St. John v. Lewistown , 387 Mont. 444 ( 2017 )

05/30/2017
DA 16-0404
Case Number: DA 16-0404
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 126
TOM ST. JOHN, LINDA GERLEMAN, FRANK
WESTHOFF, SUZANNE WESTHOFF, et al.,
Plaintiffs and Appellants,
v.
CITY OF LEWISTOWN, MONTANA,
Defendant and Appellee.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DV 2015-77
Honorable Brenda Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
James A. Hubble, Olive J. Urick, Hubble Law Firm, PLLP, Stanford,
Montana
For Appellee:
Kevin C. Meek, Cathy J. Lewis, Ugrin, Alexander, Zaddick & Higgins,
Great Falls, Montana
Submitted on Briefs: February 22, 2017
Decided: May 30, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Plaintiffs Tom St. John, Linda Gerleman, and Frank and Suzanne Westhoff,
(collectively Land Owners) appeal from an order entered in the Montana Tenth Judicial
District, Fergus County, granting summary judgment to Defendant City of Lewistown
(City) and allowing the City to annex portions of Land Owners’ properties. We affirm on
all issues.
¶2 We restate the issues as follows:
1. Whether the District Court erred in concluding that the City had met the statutory
annexation requirements of Title 7, chapter 2, part 43, MCA.
2. Whether the District Court erred in concluding that the City had correctly
determined there were less than a majority of valid protests.
3. Whether the District Court erred in concluding that Land Owners were not
denied equal protection of the law.
4. Whether the District Court erred in concluding that Land Owners lacked
standing to enforce a contract between the City and a subdivision developer.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 1982, the City passed Ordinance 1483 which addressed the provision of
municipal services to areas outside of the City limits. Ordinance 1483 was amended by
Ordinance 1630 and, together, these ordinances conditioned the provision of City water
services outside the City’s limits upon the property owners’ execution of written waivers
to protest future annexation by the City of their property. Some of the Land Owners signed
such a waiver, and others did not. Regardless of whether a waiver was executed by Land
Owners, all continued to obtain City water services.
2
¶4 On April 6, 2015, the City passed Resolution 3875, setting forth its plan for
providing municipal services to annexed properties. On June 1, 2015, Resolution 3878
was passed stating the City’s intent to annex contiguous land identified on the “Corrected
Map for Annexation” (Corrected Map). The Corrected Map identified the partial lots that
were at issue and which were being serviced by City water. Each partial lot was a smaller
fraction of a larger lot belonging to Land Owners. The Corrected Map also identified
contiguous lands connected by Castle Butte Road, portions of which were also part of the
annexation, and proposed properties for annexation that were part of the Castle Ridge
Acres subdivision. The Corrected Map was recorded with the Fergus County Clerk and
Recorder, and bore the Clerk’s seal and certification that it was a certificate of survey.
Resolution 3878 specifically identified that the annexation would be conducted pursuant
to § 7-2-4311, MCA, which allowed for annexation of contiguous land to an incorporated
city or town. Further, Resolution 3878 stated the City had determined the proposed
annexation was in the best interests of both the City and the inhabitants of the parcels to be
annexed.
¶5 The City Clerk mailed notices to all registered voters and property owners in the
areas being annexed and published the notice in the local paper. The notice explained how
comments would be received and that the City would consider the annexation at its July 6,
2015 meeting.
¶6 The City was proposing to annex 89 lots. Of those 89 lots, 62 lots had a recorded
waiver to the City’s annexation. After disregarding protests from property owners who
had executed a waiver, the City determined, pursuant to § 7-2-4314(d), MCA, that there
3
were less than the 51% majority of protests needed to stop the annexation. Accordingly,
at the meeting on July 6, 2015, the City adopted Resolution 3880 which finalized
annexation. Resolution 3880 memorialized the City’s determination that the annexation
was in the best interest of the City and those being annexed. It also recognized that less
than a majority of the real property owners of the area proposed for annexation had
submitted valid protests.
¶7 On September 25, 2015, Land Owners challenged the City’s annexation by applying
for a preliminary injunction and temporary restraining order. The District Court issued an
Order to Show Cause and Temporary Restraining Order on November 24, 2015. On
February 10, 2016, the City filed a motion for summary judgment. Following briefing and
oral argument, the District Court issued a Decision and Order on June 16, 2016, granting
summary judgment in favor of the City on all issues.1 Land Owners appeal the entry of
summary judgment for the City.
STANDARD OF REVIEW
¶8 This Court reviews de novo a district court’s summary judgment ruling, applying
the same rule, M. R. Civ. P. Rule 56(c), as the district court applies. Modroo v. Nationwide
Mut. Fire Ins., 2008 MT 275, ¶ 19, 345 Mont. 262, 191 P.3d 389. Summary Judgment is
proper when there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law. M. R. Civ. P. Rule 56(c); Bennett v. Hill, 2015 MT 3, ¶ 9, 378
Mont. 141, 342 P.3d 691.
1
The District Court had previously granted the City’s motion to stay Land Owners’ request for
class certification. Land Owners do not appeal that order.
4
¶9 Section 7-2-4742, MCA, provides for court review of whether statutory annexation
procedural requirements were followed and satisfied. “If all of the substantive and
procedural requirements of the annexation statutes are included and complied with by a
municipality in the annexation procedure, the law will necessarily have been followed.”
Gregg v. Whitefish City Council, 2004 MT 262, ¶ 20, 323 Mont. 109, 99 P.3d 151. We
explained in Gregg that compliance with the annexation statutes must be “complete and
municipalities must follow all of the directives of the statutes.” Gregg, ¶ 20. However, if
a statutory mandate contains a subjective component, “[c]ompliance must be substantial .
. . [to allow] a municipality to exercise discretion in making its planning decisions.” Gregg,
¶ 20.
DISCUSSION
¶10 1. Whether the District Court erred in concluding that the City had met the statutory
annexation requirements of Title 7, chapter 2, part 43, MCA.
¶11 Pursuant to § 7-2-4718(2), MCA, a municipality “may in its discretion select one of
the annexation procedures in parts 42 through 47 that is appropriate to the circumstances
of the particular annexation.” The municipal governing authority must then follow “the
specific procedures prescribed in the appropriate part.” Section 7-2-4718(2), MCA. The
City chose to conduct its annexation of Land Owners’ properties pursuant to part 43,
allowing for annexation of contiguous land. More specifically, § 7-2-4311, MCA,
provides:
Any tract or parcels of land that have been or may be platted into lots or
blocks, streets, and alleys or platted for parks, the map or plat of which is
filed in the office of the county clerk and recorder of the county in which the
tracts or parcels of land are situated, or any unplatted land that has been
5
surveyed and for which a certificate of survey has been filed, as provided by
law, if the platted or unplatted land is contiguous to any incorporated city or
town, may be embraced within the corporate limits of the city or town, and
the boundaries of the city or town may be extended to include the platted or
unplatted land in the manner provided in 7-2-4312 through 7-2-4314 and 7-
2-4325.
While not a model of statutory clarity, § 7-2-4311, MCA, sets forth two relevant
requirements for annexation of contiguous land. First, the land must be platted, and the
plat filed with the county; or, if unplatted, the land must be surveyed, and a certificate of
survey filed with the county. Second, the land must be contiguous with an incorporated
town or city.
¶12 Finally, also contained within part 43, is the statutory requirement that the governing
body of any city or town council, determine “when, in its judgment . . . expressed by
resolution that is passed and adopted, it is in the best interest of the city or town and the
inhabitants of any contiguous platted tracts or parcels of land” to be annexed. Section
7-2-4312, MCA. Accordingly, for the City to annex Land Owners’ properties pursuant to
Part 43, the requirements of both §§ 7-2-4311 and 7-2-4312, MCA, had to be satisfied by
the City.
¶13 Land Owners argue that the City failed to comply with the statutory provisions of
Part 43 in three ways: (1) there was not a plat or survey on file with the county; (2) the
properties were not contiguous; and (3) the annexation was not in the best interests of the
“inhabitants of the parcels to be annexed.” Land Owners assert if the City fails to comply
with any one of these statutory requirements then the annexation is void. Land Owners are
correct, with the exception of the best interest requirement contained within § 7-2-4312,
6
MCA. The statutory requirements of § 7-2-4311, MCA, are not discretionary and the
annexation is void if the City has failed to follow statutory directives. However, we
conclude that the City has complied with § 7-2-4311, MCA, by filing a survey with the
county and annexing only lands which are contiguous. Additionally, the Legislature has
expressly given the governing city or town body discretion to determine the best interests
of its inhabitants, which may be reviewed only if the governing body has proceeded
contrary to statute. We address each of Land Owners’ arguments.
a. Whether there was a plat or survey for the properties recorded with the county
clerk and recorder.
¶14 Land Owners argue that the plat does not identify the partial lots the City seeks to
annex. They point to the Corrected Map which identifies partial lots with a note “not a
parcel” and allege that annexable land may be either a tract or a parcel, but not a partial lot.
Land Owners admit “[c]ertain annexed parcels within Corrected Map 2015-1 are only
portions of actual, larger platted parcels.” Conversely, the City argues that all property has
been platted and identified in a certificate of survey, which has been filed with the county
clerk and recorder.
¶15 We first observe that § 7-2-4311, MCA, does not require a new plat to be filed when
part of a lot is to be annexed, especially given the circumstance here where the lot has
previously been platted and that plat has been identified as part of a larger parcel on a filed
certificate of survey. Section 7-2-4311, MCA, speaks of “tracts or parcels” which we have
explained means “some area of land.” Missoula Rural Fire Dist. v. City of Missoula, 286
Mont. 387, 394, 950 P.2d 758, 762 (1997). Here, although the Corrected Map identified
7
the partial lot as “not a parcel,” the partial lots nonetheless were tracts of land and identified
as a portion of a larger parcel of land in the certificate of survey. Section 7-2-4311, MCA,
requires either a plat or certificate of survey. The Corrected Map, which identifies all of
the land proposed to be annexed, was recorded with the Fergus County Clerk and Recorder.
Accordingly, the City followed the statutory directive for filing a certificate of survey.
¶16 It is worth noting that Land Owners’ argument is also contrary to an annexation
statute, in the same part, specifically addressing the provision of municipal services and
which allows for annexation of only that portion of the tract or parcel that is being
immediately serviced by the water. See § 7-13-4314, MCA (“The consent to annexation is
limited to that tract or parcel or portion of tract or parcel that is clearly and immediately,
and not potentially, being serviced by the water or sewer system.”). “We interpret related
statutes to harmonize and give effect to each.” Gregg, ¶ 38. Consistent with these statutory
provisions, the City proposed annexation of only a portion of Land Owners’ properties.
¶17 Land Owners also argue that the phrase included on Corrected Map, “NOTE: NO
FIELD SURVEY WAS PERFORMED,” somehow negates that the Clerk certified the
Corrected Map as a certificate of survey and that the Corrected Map itself states it is a
certificate of survey completed by a survey company. The recorded Corrected Map shows
the acreages and distances in feet for each partial lot. The property owners and public are
thus on notice of what land the City proposes to annex. We conclude that the City complied
with the statutory requirement for filing with the county clerk and recorder a copy of the
plat or survey.
8
b. Whether the properties were contiguous.
¶18 Land Owners argue the properties being annexed are not contiguous to the City
limits. The crux of their argument rests on their “hopscotch” argument; that is, when
selecting parcels to annex, the City used a hopscotch method and skipped parcels and
randomly selected other parcels to annex. Land Owners’ hopscotch argument implies that
there is a break in the contiguousness of the parcels because they are only connected by
Castle Butte Road and the City has not attempted to annex the lots on either side of the
road. Land Owners’ argument, however, fails to consider the provisions of § 7-2-4301,
MCA, which are applicable to the instant annexation proceeding. Section 7-2-4301, MCA,
provides that tracts or parcels of land “shall be deemed contiguous . . . even though [they]
may be separated from such city or town by a street or other roadway . . . or strip of
unplatted land too narrow or too small to be platted.” Furthermore, in Missoula Rural Fire
Dist., we addressed this same question and held that “[a] street is indisputably an area of
land, however narrow or long.” 286 Mont. at 394, 950 P.2d at 762 (1997). We also
determined that a street can be considered contiguous to other land for purposes of
annexation pursuant to § 7-2-4301, MCA.2 We conclude the City’s proposed annexed land
was contiguous to existing annexed land and connected by Castle Butte Road, also part of
2
Land Owners do not argue that the City lacked a “legitimate governmental interest” in pursuing
annexation of lands for which the City was providing services. See Missoula Rural Fire Dist., 286
Mont. at 395, 950 P.2d at 763. While Land Owners claim that the City’s provision of services was
inadequate, this is a separate and distinct issue from whether the City could annex contiguous lands
for which the City was already providing services. We concluded in Missoula Rural Fire Dist.
that the City of Missoula had a legitimate governmental interest to annex lands when it was
providing services to those lands. Missoula Rural Fire Dist., 286 Mont. at 395, 950 P.2d at 763.
9
the annexation. Section 7-2-4301, MCA, and Missoula Rural Fire Dist. expressly provide
that the lands under these circumstances are to be considered contiguous.
c. Whether this Court should review the City’s “best interests” determination when
the City proceeded in accordance with statutory requirements.
¶19 Land Owners argue that a court may review a municipality’s determination of best
interests when a municipality has not proceeded with annexation in accordance with
statutory directives. The City maintains that a court should not review a municipality’s
determination of “best interest” when the Legislature has given the City that discretion.
Penland v. City of Missoula, 132 Mont. 591, 595-96, 318 P.2d 1089, 1092 (1957).
¶20 The annexation in Penland was challenged on the basis that it was not in the best
interests of the Plaintiffs. We affirmed the district court’s conclusion that the benefits of
annexation was a matter for the commissioners to decide and, in doing so, clearly stated:
Since the legislature has set down the manner in which the city may annex
outlying territory, and has expressly given the city council the discretion to
determine whether or not it is in the best interests of both groups, the exercise
of that discretion may be reviewed by a court only when, and if, they have
proceeded contrary to statute.
. . .
When the legislature in section 11-403 allowed city councils to weigh the
interests involved in annexing or refusing annexation they did not
contemplate courts of law substituting their judgment for that of the city
council’s. Had they desired such a result it would have been an easy matter
to have provided for that contingency.
Penland, 132 Mont. at 595-96, 318 P.2d at 1092.
¶21 Here, we do not have a municipality proceeding contrary to the statute, as the City
filed a plat or survey and the area to be annexed is contiguous to the City. Further, as we
have also concluded that the City has complied with statutory procedure regarding the
10
validity of the protests (see discussion infra), we will not reconsider the City’s “best
interests” determination on this basis either. The District Court was correct in concluding
it should not review the City’s “best interest” determination. In the absence of any evidence
suggesting the City proceeded contrary to the statute, we agree with the District Court and
similarly will not reconsider the City’s “best interest” determination.
¶22 We conclude that the City followed the statutory requirements of Title 7, chapter 2,
part 43, MCA, and that, therefore, the City’s “best interest” determination will not be
reviewed.
¶23 2. Whether the District Court erred in concluding that the City had correctly
determined there were less than a majority of valid protests.
¶24 Pursuant to § 7-2-4314(d), MCA, “if the resolution is disapproved in writing by a
majority of real property owners of the area proposed to be annexed, . . .” the area may not
be annexed. Land Owners argue that some or many of the waivers to annexation obtained
by the City were signed under duress or fraud. Land Owners maintain that the City advised
they would terminate their water service if they did not execute a waiver to protest
annexation. They also argue that waivers signed after the annexation commencement
should be discounted, and therefore any protests that were on record that were disregarded
because of a waiver should be reinstated and counted toward the total number of property
owners disapproving.
¶25 This Court has held that requiring consent to annexation in exchange for the
provision of city services is permissible. Schanz v. Billings, 182 Mont. 328, 337, 597 P.2d
67, 72 (1979). We have also held that consent to annex as a condition for continuing to
11
receive utility service by a city is likewise permissible. Gregg, ¶¶ 35-38. If a landowner
is currently receiving city services but does not wish to be annexed or sign a waiver, the
owner can make arrangements to disconnect from services. Gregg, ¶ 38. Here, as in
Gregg, Land Owners were connected to the City’s water supply for a period of time and
continued to receive service without a request from the City to sign a waiver. Similarly,
as in Schanz, Land Owners are receiving utilities from the City which, in exchange for
those services, seeks to annex the property receiving the benefit of those services. Property
Owners make an additional argument that they are not receiving any added service but are
still being taxed at a higher rate; however, taxes are a separate issue and are not part of our
analysis regarding annexation. Construing Gregg and Schanz together, we conclude the
City may require annexation waivers in exchange for utility services even if the waivers
were requested after the utilities and annexation proceedings were initiated. Accordingly,
the District Court correctly concluded that Land Owners’ allegations of fraud and duress
were not sustainable as a matter of law, based on the authority of § 7-2-4314(d), MCA,
Gregg, and Schanz.
¶26 3. Whether the District Court correctly concluded that Land Owners were not
denied equal protection under the law.
¶27 Land Owners maintain the annexation denied them and other similarly situated
property owners their constitutional right to equal protection of the law by creating two
separate classes: those being annexed and those not being annexed. To support their
position, Land Owners rely upon Roosevelt v. MT Dept. of Rev., 1999 MT 30, 293 Mont.
240, 975 P.2d 295, where the state’s method of assessing property values was challenged.
12
In Roosevelt, the plaintiff’s property was being taxed at over 100% of its property value;
while other properties were taxed at 100% or less of their property value. The court found
the statute unconstitutional as applied because taxing property owners at different rates
violated equal protection. Roosevelt, ¶ 46.
¶28 Roosevelt, which dealt with a tax statute, is not helpful authority when considering
the statutory scheme for annexation by a municipality of contiguous land. The City relies
upon Piedmont Ford Truck, Inc. v. City of Greensboro, 380 S.E.2d 107 (N.C. 1989) and
argues that it is not a denial of equal protection for a municipality to annex land without
annexing land similarly situated. In Piedmont Ford Truck, Inc., the Plaintiffs claimed that
they were denied equal protection of the law because other property similarly situated was
not annexed. The Supreme Court of North Carolina held that, “[w]e believe our cases and
the federal cases hold that annexation is a legislative decision with which the courts may
not interfere unless the complaining party is deprived by the annexation of some
constitutional right.” Piedmont Ford Truck, Inc., 380 S.E.2d at 109. The court determined
that “plaintiffs have cited no authority and we can find none that holds that the equal
protection clause of the federal or state constitution requires that other similar land be
annexed when municipal boundaries are extended.” Piedmont Ford Truck, Inc., 380
S.E.2d at 110.
¶29 We agree with the reasoning of Piedmont Ford Truck, Inc. and the City. An equal
protection claim could be made in nearly every annexation case because annexation, by its
very nature, is an exercise of choosing one parcel over another to annex. While annexation
does distinguish between those property owners whose property will be annexed and those
13
property owners whose property will not be annexed, this is a necessary result of the
municipal governing body exercising its discretion in drawing the annexation line. Absent
a failure of the governing body to follow statutory directives, which are designed to provide
notice and to protect the right of participation, the governing body’s decision of what
property to annex is left to its discretion.
¶30 We conclude that the District Court did not err in granting summary judgment to
the City on Land Owners’ claims that they were denied equal protection of the law by the
City’s decision of what properties to annex.
¶31 4. Whether the District Court erred in concluding that Land Owners lacked standing
to enforce a contract between the City and a subdivision developer.
¶32 Land Owners seek to enforce a contract between Castle Ridge Acres subdivision
and the City. They argue that the City has not maintained Castle Butte Road properly. We
conclude, however, that Land Owners lack standing to bring this claim, because they are
neither signatories to nor intended beneficiaries of that contract.3
¶33 We have held “[t]here is a plain distinction between a promise, the performance of
which may benefit a third party, and a promise made expressly for the benefit of a third
party.” Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 18, 366 Mont. 285, 291 P.3d
1082, citing Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 19, 363 Mont. 151, 267
P.3d 756. Those that are incidental beneficiaries lack standing to enforce the contract from
which they benefit. Ronning v. Yellowstone County, 2011 MT 79, ¶ 14, 360 Mont. 108,
3
Land Owners have not appealed the stay of the class certification entered by the District Court
which Land Owners indicate would have included, as members of the class, residents of the Castle
Ridge Acres subdivision.
14
253 P.3d 818. A plaintiff cannot simply allege that it is an intended third-party; plaintiff
must show “from the face of the contract that it was intended to benefit [them].”
Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105, ¶ 20, 365 Mont. 71, 278 P.3d 1002.
We agree with the District Court that Land Owners are third parties that are benefiting, or
incidental beneficiaries, but they are not intended third-party beneficiaries. No Land
Owners live in the subdivision, their names are not in any part of the contract, and they are
not identified as third-party beneficiaries. Land Owners argue that since some of them use
roads located in the Castle Ridge Acres subdivision they are intended third-party
beneficiaries under the contract. However, the contract makes no mention of third-party
beneficiaries and no mention of Land Owners. Since Land Owners are not intended third-
party beneficiaries they lack standing to enforce the contract.
¶34 As a final matter, the issue surrounding maintenance of Castle Butte Road has no
bearing on the legality of annexation and, as the District Court observed, is not material to
a summary judgment motion and is better entertained in another forum.
CONCLUSION
¶35 After notice and public hearing, the City determined annexation was in the best
interests of the City and the inhabitants of the parcels to be annexed. The City has complied
with the statutory provisions for annexing contiguous lands. The City filed with the Fergus
County Clerk and Recorder plats and a certificate of survey (Corrected Map) providing
notice to the public of the lands it intended to annex. The City also correctly determined
that there were not a sufficient number of valid protests to prohibit the annexation. Finally,
Land Owners have failed to set forth an equal protection challenge under the statutory
15
scheme for annexation and they have no standing to enforce a contract between the City
and a subdivision developer.
¶36 The order of the District Court granting summary judgment to the City is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
16
Justice Jim Rice, concurring.
¶37 This case demonstrates how far the courts have permitted annexation procedure to
depart from the requirements of the statutes with regard to the issue of contiguity. In my
view, the courts have gotten ahead of the Legislature on this issue and legislated provisions
that have significantly altered, and certainly watered down, the Legislature’s contiguity
requirement.
¶38 Below, the unshaded area, at the top left of the map, indicates the area currently
within the City of Lewistown. The two shaded areas are the properties that the City is
seeking to annex in this case, which I will refer to as the North Area and the South Area.
Running down through and adjacent to these separated properties is a segment of Castle
Butte Road, which the City also seeks to annex.
uvx
J1011411.7ft,
City of d
Lewistown
or sr/
4401 North Area
(proposed annexation area)
Castle Butte Rd
-411
----, •
• •
Castle Butte Rd
• , ,- •
MT
Castle Butte Rd
Ill
South Area
(proposed annexation area
South Area
(proposed annexation area)
Castle Butte Rd
-4111
18
¶39 The Legislature has authorized cities to annex land that is “wholly surrounded by
the city,” § 7-2-4501, MCA, or land that is “contiguous to any incorporated city,”
§ 7-2-4311, MCA. The City of Lewistown here claims, and the Court holds, that all of the
land in the North Area, South Area, and Castle Butte Road are “contiguous” to the City of
Lewistown. Opinion, ¶ 18.
¶40 What is obvious from the map is the land comprising the proposed annexation areas
is not “contiguous” to the City, as that term is commonly understood, and as the Land
Owners argue. The Court faults the Land Owners for failing to consider § 7-2-4301, MCA,
see Opinion, ¶ 18, but that statute clearly does not authorize what is occurring here. The
provision simply authorizes annexation of properties that would otherwise be contiguous
except for a street, roadway, or tract of land “too narrow or small to be platted,” which
separates them. Section 7-2-4301, MCA. This is the extent of the legislatively-enacted
exception to the contiguity requirement to account for roads or small properties.
¶41 The Legislature’s contiguity requirement was significantly altered by this Court in
Missoula Rural Fire Dist. v. City of Missoula, 286 Mont. 387, 950 P.2d 758 (1997). First,
the Court held that a road constituted a “tract” or “parcel” under § 7-2-4301, MCA, and
therefore could itself be annexed without limitation, “however narrow or long” it may be.
Missoula Rural Fire Dist., 286 Mont. at 394, 950 P.2d at 762. Of course, if the Legislature
intended this statute to authorize annexation of roads, then the exception to the contiguity
requirement to account for roads would be completely unnecessary. The City could simply
annex the road as well. However, the Court did not undertake any analysis of legislative
intent. This was the first step in a significant expansion of annexation powers.
19
¶42 Secondly, the Court held that a road, starting within the city and running outside the
city, would be considered contiguous in its entire length for purposes of its annexation if
the city had a “legitimate governmental interest” in annexing the entire road. Missoula
Rural Fire Dist., 286 Mont. at 395, 950 P.2d at 763. This test had no origin under Montana
law but was annexed from foreign jurisdictions. Missoula Rural Fire Dist., 286 Mont. at
394-95, 950 P.2d at 762-63. Here, the Land Owners do not challenge the City’s annexation
of Castle Butte Road as lacking a “legitimate governmental interest.”
¶43 Then, the Court took one more leap, holding that the now-annexed road would also
satisfy the contiguity requirement for the annexation of other, noncontiguous properties
beyond the city’s borders that lay along the road. Missoula Rural Fire Dist., 286 Mont. at
396, 950 P.2d at 763. The annexation sought there was of property asserted to be “wholly
surrounded” by the City of Missoula under § 7-2-4501, MCA, and the Court used the
subject road, after approving its annexation, to hold that the City now wholly surrounded
the property. Missoula Rural Fire Dist., 286 Mont. at 396, 950 P.2d at 763. Here, the
Court now permits the use of the annexed Castle Butte Road to satisfy the contiguity
requirement, not for “wholly surrounded” annexation as in Missoula Rural Fire Dist., but
for “contiguous” annexation under § 7-2-4311, MCA.
¶44 The judicial changes to the annexation process permit a city to use roads to extend
octopus-like annexation tentacles into non-contiguous areas, and then annex properties that
would otherwise be completely non-contiguous to the city, in contravention of the
annexation statutes. This is what has occurred here. While an argument could be made
that the North Area satisfies the statutory contiguity requirement, the South Area could not
20
be considered contiguous without this Court’s rulings that expansively permit annexation
of Castle Butte Road and of the otherwise non-contiguous areas lying along the Road.
¶45 We have stated that “‘[w]e presume that the legislature is aware of the existing law,
including our decisions interpreting individual statutes . . . . We presume that if the
legislature disagreed with our interpretation . . . it would have amended the statute
accordingly.’” Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 14, 362 Mont.
1, 261 P.3d 570 (citation omitted). I am concerned that interpreting our part-time
Legislature’s silence about our many court decisions to be an agreement with all of them
presumes too much. “To presume that the Legislature’s passive failure to amend a statute
constitutes affirmative ‘agreement’ with our statutory interpretation is a dangerous and
untenable precedent.” Musselshell Ranch Co., ¶ 56 (Nelson, J., concurring and dissenting).
¶46 I realize that there are other legal and practical limitations on annexation beyond the
issue of contiguity. However, I am very concerned that the courts have undermined the
statutes in this regard and have thereby breached the constitutional separation of powers.
Here, we have no argument that Missoula Rural Fire Dist. was wrongly decided and should
be overturned, or its principles do not govern. Stare decisis thus requires its application.
¶47 I concur with the Court’s Opinion, although my concurrence with the contiguity
portion of the Opinion is most reluctant.
/S/ JIM RICE
Justice James Jeremiah Shea joins the concurrence.
/S/ JAMES JEREMIAH SHEA
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