By Michael Howell
District Court Judge James Haynes has awarded attorney fees to Bitterrooters for Planning (BFP) in its successful lawsuit against the Ravalli County Board of Commissioners over its illegal approval of the Legacy Ranch Subdivision.
In an Opinion and Order issued on July 31, 2015, Haynes found that the Commission violated the public’s right to meaningfully participate by basing its decision on information not presented to the public; for basing its decision on an inadequate Environmental Assessment (EA); for its failure to collect and analyze with a “hard look” the primary subdivision review criteria described in state law and for its initial authorization of a greater than three year period of preliminary plat decision validity. He also found the Commission had violated the right of the public to participate by failing to provide meaningful review of water quality and traffic information.
That decision voided the commissioners’ preliminary plat approval of the largest subdivision ever proposed in Ravalli County. The developer, Sunnyside Orchards, LLC, proposed a 659-unit subdivision consisting of 504 single-lot family homes, as well as 135 residential condominium units, and 20 commercial condominium units to be built on 368 acres along the Eastside Highway north of Stevensville. The plan called for a 30-year, 15-phase build-out, with Phase 1 scheduled to complete in January 2019, almost five years after the preliminary plat’s approval date. Full build out of Legacy Ranch at Phase 15 was projected for January 31, 2049.
The developer, Sunnyside Orchards LLC, argued that it was simply a “passive observer” in the case and had not actively participated in any way. They made no discovery or deposition requests and made no motions in the case. Haynes noted that the unlawful “decision of a governing body” was the sole basis of BFP’s case, stating, “This unlawful decision was solely made by the commissioners.” He dropped any further consideration of the developer in the award of fees.
BFP argued that it should be awarded attorney fees under the Private Attorney General Doctrine (PAGD). The PAGD applies when “the government, for some reason, fails to properly enforce interests which are significant to its citizens.”
Haynes noted that when considering a request for attorneys’ fees under the PAGD, the courts consider the strength or societal importance of the public policy vindicated by the litigation; the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and the number of people standing to benefit from the decision. He found that BFP’s actions met all the criteria.
One way of determining the societal importance of a case is whether or not it vindicates constitutional rights that have been violated. The County Commissioners contended that no issues of statewide importance were involved in the Court’s Order, that the Court engaged in a mere statutory interpretation to resolve a “garden variety” dispute, and that no extraordinary or compelling circumstances were involved. They claimed that Haynes’ decision, to find the commissioners’ approval of Legacy illegal because the commissioners did not take a “hard look” at environmental impacts, relied on Montana law alone and not the constitution.
Haynes disagreed. “This Court based a significant part of its analysis directly on the Montana Constitution,” he wrote, “This court found the Commissioners’ violation of Sect. 8 Article II of Montana’s Constitution an ‘independent grounds’ for voiding the Preliminary Plat decision.” In addition, he states, the MSPA’s requirement of an environmental assessment under state law and its primary review criteria further the constitutional requirement… that the “state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
He notes that even the co-defendant and “passive observer” Sunnyside conceded “the Court conducted its analysis under Article II, §8, and found that the County violated the right of public participation under Citizens when it deferred the compilation of an adequate record upon which the public could comment until after the approval of the [preliminary plat decision].”
Haynes went even further pointing out that both parties in the case overlooked an applicable fee-shifting statute that also applies. This reads in pertinent part, “A person alleging a deprivation of rights who prevails in an action brought in district court to enforce the person’s rights under Article II, section 8, of the Montana constitution may be awarded costs and reasonable attorney fees.”
“Issues of primarily statutory interpretation,” wrote Haynes, “can qualify for fees under the private attorney general doctrine if constitutional concerns are ‘integrated into the rationale underlying the decision’.” (Bitteroot River Protection Association (BRPA) v. Bitterroot Conservation District)
The Commissioners argued that this case was in “stark contrast to BRPA v. Bitterroot Conservation District which relied heavily on the Montana Constitution as it interpreted the 310 Law and the stream access law.”
Haynes disagreed. “On this equitable consideration alone, coupled with the above statutory authority, BFP should be awarded attorney fees and costs. Further, the Court agrees with BFP that the Commissioners should pay for their own failure to prepare an adequate EA, the Commissioners’ failure to allow public comment on the yet-to-be-completed traffic study, by approving a near four decade build-out in direct violation of Montana law,” wrote Haynes.
“The inherently constitutional policy of sound governmental decision making is significant, the express constitutional policy of public participation in government is significant, and the policy of environmental protection as set forth in the Montana Subdivision and Platting Act (MSPA) is significant. Thus, when private citizens step forward as members of a non-profit organization to ensure that existing laws are enforced, this effort plays a significant and critical role in vindicating public benefit rights. It is pointless for the Commissioners to gainsay the significant purposes of the MSPA,” wrote Haynes.
As to the Commissioners’ claim that there is no precedent setting value to the case, Haynes again disagreed. He said he had no doubt that if the Court had approved the Commissioners’ “phasing” concept, that concept would have been used as precedential justification for implementation of phasing in future subdivision review applications. Instead, he said, “this Court’s Order sets forth a clear precedential guidance for the proper use of phasing – under the current requirements set forth in §76-3-610, MCA, (2011) -which guidance has statewide utility.”
“Ultimately, the Court concludes it was and is of great social importance to require the Commissioners to correctly interpret and apply Montana’s Subdivision and Platting Act… It is at least equally as important that the Commissioners ensure and protect the constitutional right of Montana citizens to full public participation in the machinations of government agencies, including by assembling the requisite information to take a hard look at the environmental, health, safety, and traffic congestion impacts of Legacy’s subdivision application,” the order states.
Haynes criticizes the Commissioners for using partial statements made by BFP inappropriately to claim the case only affects Ravalli County citizens. What they left out of BFP’s statement was that this court order was “going to change not only how Ravalli County, but counties statewide use subdivision approvals.”
The Court also found the private action necessary.
“The volume of the record in this case attests to BFP’s years long commitment to the public process in an effort to have their concerns addressed. BFP is a small, local non-profit member organization. Its members had no private property interest at stake. BFP brought this suit to vindicate public participation rights and public policy interests applicable to all of Montana’s citizens. No other entity, public or private, showed a willingness to hold the Commissioners accountable under the law,” wrote Haynes.
“The burden of this enforcement action fell squarely and solely on the shoulders of BFP. The case record encompasses thousands of pages over a 10-year period. BFP engaged material expert witnesses. BFP successfully addressed complex issues that required extensive research and analysis, from the tenants of Montana’s constitution to an underlying federal court settlement; e.g., the ‘Lords Settlement Agreement’.”
As to the number of people benefiting, Haynes stated, “the Court’s view is that BFP’s efforts in the case vindicated important constitutional and MSPA policy interests which are of direct and immediate benefit to the citizens of Ravalli County, as well as of long term benefit to the citizens across Montana. Even the Commissioners conceded that ‘subdivision related litigation is unfortunately common and is frequently brought by interested citizen groups.’ This concession highlights the need for statewide vigilance in order to protect important public interests. BFP successfully and ably undertook the vindication of these substantial interests.”
The Court agreed completely with BFP’s argument that, “Financial compensation in the form of attorney’s fees lowers the cost barrier to bringing suit thereby encouraging citizens to participate. This results in a robust culture of public interest environmental litigation in which citizens, such as BFP here, actively bring meritorious claims to enforce public benefit laws without fear of financial burden. The Montana Supreme Court adopted the PAGD for precisely these reasons. Forcing a non-profit organization to incur substantial litigation costs when the government fails to enforce public benefit laws creates a ‘substantial injustice’ that the PAGD remedies by fee-shifting.”
As to whether the award of fees was “equitable,” Haynes quotes Helena District Court Judge Jeffrey Sherlock in a recent ruling stating that, “a government agency cannot be expected to bring suit against itself. In such situations private citizens must ‘guard the guardians’.”
“Here,” wrote Haynes, “BFP had to ‘guard the guardians.’ The MSPA is first and foremost a statute to benefit the public welfare. Without BFP’s legal action, the MSPA’s public purposes – and the constitutional concerns integrated into those public purposes – would have been cast aside.”
“Moreover, the unrelenting efforts of BFP to participate in the public process to try to convince the Commissioners that the Legacy Ranch 30 year ‘phasing’ build-out proposal constituted illegal public policy was thoroughly meritorious. The record of public participation and comments is uncontroverted. Yet the County Commissioners repeatedly ignored or brushed aside these earnest efforts to make the Commissioners reconsider… an award here is just when the Court balances the public’s virtuous efforts with the Commissioners’ recalcitrance.”
The Court ruled in favor of awarding reasonable attorney fees and costs to BFP against the County Commissioners alone pursuant to the private attorney general doctrine. Haynes gave BFP 10 days to supplement its statement of reasonable fees and allowable costs and gave the Commissioners 14 days thereafter to file any objections.
“Citizen voices matter,” said BFP Executive Director Jim Rokosch, “and in this case, the commissioners dogged adherence to their misguided view of private property rights continues to rack up costs to taxpayers… Citizens empower government officials to guard the public’s interests and the public trust. When those officials abuse that trust, they need to be taken to task. As Thomas Jefferson told us many years ago, ‘The price of liberty is eternal vigilance’.”