No. 86-266
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
R. I. DIEFENDERFER, JR.,
Plaintiff and Appellant,
CITY OF BILLINGS, a municipal
corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles F. Moses; Moses Law Firm, Billings, Montana
Richard J. Carstensen, Billings, Montana
For Respondent:
Kenneth D. Peterson; Peterson Schofield & Leckie,
Bil-li-ngs,
Montana
Submitted on Briefs: Sept. 11, 1986
Decided: October 24, 1986
Filed:
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Plaintiff I?. I. Diefenderfer, Jr. , appeals the March 7,
1986, order of the Thirteenth Judicial District Court
awarding summary judgment in favor of defendant City of
Billings. We affirm.
On January 21, 1980, the Billings City Council enacted
Ordinance No. 4266, in order to reduce the burden on the
special improvement district revolving fund. The ordinance
required the developer to pay a 5% surcharge prior to
creation of a special improvement district (SID), computed to
be 5% of the total cost of the improvements.
On May 12, 1980, the Billings City Council adopted a
resolution of intent to create SID No. 1116 to improve land
in King Park Subdivision owned by Diefenderfer and to be
developed by Gary Bennett. Bennett failed to pay the
surcharge amount by the bid opening date as required, and the
City halted proceedings to create SID No. 1116. At a later
date, undisclosed in the record, the City authorized creation
of SID No. 1116.
Diefenderfer filed a complaint July 7, 1983, alleging
the City's refusal to timely create SID No. 1116 was contrary
to law. In its answer, the City responded that the city
council had acted within its authority and that plaintiff had
failed to perform all conditions precedent to the formation
of SID No. 1116.
Following summary judgment motions by both parties, the
District Court entered its order dated March 7, 1986, ruling
in favor of the City. Diefenderfer appeals and raises the
followina issue: Whether Billings City Ordinance No. 4266
imposing a 5% surcharge on developers of raw land prior to
creation of a special improvement district is valid?
The City of Billings is a municipality which has adopted
a charter form of government with self-governing powers.
Article XI, Section 6, of the 1972 Constitution provides in
part, "A local government unit adopting a self-government
charter may exercise any power not prohibited by this
constitution, law, or charter."
The Montana Code further defines the powers a
self-governing unit may properly exercise. At the time of
enactment of the City's Ordinance No. 4266, there was no
statutory provision authorizing or prohibiting imposition of
a surcharge upon a developer prior to creation of a SID.
Diefenderfer contends tha.t 7-1-114 and 7-12-4102,
MCA, prohibit such a surcharge. Section 7-1-114 provides in
part :
(1) A local government with self-government powers
is subject to the following provisions:
.. .
(f) Any law directing or requiring a local
government or any officer or employee of a local
government to carry out any function or provide any
service.
Section 7-12-4102 provides:
(1) The city or town council has power to create
special improvement districts, designating the same
by number; to extend the time for payment of
assessments levied upon such districts for the
improvements thereon for a period not exceeding 20
years: to make such assessments payable in
installments; and to all expenses b£-whatever
character incurred T n making such improvrments with
special warrants -
orbonds ...
(Emphasis supplied.)
Diefenderfer asserts that the scheme established by the
legislature for creating special improvement districts is
exclusive and the expenses of a SID may only be paid for with
special improvement bonds or warrants.
The City contends that, since the statutes do not
specifically address imposition of a surcharge upon a
developer, the ordinance is valid under its self-governing
power. Section 7-1-106, MCA, provides that "Every reasonable
doubt as to the existence of a local government power or
a.uthority shall be resolved in favor of the existence of that
power or authority."
Montana has legislated extensively in the area of
special improvement districts. However, at the time of
enactment of Ordinance No. 4266 there was no statutory
provision addressing such a surcharge. Both parties contend
that $ 7-1-113, MCA, favors their position:
S
(1) A local government with self-government
powers is prohibited the exercise of any power in a
manner inconsistent with state law or
administrative regulation in any area affirmatively
subjected by law to state regulation or control.
(2) The exercise of a power is inconsistent
with state law or regulation if it establishes
standards or requirements which are lower or less
stringent than those imposed by state law or
regulation.
(3) An area is affirmatively subjected to
state control if a state agency or officer is
directed to establish administrative rules
governing the matter or if enforcement of standards
or requirements established by statute is vested in
a state officer or agency.
Clearly, the ordinance does not establish standards or
requirements which are less stringent than those imposed by
state law. The 5% surcharge is a more stringent requirement.
Nor do we find the area to be affirmatively subjected to
state control. There is no state agency authorized to
establish administrative rules or enforce the standards
prescribed by statute.
In State ex rel. Swart v. Moliter (Mont. 1981), 38
St.Rep. 71, 621 P.2d 1100, the plaintiff challenged Madison
County's requirement of a fee for reviewing a certificate of
survey prior to recording. While review was provided for by
statute the fee was not. This Court held that imposition of
a fee by the county, a self-governing unit, did not prescribe
a lower standard than required by state law. Therefore, it
was a permissible exercise of the county's power not
inconsistent with state law. 621 P.2d 1104, 38 St.Rep. 75.
Moliter is analogous to the present case. At the time
of the City's enactment of Ordinance No. 4266, state law did
not address imposition of a 5% surcharge. We note that the
legislature amended §§ 7-12-4169 and -4222 in 1981 to
specifically authorize such a surcharge. The powers of local
self-governing units are to be liberally construed pursuant
to § 7-1-106, MCA. Therefore we hold the City's enactment of
Ordinance No. 4266 was a valid exercise of its self-governing
power.
The District Court is affirme
We concur: