TOM ST. JOHN, LINDA GERLEMAN, FRANK WESTHOFF, SUZANNE WESTHOFF, et al., Plaintiffs and Appellants,
CITY OF LEWISTOWN, MONTANA, Defendant and Appellee.
Submitted on Briefs: February 22, 2017
FROM: District Court of the Tenth Judicial District, In and
For the County of Fergus, Cause No. DV 2015-77 Honorable
Brenda Gilbert, Presiding Judge
Appellants: James A. Hubble, Olive J. Urick, Hubble Law Firm,
PLLP, Stanford, Montana
Appellee: Kevin C. Meek, Cathy J. Lewis, Ugrin, Alexander,
Zaddick & Higgins, Great Falls, Montana
Plaintiffs Tom St. John, Linda Gerleman, and Frank and
Suzanne Westhoff, (collectively Land Owners) appeal from an
order entered in the Montana Tenth Judicial District, Fergus
County, granting summary judgment to Defendant City of
Lewistown (City) and allowing the City to annex portions of
Land Owners' properties. We affirm on all issues.
We restate the issues as follows:
1 .Whether the District Court erred in concluding that
the City had met the statutory annexation requirements of
Title 7, chapter 2, part 43, MCA.
2. Whether the District Court erred in concluding that
the City had correctly determined there were less than a
majority of valid protests.
3. Whether the District Court erred in concluding that
Land Owners were not denied equal protection of the law.
4. Whether the District Court erred in concluding that
Land Owners lacked standing to enforce a contract between the
City and a subdivision developer.
AND PROCEDURAL BACKGROUND
In 1982, the City passed Ordinance 1483 which addressed the
provision of municipal services to areas outside of the City
limits. Ordinance 1483 was amended by Ordinance 1630 and,
together, these ordinances conditioned the provision of City
water services outside the City's limits upon the
property owners' execution of written waivers to protest
future annexation by the City of their property. Some of the
Land Owners signed such a waiver, and others did not.
Regardless of whether a waiver was executed by Land Owners,
all continued to obtain City water services.
On April 6, 2015, the City passed Resolution 3875, setting
forth its plan for providing municipal services to annexed
properties. On June 1, 2015, Resolution 3878 was passed
stating the City's intent to annex contiguous land
identified on the "Corrected Map for Annexation"
(Corrected Map). The Corrected Map identified the partial
lots that were at issue and which were being serviced by City
water. Each partial lot was a smaller fraction of a larger
lot belonging to Land Owners. The Corrected Map also
identified contiguous lands connected by Castle Butte Road,
portions of which were also part of the annexation, and
proposed properties for annexation that were part of the
Castle Ridge Acres subdivision. The Corrected Map was
recorded with the Fergus County Clerk and Recorder, and bore
the Clerk's seal and certification that it was a
certificate of survey. Resolution 3878 specifically
identified that the annexation would be conducted pursuant to
§ 7-2-4311, MCA, which allowed for annexation of
contiguous land to an incorporated city or town. Further,
Resolution 3878 stated the City had determined the proposed
annexation was in the best interests of both the City and the
inhabitants of the parcels to be annexed.
The City Clerk mailed notices to all registered voters and
property owners in the areas being annexed and published the
notice in the local paper. The notice explained how comments
would be received and that the City would consider the
annexation at its July 6, 2015 meeting.
The City was proposing to annex 89 lots. Of those 89 lots, 62
lots had a recorded waiver to the City's annexation.
After disregarding protests from property owners who had
executed a waiver, the City determined, pursuant to §
7-2-4314(d), MCA, that there were less than the 51% majority
of protests needed to stop the annexation. Accordingly, at
the meeting on July 6, 2015, the City adopted Resolution 3880
which finalized annexation. Resolution 3880 memorialized the
City's determination that the annexation was in the best
interest of the City and those being annexed. It also
recognized that less than a majority of the real property
owners of the area proposed for annexation had submitted
On September 25, 2015, Land Owners challenged the City's
annexation by applying for a preliminary injunction and
temporary restraining order. The District Court issued an
Order to Show Cause and Temporary Restraining Order on
November 24, 2015. On February 10, 2016, the City filed a
motion for summary judgment. Following briefing and oral
argument, the District Court issued a Decision and Order on
June 16, 2016, granting summary judgment in favor of the City
on all issues. Land Owners appeal the entry of summary
judgment for the City.
This Court reviews de novo a district court's summary
judgment ruling, applying the same rule, M. R. Civ. P. Rule
56(c), as the district court applies. Modroo v.
Nationwide Mut. Fire Ins., 2008 MT 275, ¶ 19, 345
Mont. 262, 191 P.3d 389. Summary Judgment is proper when
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law. M. R. Civ.
P. Rule 56(c); Bennett v. Hill, 2015 MT 3, ¶ 9,
378 Mont. 141, 342 P.3d 691.
Section 7-2-4742, MCA, provides for court review of whether
statutory annexation procedural requirements were followed
and satisfied. "If all of the substantive and procedural
requirements of the annexation statutes are included and
complied with by a municipality in the annexation procedure,
the law will necessarily have been followed." Gregg
v. Whitefish City Council, 2004 MT 262, ¶ 20, 323
Mont. 109, 99 P.3d 151. We explained in Gregg that
compliance with the annexation statutes must be
"complete and municipalities must follow all of the
directives of the statutes." Gregg, ¶ 20.
However, if a statutory mandate contains a subjective
component, "[c]ompliance must be substantial . . . [to
allow] a municipality to exercise discretion in making its
planning decisions." Gregg, ¶ 20.
1. Whether the District Court erred in concluding that
the City had met the statutory annexation
requirements of Title 7, chapter 2, part
Pursuant to § 7-2-4718(2), MCA, a municipality "may
in its discretion select one of the annexation procedures in
parts 42 through 47 that is appropriate to the circumstances
of the particular annexation." The municipal governing
authority must then follow "the specific procedures
prescribed in the appropriate part." Section
7-2-4718(2), MCA. The City chose to conduct its annexation of
Land Owners' properties pursuant to ...