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John Richards v. County of Missoula

October 23, 2012


APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 11-474 Honorable John W. Larson, Presiding Judge

The opinion of the court was delivered by: Justice Brian Morris

Submitted on Briefs: June 6, 2012

Decided: October 23, 2012



Justice Brian Morris delivered the Opinion of the Court.

¶1 John Richards (Richards) appeals an order of the Fourth Judicial District Court, Missoula County, that granted summary judgment to the County of Missoula (County). We affirm.

¶2 Richards raises the following issues:

¶3 Whether the District Court abused its discretion by not allowing Richards to conduct further discovery before ruling on the summary judgment motion?

¶4 Whether the District Court properly granted summary judgment to the County on the Board of County Commissioners' decision to deny the subdivision?

¶5 Whether the County was entitled to summary judgment on Richards's regulatory taking claim?

¶6 Richards purchased property near Clearwater Junction in 2005. He intended to develop this 200-acre property into a rural subdivision. Richards submitted an application for a 119-lot subdivision to the County in 2006. The Board of Missoula County Commissioners (Board) denied the application.

¶7 Richards modified the proposal to a 59-lot subdivision that the Board considered in 2007. Montana Fish, Wildlife, and Parks (FWP) provided comments during the subdivision review in which it recommended that the Board approve a density of no more than 20 residential lots due to concerns about wildlife habitat. The Board denied Richards's application for the 59-lot subdivision based, in part, upon the adverse effects on wildlife. The district court denied Richards's petition for judicial review. We affirmed. Richards v. Co. of Missoula, 2009 MT 453, 354 Mont. 334, 223 P.3d 878 (Richards I).

¶8 Richards worked with FWP to mitigate adverse effects on wildlife in another effort to develop the property. Richards proposed, among other things, to place a fence around the entire subdivision to prevent interaction between residents and wildlife. FWP suggested to Richards that it had no objection to his development in light of his proposed mitigation. Richards eventually submitted an application in 2010 to the County for another 59-lot subdivision. He argued that the County should approve the proposed subdivision in light of FWP's apparent agreement with his proposed mitigation.

¶9 FWP eventually switched its position, though, on December 2, 2010-after Richards had submitted his application and approximately one month before the Board considered that application. FWP encountered new research regarding black bears, grizzly bears, and human-bear conflicts in the proposed subdivision area. This research apparently supported FWP's previous recommendation that the Board deny the subdivision, and FWP advised the Board that its 2006 and 2007 comments and opposition still applied to Richards's 2010 application.

¶10 The Board considered Richards's application at a public meeting on January 12, 2011. The Board voted unanimously to reject the proposed subdivision. The Board issued extensive findings of fact and conclusions of law to support this decision. The Board denied the application due to its lack of compliance with state law, lack of compliance with Missoula County Growth Plan, and lack of compliance with Missoula County Subdivision Regulations. The Board also noted the potential adverse impact to the wildlife habitat.

¶11 Richards filed a petition for judicial review of the Board's decision. Richards alternatively claimed that the Board's actions constituted a regulatory taking that entitled him to just compensation. The County moved for summary judgment. Richards responded to the merits of the County's motion. Richards also sought to depose various officials from FWP to determine the basis for its opposition to the proposed subdivision. The District Court denied this request due to Richards's failure to justify how these depositions would affect the summary judgment proceedings. The District Court also granted summary judgment to the County on all of Richards's claims. Finally, the District Court granted summary judgment to the County with respect to Richards's takings claim. Richards appeals.


¶12 We review for an abuse of discretion a district court's decision regarding an M. R. Civ. P. 56(f) request to conduct further discovery. Richards I, ¶ 33. We review for correctness a district court's decision to grant summary judgment. Dubiel v. Mont. ...

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