Hearing canceled in lawsuit against Cascade County over zoning board appointments
A hearing had been scheduled for April 2 in the lawsuit against Cascade County over zoning board appointments, but has since been vacated.
Mark Higgins, a lawyer representing the county, responded with a document on behalf of the county and the County Commissioners. Higgins wrote that the court should be aware of “critical facts.”
So far, no summons have been issued nor have the defendants been properly served, Higgins wrote.
“It is also for that reason that the defendants submit that the plaintiff cannot validly seek an injunction absent having served the defendants,” Higgins wrote.
Ryan Villines, an applicant for the Cascade County Zoning Board of Adjustment, filed the suit against the county last month in hopes of stopping the county from making an appointment to the board.
Higgins wrote that under state law, an “injunction cannot be granted…to prevent a legislative act by a municipal corporation. Since the act of appointing a member to a county board is plainly a legislative act, any attempt to enjoin such act is expressly prohibited by law and hence, futile.”
In her order vacating the hearing, Judge Olivia Rieger wrote that Villines did not meet the requirements of Montana Uniform District Court Rules to file a written certification with the court declaring that the opposing party has been contacted and given reasonable notice of: time and place of the conference or meeting; the substance of the order sought; whether the opposing party opposes the motion.
“The plaintiff in this matter did not complete any of these requirements,” Rieger wrote and noted that the court sent notice of the hearing.
Rieger also wrote that based on Villines’ complaint filed with the court, it’s unclear if he’s seeking to have the court appoint members to the planning board.
In her order, Rieger wrote that Villines “has not properly pled in the complaint his request for a temporary injunction; the complaint not having been duly verified nor the material allegations made positively as a requirement under Montana Law. Also, the plaintiff has failed to state how the granting of an injunction would prevent threatened, wrong, further injury and irreparable harm.”
Rieger confirms in her order that an injunction cannot be granted in this case.
“Cascade County undoubtedly has the authority to make appointments to its planning and zoning commission,” under state law, Rieger wrote. “The plaintiff’s contention that the restriction on the appointment or the circumstances surrounding the process is not proper for issuance of an injunction.”
The court will set a hearing once the county and commissioners have been properly served, according to Rieger’s order.