Agenda - Planning Commission - 11/07/2013

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Zoning Bulletin October 10, 2013 I Volume 7 I Issue 19 ) delegation of legislative authority is challenged Citation: Williams v. Board of County Com 'rs of Missoula County, 2013 MT 243, 2013 WL 4552927 (Mont. 2013) MONTANA (08/28/13)—This case addressed the issue of whether a state statute's protest provision, which allowed property owners representing 50% of the agricultural and forest land in a zoning district to block zoning proposals, was an unconstitutional delegation of legisla- tive power that violated due process guarantees in federal and state constitutions. The Background/Facts: In Montana, the establishment of local zon- ing districts is governed by statute. A local zoning district can be cre- ated in two different ways: (1) by citizen petition to the board of county commissioners under § 76-2-101, MCA, known as "Part 1 zoning"; or (2) directly by the board of county commissioners under § 76-2-201, MCA, referred to as "Part 2 zoning." The procedure for establishing district boundaries and adopting or revising zoning regulations, which includes notice and public hearing requirements, is set forth in § 76-2- 205, MCA. Section 76-2-205(6), MCA, contained a protest provision that allowed landowners to prevent the board of county commissioners from adopting a zoning resolution when protests were received from one of the following two groups: (1) 40% of the real property owners within the district; or (2) real property owners representing 50% of property taxed for agricultural purposes or as forest land in the district. When a successful protest was received, it prevented the board of county commissioners from proposing any further zoning resolutions with re- spect to the subject property for one year. In April 2010, in a case involving Part 2 zoning pursuant to § 76-2- 201, MCA, the Board of County Commissioners of Missoula County (the "Commissioners") passed a resolution of intention to establish a special zoning district north of Lolo, Montana. Shortly thereafter, five landowners (the "Landowners"), who together owned more than 50% of the agricultural and forest land within the district, filed a written protest pursuant to § 76-2-205(6). Subsequently, L. Reed Williams ("Williams") challenged the constitutionality of the protest provision—§ 76-2-205(6), MCA —by filing a complaint against the Commissioners in district court. Among other things, Williams argued that the protest provision constituted an unconstitutional delegation of legislative power. The Commissioners agreed with Williams, but admitted that they would apply the protest provision to prevent adoption of the zoning regulations absent an order from the district court directing otherwise. The district court agreed with Williams and the Commissioners. Find- © 2013 Thomson Reuters 3