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Carlson v. Yellowstone County Board of Adjustment

Supreme Court of Montana

August 1, 2017

TODD CARLSON, Petitioner and Appellant,
v.
YELLOWSTONE COUNTY BOARD OF ADJUSTMENT, Respondent and Appellee.

          Submitted on Briefs: June 21, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 15-1536 Honorable Michael G. Moses, Presiding Judge.

          For Appellant: Thomas J. Stusek, Stusek Law Firm, P.C., Bozeman, Montana.

          For Appellee: Daniel L. Schwarz, Mark A. English, Deputy Yellowstone County Attorneys, Billings, Montana.

          OPINION

          BETH BAKER JUSTICE.

         ¶1 Todd Carlson began construction on a detached garage on his property in a subdivision outside of Billings, Montana, without first obtaining a zoning compliance permit. The garage's size and setbacks from the property line violated county zoning regulations. Carlson requested a variance from the Yellowstone County Board of Adjustment (Board). The Board held a public hearing and denied the variance request. Carlson appealed to the District Court. The District Court upheld the Board's decision. We consider on appeal whether the District Court abused its discretion in affirming the Board's denial of Carlson's variance request.

         ¶2 We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 Carlson employed a contractor in the spring of 2015 to construct a detached garage on his property. The property is located in a residential subdivision in Yellowstone County outside of the Billings city limits. The garage was over eighteen feet tall, spanned 2, 140 square feet, and was situated with side and rear setbacks of three and one-half feet from the property line.

         ¶4 The subdivision in which Carlson lives is subject to Yellowstone County zoning regulations. Section 27-310(j) of the City of Billings and Yellowstone County Jurisdictional Area Unified Zoning Regulations (Unified Zoning Regulations) requires, among other things, that detached garages over eighteen feet tall maintain eight-foot side and rear setbacks from the property line and that a garage on a property the size of Carlson's be no larger than 1, 238 square feet. Neither Carlson nor his contractor applied for a zoning compliance permit before beginning construction.

         ¶5 Carlson's next-door neighbor, Jason Frank, filed a complaint with the Yellowstone County Code Enforcement Office due to the close proximity of Carlson's garage to Frank's fence. A Code Enforcement Officer responded by investigating Carlson's property. The officer informed Carlson that the garage violated county zoning regulations and advised him to cease construction until he could come into compliance. Carlson continued construction on the garage nonetheless.

         ¶6 Carlson applied to the County Planning Division in late April 2015 for a zoning permit to build his garage. On May 11, 2015, the Planning Division sent Carlson a letter denying his permit request because his garage violated the size and setback requirements of § 27-310(j) of the Unified Zoning Regulations. The letter informed Carlson that he could apply for a variance with the Board.

         ¶7 Carlson petitioned the Board for a variance on August 3, 2015-eighty-four days after receiving the Planning Division's letter-to allow him to complete construction of his garage. The Board scheduled a public hearing on Carlson's variance request for September 10, 2015, postponed the hearing twice, and then finally held the hearing on October 29, 2015.

         ¶8 At the variance hearing, the Board heard testimony from numerous witnesses, including Carlson, his attorney, his contractor, some of his neighbors, and County staff who had investigated Carlson's property. The Planning Division recommended denial of Carlson's variance, based on its investigation of Carlson's property and other properties in the surrounding area. Nicole Cromwell, the Zoning Coordinator for the Planning Division, and others testified that Carlson began construction on his garage before acquiring the required permit, that he submitted a permit request, that the request was ...


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