08/25/2026
DA 25-0324
Case Number: DA 25-0324
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 203
WEST DEVELOPMENT, LLC,
Plaintiff, Appellant, and
Cross-Appellee,
v.
TOWN OF WEST YELLOWSTONE,
MONTANA,
Defendant, Appellee, and
Cross-Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-20-1189A
Honorable Peter B. Ohman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kelsey Bunkers, Matthew Hibbs, Crowley Fleck PLLP, Bozeman,
Montana
For Appellee:
Bridget W. leFeber, Berg Lilly, PC, Bozeman, Montana
Submitted on Briefs: February 25, 2026
Decided: August 25, 2026
Filed:
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 West Development, LLC (West Development) appeals the order entered by the
Eighteenth Judicial District Court, Gallatin County, granting summary judgment to the
Town of West Yellowstone (Town) on West Development’s claims of breach of contract,
negligence, and declaratory relief. We first consider the Town’s cross-appeal:
1. Whether the District Court erred by holding West Development’s claims were
not time-barred under §§ 27-2-209 and 2-3-114(1), MCA.
On appeal, we consider:
2. Whether the District Court erred by granting summary judgment to the Town on
the merits of West Development’s claims.
We affirm all issues.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mitchell Simon (Simon), a developer, formed West Development in 2006 to invest,
renovate, and develop properties. In 2006, West Development purchased real property
located in the Town, Gallatin County, Montana, known as Tract 4C of the Madison
Addition, or simply “Tract 4C.”
¶3 West Development applied to the Town for a building permit (Permit) to construct
four condominium buildings, each housing 12 units, or 48 total units on Tract 4C. The
condominium development was to be called Yellowstone Trails Condominiums (YTC).
The Town issued the Permit to West Development for the project on January 2, 2007, the
fee schedule for which consisted of $22,934 for the Permit, $18,375 for sewer, $2,388 for
water meter, $1,225 for water, and $700 for driveway bonds. In a section titled
“Agreement,” the Permit contained the following language:
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This permit becomes null and void if work or construction authorized is not
commenced within 180 days, or if work is suspended or abandoned for a
period of 180 days at any time after work is commenced.
The undersigned agrees that the proposed work shall be in accordance with
the plans and specifications submitted and in accordance with the provisions
of the Town of West Yellowstone Zoning pertaining to building construction.
¶4 In August 2007, Town Engineer, Winston Dyer, sent a letter to YTC’s engineer
regarding the Town’s provision of services to the property (Will Serve Letter or Letter).
The Letter stated, “I am authorized to certify that the Town of West Yellowstone has the
capacity and will provide requested service to the Yellowstone Trails Condominiums for
water, sewer, and storm drainage,” and clarified that no construction may begin until YTC
also had obtained appropriate permits for building and underground construction from the
Town. The Will Serve Letter did not provide an expiration date or deadline by which
connection to the Town’s system had to be accomplished. West Development also
petitioned and received a Certificate of Subdivision Plat Approval from the Montana
Department of Environmental Quality (DEQ), a later extension of which would continue
the Certificate through 2012.
¶5 West Development began work on Tract 4C in 2007, constructing foundation
footings and walls for two of the buildings and a ramp for a subterranean parking area.
West Development obtained extensions of the Permit from Bill Fogarty (Fogarty), the
Town’s Public Works Superintendent, when weather and other delays were expected to
suspend work for more than 180 days. During times of active construction, Fogarty
inspected the property regularly to ensure ongoing progress. Fogarty’s employment with
the Town terminated in 2011, and the process for permitting commercial building projects
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in the Town was transferred to the State in September 2011, whereafter applicants for
commercial permits were required to apply to the State.
¶6 Due to the economy and project priorities, West Development ceased construction
activity on the project in 2011. The Permit expired because of 180 days of inactivity with
no request for extension. At that point, for construction to continue on Tract 4C, West
Development needed to reapply to the State for a new permit. In 2011, Simon met with
Mr. Green, then-Town manager, and Mr. Arnado, an employee of the Town. Mr. Arnado
was becoming certified to handle commercial building permits, and when that occurred,
West Development could renew its Permit through the Town and resume work. Simon
preferred to have the Permit reissued by the Town, rather than applying with the State. In
his deposition, Simon stated that he inquired about the status of Arnado’s qualifications
“maybe a couple times a year, couple three times a year, whenever I was down there and
saw him,” through 2016 but, apparently, this certification never occurred. West
Development did not apply to the State for a permit. Thus, the Permit remained expired
since 2011 and construction never resumed. Likewise, DEQ’s approval of the Subdivision
Plat expired in 2012, which would have required a re-application.
¶7 In May 2019, about eight years after construction work ceased, the Town Council
considered and adopted Resolution No. 727 (Resolution). Citing the “dire” need for repair
and upgrades to the wastewater treatment facility, including the necessity of increasing
capacity for the Town’s future needs that may require replacement of the wastewater
system, the Resolution approved what was called a “Moratorium.” The measure limited
new connections to the system. The Resolution stated:
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The Town Council . . . believes that it is necessary and proper for the Town
to limit the number of new uses or connections to the waste water treatment
system. Complete applications will be evaluated in the order they are
received. Applications must meet all criteria required for a zoning permit
and be evaluated by the Town Engineer according to the current available
capacity in the system. The Town shall have the authority to deny
applications once full capacity in the system has been reached.
(Emphasis added.) New applications advised commercial applicants they were required to
secure other agency approvals, including from DEQ, State Building, and the fire
department, to obtain review of their application, which started with a system capacity
assessment by the Town Engineer, followed by four stages of review that ended with
consideration by the Town Council.
¶8 Before enactment of the Moratorium, then-Town Manager Dan Sabolsky advised
Simon that the Town was adopting a new site approval and permitting process and sent
him documents that would be used in the new application process. West Development was
not directed to file a new application, but took no action in response to these
communications or to the Moratorium, and initiated no further action on Tract 4C,
including obtaining a new building permit from the State.
¶9 However, in April 2020, West Development entered into an agreement (Buy-Sell
Agreement) with Copa Counselling, LLC (Copa) for the sale of Tract 4C. The Buy-Sell
Agreement stated that Copa would pay West Development $1.6 million for Tract 4C,
contingent on West Development “providing evidence that water and sewer fees have been
paid for 48 units and the Town [] will allow [Copa] to hook up to water and sewer upon
completion of construction.” To secure this evidence, Jaymie Bowditch, attorney for West
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Development, mailed a letter and followed with an email to Town Manager Sabolsky,
about the validity of the 2007 Will Serve Letter, stating that he was
requesting that you confirm in writing, that the rights the Town provided to
[West Development] allowing 48 units to connect the Town’s water and
sewer systems remains valid and vested in [West Development] and that such
rights will be honored upon [West Development’s] transfer of Lot 4C and
that the buyer of Lot 4C, will be allowed to connect 48 units to the Town’s
water and sewer systems upon the completion of the buyer’s project.
Jane Mersen, attorney for the Town, responded to Bowditch’s email, stating:
[T]he Town will agree that Lot 4C paid to hook up 48 units. The “will serve”
letter is 14 years old and clearly no longer effective given the growth in West
and the problems with the current Wastewater system. Further, the hook-up
fees have increased substantially since 2007. However, the Town will allow
Lot 4C to hook up to 48 units when the Town’s wastewater system has
capacity. We expect that date to be 2023. We hope it is sooner but we cannot
guarantee it.
Please note that once Lot 4C is given the authority to hook up, that authority
will only be good for one year, unless an extension is requested by the Lot
owner and granted by the Town before the end of the one year time period.
The Town will no longer allows permits or will serve letters to linger
indefinitely.
¶10 Because the Town would not presently guarantee 48 sewer hookups for Tract 4C,
Copa terminated the Buy-Sell Agreement on June 30, 2020. West Development filed the
complaint against the Town in October 2020, alleging: breach of contract to connect the
project to Town services; negligent breach of duty in the management of its wastewater
system by failing to maintain a sufficient number of connections to accommodate West
Development’s Will Serve Letter; and entitlement to a declaratory judgment that the Will
Serve Letter was an enforceable promise to which the Town impermissibly applied the law
retroactively and the taking of a vested right. Denying all of the claims, the Town framed
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the claims as challenging the validity of the Moratorium and thus were untimely filed either
under the 30-day period in § 2-3-114(1), MCA, governing public participation, or the
six-month period in § 27-2-209(5), MCA, governing actions against a municipality
concerning a land use or development project, and that the claims were barred by laches,
given that West Development had waited nine years after construction ceased before
bringing the suit.
¶11 After discovery, both parties moved for summary judgment. The District Court first
concluded that the claims were not time-barred, reasoning that West Development was “not
challenging the Town’s issuance of the Resolution itself,” and therefore the statutory
periods of limitation raised by the Town were inapplicable. It further concluded the
doctrine of laches did not apply because West Development’s claims did not accrue until
2020, when the Town first indicated its refusal to provide current wastewater connections
pending completion of system improvements, and that West Development had proceeded
to file suit by October 2020.1 However, the District Court granted summary judgment in
favor of the Town on the merits of the claims. The court “conclude[d] that the language of
the Will Serve Letter was insufficient to create a valid and enforceable contract” or an
enforceable promise, noting that the Town has not refused to provide services, but merely
delayed the connections until facility upgrades are completed. For that same reason, the
court concluded that no vested had right been taken. Regarding the negligence claim, the
District Court reasoned that the Will Serve Letter provided no express assurance and it was
1
The District Court’s laches ruling is not challenged on appeal by the Town.
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not reasonable to expect the Will Serve Letter “would be available in perpetuity,” such that
the Town had breached a duty, and that, in any event, the Town did not owe a duty to West
Development under the special relationship exception to the public duty doctrine.
¶12 West Development appeals the denial of its claims, and the Town cross-appeals the
denial of its defense that the claims were statutorily time-barred.
STANDARD OF REVIEW
¶13 “We review a district court’s ruling on motions for summary judgment de novo,
using the same M. R. Civ. P. 56 (Rule 56) criteria used by the district court.” Chapman v.
Maxwell, 2014 MT 35, ¶ 7, 374 Mont. 12, 322 P.3d 1029 (citation omitted).
¶14 “Both the existence of a contract and its interpretation are questions of law which
we review for correctness.” Hurly v. Lake Cabin Dev., LLC, 2012 MT 77, ¶ 14, 364 Mont.
425, 276 P.3d 854 (citation omitted). “Our standard of review pertaining to a declaratory
judgment is to determine if the court’s interpretation of law is correct.” Roe v. City of
Missoula, 2009 MT 417, ¶ 15, 354 Mont. 1, 221 P.3d 1200 (citation omitted).
DISCUSSION
¶15 1. Whether the District Court erred by holding West Development’s claims were
not time-barred under §§ 27-2-209 and 2-3-114(1), MCA.
¶16 We first take up the Town’s cross-appeal, presenting the threshold issue of whether
West Development’s claims are time-barred. The Town argues the claims are untimely
under § 2-3-114(1), MCA, and § 27-2-209(5), MCA, “[b]ecause West Development’s
claims distill down to a challenge of the Resolution imposing the Moratorium.” The Town
contends that “at the core of each of West Development’s claims is the contention that the
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Town should have specifically ‘reserved’ the ‘48’ water and sewer connections for it as
part of the Resolution/Moratorium and not made West Development subject to the
Moratorium,” and that, “if the Town had not passed the Resolution/Moratorium there
would be no reason the Town would need to ‘reserve 48 connections’ from the ‘remaining
sewer capacity.’” West Development answers that its Complaint did not ask for the
Resolution or Moratorium to be set aside, particularly on the ground “it was denied notice
or participation in a public meeting or other agency operation,” under the public
participation statutes. See § 2-3-114(1), MCA (a person “whose rights have been
prejudiced[]” by an agency’s decision made without opportunity for public participation
has 30 days after learning of the decision to file an action in the district court). West
Development further argues it “had no reason to challenge Resolution 727” in this action,
because the Resolution did not mandate that West Development “re-apply for the sewer
connections it had already purchased” for the project, and that its contention was that “the
Town was required to reserve sewer capacity for the [YTC] in 2007, years before the
passage of Resolution 727.” (Emphasis in original.)
¶17 We agree with West Development’s arguments. Its Complaint did not challenge the
Resolution on the ground that West Development’s right to participate in the public process
was violated, such that § 2-3-114(1), MCA, would be applicable. Nor did West
Development otherwise challenge the legality of the Resolution or the Moratorium and
seek a declaration of invalidity. To the extent West Development’s arguments could
implicate the Resolution, such as by explaining the Town’s new approach to service
connections, it is clear the claims went beyond the Resolution’s passage, asserting
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entitlement to rights West Development held since 2007, regardless of the Resolution. The
Town argues that if the Resolution had not been passed, there would be no reason to
“reserve” 48 hookups, but in that event West Development would still be claiming
entitlement to 48 hookups that the Town contended it lacked capacity to presently provide.
We conclude the District Court correctly held West Development’s claims were timely
filed.
¶18 2. Whether the District Court erred by granting summary judgment to the Town on
the merits of West Development’s claims.
¶19 At the factual center of this dispute, and of each of West Development’s claims, is
the undisputed fact of the extraordinary amount of time that passed after the Town issued
the Will Serve Letter to West Development in August 2007, until this dispute arose in 2020.
West Development’s policy arguments, that “developers must be able to rely on and
enforce the promises made by municipalities in will-serve letters when investing time and
resources in development projects,” and that “[w]ill-serve letters cannot relate only to a
municipality’s current ability to provide sewer services if they are to serve their intended
purpose; will-serve letters must relate to a municipality’s future ability to provide sewer
services with the recipients of the letters finish their projects and are ready to connect to
the sewer system, which a municipality ensures by reserving capacity . . . ” (emphasis in
original), are well-founded in theory, but they fail to capture the record here, and to address
the consequence of a developer who receives a will-serve letter, starts a project, but then
ceases all work and permitting efforts on the project for many years. Based on the Will
Serve Letter, West Development started construction in 2007, then ceased work in 2011,
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and has done nothing on the property since. The import of West Development’s argument
is that it was entitled to sit on the Will Serve Letter indefinitely, if not infinitely. The
District Court described West Development’s view of the Letter as a “guarantee of eternal
availability” and “available in perpetuity.”
¶20 The parties argue about whether the Will Serve Letter was sufficient to constitute a
contract, but even assuming arguendo that it did, a contract that does not provide a time of
performance is allotted a reasonable time. See § 28-3-601, MCA (“If no time is specified
for the performance of an act required to be performed, a reasonable time is allowed,”
unless the act is one that must be performed immediately.). We have held that “[a]
reasonable time usually allows as much time as necessary, under the circumstances, to do
conveniently what the contract requires.” Summer Night Oil Co., LLC v. Munoz, 2011 MT
202, ¶ 26, 361 Mont. 424, 259 P.3d 778 (citing Dambrowski v. Champion Int’l. Corp.,
2003 MT 233, ¶ 13, 317 Mont. 218, 76 P.3d 1080). Whether a time is reasonable, “hinges
upon the underlying factual circumstances, which, in turn vary from case to case.”
Dambrowski, ¶ 14.
¶21 We conclude that the 13 years which elapsed from issuance of the Will Serve Letter
until the attempted sale of the property to Copa, encompassing the 9 years that passed after
West Development ceased construction and allowed its related building permits to expire,
exceeded “a reasonable time” in which to perform its obligations. Summer Night Oil Co.,
¶ 26. The Will Serve Letter required the owner to obtain appropriate permits for the project,
but here, those project conditions expired and were not being met, as West Development
allowed the building permits to expire in 2011, and have been expired ever since. Under
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these circumstances, it would be unreasonable to require the Town to guarantee on-demand
service for a project’s 48 hookups after the years of inactivity and the continuous lack of
permitting for the project.2
¶22 The District Court reasoned that failure of the breach of contract claim also
undermined the claim that the Letter was an “enforceable promise” for which West
Development had obtained vested rights, but that, in any event, West Development’s
argument that “the Town’s refusal to provide services is an impermissible retroactive
application of the law and taking of a vested right” was not supported by the record because
“the Town has not refused to provide the services at issue.”
¶23 While the District Court was technically correct that the Town did not permanently
refuse to provide the service connections, the Town did refuse in 2020 to guarantee a
current connection as stated by the 2013 Will Serve Letter. Mersen acknowledged that
West Development had paid to hook up 48 units and advised that “the Town will allow Lot
4C to hook up 48 units when the Town’s wastewater system has capacity,” which the Town
expected to be sooner rather than later, and thus was noncommittal about the timing.
Nonetheless, as explained above, by 2020 any project-specific commitment by the Town
had expired as exceeding a reasonable time.
¶24 Regarding its negligence claim, West Development argues the District Court erred
by failing to apply the “specific duty” exception to the public duty doctrine because of the
2
Counsel Mersen’s June 2020 letter advised that, going forward, the Town’s will-serve letters would be valid for one year, subject to extensions, and that they would not be allowed “to linger indefinitely.”
12
“special relationship” that existed between the parties, as there had been express assurances
made by local officials upon which West Development justifiably relied. Kent v. City of
Columbia Falls, 2015 MT 139, ¶ 24, 379 Mont. 190, 350 P.3d 9. We recently explained
that the public duty doctrine “serves the important interest of preventing the court’s
interference with the exercise and administration of governmental processes that benefit
the community as a whole.” Sara Da’ v. City of Bozeman, 2026 MT 164, ¶ 15, ___ Mont.
___, ___ P.3d ___ (citing Kent, ¶ 23). The public duty doctrine “is properly applied to
cases in which the governmental defendant owed no duty to the individual plaintiff because
the duty is owed to the public generally.” Sara Da’, ¶ 15 (citation omitted).
¶25 When the public duty doctrine applies, “the government defendant owes no duty to
a claimant unless a ‘special duty’ arises under one of four circumstances . . . ,” including
that the government’s actions “have induced a detrimental reliance by a member of the
public.” Sara Da’, ¶ 16. The District Court summarized West Development’s position on
this issue as follows:
West Development asserts it was reasonably induced to rely on the Will
Serve Letter issued by the Town which then created a special duty on the part
of the Town to maintain its sewer system, track the capacity remaining in the
system and properly allocate the remaining sewer capacity, apparently for as
long as Tract C potentially could be developed as planned . . . without regard
to whether West Development was actively working on the construction, had
the necessary permits for the project in place, or the amount of time which
elapsed between issuance of the Letter and West Development’s inquiry into
whether the 48 connections would be available.
¶26 West Development’s claimed economic injury arises from the Town’s alleged
failure to reserve and allocate municipal wastewater capacity among development projects,
which involve the administration and allocation of public infrastructure for the community
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generally. Even so, the question returns to how long the duty would remain. Notably, the
Will Serve Letter stated in 2007 that the Town “has the capacity and will provide requested
service” to the project but, as reasoned by the District Court, the Letter “contained no
express assurances regarding the length of its validity” or that “connections would be
available in perpetuity,” or, in this case, after passage of 13 years, during which the project
went completely dormant, with West Development discontinuing construction efforts after
2011 and allowing its permits to expire.
¶27 We concur with the District Court’s summary judgment in favor of the Town on the
merits of West Development’s claims.
¶28 Affirmed.
/S/ JIM RICE
We Concur:
/S/ LAURIE McKINNON
/S/ KATHERINE M. BIDEGARAY
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
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