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Elliott v. Powell County Planning Board

Supreme Court of Montana

June 12, 2018

PATRICK W. ELLIOTT, and DONALD D. MONDUL, Petitioners and Appellants,
v.
POWELL COUNTY PLANNING BOARD, Respondent and Appellee.

          Submitted on Briefs: April 18, 2018

          District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV 17-22 Honorable Ray Dayton, Presiding Judge

          For Appellants: Patrick W. Elliot, Self-Represented, Seeley Lake, Montana Donald D. Mondul, Self-Represented, Seeley Lake, Montana.

          For Appellee: Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana.

          OPINION

          Beth Baker Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 In February 2017, the Powell County Planning Board (the "Board") approved a conditional use permit for a sand and gravel pit in Powell County, adjacent to the Double Arrow Ranch housing development ("Double Arrow") located in Missoula County. Patrick Elliott and Donald Mondul, Double Arrow residents, filed a petition in the Third Judicial District Court to rescind and nullify the Board's decision to issue the permit. Elliott and Mondul argued that the statute on which the Board relied, § 76-2-209(3), MCA, is unconstitutional. The District Court held a hearing and upheld the Board's decision. Elliott and Mondul appeal the District Court's ruling. We affirm.

         ¶3 LHC, Inc. ("LHC"), on behalf of the Birdhead Company, requested a conditional use permit to operate a sand and gravel pit on land near Seeley Lake, adjacent to Double Arrow. The proposed pit site is zoned by Powell County for agricultural use. Double Arrow has no county zoning designation. After public comment from many Double Arrow residents and other citizens, the Board denied the conditional use permit, stating in its written order that the pit "is incompatible with the neighboring subdivision, has an inadequate and unsafe access, and presents a threat of groundwater contamination to the neighboring subdivision."

         ¶4 LHC requested the Board to reconsider its denial of the permit, arguing that § 76-2-209(3), MCA, prevents county zoning regulations from prohibiting sand and gravel mining operations in any area zoned other than residential. The Board reconsidered its action and voted to approve the permit. It attached conditions to the permit requiring that all site activities comply with applicable federal and state regulations, specifically "requirements associated with the Opencut Mining Act."

         ¶5 In support of their petition to rescind and nullify the permit, Elliott and Mondul argued to the District Court that § 76-2-209(3), MCA, is unconstitutional because it violates the right to a clean and healthful environment guaranteed under Article II, Section 3 and Article IX, Section 1 of the Montana Constitution. They argued that the statute forced the Board to automatically approve the permit despite the operation's incompatibility with Double Arrow and potential environmental threats. They also argued that the Board's conditions may not be enough to ensure a clean and healthful environment. The District Court determined that Elliott and Mondul did not prove beyond a reasonable doubt that the statute is unconstitutional as interpreted (on its face) or as applied to the facts of their case.

         ¶6 This Court exercises plenary review of constitutional issues. Mont. Cannabis Indus. Ass'n v. State, 2016 MT 44, ¶ 12, 382 Mont. 256, 368 P.3d 1131. The constitutionality of a statute is presumed unless it conflicts with the constitution beyond a reasonable doubt. Mont. Cannabis Indus. Ass'n, ¶ 12. The party challenging the constitutionality of a statute bears the burden of proof. Mont. Cannabis Indus. Ass'n, ¶ 12. We review for correctness a district court's decisions on constitutional issues. Big Sky Colony, Inc. v. Mont. Dep't of Labor & Indus., 2012 MT 320, ¶ 16, 368 Mont. 66, 291 P.3d 1231.

         ¶7 Analysis of a facial challenge differs from that of an as-applied challenge. Mont. Cannabis Indus. Ass'n, ¶ 14. A facial challenge requires proof that no circumstances exist under which a statute would be constitutional. Mont. Cannabis Indus. Ass'n, ¶ 14. An as-applied challenge examines the application of a statute as applied in a given set of circumstances. Citizens for a Better Flathead v. Bd. of Cnty. Comm'rs, 2016 MT 325, ¶ 45, 385 Mont. 505, 386 P.3d 567.

         ¶8 Section 76-2-209, MCA, governs county zoning of natural resources. Section 76-2-209(2), MCA, allows zoning regulations to reasonably condition or prohibit sand and gravel mining in areas that are zoned residential. Section 76-2-209(3), MCA, allows zoning regulations to reasonably condition, but not to prohibit, sand and gravel mining in areas that are not zoned residential.

         ¶9 Title 82, chapter 4, part 4, MCA, regulates opencut mining such as the proposed sand and gravel operation in this ...


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