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Phillips v. City of Whitefish

Supreme Court of Montana

December 10, 2013

LYLE PHILLIPS, ANNE DEE RENO, TURNER ASKEW, and BEN WRITTEN, Plaintiffs and Appellees,
v.
CITY OF WHITEFISH, Defendant, Third-Party Plaintiff, and Appellant, and THE BOARD OF COMMISSIONERS OF FLATHEAD COUNTY, Defendant, Third-Party Defendant and Appellee, and DAN WEINBERG and ED McGREW, individually and on behalf of LET WHITEFISH VOTE, a ballot committee lawfully organized under the laws of Montana; MARY PERSON and MARILYN R. NELSON, Interveners and Appellants.

ORDER

Appellant City of Whitefish (City) has moved for a stay of the District Court's July 8, 2013, order and resulting judgment pending this appeal and to restore the February 10, 2012, injunction entered by the District Court, pursuant to M. R. App. P. 22(l)(a)(i), (iii), and (4).

The City filed a motion for a stay of the District Court's July 8, 2013, order on July 10, 2013, pursuant to M. R. App. P. 22(1). The District Court has not granted or denied the City's stay motion. The City recognizes M. R. App. P. 22, requires that a party first file a motion for stay in district court and then appeal the district court's order in the Supreme Court. The City argues, however, that because so much time has elapsed and Flathead County (County) might take action that would destroy the status quo, extraordinary circumstances allow this Court to consider the City's motion for a stay. M. R. App. P. 22(4).

We recognize that a substantial amount of time has passed since the City filed its motion for a stay with the District Court. We also recognize that the County could change the status quo if the County adopted a growth policy and accompanying zoning or subdivision resolution pursuant to § 76-2-311, MCA. Appellees Lyle Phillips, Anne Dee Reno, Turner Askew, and Ben Whitten argue that we should strike portions of the affidavits supporting the City's contention that the County's actions could disrupt the status quo. We conclude, however, that the County's actions still could disrupt the status quo even if we disregard portions of the affidavits.

We will decide the City's stay request instead of requiring that the motion first be addressed by the District Court, further prolonging proceedings. The City has established sufficient extraordinary circumstances to justify the issuance of a stay by this Court pursuant to M. R. App. P. 22(4).

IT IS ORDERED that the motion for a stay of the District Court's July 8, 2013, order is GRANTED. As only the final adoption of new subdivision regulations and/or zoning regulations for the extraterritorial area in question can change the status quo pursuant to § 76-2-311, however, the County shall remain free to undertake any land use planning activities short of final adoption.

The Clerk of this Court is directed to give notice of this Order to counsel of record for the parties and to the Honorable David M. Ortley, District Court Judge for the Eleventh Judicial District, Flathead County.


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