Agenda - Planning Commission - 04/04/2013

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February 10, 2013 1 Volume 7 1 Issue 3 Zoning Bulletin proximately 421 acres located north of East Helena, Montana. In June 2008, HSG obtained a permit from the Montana Depaitment of Environmental Quality ( "DEQ ") to mine gravel on 110 acres of its property. (Those 110 acres are not at issue in this case.) Before DEQ granted the permit, a group of citizens living north of East Helena submitted to the Lewis and Clark County (the "County ") Board of Commissioners (the "Board ") a petition seeking to create Special Zon- ing District Number 43 ( "District 43 "). The proposal delineated an area which encompassed the property owned by HSG, and its purpose was: "to accom- modate and protect the use of single - family dwelling units and associated agri- cultural land uses while promoting and preserving the rural residential atmo- sphere of the area and enhancing the aesthetic character and property values of the area." It proposed to prohibit industrial and mining activities in District 43, including any sand and gravel operations to be performed by HSG on the remain- ing 311 acres of its property. The petition was signed by approximately 70% of the property owners within the proposed district. The establishment of local zoning districts is governed by statute in Montana. A district may be created in one of two ways —by citizen petition to the board of county commissioners under § 76 -2 -101, MCA, known as "Part 1 zoning," or directly by the board of county commissioners under § 76 -2 -201, MCA, known as "Part 2 zoning." This case involved Part 1 zoning. The statutory provisions for Part 1 zoning authorize the board of county commissioners, "whenever the public interest or convenience may require," to create a planning and zoning district "upon petition of 60% of the affected freeholders," unless "50% of the titled property ownership in the district protest the establishment of the district within 30 days of its creation." (Section 76 -2 -101, MCA (2007).) On April 1, 2008, following a public meeting, the Board voted to create District 43. On May 8, 2008, the Board adopted a resolution creating the bound- aries of District 43. The matter then proceeded to the County Planning and Zoning Commission (the "PZC "), which, pursuant to statutory requirements, adopted a development pattern for the new district. (Sections 76 -2 -104 and -107, MCA.) That develop- ment pattern and related zoning regulations prohibiting sand and gravel mining in the district were approved by the Board in July 2008. HSG immediately filed a legal complaint in district court, challenging the County's decision to adopt the citizen - initiated proposal to configure District 43, which favored residential uses and prohibited mining. Among other things, it al- leged that the County's adoption of the zoning regulations prohibiting sand and gravel mining in the newly created District 43 constituted illegal reverse spot zoning. Finding there were no material issues of fact in dispute, and deciding the mat- ter on the law alone, the District Court entered summary judgment in favor of the County. The court concluded that the zoning regulations did not constitute il- legal reverse spot zoning because the zoning regulations substantially complied with the .County's growth policy and did not single out HSG for disparate treat- ment since "the County's prohibition on sand and gravel operations applie[d] to all of the land within [District 43], not only to the property owned by HSG." HSG appealed. DECISION: Judgment of district court affirmed in part, and matter remanded. 10 © 2013 Thomson Reuters