NO. 94-395
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
THE GREENS AT FORT MISSOULA, LLC,
Petitioner and Appellant,
-v-
CITY OF MISSOULA,
Respondent,
and
SAVE THE FORT, INC.
Intervener.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jeffrey Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert J. Phillips, Phillips & Williams, Missoula,
Montana
For Respondent:
Jim Nugent, Missoula City Attorney, Missoula,
Montana; Mark S. Connell, Connell, Beers &
Alterowitz, Missoula, Montana
Heard: April 7, 1995
Submitted: April 18, 1995
Decided: June 19, 1995
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This case is before us on grant of summary judgment to City of
Missoula and Save the Fort, Inc. by the Fourth Judicial District
court, Missoula County. We affirm.
We consider the following issue:
Did the District Court err in granting summary judgment to the
City of Missoula and Save the Fort based upon the court's ruling
that a City-wide referendum concerning Ordinance No. 2877 was an
appropriate function of the power of referendum?
This action involves an 82.31 acre tract of land known as Fort
Missoula located in Missoula County. Fort Missoula U.S. Military
Reservation was established in 1877 and has served many purposes of
historical significance over the years. In 1966, the federal
government conveyed this property to the State Board of Education
for the use and benefit of the University of Montana. In 1990, the
University conveyed the property title to the University of Montana
Foundation, a non-profit corporation which acts as agent or trustee
for the University by coordinating all fund raising for that
institution. The Foundation then sold the property to the Green's
predecessor in interest, Divot Development, for $450,000.
Divot began action to have the bulk of the property annexed to
the City and to have the City then zone it. On December 13, 1993,
the City annexed the property. At that point the tract became an
unzoned part of the City.
Divot had requested zoning of the tract, asking that the
property be rezoned as P-I (Open Space District) [with a Planned
2
Unit Development (PUD) overlay]. The County had originally zoned
the tract as CP-I (County Zone.) On December 20, 1993, the
Missoula City Council enacted Ordinance No. 2877, which called for
residential housing as well as carefully designed protection for
historical buildings and open areas on the property. Following
passage of this ordinance, a group of Missoula County and City
residents formed under the name "Save the Fort" and circulated a
petition in the City with the final outcome projected to be a
referendum which would repeal the ordinance. On January 17, 1994,
the petition was filed with the Missoula County Elections Office.
The Greens filed a declaratory judgment action against
respondent City of Missoula, seeking to have the court refuse the
referendum process for this issue.
The District Court permitted the community group Save the
Fort, Inc. to intervene in the action. The Greens, the City, and
Save the Fort all moved for summary judgment. The motions were
briefed and argued on May 13, 1994. The court ruled from the bench
that the Greens' motion was denied and the City's and the
Interveners' motions were granted. The court then issued an Order
and Opinion on May 24, 1994. On Tuesday, June 7, 1994, the City of
Missoula electorate voted to repeal the City of Missoula Zoning
Ordinance No. 2877 as above described.
The Greens commenced this action against the City of Missoula
and Save the Fort was allowed to intervene permissively.
Did the District Court err in granting summary judgment to the
City of Missoula and Save the Fort based upon the court's ruling
3
that a City-wide referendum concerning Ordinance No. 2877 was an
appropriate function of the power of referendum?
The Greens argue that Ordinance No. 2877 rezoned the property
in question and, therefore, the action was administrative and not
legislative. According to the Greens, administrative and quasi-
judicial actions by a governmental body are not subject to
referendum, only legislative actions CXI spawn referendum.
Further, the Greens argue that our holding in City of Shelby v.
Sandholm (1984), 208 Mont. 77, 676 P.Zd 178, controls and makes the
repeal of Ordinance No. 2877 unconstitutional because not all of
the electors who participated in the referendum are affected by the
ordinance. The Greens contend that the District Court gave a new
expansive reading of the referendum statute in opposition to the
prevailing case law in Montana.
The City argues that the District Court should be affirmed
because Montana's statutes and Constitution encourage public
participation in municipal government affairs and decisions. The
City contends that the facts of this case make it unique when
compared to past Montana cases considering the right of referendum.
Also, the City states that the property in question has never been
zoned by the City. According to the City, both zoning and rezoning
are legislative acts which permit referendum.
Save the Fort argues that the Montana Constitution permits
referendum on any enactment by the legislature except an act of
appropriation.
The District Court determined that the act of zoning the newly
4
annexed City property was legislative in nature and, therefore,
subject to referendum by the electorate. The District Court found
that no substantive difference existed between initial zoning and
amendatory rezoning:
Whether Ordinance No. 2877 was a zoning ordinance, as the
Court concludes, or a rezoning makes no substantive
difference. In substance the questioned ordinance was
the original zoning classification of this land by the
City, and it was a legislative act. . . . Here, the City
Council has made a new land use policy, in absence of an
established municipal land use policy, for a sizeable
parcel of previously undeveloped property on the edge of
the urban area. The ordinance in auestion signifies both
a new zoninq oolicv as to this land and a fundamental
chanqe fromore-existinq county zoninq and quidelines for
development of this area. . The Court does not agree
that subjecting oriqinal zoninq classification ordinances
or amendatorv rezoninq ordinances to referendum powers
will lead to significant delays and undue burdens on
development. Minor zoning decisions which do not excite
broad public interest in a city will be unlikely to
generate the degree of controversy necessary to place the
issue before the voters. The very fact that this is the
first known case of this nature, despite Montana's long
history of municipal zoning, is itself indicative that it
would not frequently arise. (Emphasis added.)
The 1972 Constitution included a provision that made the
people's right to a referendum applicable to the actions of local
governments. Art. III, Sec. 5 and Art. XI, Sec. 8, Mont.Const.
(1972). In response, the 1977 legislature passed a bill which
created the following statutory directive to the electorate of the
state:
Right of initiative and referendum. (1) The powers of
initiative and referendum are reserved to the electors of
eachlocalgovernment. Resolutions and ordinances within
the leqislative iurisdiction and power of the qoverninq
bodv of the local qovernment, except those set out in
subsection (2), mav be proposed or amended and prior
resolutions and ordinances mav be repealed in the manner
provided in 7-5-132 through 7-5-137.
(2) The powers of initiative shall not extend to
5
the following:
(a) the annual budget;
(b) bond processings, except for ordinances authorizing
bonds;
(c) the establishment and collection of charges pledged
for the payment of principal and interest on bonds; or
(d) the levy of special assessments pledged for the
payment of principal and interest on bonds. (Emphasis
added.)
Section 7-5-131, MCA. The statute permits the electorate to
propose, amend, or repeal ordinances and resolutions. The statute
does not distinguish between zoning ordinances and rezoning
ordinances. It simply refers to "prior ordinances." A prior
ordinance could either be a zoning or rezoning ordinance. Thus,
the District Court correctly interpreted this statute to mean that
referendum by the people was appropriate for both zoning ordinances
and "amended" zoning ordinances (or rezoning). We will not insert
into statutes something that is not contained therein. Section l-
2-101, MCA. This is not an expansive reading of the statute, but
one that is taken from the clear meaning of the language used.
The legislature did not provide within the statute any
differences in procedure to be used with public involvement in
zoning as opposed to rezoning ordinances. Both acts are within the
"legislative jurisdiction and power of the Local governing body"
and are, therefore, subject to the referendum power of the people.
The Greens argue that we must follow the precedent of Lowe v.
City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, which stated
that there is a "sound" distinction between zoning and rezoning.
Lowe
-I 165 Mont. at 44, 525 P.2d at 554. We first point out that
the 1977 statute which we are interpreting in this case did not
6
differentiate between zoning and rezoning for referendum purposes.
In addition, in Schanz v. City of Billings (1979), 182 Mont. 328,
597 P.2d 67, we expressly departed from the holding in Lowe:
A review of authorities reveals no elemental
distinction between the act of "zoning" and the act of
"rezoning.11 A rezoning ordinance, like a zoning
ordinance, is a legislative enactment, and is entitled to
the presumption of validity and reasonableness.
[Citations omitted.]
[Wle depart here from the distinction expressed in
Lowe between the acts of zoning and rezoning .
Schanz, 182 Mont. at 335, 597 P.2d at 71. In order to eliminate
any confusion, we conclude it is necessary to overrule the
contradictory language in Lowe. We expressly overrule the
following language:
There is under Montana statutes and case law a sound
distinction between "zoning" 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
provisions of existing ordinance or law.
LoweI
- 165 Mont. at 44, 525 P.2d at 554. In doing so, we do not
express any opinion on granting or refusing variances.
Also, the Greens argue that the repeal of Ordinance No. 2877
is unconstitutional under the holding of this Court in City of
Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178. However,
the Sandholm case can be distinguished from the case before us.
Sandholm dealt with a vote by all of the electorate in the
city of Shelby with regard to one special improvement district
which constituted only part of the city. Special Improvement
Districts (SID's) are defined statutorily as improvements that
"will be of special benefit to the property within the boundaries
of any district created pursuant to the provisions of this part."
(Emphasis added.) Section 7-12-1102, MCA. SID's do not affect an
entire City.
Perhaps an example would best exemplify the distinction found
between the unique facts of this case and the facts of the Sandholm
holding. In Sandholm, we held that an entire city could not vote
on the propriety of one SID because the entire city was not
physically and financially affected by that SID:
But here the special improvement district encompasses
less than all of the real property in the City, and there
are qualified voters in the City who could vote on the
referendum but who are not physically or financially
affected by the special improvement district. Clearly,
the property owners who will be benefited by the
improvement, as well as assessed for the costs of the
project, should control whether the project succeeds or
fails. Section 7-12-4110, MCA, provides the protest
procedure for those affected by the special improvement
district, but the protest here was insufficient because
it did not represent 50 percent or more of the property
within the district, and the trial court so found.
Sandholm, 208 Mont. at 80, 676 P.2d at 179. We are unable to say
in the present case that only part of the City electorate would be
affected by what transpires on this tract of land. The land in
question here has historical and social significance for the entire
City. The public has used this property for many years for various
community-wide functions. Were the land to become used for the
multitude of private residential housing units that are planned,
the entire community could be affected by the added pressures--
financial, social, and environmental. Thus, the community as a
whole is affected by what happens to this property, despite not
every member of the community abutting the property in question.
8
In recognition of this, the District Court stated in its
Opinion:
The Court does not accept the myopic view of the
developer that this action should be viewed as a single
quasi-judi .cial zoning decision affecting one landowner's
private property. The proposed construction of
housing for several hundred people in what has
historically been publicly accessible open space on the
edge of the City affects prospective development
residents, public services and schools, the city housing
market, nearby residents and facilities, city traffic and
development patterns. . . The number of landowners
whose property is being zoned is not material to the
issue at hand.
It is the proposed zoning's potential effect upon the City that
distinguishes the present case from Sandholm. The entire community
of Shelby was not affected by the storm sewers in one SID. The SID
created in Sandholm had no significance or importance to anyone
other than the landowners who would be required to pay for the
proposed storm sewers.
As a result, we held in Sandholm as follows:
We agree, under the facts of this case, that the City's
action creating a special improvement district, was not
. subject to referendum. (Emphasis added.)
Sandholm, 208 Mont. at 79, 676 P.2d at 179. While the foregoing
conclusion is appropriate as to Sandholm, we further conclude that
it cannot be applied to the facts of this case. Under the facts of
this case, we need do nothing beyond interpreting § 7-5-131, MCA,
as including both zoning and rezoning "ordinances" under the
umbrella of the "legislative jurisdiction and power of the
governing body of the local government." Such an inclusion
entitles the electorate of Missoula to subject the applicable
"ordinance" to a referendum vote in order to repeal the ordinance.
9
The distinction between administrative/quasi-judicial acts and
those that are legislative need not concern us under the facts of
this case. As quoted above, Schanz determined that a rezoning
ordinance, like a zoning ordinance, is a legislative enactment and
that there is no distinction between the act of zoning and the act
of rezoning. Section 7-5-131, MCA, makes no distinction between
zoning and rezoning with regard to the referendum power of the
people. As pointed out in Schanz, both a zoning ordinance and a
rezoning ordinance are legislative enactments. As a result, we do
not find it necessary to attempt to distinguish between a zoning
and rezoning ordinance for referendum purposes.
We conclude that, under the facts of this case, Ordinance 2877
is subject to the people's referendum power pursuant to 5 7-5-131,
MCA. We do not here consider whether this statute is narrower than
the constitutional directives that engendered it, as that must
remain for some future case. We hold that the District Court did
not err in allowing the June 7, 1994 voter referendum concerning
the City zoning of Fort Missoula.
Affirmed.
Chief Justice
Justice James C. Nelson specially concurs.
I concur in the result of our opinion but not in our
rationale. Basically, we affirm the District Court because we
conclude that the ordinance at issue here is a zoning ordinance and
that zoning and rezoning are indistinct, both being legislative
enactments subject to the right of referendum.
While I do not disagree with those conclusions as far as they
go, our opinion, by default, perpetuates the long-articulated
notion relied upon by the District Court and discussed in other
cases in Montana that acts of the legislative body which are
characterized as "legislative" are subject to referendum, while
"administrative" or "quasi-judicial" acts of that body are not.
See, for example, Carlson v. City of Helena (1909), 39 Mont. 82,
102 P. 39; Allen v. City of Butte (1918), 55 Mont. 205, 175 P. 595;
City of Billings v. Nore (1966), 148 Mont. 96, 417 P.2d 458;
Chouteau County v. Grossman (19771, 172 Mont. 373, 563 P.2d 1125;
Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127; Lowe
v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551; Little v.
Board of County Commissioners (1981), 193 Mont. 334, 631 P.2d 1282;
Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67. It
is with that proposition that I disagree.
Rather than perpetuate a fiction that is without
constitutional validity, I would simply hold that 5 7-5-131, MCA,
is unconstitutional as being in violation of Article III, Section
5 of the Montana Constitution to the extent that the statute
restricts the power of referendum to "legislative" acts of the
11
local governing body.
It is axiomatic that the Constitution is the supreme law of
the state, Associated Press v. Bd. of Public Educ. (1991), 246
Mont. 386, 391, 804 P.2d 376, 379, and that constitutional
provisions are conclusive upon the legislature and prevent the
enactment of any law which extinguishes or limits the powers
conferred by them. No11 v. City of Bozeman (1975), 166 Mont. 504,
507, 534 P.2d 880, 881.
T o determine the meaning of a constitutional
provision we employ the same rules of construction
employed to construe statutes. The intent of the framers
of a constitutional provision is controlling. The intent
should be determined from the plain meaning of the words
used. If that is possible we apply no other means of
interpretation. (Citations omitted.)
Great Falls Tribune v. Public Schools (1992), 255 Mont. 125, 128-
29, 841 P.2d 502, 504. We are to simply "ascertain the meaning of
the Constitution as written, neither to add to nor to subtract
from, neither to delete nor to distort." Rankin v. Love (19511,
125 Mont. 184, 188, 232 P.2d 998, 1000.
In Article V, Section 1, of the Montana Constitution the
people expressly reserved unto themselves the power of referendum.
In furtherance of that reservation of power, the language of
Article III, Section 5, of the Montana Constitution is unambiguous
and explicit.
Section 5. Referendum. (1) The people may approve or
reject by referendum any act of the legislature except an
appropriation of money. . . (Emphasis added.)
As that language of the Constitution clearly provides, the people
of Montana reserved unto themselves the power to approve or to
12
reject by referendum any act of the legislature -- not simply
"legislative' acts, but any acts, including "administrative" acts
and "quasi-judicial" acts. Moreover, at Article XI, Section 8, the
people directed the legislature to extend the I'. . referendum
powers reserved to the people by the constitution to the qualified
electors of each local government unit."
While s 7-5-131, MCA, was enacted in an attempt to fulfill
that latter constitutional mandate, the statute, nonetheless,
restricts the referendum powers extended to the people to
"[r]esolutions and ordinances within the legislative jurisdiction
and power of the governing body of the local government, except as
set out in subsection (2). . .'I subsection (2) being not at issue
here. (Emphasis added.) Unfortunately that language, fortified by
numerous decisions of this Court cited above, has perpetuated the
notion that "legislative" acts, resolutions and ordinances are
subject to approval or rejection by referendum, while
"administrative" or "quasi judicial" acts are not. In fact and in
law, the Constitution makes no such distinction.
In our interpretations of Article III, Section 5, we have
stated that we are guided by the principle that the "referendum
provisions of the Constitution should be broadly construed to
maintain the maximum power in the people . . .I' Chouteau County
versus Grossman (1977), 172 Mont. 373, 378, 563 P.2d 1125, 1128;
Nicholson v. Cooney (1994), 265 Mont. 406, 411, 877 P.2d 486, 488.
Yet, in this case and in the various other legislative act versus
administrative act cases cited above, we have lost sight of that
13
principle and have, to the contrary, narrowed the broad power of
referendum reserved in the people by restricting that power to
"legislative" acts. Certainly, if the people had wanted to limit
their power of referendum to "legislative" acts, they could have
done so, as they clearly did with respect to "appropriations of
money." See Art. III, Sec. 5, Mont.Const.
No legislative act versus administrative or quasi judicial act
distinction appears in the language of the Constitution, and it is
improper and in violation of our well established rules of
construction to read such a provision into that document. Section
7-5-131, MCA, restricts the constitutional right of the people to
approve or reject by referendum any act of the governing body of
the local government guaranteed by Article III, Section 5 of the
Montana Constitution. To that extent, the statute is in derogation
of the Constitution and, therefore, cannot stand. The District
Court, and now this Court, have arrived at the right result but for
the wrong reason. In the former I concur; in the latter I cannot.
Justices Karla M. Gray and W. William Leaphart join in the
foregoing special concurrence. c\
14
Justice Terry N. Trieweiler specially concurring.
I concur with the majority opinion based on the oft-stated
principle that "it is elementary that courts should avoid
constitutional questions if an issue can be resolved otherwise."
Common Cause Y. Statutory &vnmittee (1994), 263 Mont. 324, 329, 868 P.2d
6 04 , 6 0 7 (citing Wolf v. Montana Dept. of Labor and Indushy ( 19 9 2 ) , 2 5 5 Mont .
336, 339, 843 P.2d 338, 340).
I do not, by concurring in the majority opinion, mean to infer
that I necessarily disagree with anything said in the concurring
opinion of Justice James C. Nelson.
15
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Robert J. Phillips, Esq.
Phillips & Williams, P.C.
283 West Front, Ste. 301
MIssoma, MT 59802
._. 1
Jim Nugent
Missoula City Attorney
435 Ryman
Missoula, MT 59802
Mark S. Connell, Esq.
Connell, Beers & Alterowitz
P.O. Box 7307
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
B Y : --
Deputy