# Bridger Canyon Property Owners' Ass'n v. Planning & Zoning Commission for the Bridger Canyon Zoning District

> Montana Supreme Court · March 2, 1995 · 270 Mont. 160

URL: https://www.frixlaw.com/law-library/cases/883760

## Case

- **Full name:** BRIDGER CANYON PROPERTY OWNERS’ ASSOCIATION, INC., a Nonprofit Corporation, Plaintiff and Appellant, -V- THE PLANNING AND ZONING COMMISSION FOR THE BRIDGER CANYON ZONING DISTRICT and 360 RANCH CORPORATION, a Nevada Corporation; And BRIDGER BOWL, INC., Defendants and Respondents
- **Court:** Montana Supreme Court
- **Decided:** March 2, 1995
- **Citations:** 270 Mont. 160; 52 State Rptr. 125; 890 P.2d 1268; 1995 Mont. LEXIS 26
- **Precedential status:** Published
- **Opinion:** Opinion by Nelson
- **Judges:** Nelson, Turnage, Gray, Hunt, Trieweiler, Leaphart, Weber
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/883760

## How later opinions describe it (automated extraction)

- stating that “the propositions established in Little are applicable” to Part 1 zoning

## Opinion text

NO. 94-206
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
BRIDGER CANYON PROPERTY OWNERS'
ASSOCIATION, INC., a Nonprofit
Corporation,

Plaintiff and Appellant,

THE PLANNING AND ZONING COMMISSION
FOR THE BRIDGER CANYON ZONING DISTRICT
and 360 RANCH CORPORATION, a Nevada
corporation; and BRIDGER BOWL, INC.,
Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Stephen C. Pohl, Bozeman, Montana

For Respondent:

Joseph W. Sabol, Bozeman, Montana (360 Ranch); Mark
D. Refling, Moore, O'Connell & Refling, Bozeman,
Montana (Bridger Bowl); Michael Salvagni, Gallatin
County Attorney, Bozeman, Montana

Submitted on Briefs: January 19, 1995
Decided: March 2, 1995
Filed:

I
Cl'erk
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from an Eighteenth Judicial District Court,
Gallatin County, denial of a petition for writ of certiorari, We

affirm in part and reverse in part.

We redefine the issues on appeal:
1. Did the District Court err in denying the writ of
certiorari?

2. Did the Commission err in its conditional approval of 360
Ranch's Planned Unit Development, specifically, its approval of

single family housing in the Bridger Bowl Base Area?

FACTUAL AND PROCEDURAL BACKGROUND
Public hearings were held in Bozeman, Montana, in December,

1992 and January and Februar-y of 1993 to review the application of

360 Ranch for a Planned Unit Development (PUD) in Bridger Canyon

and particularly, Bridger Bowl. The 360 Ranch proposed a "651 acre

planned unit development, six zone changes and numerous conditional

use permits." The PUD application included "339 units for attached

overnight accommodations . . and 151 units for detached

recreational housing." The Zoning Ordinance defines "recreational

housing" as "'Housing located in the Bridger Bowl Base Area which

does not have restriction on length of stay, and includes attached

and detached single family units,' and 'single family dwelling' as

\[a] detached building designed for, or occupied exclusively by,

one family. . . . "I At the conclusion of the hearings, the

Planning and Zoning Commission (Commission) conditionally approved

2
the 360 Ranch's application, and Findings of Fact and an Order to

that effect were issued on February 10, 1993.

On March 12, 1993, the Bridger Canyon Property Owners
Association (BCPOA) filed a complaint for declaratory judgment

contending that the 1989, 1990 and 1991 amendments to the Zoning
Ordinance were void as a matter of law and that the Commission

lacked authority and jurisdiction to approve the PUD because of a

conflict between the Bridger Canyon Zoning Ordinance (Zoning
Ordinance) and the General Plan and Development Guide of Bridger

Canyon (General Plan). The complaint requested relief in the form
of a writ of certiorari:

. . directing the Commission to certify to the Court at a
specified time and place a transcript of the record and
proceedings as outlined above so that this Court may
review the record and proceedings as required by
law...and...the Court take testimony on all issues for
the purpose of reviewing the decision of the Commission
in accordance with Plaintiff's right to appeal the
Commission's decision to district court.
Moreover, the appellant requested that the Court enter a

declaratory judgment that the Zoning Ordinance failed to
substantially comply with the General Plan, that the Commission

lacked authority and jurisdiction to approve single family

residences in the Bridger Canyon Base Area and that the 1989, 1990

and 1991 amendments to the Zoning Ordinance authorizing single

family residences in the Base Area and expanding the Base Area by

360 acres were void as a matter of law as was the Commission's

February 10, 1993 Order authorizing single family housing in the

Bridger Bowl Base Area. On April 5, 1993, the respondents filed a

motion to dismiss asserting that the action was not timely filed,

3
all necessary persons were not made a party to the action and the

complaint failed to state a claim upon which relief could be
granted.

The appellant filed an amended complaint on April 30, 1993.

On June 7, 1993, it sought leave to amend the Amended Complaint for
Declaratory Judgment. The respondents brought a renewed motion to

dismiss on June 11, 1993. On September 16, 1993, the District

Court entered an order concerning the issue of the amended
complaint and the respondents' motion to dismiss. The court

determined that the amended complaint sought a writ of certiorari
on the question of whether the Commission had exceeded its

jurisdiction; a declaration that the Zoning Ordinance failed to

substantially comply with the General Plan; and an order voiding

the amendments expanding the base area by 360 acres and authorizing
single family residences.

The court concluded that the appellant was beyond the statute
of limitations for challenging amendments to the Zoning Ordinance

but that it could challenge the Commission's 1993 decision to issue

the conditional use permit by means of a writ of certiorari because
the appellant filed his complaint within 30 days. The court denied

the respondents' motion to dismiss "as to a judicial review of the

conditional use permit decision."

On November 10, 1993, BCPOA filed an amended complaint and

petition for a writ of certiorari contending that the Commission

exceeded its jurisdiction in approving the PUD and seeking an order
reversing that part of the Commission's order authorizing single

4
family housing in the Bridger Bowl Base Area. BCPOA contends that
the Zoning Ordinance does allow single family housing development

while the General Plan does not allow such housing, and therefore,

the two planning documents are in conflict.

In its final amended complaint and petition for writ of
certiorari, the appellant in essence, was requesting two forms of

relief - a writ of certiorari (Requests for relief nos. 1 and 2)

and appellate review of the Commission's Findings of Fact and Order

(Request for relief no. 3). The court denied the petition for writ

of certification on the merits, concluding that the Board was

acting within its jurisdiction because the Zoning Ordinance
complied with the General Plan. The court did not address Request

No. 3, the appeal of the Commission's February 10, 1993 order under
§ 76-2-110, MCA.

Moreover, respondents defended on the merits of the Commission

acting within its jurisdiction - all parties, in fact, acquiesced

in the assumption that a writ of certiorari was the appropriate

basis upon which to proceed.

Because of the procedural posture in which this case was
placed and argued before and disposed of by the District Court, it

is necessary that we first review the decision of the District

Court to deny the writ of certiorari and then address the appeal of

the Commission's conditional approval of the PUD.

At the outset, we note that the record reflects that the

Bridger Canyon Zoning District and the Bridger Canyon Zoning

Commission were created by resolution of the Gallatin County Board

5
of Commissioners in July, 1971. That same year, the General Plan

and the Zoning Ordinance were adopted. Both planning documents
have been amended over the years. Moreover, in 1985, another

document was adopted, entitled the "Bridger Bowl Base Area Plan,"

(Base Area Plan), that plan being amended in 1989. Other pertinent
facts will be provided in the body of the opinion.

DISCUSSION

Writ of Certiorari

Section 27-25-102(2), MCA (1993), sets forth the criteria

under which a writ of certiorari may be granted. That section

provides:

A writ or review may be granted by:
. . .
(2) the supreme court or the district court or any
judge of those courts, when a lower tribunal, board, or
officer exercising judicial functions has exceeded the
jurisdiction of the tribunal, board, or officer and there
is no appeal or, in the judgment of the court, any plain,
speedy, and adequate remedy.
The scope of review for a writ of certiorari "cannot be

extended further than to determine whether the inferior tribunal,
board, or officer has regularly pursued the authority of such

tribunal, board, or officer." Section 27-25-303, MCA.

State v. McAllister (1985), 218 Mont. 196, 199, 708 P.2d 239,
241, states that there are three indispensable requisites to the
grant of a writ of certiorari, including:

I. excess of jurisdiction, i.e. that aninferiortribunal
or board has exceeded its jurisdiction;
2. absence of the right to appeal from the act, order or
judgment assailed as done or made without jurisdiction;
and
3. lack of a plain, speedy and adequate remedy other than
certiorari. (Citation omitted.)

6
Despite that McAllister incorrectly joins the statutory requirement

for the complete absence of appeal with the statute's grant of
discretion to the court to determine that, alternatively, there is

no plain, speedy and adequate remedy (insertion of the word "and"

instead of "or" between paragraphs 2 and 3 mentioned above), our

prior interpretations of the statute remain clear. In order for a

writ of certiorari to issue, it is necessary for the petitioner to

show (1) that the lower tribunal has acted in excess of its

jurisdiction and (2) that the petitioner either has no appeal or,
in the judgment of the court, any plain, speedy and adequate
remedy. Both tests must be satisfied, and if either or both
elements are not established, then the court is without
jurisdiction to issue the writ. See City of Helena v. Buck (1991),

247 Mont. 313, 315, 806 P.2d 27, 29.
We conclude, after a careful review of the applicable

statutory and case law that a writ of certiorari is not the

appropriate remedy in the instant case. Here, the second prong of
the statute - remedy of appeal - could not be satisfied as a matter

of law.

The District Court addressed the first prong of the test, i.e.
whether the tribunal, board or officer exceeded its jurisdiction,

and found that the Commission acted within its jurisdiction and

therefore, denied the writ of certiorari. McAllister, 708 P.2d at

241.

At no point, however, did the District Court address, nor did

the respondents argue, that a writ of certiorari was an

7
inappropriate remedy because the appellant already had a remedy of

appeal. Absence of the right to appeal z a plain, speedy and
adequate remedy is the second prong of the test for the grant of a

writ of certiorari. McAllister, 708 P.2d at 241. Although we
disagree with the District Court in its conclusion that the
Commission did not exceed its jurisdiction, we determine that the

appellant had an adequate remedy of appeal under § 76-2-110, MCA,

and therefore, the appellant cannot satisfy the second prong of the

test for obtaining a writ of certiorari.

As stated above, in order to grant a writ of certiorari, both

prongs of the test must be satisfied. Here, because the second
prong of the test was not satisfied, we must affirm the District

Court's denial of the writ of certiorari, although we affirm

because we conclude that the appellant failed to satisfy the second

prong of the test. We do not affirm the court's conclusion on the

first prong.

Parenthetically, we wish to make clear that whenever a

plaintiff or petitioner has any remedy of appeal or, in the court's

judgment, any plain, speedy or adequate remedy, a writ of

certiorari is not appropriate. Here, the appellant has a remedy of

appeal under § 76-2-110, MCA, and therefore, appellant should not

have petitioned for a writ of certiorari. The appellant should

only have exercised its right to appeal under the appropriate

statute, in this case, § 76-2-110, MCA.

Appeal Under § 76-2-110, MCA.

8
As pointed out above, the District Court did not address
appellant's appeal of the Board's decision to conditionally approve

the PUD. With respect to the court's failure in that regard, our

review is plenary. Greytak v. RegO Co. (1993), 257 Mont. 147, 150,

848 P.2d 483, 485. Black's Law Dictionary, Fifth Edition (1979),
at 1038, defines "plenary" as "full, entire, complete, absolute,

perfect, unqualified." Although the District Court did not review

the BCPOA's appeal of the Commission's decision to conditionally

approve 360 Ranch's PUD, this Court has full and complete authority

to review the Board's decision.

Request for relief No. 3 of the appellant's amended complaint

and petition for relief seeks appellate review of the portion of

the Commission's Findings of Fact and Order of February 10, 1993,

which authorized single family housing in the Bridger Bowl Base
Area. At the time appellant filed its petition for certiorari, the

Commission's decision was final and appealable under 5 76-2-110,
MCA. The facts alleged and the arguments made to the District
Court on the issue of whether the Commission exceeded its

jurisdiction in authorizing the PUD are necessarily the same as
those which will be reviewed here in order to determine whether the

Commission erred in conditionally approving the PUD. Hence, the

underlying issues, the substantive law applicable to those issues

and the substantive relief requested and denied, were and would

have been the same whether the procedural device to place those

issues and law before the court was denominated a petition for

9
certiorari or an appeal. In either event, this Court would have

jurisdiction to review the decision of the District Court.

The appellant argues that the Commission exceeded its
jurisdiction, thereby acting illegally, by approving the 360

Ranch's PUD application, which "although in compliance with the

Bridger Canyon Zoning Ordinance, conflicts with the Bridger Canyon

General Plan and Development Guide, and is inconsistent with the

official Zoning Map for the district." For this reason, the

appellant contends that the Commission erred in approving the PUD.

Moreover:

[tlhe Association submits that...a conflict exists
between the General Plan and the official zoning map on
the one hand, which exclude single family housing in the
Bridger Bowl Base Area, and the Zoning Ordinance and Base
Area Plan, which make provision for a high density
subdivision in the Base Area. Beta-use of this conflict,
and in light of the paramount importance accorded by this
Court to land use plans in several important zoning
decisions, the Association submits that the Zoning
Commission exceeded its authority when it approved single
family housing in the Bridger Bowl Base Area.

The respondents, on the other hand, assert:

1. That the General Plan and all amendments thereto are
documents to offer guidance to the Commission in its
decisionmaking process in the Zoning District.
2. That the 1989 updated Bridger Bowl Base Area Plan is
incorporated in the 1989 General Plan and is intended to
offer guidance to the Commission in its decisionmaking
process in the Bridger Bowl Base Area.
3. That the General Plan, as the name implies (General
Plan and Development Guide), is exactly that, a general
plan for the entire District containing guidance for the
development of the entire District except as provided in
the Bridger Bowl Base Area by the Base Area Plan.
4. That the Bridger Bowl Base Area Plan is a site
specific portion of the General Plan.

The crucial question is - of what importance is the General

Plan and what part does it play in the development of the Bridger
10
Canyon Zoning District? The Zoning Ordinance states that
"[plursuant to Section 76-2-101 et. seq. of the Revised Codes of

Montana there is hereby adopted a development pattern. Said

development pattern shall consist of the Bridger Canyon General

Plan and the Bridger Canyon Zoning Ordinance." By its very
language, the Zoning Ordinance states that the General Plan is an
important part of the development pattern, and therefore, it makes

sense that the commissioners should be required to comply with the
General Plan. Our prior case law supports that conclusion.

Little v. Board of County Com'rs, Etc. (1981), 193 Mont. 334,

631 P.2d 1282, was an appeal by the Flathead County Commissioners,

from a district court order enjoining them from proceeding with a

resolution of intent to zone Cameron Tract for commercial use when

the recommendation of the comprehensive plan (master plan) was to

zone the area as residential. In response to the question of how

closely the comprehensive plan must be followed, this Court stated:

The question then becomes one of how closely the
governing body must follow the "comprehensive development
plan" (master plan) when creating zoning districts and
when promulgating zoning regulations. Section 76-l-605,
MCA, particularly deals with how an adopted master plan
shall be used in making zoning decisions:
After adoption of the master elan, the city
council, the board of countv commissioners, or other
governing body within the territorial jurisdiction
of the board shall be quided bv and qive
consideration to the general policy and pattern of
development set out in the master plan in the .
(4) adoption of zoninq ordinances or resolutions."
(Emphasis in orisinal.)
This statute unequivocally tells local governing
bodies that once a master plan is adopted, it must be
used for their guidance in zoning. Further the zoning
statutes covering county zoning, Title 76, Ch. 2,
sections 76-2-101 through 76-2-112, MCA, undeniably lead
to the conclusion that the master plan is of paramount

11
importance. In fact, the unmistakable message of these
statutes is that if no comprehensive plan (master plan)
has been adopted (section 76-2-201, MCA), and if no
jurisdictional area has been created after the adoption
of the master plan (section 76-2-202, MCA), the counties
are without authority to zone except on an interim basis.
The objective under these statutes is that there be
the final adoption of a master plan, and then that the
master plan be followed once it has been adopted. The
planning and organization statutes (sections 76-l-101
through 76-2-112, MCA) set out a step-by-step basis by
which a master plan is to be derived. The term
"comprehensive development plan" contained in section 76-
2-201, refers back to these organization and planning
statutes. As we have already mentioned, without a master
plan in effect and without a jurisdictional area carved
out after the adoption of the master plan, the counties
have no authority to institute permanent zoning
classifications.

Little, 631 P.2d at 1291. Moreover,

[tl he vital role given the planning boards by these
statutes cannot be undercut by giving the governing body
the freedom to ignore the product of these boards -- the
master plan. We hold that the governmental unit, -when
zoning, must substantially adhere to the master plan.
. . .
To require strict compliance with the master plan
would result in a master plan so unworkable that it would
have to be constantly changed to comply with the
realities. The master plan is, after all, a plan. On
the other hand , to require no compliance at all would
defeat the whole idea of planning. Why have a plan if
the local governmental units are free to ignore it at any
time? The statutes are clear enough to send the message
that in reaching zoning decisions, the local governmental
unit should at least substantially comply with the
comprehensive plan (or master plan). This standard is
flexible enough so that the master plan would not have to
be undergoing constant change. Yet, this standard is
sufficiently definite so that those charged with adhering
to it will know when there is an acceptable deviation,
and when there is an unacceptable deviation from the
master plan.
As we have explained, the statutes require a reading
that the legislature intended the master plan to have
substance. If a master plan must be in existence before
the county commissioners can permanently zone, and if the
right to adopt emergency interim zoning is limited to two
years, it makes little sense to then permit the local
governing body to ignore the master plan once it has been
12
created. If the master plan is important enough to be a
condition precedent to permanent zoning, it is also
important enough to be followed once it is in existence.
For these reasons, we hold that only substantial
compliance is mandated by the statutes.
We are aware that changes in the master plan may
well be dictated by changed circumstances occurring after
the adoption of the plan. If this is so, the correct
procedure is to amend the master plan rather than to
erode the master plan by simply refusing to adhere to its
guidelines. If the local governing bodies cannot
cooperate to this end, the only alternative is to ask the
legislature to change the statutes governing planning and
zoning.

Little, 631 P.2d at 1293.

Although Montana Wildlife Federation v. Sauer (1980), 190
Mont. 247, 620 P.2d 1189, stated that no comprehensive plan is

necessary when county commissioners act under Part 1, Chapter 2,

Title 76, MCA, Little, which was decided after Montana Wildlife,

states that once a comprehensive or master plan has been developed,

it must be followed. Although Little concerns planning and zoning

under §§ 76-2-201 et seq., MCA, the case refers to the statutes at

issue here, 55 76-2-101, et seq., MCA, and the propositions

established in Little are applicable to the instant case. The

Commission did develop a comprehensive or master plan (the General

Plan) and now must comply with that plan.

A more central problem with the planning documents is the fact

that they are not only inconsistent with each other, but they are

also internally inconsistent. The following language, excerpted

from the General Plan, the Zoning Ordinance, the Base Area Plan and

the orders amending these documents to enlarge the Base Area of
Bridger Canyon, shows an incongruity both within and between the

documents. The inconsistencies make it difficult to determine the

13
correct population densities for the various areas within Bridger

Canyon.

THE GENERAL PLAN

The General Plan states that:

The Bridger Canyon Zoning Ordinance was officially
adopted in October of 1971, and has been amended on a
periodic basis. The intent of the ordinance is to
regulate and promote orderly development of the area.
Aqricultural preservation is a primary qoal which is to
be accomplished bv limitins development to one housinq
unit per 40 acres, and providina for hiqher density under
planned unit developments. The forty (40) acre minimum
lot size is based on limitinq population so that the
capacitv of the two (2) lane hishwav is not exceeded.
Prior to the adoption of the Zoning Ordinance,
development was concentrated in parcels less than 20
acres. (Emphasis added.)

The General Plan also states that:

As set forth in the Zoninq Ordinance, maximum
permanent housinq in the Bridqer Canyon planninq area is
set at one (1) dwellins unit per 20-40 acres, dependinq
on terrain and distance to main roads. One dwellinq unit
per 20 acres is onlv allowed throush the Planned Unit
Development procedures as set forth in the Zoninq
Ordinance. (Emphasis added.)

Moreover, the General Plan provides that:

Generallv, the residential areas outlined in the plan
are expected to accommodate one (1) dwellins unit per
fortv (40) acres or twenty (20) acres with a planned unit
development. (Specific information pertaining to
residential densities are located in the Zoning Ordinance
and the Bridger Bowl Base Area Plan.) The ski area is
expected to accommodate 3,000 visitors in overnight
accommodations on 400 acres--a density of two (2)
dwelling units per acre. Here, multiple clustered
housing which does not impair scenic values is essential
to accommodate the increasins number of seasonal
residents. (Emphasis added.)

Additionally, the General Plan recommends that the Zoning

Ordinance should be strictly enforced to ensure land subdivision in

conformity with the General Plan. Finally, the General Plan states

14
that 'I [wlell-conceived and strongly enforced land use planning is

essential."

BASE AREA PLAN

The Base Area Plan states that it is an extension of the

General Plan and provides that:

In 1970 and 1971 the firm of Murray and McCormick,
Inc., Sacramento, California, developed a General Plan,
Development Guide and Zoning Ordinance for the Bridger
Canyon area....
The Murrav and McCormick Plan desiqnated the Bridqer
Bowl Base Area as Recreation and Forestry, with a basic
densitv riqht of one unit oer 40 acres. It also
established a Planned Unit Development (P.U.D.)
desiqnation for the Base Area of two units per acre for
overniqht accommodations if the develooment was in
compliance with the standards and intent of the P.U.D.
Section of the Bridqer Canyon Zonins Ordinance. The
rationale for this high density allocation with overnight
qualification (the balance of the Bridger Canyon area has
an allowable P.U.D. density of only one unit per 20
acres) was to allow for the expansion of the Bridger Bowl
Ski Area to its ultimate capacity without exceeding the
vehicular capacity of the two-lane Bridger Canyon Road.
(Emphasis added.)

The Base Area Plan also states that:

The entire Bridaer Canyon Zonina District has been
given a basic density riqht of one unit per fortv acres,
with a planned development desisnation of one unit oer
twentv acres. This P.U.D. density is only allowed when
a development meets special conditions. (Emphasis added.)

Additionally:

A major concern of the original planners and the
Bridger Canyon residents was that the existing Bridger
Canyon Road would not handle the traffic that would be
generated by 7,000 to 8,000 day skiers. The construction
of an adequate road to handle those numbers was
determined to be contradictory to the intent of the
General Plan. To resolve this problem, the plan provided
for full expansion of the ski area by designating a 400
plus acre area with a P.U.D. density of one unit per half
acre. This high density area was included in order to
allow enough overnight facilities to maintain a low daily
15
traffic volume on the Bridger Canyon Road. The plan
proposes 1,500 car parking lot spaces for 4,500 day
visitors and a possible P.U.D. density for 800 units to
serve an estimated 3,000 overnight visitors.

Finally, under Development Rights Allocation, the subsection
entitled "Housing," the Base Area Plan states:

The areas shown for housinq are the sites of either
existinq housina or are subdivided for housing. As the
underlvinq zoninq for the Base Area is one dwelling unit
per fortv acres, it is uossible that other sinqle familv
dwellinq units may be located there. However, it is more
consistent with the coals of this Plan to encouraae the
development of hiqh density overniqht accommodations in
the Base Area. (Emphasis added.)

ZONING ORDINANCE

The Zoning Ordinance states that " [plursuant to Section 76-Z-
101 et. seq. of the Revised Codes of Montana there is hereby

adopted a development pattern. Said development pattern shall
consist of the Bridger Canyon General Plan and the Bridger Canyon

Zoning Ordinance." The Zoning Ordinance also declares that one of

the purposes of the zoning ordinance is "to carry out the master or
comprehensive plan for the Bridger Canyon Zoning District."

The Zoning Ordinance also provides, under Section 11, entitled

"Base Area Recreation and Forestry District," that permitted uses

for Recreation and Forestry District land (zoned B-4) include

"[olne dwelling unit per forty (40) acres." However, on page 41 of

the Zoning Ordinance, a Development Rights Allocation chart states

that 182 recreational housing development rights have been

allocated for the area, which is zoned B-4.

16
The Zoning Ordinance was further amended in 1993, but the

amendments were adopted after the Commission conditionally approved

360 Ranch Corporation's application for the PUD.

COMMISSION'S FINDINGS OF FACT AND ORDER OF DECEMBER 17, 1990

In 1990, the Commission approved the request to expand the

Bridqer Bowl Base Area to included a 100 acre parcel, zoned

Recreation Business (B-3), adjacent to the northern boundary of the

Base Area. No action was taken on a second parcel, consisting of

260 acres, known as the Hammersmark property, also located adjacent

to the Base Area.
COMMISSION'S FINDINGS OF FACT AND ORDER OF JUNE 14, 1991

An application to amend the second parcel (260 acres) to the

Base Area, was approved on June 14, 1991, and the Base Area

expanded to 760 acres. The 260 acre parcel was zoned Base Area

Recreation (B-4). Permitted uses for land zoned B-4 include "one

dwelling unit per forty (40) acres. . . .'I Finally, a covenant was

placed on the Hammersmark property which limited its development

potential to seventy (70) units.

As can readily be seen, the language within the General Plan,

the Base Area Plan and the Zoning Ordinance, as well as the

amendment orders, are internally incongruous and irreconcilable, as

well as incompatible with other planning documents. It is unclear

which areas allow for only one dwelling unit per 40 acres, which

areas allow only one dwelling unit per 20 acres and which areas

allow for the development of one dwelling per each one-half acre.

The inconsistent language violates the Zoning Ordinance's stated

17
purpose to carry out the master or comprehensive plan for the

Bridger Canyon Zoning District and the General Plan's mandate for

well-conceived land use planning.

We have previously determined that the General Plan must be

followed and the PUD simply does not comply with the General Plan's

language. In order for the development patterns and comprehensive

(or master) plans to have meaning, they should be followed and must

therefore, be consistent enough to be followed.

However, the incongruous language in the planning documents

casts confusion upon the appropriate population densities for the

various areas of the Canyon. In short, not only do the Zoning
Ordinance and the Base Area Plan conflict with the General Plan,

when they should harmonize, but they are internally in conflict. To
base a decision of conditional approval of a PUD on planning

documents which are inherently unreliable is unsatisfactory.

The statutes under which the Commission operates require the

Commission to provide well-conceived, clear, consistent planning

documents upon which to base land use planning in the Bridger

Canyon Zoning District. The powers and duties of the Commission

are set forth in §§ 76-Z-101 through 112, MCA. Two sections

pertinent to the instant action are § 76-2-103, and 5 76-z-104,

MCA. Section 76-z-103, MCA, provides that:

(1) In general, the planning and zoning commission
shall have such powers as may be appropriate to enable it
to fulfill its functions and duties to promote county
planning and to carry out the purposes of this part.
Section 76-2-104, MCA, states that:

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(1) [flor th e purpose of furthering the health,
safety, and general welfare of the people of the county,
the county planning and zoning commission hereby is
empowered and it shall be its duty to make and adopt a
development pattern for the physical and economic
development of the planning and zoning district.
(2) Such development pattern, with the accompanying
maps, plats, charts, and descriptive matter, shall show
the planning and zoning commission's recommendations for
the development of the districts, within some of which it
shall be lawful and within others of which it shall be
unlawful to erect, construct, alter, or maintain certain
buildings or to carry on certain trades, industries, or
callings or within which the height and bulk of future
buildings and the area of the yards, courts, and other
open spaces and the future uses of the land or buildings
shall be limited and future building setback lines shall
be established.

The Zoning Ordinance and the General Plan are the tools by

which the Planning and Zoning Commission "fulfill[sl its functions

and duties to promote county planning. . .'I Section 76-2-103(l),
MCA. Moreov-er, the Zoning Ordinance and the General Plan comprise

the Bridger Canyon Development Pattern, which was developed and
adopted "for the physical and economic development of the planning

and zoning district." Section 76-2-104(l), MCA, and Bridger Canyon

Zoning Ordinance, § 1.2 at 4. The Commission erred by approving a

PUD which does not comply with the development pattern as a whole.

At the core, however, is the fact that it makes little sense to

base a decision to conditionally accept the application for a PUD

on planning documents which are internally inconsistent and do not

harmonize with their companion documents

We conclude that the District Court erred in not addressing

the appellant's appeal, under § 76-2-110, MCA, seeking a reversal

of the Commission's decision to conditionally approve the PUD

application of 360 Ranch. We hold that once a General Plan (master

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or comprehensive plan), which is part of a development pattern, is

adopted, the Commission must substantially comply with that
planning document. We further conclude that in order to
effectively plan for the development of a planning and zoning

district, the planning documents which comprise the development

pattern must be internally consistent as well as consistent with

companion planning documents. Because the merits of the District

Court's decision went to the merits of the appeal of the Zoning

Commission's decision to approve 360 Ranch's PUD, we reverse the

District Court in its conclusion that the Zoning Commission did not

exceed its jurisdiction or

AFFIRMED IN PART AND REVERSED

We Concur:
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Chief Justice

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/883760. Public record. Not legal advice.