Court upholds ruling in condo lawsuits
Three Lakeside condominium projects were correctly required to go through Flathead County's subdivision review process, the Montana Supreme Court declared in a recent decision.
The November ruling upheld a January 2009 decision by District Court Judge Ted Lympus that the proposed projects fail to meet the exemption requirements to avoid subdivision review.
Jim and Beverly Etzler, Dennis and Donna Thornton and the Blomgren Family Trust sued the county after officials told the Clerk and Recorder's Office not to accept deeds for the condo developments and posted a reminder notice in order to prevent construction of the projects until they had obtained subdivision approval.
The Etzlers filed a declaration for a residential condominium project with 124 units near Lakeside in October 2006. They had previously obtained approval for a five-lot subdivision and one additional lot. No consideration was given to condominiums at that time. The property, the proposed Osprey Ridge condominium project, was located in the county's Scenic Corridor Zoning District.
The other two plaintiffs in the case, Blomgren and Thorntons, had filed separate but adjacent residential condominium projects in July and August calling for 105 units and 385 units northwest of Lakeside. Both projects lie in an unzoned area, and neither has been built. The parcels were created prior to the enactment of the Montana Subdivision and Platting Act.
Both sued and the two cases were consolidated by the court.
The district court gave a summary judgment in favor of the county, and the plaintiffs appealed.
A condo project is exempt from review if it meets two prerequisites: it must be constructed on land divided in compliance with the law and must either by contemplated at the time of the original approval or in conformance with applicable local zoning regulations where they are in effect.
Etzlers, the court ruled, fulfill the first prerequisite, having received permission to subdivide in 2005. They argue that they are exempt from additional review because the property is located in the scenic corridor. They interpret the section stating "no other land use restrictions apply in the [Scenic Corridor Zoning District] other than those relating to signs' as meaning condos are allowed.
The supreme court found that the Etzlers "misconstrue" this section which only applies to signs and cellular towers and does not address appropriate land uses or densities. The district court correctly found that the project fails to meet the criteria for an exemption from subdivision review, according to the supreme court.
The Thorntons and Blomgren argue that their properties have never been subject to the Subdivision Act because their parcels were created prior to its 1973 enactment and, therefore, have a "wholesale blanket exemption" from subdivision review and are free to construct developemtns without government interaction. The Supreme Court disagreed and said they must complete subdivision review for their condominium projects unless they fulfill the requirements for an exemption, which the court found they did not.
The Etzlers added that other condo projects have been approved that did not meet the requirements, claiming equal protection violations. The court found that they failed to demonstrated any new evidence to support the claim and were not denied property rights, as they may still pursue the projects through the subdivision review as required by law.