Agenda - Planning Commission - 11/07/2013

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October 10, 2013 ( Volume 7 I Issue 19 Zoning Bulletin ing there were no material issues of fact in dispute and deciding the matter on the law alone, the district court issued summary judgment in favor of Williams and the Commissioners. Among other things, it held that the protest provision constituted an unconstitutional delegation of legislative power because it failed to provide any standards or guidelines for the application of a protest and failed to provide a legislative bypass to allow for review of a protest. Furthermore, the district court determined that the protest provision, § 76-2-205(6), MCA, was sever- able from the remainder of the statute. The Landowners, who had intervened in the case, appealed. DECISION: Judgment of district court affirmed. The Supreme Court of Montana agreed that the protest provision, § 76-2-205(6), MCA —specifically, the provision allowing agricultural and forest landowners representing 50% of the titled agricultural or for- est land within the district to block a board of county commissioners from adopting a zoning resolution and prevent another from being proposed for one year —was an unconstitutional delegation of legisla- tive power because: (1) it provided no standards or guidelines to inform the exercise of the delegated power; and (2) it contained no legislative bypass. In addressing the delegation of legislative power, the court explained that: "The law -making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Ac- cordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily pre- scribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid." Here, the court found that the protest provision provided no standards or guidelines to inform the exercise of the delegated power. The court said that without any standards or guidelines for the exercise of the delegated power, the protest provision of § 76-2-205(6), MCA allowed "a minority of landowners, or even one landowner, to strike down proposed zoning regulations without any justification or for no reason at all." The court noted there was no requirement that the protesting land- owners consider public health, safety, or the general welfare of the other residents of the district when preventing the board of county commis- sioners from implementing zoning regulations. As a result, agricultural and forest landowners could "exercise their unfettered power in a proper manner, or in an arbitrary and capricious manner, making zoning deci- sions dependent wholly on their will and whim," said the court. The court also found that the protest provision lacked a legislative bypass —a provision for review by a legislative body with the power to consider exceptional cases, which the court said was "essential to the 4 © 2013 Thomson Reuters