
language. Lastly, the Commission, by a vote of 4 to 2, affirmed the CCS’s January
decision of violation, placed the May removal decision on hold, scheduled a hearing on
FPR’s application for modification of the PUD, and fined Botz $200 for failing to obtain
a LUP.
¶23 On appeal to the District Court, FPR argued that neither the zoning regulations nor
the Conditional Use Permit for the PUD dictate where a barn must be located. FPR
maintained that the original CUP for the Brass Lantern PUD required that all buildings on
any parcel not exceed 17,424 square feet and the residential dwelling must be placed
within a designated building site. FPR opined that other than complying with the square
footage restriction, the PUD covenants did not regulate the location of a horse barn or
other agricultural building. It further asserted that the Commission’s interpretation and
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application of BCZR § 13.5.b.2 to conclude that FPR’s barn location violated the
regulation’s open space requirements was error as a matter of law.
¶24 FPR also asserted that the Brass Lantern PUD is located in an “Agricultural
Exclusive District” and that under BCZR § 6.2, the use of a barn is a “matter of right.”
FPR opined that the Commission’s ruling constituted an illegal regulation of an
agricultural activity. Lastly, FPR argued that the Brass Lantern PUD covenants did not
restrict outbuildings to a “building envelope” and, because Exhibit A purporting to
establish a building envelope was not recorded with the Survey, it is not binding on FPR.
¶25 The Commission argued to the District Court that the Certificate of Survey clearly
designated a “building site” and FPR erred in its contention that the building site
pertained to residential dwellings only. The Commission noted that the “overarching
objective [of the PUD was] to improve and enhance open space and to preserve the
visceral qualities of the area and its rural nature.” It submitted that the Survey identified
“the building site” and made no distinction between barns and homes. The Commission
posited that the Survey and the covenants put FPR on notice that a building site
restriction existed. The Commission further argued that had FPR obtained the required
LUP before beginning construction, it likely would have been informed that the proposed
barn location was in open space that was not available for construction. Testimony was
provided that the Gallatin County Planning Department had informed Botz where the
building site on Tract E was located when Botz applied for his LUP to build the house.
¶26 The District Court conducted a hearing on December 15, 2011, and on January 31,
2012, issued its Decision and Order. The court concluded that under both BCZR § 17.4
10
and Planning and Zoning statute § 76-2-113, MCA, the Commission had the authority to
find FPR in violation for constructing a barn without obtaining a Land Use Permit and to
remedy this violation with a removal order. Despite this determination, the court
nonetheless addressed the other issues pertaining to the violation and removal orders
raised by the parties.
¶27 The District Court relied upon Conway v. Miller, 2010 MT 103, 356 Mont. 231,
232 P.3d 390, in determining whether the Commission abused its discretion when it held
that FPR violated the applicable regulations and covenants. In Conway, Miller, despite
admittedly being put on notice that her subdivision plat had a “building restriction line,”
began constructing a garage that straddled the line, thereby building on both sides of the
restriction line. Conways sued and this Court, in affirming the district court, held that the
“building restriction line” language in Miller’s deed created an enforceable “negative
easement” benefitting the other property owners in the subdivision. Miller was ordered
to remove the garage.
¶28 Applying this analysis to the facts before it, the District Court concluded that
Turner intended to create a negative easement and FPR had “actual, constructive or
inquiry notice of the building site restriction” through the terms and conditions of the
Certificate of Survey, the contents of the regulations and the PUD map, and the recorded
covenants for the Brass Lantern PUD. Based upon this analysis, the District Court
concluded the Commission’s decision to affirm the CCS’s violation and removal orders
“was correct, as a matter of law.”
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¶29 On appeal to this Court, FPR presents numerous arguments—both procedural and
substantive—each proffered to establish that the Commission and the District Court
abused their discretion in holding that FPR violated the covenants and zoning regulations.
These arguments include, among others, allegations that the Commission and/or the
District Court (1) misinterpreted and misapplied zoning regulations; (2) erroneously
relied upon unrecorded documents, public comments, and parol evidence; and (3) did not
have standing to enforce the covenants. FPR’s arguments, however, serve to complicate
an otherwise straightforward question: Does the express language of the Certificate of
Survey, the Brass Lantern PUD covenants, and the Warranty Deed from Botz to FPR
support the Commission’s ruling that FPR’s barn location violates the covenants and
must be removed?
¶30 The Certificate of Survey No. 1154-A specifically identifies a “building site” for
each of the five parcels in the Brass Lantern PUD. The Survey includes the following
reference:
BUILDING SITE (MAX. COVERAGE ALLOWED BY BUILDINGS/TRACT 17,424
S.F.) SEE OPEN SPACE REQUIRED BY BRIDGER CANYON ZONING.
Notably, the legend does not reference or identify a “residential dwelling site”; rather, it
specifies the location of the “building site” and indicates that “buildings” may not exceed
17,424 square feet.
¶31 Additionally, Article III, Section 2 of the recorded Restrictive Covenants
specifically states: “All building sites are required to be located per the plat designation
as described on ‘Exhibit A’, attached hereto. Homes and all outbuildings are to be
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limited to a ‘square footage’ of no more than 17,424 square feet per twenty (20) acre
tract, perameters [sic] set forth in attachment, ‘Exhibit B’.” FPR argues that this
language should be interpreted to mean that an outbuilding may be placed in a location
other than the designated “building site” provided it does not cause the cumulative total
of buildings to exceed 17,424 square feet. We conclude it was not an abuse of discretion
for the Commission and the District Court to conclude that outbuildings must be
constructed within the identified building site.
¶32 Furthermore, while we acknowledge that Exhibits A and B were not recorded with
the covenants and the Survey (the exhibits were filed with the Gallatin County Planning
Department), the recorded Survey and covenants put FPR on notice that there were
restrictions on the locations of buildings on the plat. In addition, the Warranty Deed from
Botz to FPR indicates that the sale was “subject to . . . all building and use restrictions,
covenants, easements, agreements, conditions and rights of way of record and those
which would be disclosed by an examination of the property.” This again put FPR on
notice that building restrictions were attached to the plat purchased from Botz.
¶33 Lastly, as noted above, a finding by the Commission that FPR failed to obtain the
necessary Land Use Permit prior to beginning construction justifies its ruling that FPR
violated the zoning regulations. The zoning regulations authorize the Commission to
order removal of an offending construction upon determining that such a violation has
occurred.
¶34 Based upon the express language of the sales documents, the regulations and
covenants, we can resolve this issue without application of the “negative easement”
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analysis in Conway upon which the District Court relied. The Commission’s decisions
did not constitute an abuse of discretion as they were not “so lacking in fact and
foundation that [they were] clearly unreasonable.” Devoe, ¶ 10. While the Commission
and the District Court may have based their decisions on different legal rationales, we
will affirm an administrative or district court decision that reached the right result even if
reached for the wrong reason. Mont. Solid Waste Contrs. v. Mont. Dep’t of Pub. Serv.
Regulation, 2007 MT 154, ¶ 29, 338 Mont. 1, 161 P.3d 837. We therefore affirm the
Commission’s violation and removal orders and the District Court’s decision affirming
these orders.
¶35 Did the District Court abuse its discretion by affirming the Bridger Canyon
Planning and Zoning Commission’s denial of FPR’s application to modify the
Brass Lantern Conditional Use Permit?
¶36 We must next determine whether the Commission abused its discretion by denying
FPR’s request to modify the Brass Lantern PUD’s CUP to allow FPR to complete the
barn in its present location, and whether the District Court in turn erred in affirming this
decision.
¶37 Following a public hearing to review FPR’s application to modify the Brass
Lantern PUD’s CUP, in which it accepted considerable public comments, the
Commission denied FPR’s modification application by a vote of 5 to 2. The Commission
concluded that it was unable to find that the proposed modification “would not, under the
circumstances of the particular case, be detrimental to the health, safety, peace, morals,
comfort and general welfare of the Bridger Canyon Zoning District as required to issue a
CUP to modify the PUD.” The Commission further found the application to modify the
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building site did not meet the purposes of a PUD as established under § 13.1(a-i) of the
Zoning Regulations. The Commission noted that, at the time he purchased the property,
Botz knew of the restrictions and obtained the required permit for building his house, and
if he, as FPR’s contractor, had sought the LUP required to construct the barn, in all
probability, the Planning Department would have prevented him from building the barn
in designated open space, and this suit would have been avoided.
¶38 The District Court subsequently concluded that the record supported the
Commission’s denial of the application to modify the PUD. The court noted that the
Commission’s decision was based upon applicable regulations, the terms and conditions
of the Brass Lantern PUD, staff reports, exhibits, and public testimony. Based upon the
record and the applicable standard of review, the court concluded the Commission did not
abuse its discretion in denying the request to modify the PUD’s CUP.
¶39 FPR argues on appeal that the denial was a “plain abuse of discretion” because its
modification application complied with “all relevant zoning regulations and [was] not
detrimental to health and safety.” Again, FPR alleges the Commission and/or the District
Court misinterpreted or misapplied the BCZR.
¶40 We need not address each individual claim of error posited by FPR given that the
record supports the conclusion that the modification application did not satisfy the
requirements set forth in BCZR §§ 13.1 and 17.3.2. Section 13.1 sets forth the purpose
of a PUD and was rightly considered by the Commission in determining whether FPR’s
application to modify the PUD was justified. Section 13.1 reflects an intention to
preserve and enhance open spaces and unique natural features, protect areas of wildlife
15
habitat, reduce the visual impact of development, and preserve scenic vistas and the rural
atmosphere.
¶41 FPR argues that the Commission did not have the right to rely upon BCZR § 13.1
as this regulation pertains to planned unit developments and not conditional use permits.
We disagree. The Brass Lantern PUD was undeniably a planned unit development and
nothing about the CUP-modification proceeding changed that designation. As such, the
PUD purpose regulations set forth in BCZR § 13.1 continued to apply and could be
considered by the Commission. Allowing a modification to a CUP that could circumvent
the purposes of a PUD would be detrimental to the regulatory scheme as a whole
developed by the Commission.
¶42 Section 17.3.2 entitled “Conditional Use Permits” states:
Conditional Use Permits shall be issued only by the Bridger Canyon
Planning and Zoning Commission and may be issued for any of the uses as
set forth in this Regulation. Such permit may be granted only if it is found
that the establishment, maintenance, or operation of the use or building
applied for will not under the circumstances of the particular case, be
detrimental to health, safety, peace, morals, comfort and general welfare of
the Bridger Canyon Zoning District.
¶43 As noted above, the neighboring public presented numerous comments and
concerns at the public hearing pertaining to the horse barn site and the request to modify
the CUP to accommodate the location. Many commenters opined that modifying the
CUP to accommodate the completion of a barn whose construction began in violation of
the regulations and whose location would thwart the open space requirements, constituted
an action that would “be detrimental to health, safety, peace, morals, comfort and general
welfare” of the BCZR. The Commission agreed and concluded it could not find that
16
FPR’s request would not be detrimental. We conclude the record supports a finding that
the modification may indeed have been detrimental to those factors; therefore, we
conclude the Commission did not abuse its discretion.
¶44 Having concluded the Commission did not abuse its discretion in reaching this
ruling, we conclude the District Court did not abuse its discretion in affirming it.
¶45 Did the District Court err in dismissing FPR’s constitutional takings claim?
¶46 The District Court noted that but for “a fleeting reference to the United States and
Montana Constitutions with respect to the local adoption of ordinances, [FPR has] not
discussed, explained or developed a constitutional theory as to how they have been
denied their due process rights under the Constitutions.” As a result, the District Court
did not conduct a trial on the merits of FPR’s constitutional claim. On appeal, FPR
challenges this determination but provides no legal argument in support of its
constitutional claim. We have stated on numerous occasions that under, M. R. App. P.
23, we are not obligated to develop arguments on behalf of parties to an appeal, nor are
we to guess a party’s precise position, or develop legal analysis that may lend support to
his position. In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, 983 P.2d 339(“Under Rule 23, M.R.App.P., it is not this Court’s obligation to conduct legal research
on appellant’s behalf, to guess as to his precise position, or to develop legal analysis that
may lend support to his position.”). Because FPR has failed to develop any legal
argument, authority or analysis for its constitutional claim, we do not address the
argument.
CONCLUSION
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¶47 For the foregoing reasons, we affirm the Commission and the District Court’s
decisions.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
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