01/26/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0328

DA 20-0328

JAMES HARTSHORNE and ANGELO QUEIROLO, FILE) Plaintiffs, Appellees, and Cross-Appellants, JAN 2 6 2021 v. Bowen Greenwooc Clerk of Supreme Court State of Montana CITY OF WHITEFISH, WHITEFISH CITY COUNCIL, ORDER Defendants and Cross-Appellees, and 102.5, a series member of 10-3, LLC, a Montana Limited Liability Cornpany, Defendant, Appellant, and Cross-Appellee.

Plaintiffs James Hartshorne and Angelo Queirolo (collectively Hartshorne)filed this action before the Eleventh Judicial District Court, Flathead County, to challenge a City of Whitefish zoning ordinance that allowed Defendant and Appellant IO2.5 to develop a 2.5-acre parcel of property through a conditional use permit. The District Court granted summary judgment to the City on seven of eight counts stated in the Complaint. It granted summaryjudgment in part to Hartshorne on the claim that the zoning ordinance violated the Montana Zoning Act's(§ 76-2-302(2), MCA)uniformity requirement "to the extent that the Ordinance permits conditional uses (e.g., clubs, restaurants, retail sales and service) which are not permitted by WR-4 zoning." Because it concluded that the offending uses were not necessary to the integrity of the ordinance and did not appear to have been the sole inducement to its enactment, the District Court allowed the ordinance to stand, "albeit without the uses that do not comport with a WR-4 zone." In the same order,the court denied as moot the cross-claim ofdefendant 102.5. The District Court subsequently denied 102.5's motion to alter or amend its ruling, and 102.5 appealed. Hartshorne cross-appealed the same summaryjudgment order as to claims on which they did not prevail. The City did not file a notice of appeal but has submitted a response brief on Hartshorne's cross-appeal.

Hartshorne now move to strike the brieffiled by the City, arguing thatthe City's brief requests reversal ofthe District Court's ruling on the uniformity issue,relieffrom which the City is foreclosed by not having filed a cross-appeal. The City opposes the ,motion, contending that its brief does no more than respond to Hartshorne's arguments and state its position on a matter already subject to a timely notice ofappeal. 102.5 agrees with the City and suggests that, at most, the Court could strike one sentence from the City's brief that urges reversal of the District Court's determination that the ordinance violated § 76-2-302(2), MCA.

In a separate motion, Appellant 102.5 moves to strike from Hartshorne's reply briefa purported city zoning map found on page 2 of Hartshorne's Reply Brief or for an order returning the briefto Hartshorne and requiring the page to be amended to state that the map shown is from staff reports published prior to the rezoning of the property. Hartshorne objects, asserting that the map is part ofthe district couit record,just presented in a different form, and that the map is included for the purpose of:showing that 102.5 and the City are attempting to present new arguments or change their legal theories on appeal.

This case has been fully briefed and soon will be submitted for decision. The Court finds it inefficient to probe the merits of Hartshorne's,motion to strike without having had the opportunity to review the briefs and record in this appeal. The Court declines at this juncture to strike the brief but will take the parties' arguments on the motions to strike into account in the course of reviewing the issues raised on appeal and preparing its decision.

IT IS THEREFORE ORDERED that the Motion to strike the brief of the City of Whitefish and Whitefish City Council is DENIED.

IT IS FURTHER ORDERED that Appellant 192.5's motion to strike the purported zoning map appended to Hartshorne's Reply Briefis DENIED. The Court will review the record in the course of deciding the appeal and will give the map whatever appropriate consideration, if any, it is due.

The Clerk is directed to provide copies of this Order to all counsel of record.

47N-• Dated this Z4, day of January, 2021.

Chief Justice

Justices