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Boehm v. Park County

Supreme Court of Montana

July 10, 2018

CARTER BOEHM, Petitioner and Appellant,
v.
PARK COUNTY, a political subdivision of the State of Montana, Respondent and Appellee.

          Submitted on Briefs: June 6, 2018

          APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-16-126 Honorable Brenda Gilbert, Presiding Judge.

          For Appellant: Karl Knuchel, Karl Knuchel, P.C., Livingston, Montana.

          For Appellee: Todd A. Stubbs, Levi G. Stubbs, Stubbs Law, P.C., Manhattan, Montana

          OPINION

          Jim Rice Justice.

         ¶1 Carter Boehm appeals from the denial of his petition for writ of mandate by the Sixth Judicial District Court, Park County. We affirm and address the following issue: Did the District Court err by quashing Boehm's petition for writ of mandate?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Boehm owns property located in the 9th Street island floodplain on the Yellowstone River near Livingston. Boehm operated an unpermitted "cesspool" septic system on the property, and wanted to install a permitted septic system. On March 24, 2016, Boehm submitted a septic permit application to the Park County Environmental Health Department. On March 29, Park County Sanitarian and Floodplain Administrator, Barbara Woodbury, approved the application and issued a permit for Boehm to construct the system.

         ¶3 Soon thereafter, Woodbury retired and Park County appointed Craig Caes as the new Sanitarian. Caes reviewed Boehm's application and identified several deficiencies that would, in his determination, allow the proposed septic system to be operated in violation of the Park County Water Onsite Treatment Regulations (Regulations), and potentially create a threat to public health. Consequently, on May 27, Caes mailed Boehm a certified letter informing him the permit issued to him "has been voided" and instructing him to cease construction of the septic system, citing the following grounds, in summary:

(1) Boehm had failed to complete the required section on the permit application indicating that the property was in a floodplain, the omission of which constituted a material misrepresentation under Regulation 9.2, entitling Caes to void the permit;
(2) Because Boehm had failed to disclose that his property was in a floodplain, the required floodplain 100-foot setback boundary had not been addressed in the application, in violation of Admin. R. Mont. 17.36.918(1); and
(3) Boehm had incorrectly classified his proposed septic system as being a "replacement" system rather than a "new" system, as there had never been a permitted system in place on Boehm's property.[1]

         In the letter, Caes addressed re-applying for a permit to construct a "new" septic system and complying with the floodplain requirements, including the need for a variance from the Park County Board of Health, but also advised that "variances are not guaranteed."

         ¶4 Boehm filed a Petition for Writ of Mandate and Complaint for Libel in the District Court, seeking an order "directing that Park County rescind its cease and desist order of May 27, 2016." Park County moved for summary judgment, which the District Court granted, quashing Boehm's petition. The court reasoned that Boehm was not seeking to enforce a legal duty not yet performed, but rather "to undo the action already taken by Park County, that of voiding his Septic Permit," which was, "as a matter of law, not a simple, ...


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