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Kevin Botz, Randy Theken, and Fpr Properties, LLC v. Bridger Canyon Planning and Zoning Commission

November 20, 2012

KEVIN BOTZ, RANDY THEKEN, AND FPR PROPERTIES, LLC, PETITIONERS AND APPELLANTS,
v.
BRIDGER CANYON PLANNING AND ZONING COMMISSION, RESPONDENT AND APPELLEE, AND BRIDGER CANYON PROPERTY OWNERS ASSOCIATION, INC., INTERVENOR AND APPELLEE.



APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause Nos. DV 10-1076B and DV 10-1174CX Honorable Mike Salvagni, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

Submitted on Briefs: September 4, 2012

Decided: November 20, 2012

Filed:

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 This appeal pertains to the location of a horse barn in the Brass Lantern Planned Unit Development in Bridger Canyon, Montana. The owner of the barn, Randy Theken and FPR Properties, and Theken's contractor, Kevin Botz, assert the partially-constructed barn complies with both the zoning regulations and the covenants of the Brass Lantern development. After notification by the Gallatin County Code Compliance Specialist that the barn did not comply with the regulations and the covenants and must be removed, FPR submitted an application to modify the conditional use permit of Brass Lantern development to bring the location of the barn into compliance. Following public hearings, the Bridger Canyon Planning and Zoning Commission*fn1 affirmed the Code Compliance Specialist's (CCS) determination that the barn violated zoning regulations and applicable covenants. The Commission also denied FPR's request to modify the conditional use permit for Brass Lantern. FPR appealed the Commission's orders to the Eighteenth Judicial District Court. The District Court affirmed the Commission's rulings. FPR also argued to the District Court that the Commission's rulings amounted to a constitutional taking. The District Court dismissed this claim without conducting a trial. FPR appeals. We affirm.

ISSUES

¶2 A restatement of the issues on appeal is:

¶3 Did the District Court abuse its discretion by affirming the Bridger Canyon Planning and Zoning Commission's determination that the partially-constructed barn violated applicable zoning regulations and covenants and must be removed?

¶4 Did the District Court abuse its discretion by affirming the Bridger Canyon Planning and Zoning Commission's denial of FPR's application to modify the Brass Lantern Conditional Use Permit?

¶5 Did the District Court err in dismissing FPR's constitutional takings claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 The Brass Lantern Planned Unit Development (PUD) was created in Bridger Canyon in 1984 by Donald Turner. Turner submitted an application to the Bridger Canyon Planning and Zoning Commission (Commission) requesting a conditional use permit (CUP) to create the Brass Lantern development, consisting of 100 acres, divided into five twenty-acre parcels. A diagram of the land and designated parcels was shown on Certificate of Survey (COS or Survey) 1154 filed with the Gallatin County Clerk and Recorder.

¶7 Turner explained in the application that each parcel would accommodate a single family dwelling located on a designated two-acre site. The application required that all areas other than the building site would remain open space. Both Gallatin County and the Bridger Canyon Property Owners Association (BCPOA or Owners Association) agreed with the provisions and supported creation of the PUD with minor alterations. Restrictive covenants were prepared and approved. These covenants indicated that the maximum amount of land that could be covered by buildings was 17,424 square feet per parcel. In December 1984, the CUP was granted, the PUD was approved and the necessary documents were filed with the proper authorities.

¶8 The legend included on the recorded Survey expressly identified the two-acre building site for each parcel, stated that the maximum coverage for buildings per site was 17,424 square feet, and advised the viewer to see the Bridger Canyon zoning regulations pertaining to "open space." Additionally, the recorded restrictive covenants clearly stated that "All building sites are required to be located per the plat designation as described on 'Exhibit A'. . . . Homes and all outbuildings are to be limited to a 'square footage' of no more than 17,424 square feet per twenty (20) acre tract, perameters [sic] set forth in attachment, 'Exhibit B'." Exhibits A and B were not recorded with the covenants but were on file at the Gallatin County Planning Department.

¶9 In 2004, Kevin Botz, the owner of Tract E of the Brass Lantern PUD, applied to Gallatin County Planning Department for a permit, as required by the PUD covenants and Bridger Canyon Zoning Ordinance, to build a 7,676 square foot single family home on his property. Describing the setbacks for his proposed construction, Botz wrote "As Per Brass Lantern Building Envelope." He thereafter built his home in accordance with the permit and the designated building site, as approved by the Planning Department. In 2009, Botz sold Tract E to Randy Theken and FPR Properties. The Warranty Deed indicated that the property and sale were subject to "all building and use restrictions, covenants, easements, agreements, conditions and rights of way of record and those which would be disclosed by an examination of the property."

¶10 Upon completion of the purchase, FPR hired Botz to build a horse barn on Tract E. Without obtaining the required Land Use Permit (LUP), Botz began constructing the barn approximately 175 feet from the house. Neighbors complained to the Owners Association that the barn site was outside the approved building site for Tract E as set out on COS 1154-A. The Owners Association in turn complained to the Commission.

ΒΆ11 On January 28, 2010, after an investigation, a Gallatin County CCS notified FPR that the barn was located "outside the designated building envelope" and therefore violated the terms and covenants of the Brass Lantern CUP. The Compliance Specialist further determined that the barn violated two separate Bridger Canyon Zoning Regulations (BCZR): (1) it was constructed in designated open space, and (2) it was built prior to obtaining a required LUP. The CCS provided Botz with an after-the-fact LUP application and an application to request an amendment to the conditional use permit of the PUD as it pertained specifically to Tract E or ...


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