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i I! I, II I,. II Ii !/ 'I II 'I , ) ( /) ~~ Zoning Bulletin December 25, 2009 I Volume 3 I No. 24 (r--,\, ( ,J gravel mining, crushing, and asphalt production operation" on Liberty Cove's Property. In furtherance of that proposal, as part of the mining permit application process, ]TL requested 'a zoning compliance permit from the county. The county granted. the zoning compliance permit, noting that the Property was not zoned. Subsequently, concerned about the proposed mining operations at the Property, county residents asked the county to enact "interim zoning to , address environmental and traffic concerns'at the [property]." Under Montana statutory law (MCA S 76-2-206), the board of county commis- sioners (the "Board") could adopt interirnzoning for a one year period for the Property "as an emergency measure in order to promote the pub- lic health, safety, morals, and general welfare.'" , In December 2007, the Board decided not to impose "interim zon- ing to preclude UTL's proposed] mining operations" at the Property. This was because the Board "did not find an emergency to justify inter- im zoning." Rather, the Board concluded that environmental concerns related to mining of the Property would be subject to the review of the Montana Department of Environmental Quality ("DEQ"). They also concluded that traffic concerns would be addressed by a Montana De- partment of Transportation ("MDT") review of ]TL's application for a permit to access a highway that then provided the only access to the proposed gravel pit. Later; in: May 2008, the Board learned of the following changes in facts: (1) JTLhad sued DEQ seeking a court order that DEQ issue a permit for the proposed mining operations; and (2) ]TCmight pur- sue a different access to the gravel pit that would not require a MDT permit. With this change in facts, the Board became concerned that: DEQ could issue a permit without substantive environmental review, and that a lack of review by MDT would mean the gravel pit "would not be subject to any regulatory review regarding public health and safety." The Board determined that this lack of review amounted to a "reasonable emergency related to issues of public health, safety, -and welfare." The, Board enacted interim zoning to address the emergency. The interim zoning "placed various residential designations on the area where Liberty Cove's [P]roperty [was] located." Liberty Cove challenged the interim zoning in district court. The dis- trict court affirmed the Board's action. Liberty Cove appealed. On appeal, Liberty Cove primarily argued that "there was no emergency to justify the interim zoning." Liberty Cove maintained that DEQ had already reviewed its mining per.mit ap- plication and would retain regulatory responsibilities after issuing a per- mit. Liberty Cove also argued that the interim zoning of its Property constituted "illegal 'reverse' spot zoning" since its Property was "im- properly singled out to receive detrimental treatment." (" " ) DECISION: Affumed. @ 2009 Thomson Reuters 9 83