Belfry landowners attempting to form the Silvertip Zone in Carbon County received a significant boost in their Montana Supreme Court case last week when the prestigious Natural Resources and Land Use Clinic at the University of Montana School of Law filed an amicus brief in the case. An amicus brief is a legal opinion offered by a person or group not connected with a case to make sure that important legal concerns affecting the broad legal implications of a case are introduced.
The brief, which you can download by clicking on the photo at right, is worth a read. It is easily understandable for a non-attorney, and includes a thorough discussion of the history of zoning in Montana. It deals with two primary issues:
- The Carbon County Commissioners, in reversing their decision to approve the Silvertip Zone, relied on a protest provision in Montana law that states, “If real property owners representing 50% of the titled property ownership in the district protest the establishment of the district within 30 days of its creation, the board of county commissioners may not create the district.”
However, in August, 2013, in the case of Williams v Board of Commissioners of Missoula County, the Montana Supreme Court affirmed that the “protest provision” was an unconstitutional delegation of legislative power because it failed to provide “standards or guidelines to inform the exercise of the delegated power” and contained no legislative bypass. The Williams case referred to Part 2 zoning, while the Silvertip case refers to citizen-initiated, or Part 1 zoning. The amicus brief asks the court to extend Williams to Part 1 zoning.
You can read a discussion on this, and watch video of the meeting where Commissioner Prinkki ruled, “Regarding this petition and the vote we’re about to take, the petition fails. As you know, under Section 5, because of the protest, we couldn’t move forward with this if we wanted to. It fails for that fact alone.”
- After a discussion of the history and law regarding different types of zoning in Montana, the brief “asks the Court to find that Part 1 zoning is suitable and important for protecting the agriculture areas of our state.”
From the brief:
“The clinic urges the Court to hold that the Part 1 zoning protest provision, MCA § 76-2-101(5), is an unconstitutional delegation of legislative authority. This holding is a natural extension of the Court’s decision in Williams invalidating the Part 2 zoning protest provision, MCA § 76-2-205(6). Both provisions, passed by the 1995 Montana Legislature, suffer from identical infirmities. Specifically, neither provides standards or guidelines for the application of the delegated power, nor a legislative bypass to return the original zoning resolution back to the governing body. Further, consistent with the decades-old practice of Montana counties, and the overall statutory scheme of Montana zoning, we ask the Court to find that Part 1 zoning is suitable and important for protecting the agricultural areas of our state.”
The filing of the brief pushes back the timeline of the case. The defendants’ deadline for filing their response briefs has been pushed back 30 days to January 19. The Silvertip landowners will then have until February 4 to file a response.
We’ll post additional documents as they become available
Carbon County landowners file Supreme Court brief
Montana Supreme Court agrees to hear Silvertip zoning case
Silvertip landowners appeal to Montana Supreme Court
Decision in Silvertip zoning case (video)
Belfry landowners file legal challenge to commissioners’ rejection of Silvertip Zone
Commissioners’ action in denying Silvertip Zone clearly illegal