Citizens for a Better Flathead v. Bd. of County Comm’rs

Citizens for a Better Flathead v. Bd. of County Comm’rs, 2016 MT 256 (Oct. 11, 2016) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in striking Citizens’ expert report; (2) whether the district court erred in determining that the Commission substantially complied with the growth policy; (3) whether the district court erred in determining the Commission allowed meaningful public participation; (4) whether the district court erred in determining the Commission adequately incorporated public comments into its decision-making process; and (5) whether the final clause in part 6 of the revised growth policy survives constitutional scrutiny.

Short Answer: (1) No; (2) no; (3) no; (4) no; and (5) yes.


Facts: The Flathead County Commission adopted the original Flathead County Growth Policy in March 2007. It required the Planning Board to review the policy at least every five years and make recommendations to the Commission for any changes. In anticipation of the 2012 deadline, the Planning Board prepared a proposed work plan for the process and forwarded it to the Commission. On Jan. 3, 2011, the Commission adopted a resolution asking the Planning Board to update the growth policy as proposed in the work plan.

The Planning Board announced it was beginning a revision process, and held about 20 public workshops over the following year to solicit public comment and discuss revisions to the policy.

In February 2012, the Planning Board presented a “first final draft” of the revised growth policy at a public hearing, and received public comment over the next few months at four additional workshops. It released a “second final draft” in April 2012, and solicited comments at a public hearing in June. At its next meeting, the Board voted to forward the revised policy to the Commission for approval.

The Commission passed a resolution of intent to adopt the policy, and received comments for 30 days. It held a meeting in October 2012, at which it approved the revised growth policy. The Commission did not issue written findings and conclusions, but the October meeting as well as the Planning Board’s workshops and hearings were recorded on DVD.

Citizens sued, claiming the Commission’s adoption of the policy violated Montana law, the Montana Constitution, and Flathead County’s procedures.

Procedural Posture & Holding: Citizens submitted a land-use planner’s expert report. The Commission moved to strike and the district court granted the motion. On cross-motions for summary judgment, the district court granted judgment to the Commission. Citizens appeal and the Supreme Court affirms.

Reasoning: (1) Land-use planner Kathleen McMahon reviewed the recordings of the public meetings and prepared a report, which Citizens submitted and the district court refused to admit. Because the report primarily offers conclusions regarding the legality og the Commission’s and Planning Board’s conclusions, the Court holds that the district court did not abuse its discretion in striking it.

(2) The Court holds that the Commission “substantially complied” with the procedural requirements for updating the growth policy. It agrees that the revisions were “updates,” not “amendments,” and that the Board did not exceed its broad scope of review. Although public meetings were held only in Kalispell, the Court concludes that “this failure alone does not require invalidating the revised growth policy.” ¶ 30.

(3) The Planning Board posted “tracked-changes” versions of the growth policy’s chapters to the County’s website during the revision process. Neither the Planning Board nor the Commission, however, provided the public with a single document identifying all of the proposed changes to the original policy. Because the Planning Board is not an agency, the public participation statutes do not apply to it. The statutes do apply to the Commission, which did not violate the open meeting laws. The Commission provided adequate public notice, allowed for public observation of their deliberations, and gave the public reasonable opportunities to participate and be heard.

(4) The Court holds that the Planning Board’s consideration and incorporation of public comment met the law’s requirements. “The law does not require that specific public comment be incorporated into the final decision, only into the process.” ¶ 54. It further holds that the Commission also fulfilled its obligation to consider and incorporate public comments, summarize the comments, and explain how the comments influenced its decision.

(5) Part 6 of the growth policy emphasizes the predominance of individual property rights and lists requirements that a growth policy must meet if it attempts to regulate the use of private property. Citizens alleges this is unconstitutionally vague and conflicts with the constitutional right to a clean and healthful environment. However, because the clause lacks the force of law, the Court holds that the district court was correct in holding it is constitutional.