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Dwayne B.
Dwayne B., Attorney
Category: Legal
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Experience:  Began practicing law in 1992
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This case involves a County Board of Commissioners who failed

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This case involves a County Board of Commissioners who failed to take any action or correct an evasion of 7 family transfer exemption from the County Subdivision Regulations. A number of citizens brought the matter to the County Planning department, an assistant county attorney and the planning department. The family transfers were made in 2004 and after all these complaints the commissioners held a meeting in 2007, admitted the evasion of the subdivision regulations, said it was wrong and the deputy county attorney said it was to late to do anything because of the statute of limitations. However complainants told the board that they had filed numerous complaints since 2004, in plenty of time to avoid such statute of limitations, and no action was taken. Since then the individual who filed for and received approval from the planning department for the Family Transfers, was appointed to the position of director of planning. The deputy county attorney was let go and there is a new county attorney elected. There was a promise by the deputy county attorney (in the meeting minutes) that he would look into the statute of limitation situation and report back, however that never occurred. What recourse do these citizens have?
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Can you explain, factually, what you mean by "an evasion of 7 family transfer exemption from the County Subdivision Regulations"? Exactly what happened?

Also, who are the citizens looking to act against, the county or someone else? If not the county, who?

I will be offline for a while but will pick up when I return.
Customer: replied 4 years ago.

The subdivision regulations have an exemption clause that identifies the procedure for requesting a family transfer and what constitutes and is required by the exemption if granted. It requires a holding period of a minimum of three years before any sale of the exempted property (Exempt from Subdivision review) can take place. This individual sold the first lot the month after approval. The AG of the state said that is a presumptive violation of any subdivision regulations and should be denied. However it wasn't denied but approved. The family transfer exemptions in this case were, his wife, his father, his children and one other family member. The commissioners and Planning board did nothing but approve the exemptions. The deputy county attorney seemed disinterested in doing anything. The citizens are looking for some sort of justice here against the County, etal. This kind of thing happens fairly often and people here are fed up with it. The complainants are not crackpots but for the most part good decent individuals who want to stop their local government from politically abusing the laws they are supposed to follow.

When did the citizens find out about the illegal transfer?
Customer: replied 4 years ago.

At the time it occurred in 2004. They immediately wrote a complaint to the County attorney, the Planning Department and even the Governor. They continued to write letter and were finally granted a meeting in 2007. The result of that meeting was an agreement prepared by an attorney for the transfer guy, between the Family transfer guy and citizens in that particular subdivision. It called for mitigation of ALL damages and all other recourse actions. However this act affects all of the citizens of this county, not just those in this particular subdivision. Those citizen's signed the agreement in disgust, because they were told that's all they were going to get.

And is there a reason they have waited this long to try and file a lawsuit?
Customer: replied 4 years ago.

There is no lawsuit pending. They just don't know what to do to right this illegal situation.

It looks like anything they could do would be barred by the statute of limitations, which is the reason I am asking all of the questions. I'm trying to find a "loophole" that would allow a lawsuit so it may take a number of back and forths before I can tell whether there is one or not.

How are the citizens harmed by this illegal action?
Customer: replied 4 years ago.

Well the entire citizenry of the county are affected because the law has been broken, taxes are affected as all the additional costs related to public services will increase (Sub dividers pay for these normally) and the long term implications of the lots excluded from review are going to cost the taxpayers in dollars and life style because of the non-conformity of the exempted lots. Does a statute of limitations apply even if public officials are notified of the complaints? Is their inaction justification to allow the limitation statutes to carry on in time frame?

The statute of limitations applies to any lawsuits that would be brought. The only way to override the county decision is to file a lawsuit and ask the court to override it.

The ONLY statute of limitations in MT that is long enough to maybe apply is the one for breach of contract which is 8 years. Every other statute of limitations is 2 years.

However, breach of contract wouldn't apply against the county.

If fraud was somehow involved, which I think it probably could be argued that it was, then the statute of limitations would be extended until two years after the fraud was discovered. Unfortunately, if they were complaining to the county in 2004 then the statute of limitations would be from then and would have long ago expired.

The only thing that I can think of that MIGHT work would be to claim that the action of the county in approving the exemption was illegal and therefore void. Using this theory then an argument could be made that the statute of limitations wouldn't start until whatever harm occurred as a result of the county's action actually took place. From that time any citizen who wanted to sue would have to do so within two years.

Customer: replied 4 years ago.

Ok, then one last thing, over the years from July 2004 until the present, the citizens have filed complaints, numerous letters to political representatives but even though they agree an injustice has been done they will do nothing. The mitigation contract I discussed earlier........they have used that to avoid any other action. Can they use a Mitigation Contract (the subdivision regulations say nothing about mitigating such a violation of the subdivision laws) to get around this illegal act? Could we press criminal charges against the commissioners? Or.............Thanks for all of your comments.

They can't press criminal charges for a failure to act and, in addition, the statutes of limitations would have expired on those as well. They might be able to file a complaint with the Attorney General seeking an impeachment or a removal from office for their failure to do the duties of their job.

They may want to talk to a local attorney who does Civil Litigation and let him look over the mitigation contract to see if a case can be made based on that document. As I said, breach of contract cases have a longer statute of limitations than any others in MT.
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