Agenda - Planning Commission - 04/04/2013

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Zoning Bulletin February 10, 2013 I Volume 7 J Issue 3 The Supreme Court of Montana agreed with the district court: the County's adoption of District 43 and the regulations prohibiting sand and gravel mining in District 43 did not constitute illegal reverse spot zoning. The court explained that reverse spot zoning is defined as: "a land -use deci- sion which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones." The court further explained that, in determining whether a county has engaged in illegal spot zoning, the court ap- plies a three -part framework, evaluating whether: "(1) `the requested use is significantly different from the prevailing use in the area' "; "(2) `the area in which the requested use is to apply is rather small' "; and "(3) `the requested change is more in the nature of special legislation.' " While "[t]here is no single, comprehensive definition of spot zoning applicable to all fact situations," "usu- ally all three elements are present" when illegal spot zoning has occurred, said the court. Here, HSG was able to establish that the second factor of the test had been met. HSG showed that it was the only landowner to be adversely affected by the zone change in the creation of District 43. However, the court noted that "zone changes for property owned by one person are not always spot zoning pursuant to the [three -part] test." Rather, emphasized the court, zoning will be held in- valid as spot zoning "when it is not in accordance with a comprehensive plan." That is because compliance with a comprehensive plan, or growth policy as in this case, is especially relevant to the third factor of the analysis. The zoning is not "in the nature of special legislation" if it substantially complies with the growth policy. Here,also, the court determined that the adoption of District 43 and the regulations prohibiting mining did comply with the County's growth policy —which did not recommend development of mining in transitional areas but suggested such activity occur in the rural areas. Thus, the court concluded that HSG did not satisfy the third factor of the three -part analysis. For similar reasons, the court also concluded that HSG did not satisfy the first part of the three -part test (i.e., HSG failed to show that the new zoning use designation was significantly different from the prevailing use in the area). The court found that, in adopting the zoning regulations prohibiting mining in District 43, the County did not unlawfully depart from the prevailing "rural residential" use in the surrounding area. Rather, the court found that the zoning pattern and regulations substantially complied with the prevailing land use, as expressed in the County's growth policy. Accordingly, the court determined that HSG therefore could not demonstrate that its property was singled out for "a use classification totally different from that of the surrounding area." HSG's property was therefore not subjected to ille- gal spot zoning. See also: Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631, 11 Env't. Rep. Cas. (BNA) 1801, 8 Envtl. L. Rep. 20528 (1978). See also: Little v. Board of County Com'rs of Flathead County, 193 Mont. 334, 631 P.2d 1282 (1981). See also: Greater Yellowstone Coalition, Inc. v. Board of County Com'rs of Gallatin County, 2001 MT 99, 305 Mont. 232, 25 P.3d 168 (2001). See also: Liberty Cove, Inc. v. Missoula County, 2009 MT 377, 353 Mont. 286, 220 P.3d 617 (2009). © 2013 Thomson Reuters 11