No. 83-63
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1983
JEFFERY STEVENS, e t a l ,
P l a i n t i f f s and A p p e l l a n t s ,
-vs-
C I T Y O MISSOULA, e t a l . ,
F
D e f e n d a n t s and Respondents.
APPEAL F O :
R M D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The Honorable James B. W h e e l i s , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t s :
D e i r d r e Boggs, F l i s s o u l a , Montana (argued)
F o r Respondents:
Mae Nan E l l i n g s o n , Deputy C i t y A t t y . , M i s s o u l a ,
Montana ( a r g u e d )
M i l o d r a g o v i c h , Dale i Dye, E4issoulat Montana
s
- -*
- ---
Submitted: June 10, 1 9 8 3
Decided: August 4 , 1983
Filed:
Ft UG 4 1983
Mr. Justice Frank R . Morrison, Jr. delivered the Opinion of
the Court.
This is an appeal from an order of the Fourth Judicial
District Court, Missoula County, Montana, wherein injunctive
and declatory relief was denied to plaintiffs who challenged
the validity of Special Improvement District No. 470 (SID
470).
SID 470 was created by the City of Missoula, acting
through its City Council, to expand off-street parking in
downtown Missoula. SID 470 evolved from parking studies and
plans developed by the Missoula Parking Commission and
evaluated by the Missoula Redevelopment Agency. Plaintiffs
own properties which lie within the boundaries of SID 470 and
are subject to special assessment levies for the parking
facilities to be constructed.
On February 2, 1981 the Missoula Parking Commission
presented a proposed parking plan to the Missoula City
Council during its regular meeting. The plan included two
proposals for downtown, off-street parking improvements. The
first proposal, sometimes referred to as alternative or phase
one, called for the addition of 223 parking spaces on three
separate surface lots. Alternative or phase two provided for
113 parking spaces on two surface lots and a 400-space
parking garage on a third site. Both proposals entailed
acquisition of the same parcels of land. Financing for the
improvements included special assessment levies within a
special improvement district, the suggested area for which
was smaller than, and completely enveloped by, a 500-acre
Urban Renewal District created in 1978. Financing also
included revenues from parking facilities, a pledge of tax
increment money from the Missoula Redevelopment Agency, which
administers the Urban Renewal District, and possibly a
"matching funds" grant from the federal Economic Development
Administration (EDA). Alternative two was presented as being
contingent on a grant of monies from the EDA. It was also
the alternative preferred by various city officials in later
discussions and meetings with property owners, including some
of the instant plaintiffs.
At that same meeting, the Missoula City Council passed
Resolution No. 4107, entitled "A Resolution of Intention to
Create Special Improvement District Number 470 for the
Purpose of Providing Off-Street Parking Improvements." The
resolution essentially adopted the proposals offered by the
Parking Commission.
Pursuant to section 7-12-4104, MCA, the resolution
contained a legal description of the area to be included in
the special improvement district (Section 11) and an
explanation of the general character of the improvements,
stated in the alternative (Section 111) .
Sections IV and V provided as follows:
SECTION IV
"Approximate Estimated Cost of Improvement. That
the approximate estimated cost to be assessed
against property within District Number 470 for
making the off-street parking improvements
described in Section I11 is as follows:
1. $1,386,000.00, such amount to pay for all
improvements enumerated in alternative number
1; or
2. $1,900,000.00 for alternative number 2, of
this amount $1,300,000.00 shall be used for
the acquisition of two surface lots and
installation of 113 parking spaces and
$600,000.00 shall be used as matching funds
for an EDA Grant of $1,300,000.00 to construct
the parking garage.
SECTION V
"Determination of Alternative to be Adopted and Cost
to be Assessed. In no event shall the costs to be
assessed within Special Improvement District Number
470 exceed $1,900,000.00. In the event the City of
Missoula's EDA Grant application to partially fund
the construction of a parking garage is denied, the
City will pursue alternative Number 1 at a cost of
$1,386,000.00 to be assessed pursuant to the
provisions of this Resolution."
Additionally, section VII included a finding by the City
Council that the parking improvements are "of more than local
ordinary benefit" as they would specially benefit each lot or
parcel located within the contemplated boundaries of SID 470.
All but two of the instant plaintiffs filed written
protests against the proposed district. Many spoke in
opposition at the March 2, 1981 public hearing.
Nevertheless, on March 16, 1981 the City Council adopted
Resolution No. 4123, creating SID 470. Again, the general
character of the improvements to be made was framed in the
alternative.
On August 23, 1982 plaintiffs filed suit against the
above-named defendants, respondents herein, alleging, inter
alia: (1) they were denied proper notice of the proposal and
its cost because the resolution of intent for SID 470 was
misleading in that it set forth the number of proposed
parking spaces and the costs in the alternative;
(2) benefits, if any, to be derived from provision of
additional metered parking spaces were of a general
government nature, rather than any special benefit to
property within the boundaries of SID 470 and (3) the
defendants arbitrarily and mistakenly included various
properties within the proposed SID boundaries that cannot be
specially benefited thereby and arbitrarily and mistakenly
excluded other properties that may be specially benefited
thereby.
The parties stipulated that a preliminary injunction
would not be necessary and that the proceeding should be
expedited. The matter went to trial on September 20, 1982.
Several plaintiffs and various persons involved with the
development or implementation of SID 470, testified.
Final judgment, together with an opinion and order
denying plaintiffs all relief, was entered October 12, 1982.
The trial court denied plaintiffs' motion for reconsideration
or new trial by opinion and amended order, and this appeal
followed.
F e affirm.
7
Three issues are presented for review:
1. Whether Resolutions No. 4107 and No. 4123 provided
adequate notice of the nature and cost of the actual
improvements to be made in S I D 470?
2. Whether the District Court properly upheld the City
Council's determination as to what properties would be
specially benefited by S I D 470?
3. Whether plaintiffs1 suit filed seventeen months
after creation of S I D 470 was subject to bar under the
equitable doctrine of laches?
Plaintiffs contend that, because of their alternative
structure, Resolutions No. 4107 and 4123 were unclear and
ambiguous and failed to provide sufficient notice of the
nature and cost of the improvements. This contention lacks
merit.
The primary purpose of a resolution of intention is to
apprise property owners of the cost and nature of a proposed
improvement so as to allow the property owner to determine
whether he will acquiesce in or protest the proposition.
Evans v. City of Helena (1921), 60 Mont. 577, 589, 199 P.
445, 447. The resolutions at issue fulfill that purpose.
Testimony from plaintiffs confirms that they fully understood
the nature of the improvement options. Nor were they misled
by the alternative form of the S I D .
Plaintiffs being fully informed of the S I D proposals,
the argument against alternative descriptions becomes only
technical. We conclude that section 7-12-4104, MCA, does not
preclude use of the alternative form. Section 7-12-4104,
MCA, provides:
"Resolution of intention to create special
improvement district. (1) Before creating any
special improvement district for the purpose of
making any of the improvements or acquiring any
private property for any purpose authorized by this
part, the city council shall pass a resolution of
intention to do so,
" (2) The resolution shall designate the number of
such district, describe the boundaries thereof, and
state therein the general character of the
improvement or improvements which are to be made
and an approximate estimate of the cost thereof.
When any improvement is to be made in paving, the
city or town council may in describing the general
character of the same describe several kinds of
paving. "
The 1972 Montana Constitution specifically provides that
the powers of incorporated cities shall be liberally
construed. We recognized that mandate in Tipco Co-op, Inc.
v. City of Billings (1982), Mont . , 642 P.2d 1074,
39 St.Rep. 600, which involved the powers of a home rule
municipality. A local government with general powers is
entitled to the same liberal construction.
The fact that the statute expressly provides for use of
alternatives for different paving materials does not mean
that paving materials are the only proposals that may be
proposed in the alternative. The rule of negative
implication should not apply to language which may clearly
comprehend many different instances, some of which are
mentioned by way of example. Johnson v. General Motors Corp.
(1976), 199 Kan. 720, 433 P.2d 585, 589.
Plaintiffs also challenge the City Council's
determination of special benefit and creation of district
boundaries. The well established rule is that the City's
judgment is conclusive absent proof of fraud or mistakes
which preclude the exercise of sound judgment. Schumacher v.
City of Bozeman (1977), 174 Mont. 519, 526, 571 P.2d 1135,
1139. Neither this Court nor the trial court should
substitute its judgment for a rational determination of the
City.
Boundary lines should be drawn in such a way that the
improvement brings a benefit to the included properties and
that the benefit is substantially more intense than that
which is realized by the properties outside of the district
boundaries. 2 Antieau, Municipal Corporation Law, S14.24, p.
14-46. The fact that outside property derives some general
benefit should not affect the special benefit afforded the
district properties. Moreover, since properties within the
district will Sear the cost of the improvements in proportion
to the special benefit received, it would be very difficult
to say that borderline properties have been unfairly burdened
by their inclusion in the District. Thus greater scrutiny
should not be required of such SIDs though they may be
extended in nature.
Since plaintiffs' case is disposed of on its merits, it
is unnecessary to reach the laches issue.
The judgment of the Distri rt is affirmed.
We concur:
DO
Chief Justice