BOLAND v CITY OF GREAT FALLS
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NO. 95-285 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 MARGUERITE BOLAND; THOMAS F. and RUTH CORBALLY; BRIAN BIRKENBUEL; HARRY and RUTH GARDNER; JEANNIE and WILLIAM JUPKA; MARY LAIRD; WINONA and HILMUTH KRUCKENBERG; MINNIE ISLER; EDWARD and SUZANNE MERLO; SUSAN BOLAND; RICHARD and DONNA OSWEILER; WILLIAM and CHARLENE KITTO; and BETTY McGAVIN, Plaintiffs and Appellants, v. CITY OF GREAT FALLS, Defendant MONTANA, and Respondent, and TOP GUN, INC., Intervener/Defendant APPEAL FROM: and Respondent. District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joe Hegel, Judge presiding. COUNSEL OF RECORD: For Appellants: Marcia Great For at Law, Respondent: David Great For Birkenbuel, Attorney Falls, Montana V. Gliko, City Falls, Montana Intervener/Defendant Attorney, and Respondent: J. Kim Schulke, Linnel, Great Falls, V~' Montana ?i!.....*' . rrr, 0 ,"il(l Submitted Newhall on Briefs: Decided: & Martin, December 21, February 2, 1995 1996 Justice Charles This E. Erdmann delivered is an appeal District Court, illegal on appeal spot is residence 7, A" from issued granting of the Court. by the Eighth defendants' Judicial motions for of a 12.9 acre We affirm. summary judgment. area from an order Cascade County, The issue the opinion whether use the rezoning 1, CT! residence to use constitutes zoning. FACTS At issue in Avenue Addition this case are to the Property was previously Sisters) who for City four of Great Several and the became vacant, diamond on the southwest years (the Sisters had operated on the Property. blocks Falls owned by the many years Property city of the St. in corner. used The Providence (the Thomas Orphanage were torn only The baseball Central Property). ago the structures being the for down a baseball facility has since been removed. The Property district for is located use by single The Property, uses. Adjacent fire station which also a church Sisters condominium purchase development. the and other has never been used for is now a warehouse, James Benson zoned as an "A" residence residences to the Property and a two-family 1992, to family however, residences. In in an area dwelling is a park, and a water unit entered into Property in Benson submitted 2 permitted single family the old east tower. There is in the adjacent an agreement order to side area. with construct an application to the a the City-County from Planning "A" residence "B" area, held district, in near the the zone change. in support of Commission the tine consider allow set a hearing of Ordinance the held proposed Property Plaintiffs motions for to of Great contract Falls. the constituted be restored and illegal to its defendants summary judgment contract while 1993, the District 3 would The people ordinance Benson, the the Commission project. of the adjoining seeking spot area a determination that zoning previous filed and requesting zoning notions Court and from this to Ten people three between Ultimately, residents action City set by the Board. and the condominium judgment spoke ordinance on June 15, 1993. of a zoning On May 4, 1995, judgment. April This zone change, On June 30, 1993, twenty-three action and also The Commission adopted the proposed to the completion a declaratory #2650. based upon the conditions was ultimately of a letter to 6, the zoning tion. and objected for approved the hearing conditions. and the City that A number of people upon twelve adoption favor the rezoning the recommended Sisters, brought allotted. to The Board spoke in opposition. subject objection the zone change be granted hearing in The Board project. the the rezoning spoke district, development. at the Property owner filed Commission the public appeared the to "C" residence One written within of One property that The City zoning the condominium 1993. Property the "A" area, February was received living to change which would allow a hearing project Board granted plaintiffs classificafor summary defendants' appeal. STANDARDOF REVIEW Under Rule the record discloses moving party Const. v. is in utilized City stipulated court (1990), legislative authority, in question bears permissible state v. 246 Mont. Anaconda-Deer as a matter 387, of of this a reasonable whether Anderson 112, 119-20, material Ins. 187 Mont. 515, fact applies initially 894. of the City's ordinance relationship v. City 524, in McCracken v. the zoning 803 P.2d 648, 652-53 (1980), 1038. 21, 24, 788 P.2d 892, and not arbitrary objective. 1037, Court exercise and the Lutey is the same as that a discretionary if law. under Rule 56, M.R.Civ.P. 242 Mont. proper fact, 851 P.2d issues that we must decide Lodge 389, no genuine The standard is of material judgment 257 Mont. Since we are reviewing (1990), issues of summary judgment by the trial of Chinook to that case. a grant summary judgment no genuine (1993), this reviewing M.R.Civ.P., entitled State The parties exist 56(c), of to a Belgrade (citing Cutone 610 P.2d 691, 696-97). DISCUSSION Does rezoning "C" residence Local zoning use constitute municipal ordinances jurisdictional of a 12.9 area. acre illegal governments restricting Section area from spot "A" residence use to zoning? in Montana are empowered to enact the 76-2-301, use of property MCA, states in that: For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town cities and council or other legislative body of incorporated towns is hereby empowered to regulate and 4 their restrict the height, number of stories, and size buildings and other structures; the percentage of that may be occupied; the size of yards, courts, other open spaces; the density of population; and location and use of buildings, structures, and land trade, industry, residence, or other purposes. A zoning found ordinance enacted to be a constitutional substantial bearing pursuant exercise upon the public health, Anderson welfare (citing Freeman v. Board of Adjustment P.2d 534, of the community. issue different "spot elements the presented addresses of the "spot context Ins., it be has a morals or P.2d at 650 803 97 Mont. 342, 352, of the "spot which on appeal. is the first second issue zoning" issues Their the new zoning use is significantly use, Their test. two separate whether from the previous zoning" power if safety, (1934), will 537). The plaintiffs initial statute of police general 34 to this of lot and the for test. addresses We will zoning" test element the address previously of the second both two issues adopted in by this Court. In Little (1981), three 193 Mont. factors occurs, v. Board of County Commissioners which that 334, 631 P.2d 1282, are generally we restate of Flathead we identified present when illegal County the following spot zoning as follows: The requested use is significantly 1. from the prevailing use in the area. different 2. The area in which the requested use is to apply is rather small, however, this factor is more concerned with the number of separate landowners benefited by the requested change than it is with the actual size of the area benefited. 5 The requested change is more in the nature 3. special legislation. In other words, it is designed benefit only one or a few landowners at the expense the surrounding landowners or the general public. 631 P.2d Little, mutually must 1289. exclusive be at enough under spot that test zoning is allowed City out significantly multiple different that "A" residence zone by the difference zones designating is a significant not zoning changing 631 allowed types in of difference family position is the for area. area which does has been not proposed if there allow by there dwelling units would in the is no allowed be no need Plaintiffs maintain a condominium between of single in zones. engaged of property that "C!" zones, residence Falls development homes located on standard-sized lots. The City's condominium" residential bility. spot surrounding those contend the distinct and a neighborhood like between and those the use significant parties are Little, piece from Plaintiffs "A" of Great prevailing developer. city of applied. the condominium there factors constantly one small structures for the may be the by singling argue uses that dwelling in three any definition cover the contend The plaintiffs for the 1289. illegal those that that to which The plaintiffs a use We noted and cautioned flexible circumstances P.2d at of to of use use and provides The similar is that the City also the necessary notes that to the the zoning proposed surrounding contract restrictions that 6 "residential the entered to "A" single insure residence family into by the compati- zone does permit "townhouses" as a conditional are not significantly different use and argues in nature, that density, townhouses and appearance from condominiums. The proposed condominium project attached units on the detached units on the perimeter to existing single family dwellings adjacent The City required rezoned enter in area. into a zoning order Property that be compatible It should "A" residence for with also a water warehouse, old tower, none of which are single adjacent detached family of the Property. with of the the other the new development area. the designation was originally station, and a two-family residences, as an used been used for fire a church to as the single now family used dwelling are located as than the maximum density if the Property residences, zone permits it "townhouses" level will were developed in the area is important to note that as a conditional 7 be twenty-nine solely use. as single percent family the "A" residence In fact, a unit, to the Property. While higher eastside and the Sisters along that despite and has never and the on the perimeter insure Property the a number of restrictions units, that between to the Property units the surrounding the family integrity detached be noted an orphanage The residential family as a screen included by the City, district, residences. that family required act single and single the developer the condominium be single restrictions site the of of the Property contract to preserve The requirement will interior consists the City determined could to that be built cause attached V [tlhe as a townhouse lot lines to single units were condominium units higher that than residential the Little test Having test. way, the Little, that spot zoning, absence the to proceed all Control three satisfied. that level detached would be even project Therefore, is different the first prong of elements the elements may merely elements possible remaining "[iIf are present of the Little spot or, be nuances at 169). Since are required illegal the that whether zoning said elements find it the in necessary Little Little illegal can occur Our review of and Land we held zoning test. another to establish spot is of one another." Hagman, Urban Planning We therefore of two elements we stated Law (1971) three is we now must determine 1289 (citing of an element. remaining reflects all it family and not significantly to the final the test, statements "usually" if condominium proposed determination, 631 P.Zd at Development Moreover, .'I the is not satisfied. usually three . of zone change. use in the area. In explaining invalid, the Property an amended plat single density by this the common walls . the the in nature made that is necessary on the units proposed, for by submitting where contemplated from the prevailing it built that proposed located dwelling are conclude essentially project project be family townhouse We exact in the to examine of the test record are not The second analyzed the and third together. rezoning directly special condominiums rezoning that the on their the or must not the viewpoint is by rezoning Since permission plaintiffs argue the condominium to that developer. too be affected have been granted only plaintiffs' test of only one person. property, benefits Little landowners whether in favor landowners the Property determine to legislation none of the surrounding build of The number of separate relates constitutes elements narrow We in its of the scope. We agree with the second and third Little the of plaintiffs development landowners the razed of on or about Property prior serious nuisances for to the and eyesores, weeds, unkept abandoned boilers. change would record sale increase extent the value Sisters it will orphanage was was razed, the seven a variety animal unfilled and salability no has deteriorated glass, testimony years had received now contains broken 9 developer the The Property offered to with approximately the that benefit we disagree the building and dead vegetation, The City that and for including the from change. indicates the land. rather condominium After focus resulting However, the development to purchase years only March 1983. proposed offers the noxious the but from the zoning the was placed to is not the benefit Property, that as a landowner Our review the primary of the rezoning. contention benefit over factors as a result plaintiffs' that excrement, basements, that of the and zoning of the surrounding property by eliminating nonuse of the lots use of the the zoning whose property benefit more landowners special rezoning than the zoning designed zoning, we must now determine reasonable safety, relationship or morals 76-z-301, affordable general housing construction condominium the rezoning will not in Ordinance of the community's the rezoning shortage, purchasers, ordinance constitute the public community. need a health, Section for adequate applies but local and the as as a whole. developer and well to 10 also would address provide to force, taxing a four the a of City the positive The economic benefit labor local and As part change request, the Property as to the community companies of #2650 bears zoning the nature one landowner. of to We 803 P.2d at 652. the that directly the change does not of the developer. review housing only Property and Goals Statement. community's not increase Mission determined extends from only whether which property in its Commission economic benefit zoning welfare Ins., recognized comprehensive the Court to to the advancement MCA; Anderson The City its that surrounding District is to benefit concluded of the future the individual change the the adjacent the merely from the the tend Having spot with would Thus, legislation benefitting agree values development. conclude resulting change would benefit project therefore blight the uncertainty thereby We therefore that owners existing and by eliminating Property, neighborhood. found the the Sisters, the potential authorities. square block the While area, the Commission examined rezoning benefits of landowners of the a number both of directly factors development Rezoning is determined and indirectly and has a substantial community. and a reasonable a significant bearing the on the Property to exercise that of number general welfare for allow the the housing the City's legislative authority. Furthermore, surrounding the area housing. in Commission attempting The Commission improvements, addressed to determined including meet need for were adequate routes, facilities, schools, and The contract regulates and traffic and parking full and zoning prevent overcrowding, structure problems. circumstances, ordinance should After the Commission encourages have a the most a negligible effect the and complete use to and review that balance sewer development problems, appropriate public neighborhoods. the determined the additional water surrounding restricts on the of there that in integrity its transportation parks the junk of the the rezoning the land of of land uses in and the area. We have stated that: The purpose of zoning is not to provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the communitygenerally by the sensible planning of land uses taking into consideration the peculiar suitabilities and most appropriate use of land throughout the community. Anderson 803 P.Zd Ins., We conclude illegal spot that zoning at 651 (citing Cutone, the rezoning ordinance and that the acted City 11 610 P.2d does in not at 694). constitute a reasonable manner and within hold its that the motions for Court's statutory power District Court summary judgment, when did not it rezoned err in and therefore, order. a! Justice We concur: 12 the granting affirm Property. defendants' the District We Justice Terry I when N. Trieweiler dissent the from City residence dissenting. the majority's of Falls to use Great "C" conclusion rezoned residence use and a 12.9 conclude acre it engaged sets forth area in that from classic "A" spot zoning. The spot to majority zoning. the in 334, under 346, use conclude than surrounding single-family area. Although, as the a conditional regarding of for use in pertaining complied Single-family multiple-unit with of that spot points is use in law zoning "A" whether the the area. development single-family allowed. residence I was residential a use district, In a "C" residence only district, residential and townhouses are townhouses are permitted districts, out, conditional uses are permitted only Conditional a detailed uses application, and including to a zone change, after a public allowed. all as the hearing, with. residential housing. the the an granted. submission been "A" question prevailing dwellings, majority automatically procedures are the condominium In multiple houses, the use than dwellings apartment along application criteria 1289, proposed the different the have first 1282, different is significantly after the 631 P.2d that are not its law in Little Y. Boardof County CommissionersofFlathead County (1981) , 193 proposed of with the case. example, established Mont. this correctly I disagree However, facts For opinion property use is In an on "A" which 13 substantially residential the homes different district, are located, than homes, are individually and accountable Ownership to the which for the unit, unit percentage his have property or her higher residential in the condominium single-family than more following about a condominium as the Falls to unit of the real City then restrict the where this area located be if will be developed follows can be expected in both for that to the increase of the area for development of the area for If of or driven the two types Falls and 14 through the there a is nothing single-family now contends, developments two of each of neighborhoods would be no reason condominium residential the character In short, development Great there a single-family knows that from the other. as similar Great the land Individual logically development, neighborhood. now holds, a use. residential majority on include the development of neighborhoods, different would would following and a condominium similar land be to It Anyone who has ever lived entirely of it use. residential is title owns only maintenance is neighborhood use than it types the owner which density development percent different of located. over population twenty-nine area ownership is control the volume hand, provides A condominium unit own property. reside. percent single-family no personal they condominium twenty-nine or her on the other dwelling no personal Furthermore, traffic but owner is responsible of his in the common elements on which proposed unit, located. is interest on which property the maintenance in a condominium dwelling owners Each individual owned. were and as the for the City to of class "C" residential areas, construction rather in than a class "A" simply allow residential For these reasons, I in question was significantly land use in the the we Little, considered and I disagree of residential area. that the proposed from different set forth with the the use prevailing the majority's of the contrary. In area conclude any type second and conclusion third to factors to be as follows: Second, the area in which the requested use is to apply is rather small. This test, however, is concerned more with the number of separate landowners benefited by the requested change than it is with the actual size of the Third, the requested change is more in area benefited. the nature of special legislation. In other words, it is designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public. 193 Little, emphasis Mont. separate case, only owner 631 346, P.2d at 1289 (citations omitted; added). The second of at who test, as pointed landowners one benefited landowner intends out, is to residential it residential by the benefited develop concerned with requested the number In change. by the change. That property the and who will construction, developing is for this multiple-unit presumably profit is the more by use. For the for that same reason, case. The developer family residential of purpose, the the third rather Little condominium neighborhood will 15 than factor in profit is the single-family satisfied middle by his of in this a single- development at the expense into their homes character zoning of those of the surrounding based that then to different only interest conclude which from benefit I the the the of For would these reverse judgment to the the instructions Justice opinion. reasons, to William I order respondent enter E. Hunt, in and the from Sr., joins the condominium significantly nature the Court of in majority which at the opinion. granted the District in favor of the special general. to in will developer public Justice 16 of the neighborhood, the District judgment was because was their and remand summary residential proposed benefit dissent of the of was to the and moved place. objected and landowners as it the use intended surrounding in appellants developer, that remain that prevailing legislation expense were who purchased assumption would summary, development the neighborhood restrictions In on landowners the foregoing I summary Court with appellants. dissenting
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