All Four Missoula County Judges Pass On Zoning Suit

In a rare move, all four judges in the Fourth District Court of Missoula have declined to hear the lawsuit that three Missoula City Council members filed against the city last month.

The case was brought by city council members Dick Haines, Renee Mitchell and Lyn Hellegaard, who have asked the court to order the city to stop its zoning ordinance update, arguing that the city is not following local and state procedural guidelines. The matter can now be offered to a district judge from a neighboring district — or even to a retired judge — who can either accept or decline the invitation to hear it. Eventually, a home for it will be found, officials said.

City Attorney Jim Nugent said he has only seen about six civil suits or political cases in his 30-year career where local judges have recused themselves. Typically, it’s done because the case involves a contested community issue that judges don’t feel comfortable deciding, he said.

Zane Sullivan, the senior member of Sullivan, Tabaracci and Rhoades in Missoula, agreed that a judge would probably take this move to avoid the appearance of any conflict. “It’s possible that some of the judges live in areas that will be affected by the outcome of the case,” he said.

Other observers said judges — even when they’re perfectly capable of rendering a fair decision — want to make sure they maintain credibility in their communities.

The suit was filed July 9 by Haines, Mitchell and Hellegaard, each of whom submitted affidavits claiming that the zoning update would negatively affect them as property owners, and that the city council was not following the proper procedure during the update process. Specifically, they claimed that the city did not adequately inform property owners of the effect the zoning update might have on their property. They also questioned whether the process constituted a rezoning of the city, instead of just a rewrite of the existing regulations.

Nugent submitted several detailed responses to the charges. He claimed that the city council has gone beyond what is required in terms of public notification, and he insisted that the update clarifies and simplifies the zoning document without substantially altering its contents.

Among the city’s responses was a lengthy affidavit by Roger Millar, director of the Office of Planning and Grants, which alleged numerous errors in the petitioners’ representation of the zoning update process and how it would affect their properties.