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Order1 2 3 4 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 '22 23 24 25 26 27 28 STEWART E. STADLER District Court Judge, Department 3 Flathead County Justice Center 920 South Main Kalispell, MT 59901 Telephone: (406) 758-5906 IN THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF FLATHEAD FLATHEAD ALLIANCE FOR SENSIBLE GROWTH INC., a Montana nonprofit public benefit corporation,- GORDON PIRRIE, TOM D. LITTLE, D.M.D., MARION GERRISH, C.M. CLARK, THOMAS P. FULLERTON, D.C., WILLIAM W. GOODMAN and JOHN D. HINCHEY, Plaintiffs, vs. CITY COUNCIL AND MAYOR OF THE CITY OF KALISPELL, MONTANA, acting as the governing body of the City of Kalispell, a governmental entity, Defendants. Cause No. DV-02-420C This matter is before the Court on Plaintiffs, Motion For Award of Attorney Fees and Costs. The Court having considered the memoranda in support and opposition and being fully advised in the premises, now enters the following: ORDER IT IS HEREBY ORDERED that the Plaintiffs, Motion For Award of Attorney Fees and Costs is DENIED. iecc - • a R A brief history or background of this action is as follows: On July 1, 2002, the Defendants, at the request of Wolford Development, Inc., approved an amendment to the Kalispell City - County Master Plan. This amendment changed a land designation from [e W/ 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 industrial, residential and agricultural to commercial and was expressly contingent upon and effective only upon the annexation of the area in question into the City of Kalispell. The area in question was never annexed by the city. During the months of July and August, 2002, a successful petition drive placed the amendment and annexation for voter referendum to be held in November of 2003. Defendant has alleged, which allegation has not been challenged by the Plaintiff, that the Defendants' ability to proceed was stayed pending the outcome of the referendum. Even though a petition drive was underway which would effectively stay the amendment and annexation, Plaintiffs caused this action to be filed on.July 31, 2002. In the present action the Plaintiffs sought multiple forms of relief from the amendment: That the Court determine the approval was void ab initio; That the Court issue alternative and peremptory writs of mandamus; For a writ of review; and, Eight other reasons why the Defendants' actions should be declared null and void. Defendants further requested reasonable attorneys fees under mandamus, under the Open Meeting Act and under a private attorney general theory. Pursuant to Section 27-26-204, MCA, the Court issued an alternative writ of mandamus without notice on August 2, 2002. Defendants were to appear and show cause by September 13, 2002. The show cause hearing was continued and changed to a status hearing on October 4, 2002, at the request of Plaintiffs on September 6, 2002. On September 26, 2002, the Attorney General of the State of Montana issued an opinion interpreting SB 97. He determined that master plans and comprehensive plans in existence prior to October 1, 2001, were no longer legally effective unless they complied with SB 97. Section 27-26-302, MCA, provides as follows: "On the return of the alternative or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action." On October 4, 2002, Defendants, pursuant to this statute, elected to show cause by filing their answer. In this answer Defendants deny that a peremptory writ of mandamus should issue and deny that there was any violation of Montana's Open Meeting Law, Section 2-3-203, MCA. Prior to a determination whether the answer filed had raised factual issues and prior to the Court setting a date for hearing or argument as required by Section 27-26-307, MCA, the issue was resolved. 2 1 Pa 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 7, 2002, Defendants approved Resolution 4743 which rescinded the prior resolution amending the master plan. The only issue now before the Court is whether Plaintiffs can recover their attorney fees and costs. Plaintiffs' have raised three separate arguments seeking recovery: 1. That recovery is allowed as damages pursuant to Section 27- 26-402, MCA, which provides as follows: If judgment is given for the applicant: (1) he may recover the damages which he has sustained, as found by the jury or as determined by the court or referees, if a reference was ordered, together with costs; (2) an execution may issue for such damages and costs; and (3) a peremptory mandate must be awarded without delay. 2. That recovery is allowed under Montana open meeting law, pursuant to Section 2-3-221, MCA, which provides as follows: A plaintiff who prevails in an action brought in district court to enforce his rights under Article II, section 9, of the Montana constitution may be awarded his costs and reasonable attorneys' fees. 3. Finally, that recovery is allowed in equity under a private attorney general theory which requires a three part inquiry, Montanans for the Responsible Use of the School Trust v. State 1999 MT 263, ¶ 67, 296 Mont. 402, 989 P.2d 800, as follows: (1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, (3) the number of people standing to benefit from the decision. The basic requirement of all three theories of recovery, judgment be given, prevails in,the action, and vindicated by the litigation, certainly does not apply to this action where those issues were contested. No hearing was held and no evidence was presented. No findings have been made in this case and none are possible. It would be an abuse of this Court's discretion to award damages to either of the parties at this stage of the proceedings. An award under Section 27-26-402, MCA, has been expanded to include the right to recover reasonable attorney fees and costs if prior to hearing, the defendant complies with the demand of the plaintiff making further action unnecessary. O'Sullivan v. District Court (1953), 127 Mont. 32, 37, 256 P.2d 1076. In the present 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action, this case and the two Kansas cases relied on in O'Sullivan are clearly distinguishable. An award of attorney fees and costs pursuant to Section 27-26-402, MCA, is discretionary. It is equally clear that the Court in O'Sullivan and the Kansas cases relied on in support of O'Sullivan, that the Court had sufficient information to be convinced that had a hearing been held, the relief requested would have been granted, a peremptory writ issued and judgement entered for the plaintiffs. The referenced Kansas case indicated that although a judgment was not entered, "the findings were in favor of the appellee". O'Sullivan at 38. The alternative writ of mandamus issued by the Court on August 2, 2002, without notice to Defendants, is little more than an ex parte order to show cause, which the Defendants could satisfy pursuant to Section 27-26-302, MCA, "by filing an answer, under oath, made in the same manner as an answer to a complaint in a civil action." Defendants filed their answer on October 4, 2002, denying that a writ of mandamus was appropriate. On October 7, 2002, Defendants, relying on a Montana Attorney General's opinion, dated September 26, 2002, not necessarily on Plaintiff's lawsuit, rescinded their prior amendment to the master plan, which is the relief requested in this action by Plaintiff. In the present action, in which Plaintiffs have requested numerous forms of relief, the Court cannot find that a writ of mandamus would have issued or that the Defendants' action in rescinding the prior resolution was as a result of the mandamus action. Both findings would be necessary prior to an award of damages. Accordingly Plaintiffs' motion for attorney fees and costs must be denied. DATED this 27th day of January, 2003. Stew rt E. Stadler District Judge S