Lowe v. City of Missoula

No. 12612

I N T E SUPREME COURT O THE STATE OF M N A A
H F OTN

1974

T O A PAUL LOWE, M R H L. ONISHUK
HMS ATA
and FREDERICK J . LOWE,

P l a i n t i f f s and A p p e l l a n t s ,

CITY O MISSOITLA, a Municipal Corporation,
F

Defendant and Respondents.

Appeal from: D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable Edward Dussault, Judge p r e s i d i n g .

Counsel of Record:

For Appellants :

Garlington, Lohn & Robinson, Missoula, Montana
William Evan Jones argued, Missoula, Montana

For Respondents :

J a c k K. Morton argued, Missoula, Montana
V i c t o r V a l g e n t i and Fred C. Root, Missoula, Montana

Submitted: May 21, 1974

Decided: JUL 2 2 1974
Filed: J U i 2 2 lsj4
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

Plaintiffs appeal from a judgment of the district court
upholding action taken, by the Missoula City Council adopting a
rezoning ordinance changing a "B-~esidential~istrict"to "RR-1
Restricted One Family Residential ~istrict". In arriving at
its judgment the district court considered evidence before the
City Council and took additionel evidence.
The property in question consists of 5.8 acres of land
located on the southeast slope of Water Works Hill in the city of
Missoula, The original comprehensive zoning map for the city of
Missoula was adopted on March 4, 1968, and this particular 5.8
acres lies just outside the zoned area. It had been traditionally
zoned I@B11 residential. Across the road, and within the comprehen-
sive zoned area, the area is zoned for single family homes. The
5.8 acres in question have been owned by the Lowe family for
approximately 40 years.
Testimony indicated the property has certain topographical
and other conditions which have a direct bearing on its development.
One of the most important of these conditions is the fact the
property is partially on a hillside, The zoning plan for the city
of Missoula, adopted in 1968, apparently meant no change in the
zoning of the 5.8 acres for they were left out of the plan.
In March 1973, certain property owners submitted to the city
of Missoula, through its zoning commission, a petition to rezone
the Lowe land from "B-1" to "RR-I", restricted one family residential.
The zoning commission recommended the petition be granted, and on
March 19, 1973 the City Ccuncil voted to adopt the petition.
The owners of the 5.8 acres desire to build an apartment
complex on the tract and at the time they appeared before the
district court they voluntarily agreed that the rigid controls im-
posed by the city zoning classification "R-IV" might be imposed
on the acreage. The district court upheld the City Council.
 Two issues are raised on appeal:
1. Did the district court abuse its discretion in upholding
the City ~ouncil'sapproval of rezoning ordinance No. 1549 of
March 19, 1973?
2. Did the evidence before the district court support a
court order upholding rezoning ordinance No. 1549?
Both sides agree that unless there can be a showing of an
abuse of discretion by the trial court the judgment should be
sustained. We find there was such a mistake of fact that it
amounted to an abuse of discretion on the part of the trial court
requiring reversal.
We are guided by the provisions of section 11-2703, R.C.M.
1947:
"such regulations shall be made in accordance with
a comprehensive plan and designed to lessen congestion
in the streets; to secure safety from fire, panic and
other dangers; to promote health and the general welfare;
to provide adequate light and air; to prevent the over-
crowding of land; to avoid undue concentration of popu-
lation; to facilitate the adequate provision of trans-
portation, water, sewerage, schools, parks, and other
public requirements. Such regulations shall be made
with reasonable consideration,among other things, to
the character of the district and its peculiar suitability
for particular uses, and with a view to conserving the
value of buildings and encouraging the most appropriate
use of land throughout such municipality. 11
This section is a part of Chapter 27, Title 11, of the Montana
Codes of 1947, wherein the legislature provided the steps a city
council must follow in its regulation of land. Counsel for the
land owners subdivides section 11-2703 into 12 tests and then
suggests that the testimony before the City Council and the district
court fails to meet these tests, which are:
1. Whether the new zoning was designed in accordance with
the comprehensive plan.
2. Whether the new zoning was designed to lessen congestion
in the streets.
3. Whether the new zoning will secure safety from fire,
panic and other dangers.
4. Whether the new zoning will promote health and general
welfare.
 5. Whether the new zoning will'provide adequate light and
air.
6. Whether the new zoning will prevent the overcrowding of
land.
7. Whether the new zoning will avoid undue concentration of
population.
8 Whether the new zoning will facilitate the adequate pro-
.
vision of transportation, water, sewerage, schools, parks and
other public requirements.
9. Whether the new zoning gives reasonable consideration to
the character of the district,
10. Whether the new zoning gives consideration to peculiar
suitability of the property for particular uses,
11. Whether the new zoning was adopted with a view to con-
serving the value of buildings.
12. Whether the new zoning will encourage the most appropriate
use of land throughout such municipality.
In summarizing the evidence introduced at the City Council
and in the district court we note the record is so lacking in fact
information that the action on the part of the City Council and
the district court could be said to have been based on mistakes
of fact, thereby constituting an abuse of discretion.
Taking the evidence introduced and weighing its merit under
the tests above set forth we find that:
Test 1. Fails because the land is outside the area of the
comprehensive plan, so could not be included.
Test 2, The testimony in regard to traffic clearly fails to
indicate that the new zoning would lessen congestion or that the
proposed complex would cause a mass dumping of traffic into the
area,
Test 3. The evidence indicates the proposed rezoning is not
necessary to protect adequate water, safety and fire protections for
the area.
- 4 -
 T e s t 4. It cannot be argued t h a t t h e proposed rezoning would
promote t h e h e a l t h and w e l f a r e of t h e a r e a . The h e a l t h and welfare
of t h e a r e a would be promoted i f a sewer were a v a i l a b l e and t h e new
apartment complex plans t o b r i n g a sewer l i n e t o t h e complex, i n t o
an a r e a where t h e homes a r e on s e p t i c tanks.
T e s t 5. The record l a c k s any evidence showing t h e proposed
rezoning i s necessary t o p r o t e c t adequate l i g h t and a i r .
Test 6. This t e s t i s whether t h e proposed rezoning w i l l
prevent t h e overcrowding of t h e land. Testimony i n d i c a t e d t h e
c i t y o f f i c i a l s believed m u l t i p l e dwelling complexes were permissible
i n t h e a r e a and t h e c i t y planner i n d i c a t e d i f t h e d e n s i t y was
reasonable t h e s u b j e c t s i t e would accommodate t h e complex. I n view
of t h e f a c t p l a i n t i f f s agreed t o abide by t h e d e n s i t y r e g u l a t i o n s ,
t h e r e can be no reason t o rezone h e r e t o p r e v e n t - l a n d crowding.
T e s t 7. There was no evidence t h a t t h e adoption of t h e
rezoning would avoid an undue concentration of people i n t h e a r e a .
Test 8. The rezoning would i n no way change o r reduce t h e
necessary public f a c i l i t i e s , such a s t r a n s p o r t a t i o n , water, sewerage,
schools, parks, e t c . With r e s p e c t t o t h e o b j e c t i o n made t h a t
t h e b u i l d i n g of an apartment complex, a s h e r e proposed, would
overtax t h e a r e a ' s public f a c i l i t i e s , w e can only comment t h a t
progress and growth cannot be stopped by t h e lack of f a c i l i t i e s .
It i s p u t t i n g t h e c a r t b e f o r e t h e horse t o argue t h a t because t h e r e
a r e n o t enough f a c i l i t i e s i n a p a r t i c u l a r a r e a i t cannot grow.
T e s t 9. This t e s t r a i s e s t h e question of whether t h e rezoning
g i v e s reasonable c o n s i d e r a t i o n t o t h e c h a r a c t e r of t h e area. A s of
now t h e 5.8 a c r e t r a c t has nothing on i t b u t g r a s s . The s t a t u t e
r e q u i r e s only t h a t rezoning give c o n s i d e r a t i o n t o t h e d i s t r i c t , n o t
t h e area. While t h e r e a r e s i n g l e family residences i n t h e d i s t r i c t
t h e r e a r e a l s o many vacant a r e a s p l u s a r e a s t h a t a r e zone "B
residence". There was no showing t h a t rezoning was necessary t o
p r o t e c t t h e c h a r a c t e r of t h e d i s t r i c t .
 Test 10. Whether the rezoning gives consideration to peculiar
suitability of the property for particular uses. The record indi-
cates two architects, plus one of plaintiffs--a land planner by
profession--testified the 5 8 acre tract was suitable for an apart-
.
ment complex,
Test 11. This test is whether the rezoning was adopted
with a view to conserving the value of buildings. This is not
applicable, nor need it be considered, due to the fact the land has
no buildings. Further there is no testimony indicating that the
single residence homes in the area would be damaged by the apartment
complex,
Test 12. Will the new zoning encourage the most appropriate
use of land throughout such municipality? This raises a policy
question of whether the community needs an apartment complex at this
particular site. If there is a need then error was made to rezone
it into single residential homes. Evidence was introduced in the
form of the "Mayor's Advisory Council on Housing Report" which
indicated a continual growth in Missoula and a need to replace
substandard units. The area in question is only a two minute drive
and an eight minute walk from the heart of the central business
district of Missoula. Viewing all of the testimony, we find that
rezoning the areams an abuse of discretion.
The city argues that under ~ontana'ssection 11-2703, R.C.M.
1947, it cannot be charged with an abuse of discretion if the
record indicates the City Council and the district court had before
them reasonable evidence or testimony upon which they could find
that one or more of the purposes of the enabling statute had been
accomplished, Further, that the matter was largely within the
council's legislative authority and there is a presumption that
it had investigated and found the conditions to be such that the
legislation which it enacted was appropriate and that the courts
must hold that the action of the legislative body (the City Council)
is valid.
 While neither the trial court nor this Court can substitute its
discretion for that of the City Council, the judiciary does have
the power to find whether or not there has been an abuse of dis-
cretion. Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534.
There is under Montana statutes and case law a sound distinction
between 11zoning" and the act of "rezoning" or granting or refusing a
variance. The former constitutes a legislative act while the latter
is more of an administrative or quasi-judicial act in applying pro-
visions of existing ordinance or law. In such application the
exercise of sound discretion is limited by the provisions of
the statute, including such standards as are set forth therein.
Low v. Town of Madison, 135 Conn. 1, 60 A. 2d 774.
Applying ~ontana'scase law to the problem of considering the
exercising of sound discretion the case of Fulmer v Board of
.
Railroad ~omm'rs,96 Mont, 22, 39, 28 P.2d 849, discusses the
problem thoroughly. While Fulmer involves the Railroad Commission's
findings in a rate case what is said there is applicable to the
actions of a city council:
"It must not be understood that the courts have no
function at all in such matters. Such a view would
nullify the statutory provisions for a judicial
review of the action of the board. The courts have
a measure of judicial authority in matters such as
the one under consideration. The law specifically
authorizes such review of the acts of the board.
The review, however, has been held by this court to
include only the following questions: ( ) Did the
1
Board act beyond the power which it could constitu-
tionally exercise? ( ) Did the Board act beyond its
2
statutory power? and ( ) Did the Board base its
3
action upon a mistake of law? This Court has qualified
the above rule by the following language: ' ~ u tquestions
of fact may be involved in the determination of questions of
law, so that an order, regular on its face, may be set
aside * * * if the Commission acted so arbitrarily and
unjustly * * * or without evidence to support it; or if
the authority therein involved has been executed in
such an unreasonable manner * * *.' [Billings Utility Co.
v Public Service Cam., 62 Mont. 21, 203 P 3661
. .
"The function of the court in these matters should not
be minimized. Without some supervision, efficiency
would often be sacrificed to expendiency, and adminis-
tration would be lacking in uniformity and equity * * *.
While this court cannot function for the board, it can
require that it proceed in reasonable accord with statutory
requirements and established principles of practice. II
State ex rel. Olsen v Public Service Comm., 131 Mont. 272, 309 P.
.
2d 1035; C.M. & St.P.Ry.Co. v. Board of R.R.Comm., 126 Mont. 568,
255 P.2d 346; Langen v. Grazing Dist., 125 Mont. 302, 234 P.2d 467.
This Court not only has authority to review the record
made before the City Council plus the new testimony, but also has
the responsibility to provide supervision in accord with established
principles of practice. Where the information upon which the
City Council and the district court acted is so lacking in fact
and foundation, as heretofore noted, it is clearly a mistake of
fact and constitutes an abuse of discretion. It is within the power
of this Court to correct this mistake of fact by judicial review of
the entire record.
This Court in Freeman v. Board of Adjustment, 97 Mont. 342,
355, 34 P.2d 534, restricted zoning where it imposed unjust limita-
tions on property and deprived the owner of his property rights.
The Court held:
II
Under the guise of protecting the public or advancing
its interest, the state may not unduly interfere with
private business or prohibit lawful occupations, or
impose unreasonable or unnecessary restrictions upon
them. Any law or regulation wich imposes unjust limita-
tions upon the full use and enjoyment of property, or
destroys propert): value or use, deprives the owner of
property rights.
City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660; Garner
v. City of Carmi, 28 I11.2d 560, 192 N.E.2d 816.
We noted in Lambros v Missoula, 153 Mont. 20, 26, 452 P.2d
.
398, where a variance in a zoning order was requested:
11
Under Freeman a petition for variance must meet three
criteria. variance must not be contrary to public
interest. A literal enforcement of the zoning ordinance
must result in unnecessary hardship, owing to conditions
unique to the property. The spirit of the ordinance must
be observed, and substantial justice done. I 1
The three criteria were not found in the trial court's order
therefore error of law was committed.
Considering the volatility of problems that arise under
zoning ordinances and laws regulating the use of land, we note
with approval the language of the federal district court of the
District of Columbia, in American University v Prentiss, 113 F.Supp.
.
389, 393, affd. 214 F.2d 282, 348 U.S. 898, 99 Led 705, 75 S.Ct.
217, wherein the court held:
"* * *Although possible impairment of property values
seemed to be the main argument, very little actual
evidence on the subject was produced. The testimony
consisted chiefly of emotional outbursts on the part
of-individualhomeo-mers, to the general effect that
they had been informed by real estate experts that if
the hospital were erected, the value of their property would
decrease anywhere from thirty-five to fifty percent.
Naturally such assertions are not evidence. * * *
"It is well established that administrative agencies are
not required to apply the rules of law governing ad-
missibility of evidence. These rules are binding only
6n:judicial ttibunals. Nevertheless, the probative
weight of evidence is the same irrespective of where
the evidence is introduced, and must be tested by the
same standards whether it is tendered to a court or to
an administrative body. I I
In view of the mistake of facts submitted to the City Council
and upon which the district court based its decision, we find such
was an abuse of discretion necessitating reversal.
Judgment is reversed and the City Council is directed to
set aside Ordinance No. 1549.
n

We Concur:

...............................
Justices.
Mr. Justice Frank I. Haswell, specially concurring:
I concur in the result reached by the majority, but I cannot
endorse their statement of the applicable law. I would reverse, not
on the ground that the city council and the district court made a
mistake of fact, but because the rezoning ordinance constitutes pro-
hibited and discriminatory "spot zoning".
Rezoning by a city council is a legislative act. Bishop v. Town
of Houghton, 69 Wash.2d 786, 420 P.2d 368; 1 Anderson, American Law
of Zoning, 5 4.28. The courts will not interfere unless the rezoning
ordinance violat~sthe enabling statutes or the Constitution. State v.
Stark, 100 Mont. 365, 52 P.2d 890; Leischner v. City of Billings,
135 Mont. 109, 337 P.2d 359. The majority opinion here, while giving
lip service to the enabling statute, has misapplied the applicable
standards of review, grounding the opinion on standards of review
of orders of administrative boards under special statutes. The
standards of review of orders of the Public Service Commission in
Fulmer v. Board of R R Commissioners, 96 Mont. 22, 28 P.2d 849 and
..
the standards of review of variances granted by Boards of Adjustments
in Lambros v Missoula, 153 Mont. 20, 452 P.2d 398 and Freeman v.
.
Board of Adjustment, 97 Mont. 342, 34 P.2d 534 quoted in the majority
opinion have no application to legislative acts of a city council
in my opinion.
Here the ordinance rezoned one particular parcel of property
out of several hundred acres on a hillside for restrictive zoning.
It was not part of a comprehensive plan for the district, but was
simply a response to a petition by some of the neighbors. The
rezoning of a small parcel of land to the disadvantage of the owner
constitutes prohibited "spot zoning" equally with singling out an
isolated t act for zoning advantageous to the owner. Wolpe v.
%f
Poretsky, 8 App.D.C. 67, 154 F.2d 330; Kissinger v City of Los
.
8

Angeles, 161 Cal.App.2d-454, 327 P.2d 10; Caputo v Board of Appeals
.
of Somerville, 331 Mass2 547, 120 N.E.2d 753.
 Here the rezoning ordinance burdened the Lowe tract far more
heavily than several hundred other acres on the hillside. No
consideration was given to rezoning the entire hillside. The
previous zoning had been in effect for over forty years and was
reviewed in 1965 when the city adopted a comprehensive plan which
excluded the hillside. The "spot zoning" of the Lowe tract in 1973
was arbitrary, discriminatory and denied the owners due process
and equal protection of the laws. It did not comply with the
statute permitting zoning "for the purpose of promoting health,
safety, morals, or the general welfare of the community" or dis-
trict. Section 11-2701, R.C.M. 1947.

----
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Justice.