Doody v. City of Great Falls

No. 01-539

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 96N

IN RE THE MATTER OF

JAMES DOODY AND NOVA SCOTIA LAND
COMPANY, LLC, and JON MARCHI,

Petitioners/Appellants,

and

CITY OF GREAT FALLS,

Respondent/Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Sunday Z. Rossberg, Rossberg Law Office, L.L.C., Great Falls, Montana

For Respondent:

Mark Higgins, Attorney at Law, Great Falls, Montana

Submitted on Briefs: January 24, 2002

Decided: May 9, 2002
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2 James Doody, Nova Scotia Land Company, LLC, and Jon Marchi

(collectively, the “Appellants”) appeal from an Order issued by the

Eighth Judicial District Court, Cascade County, affirming a

determination by the Board of Adjustment for the City of Great

Falls, Montana. We affirm.

¶3 The following issues are dispositive of this appeal:

¶4 1. Did the District Court abuse its discretion when it

refused to take additional evidence or appoint a referee to take

additional evidence?

¶5 2. Did the District Court err as a matter of law when it
ruled that the Board of Adjustment acted within the framework of

the law?

¶6 3. Did the District Court err when it failed to consider

evidence outside the record when considering the Appellants’ claim

that the City’s condemnation process was arbitrary and capricious?

BACKGROUND

¶7 This dispute centers on real property, commonly known as the

Linden Terrace Apartments, in Great Falls, Montana. On October 1,

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1999, the Building Official for the City of Great Falls, Jeff

Jenkins, sent the owner of the Linden Terrace Apartments, Jon

Marchi, a letter (the “Original Notice”) notifying him that he had

determined that the apartments were substandard and a public

nuisance and ordered them to be repaired or demolished. The letter

went on to state that the condition of the apartments endangered

“life, health, property or safety of the public or its occupants.”

¶8 During the fall of 1999, Marchi negotiated with James Doody,

the President of Nova Scotia Land Co., LLC, for the sale of the

Linden Terrace Apartments. During the negotiations, Marchi

instructed Doody to “take all appropriate action regarding the

condemnation and demolition of the property” and to respond to the

letter from Jenkins. Doody faxed a letter, dated October 27, 1999,

to Jenkins outlining his plans for repair and occupancy of the

apartment, along with a request for Jenkins to retract the order

for demolition.
¶9 In a letter dated October 28, 1999, Jenkins responded that the

condemnation notice would remain in effect. In December 1999,

Doody submitted a request to appeal the Building Official’s Order

of Condemnation. The City of Great Falls responded in a letter,

dated December 30, 1999, that Doody’s opportunity for appeal had

expired on November 21, 1999, and that the City intended to proceed

with the demolition. It also revoked Doody’s permit application

because the application was not acceptable to repair the structure.

In a letter dated February 11, 2000, the City informed Doody that

he did not have standing to appeal the Order of Condemnation

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because he had no interest of record in the Linden Terrace

Apartments.

¶10 On February 29, 2000, the Appellants filed a Petition for

Preliminary Injunction; Temporary Restraining Order; and Writ of

Mandamus. They requested that the District Court temporarily

enjoin and restrain the City of Great Falls from proceeding with

the demolition of the Linden Terrace Apartments. The Appellants

also asked the court to permit Doody and Marchi to appeal the Order

for the Demolition of the Linden Terrace Apartments and the City’s

revocation of the building permit application.
¶11 The court issued a Temporary Restraining Order on February 29,

2000. After conducting a hearing on March 15, 2000, the District

Court held that the time to appeal the City’s decision that the

Linden Terrace Apartments were substandard and a public nuisance

had elapsed. It concluded, however, that the City had waived the

60-day time limit for submitting building permit applications.

Therefore, the City had to re-notice the building permit

requirement in order to recommence the 60-day time limit.

¶12 On April 18, 2000, the City of Great Falls sent a letter (the

“Re-Notice”) to Marchi stating that it was “re-noticing that the

structure be repaired or demolished and orders that a permit to

repair or raze the structure be obtained within sixty (60) days

from the date of this letter.” The Appellants appealed the Re-

Notice to the Board of Adjustment on May 19, 2000. Following a

hearing on August 10, 2000, the Board issued Findings and

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Requirements of Compliance on September 5, 2000, denying the

Appellants’ appeal.

¶13 On October 9, 2000, the Appellants sought a Petition for

Appeal from Board of Adjustment Decision from the District Court.

The court held a hearing on May 21, 2001, and issued its Order

affirming the Board’s decision and dismissing the Appellant’s

appeal on June 21, 2001. The Appellants appeal the court’s Order.

STANDARD OF REVIEW

¶14 A district court may only set aside a board of adjustment’s

decision if a party shows that the board abused its discretion.

See Schendel v. Board of Adjustment (1989), 237 Mont. 278, 283, 774

P.2d 379, 382. When reviewing the district court’s decision to

affirm or reverse an administrative decision, we will then employ

the same standard. See Marble v. State, Dept. of Health and Human

Servs., 2000 MT 240, ¶ 16, 301 Mont. 373, ¶ 16, 9 P.3d 617, ¶ 16.
ISSUE ONE

¶15 Did the District Court abuse its discretion when it refused to

take additional evidence or appoint a referee to take additional

evidence?

¶16 A district court may grant a writ of certiorari to review a

decision of a board of adjustment. See § 76-2-327(2), MCA. If it

appears to the court that “testimony is necessary for the proper

disposition of the matter, it may take evidence or appoint a

referee to take such evidence.” Section 76-2-327(3), MCA. A

district court may, at its discretion, decide not to take

additional evidence if it appears that additional evidence is

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unnecessary to properly decide the matter. See Mack T. Anderson

Ins. Agency, Inc. v. City of Belgrade (1990), 246 Mont. 112, 121,

803 P.2d 648, 653.

¶17 The Appellants argue that additional evidence was necessary

because errors plagued the transcript of the Board of Adjustment

hearing. Asserting that the transcript was inherently unreliable,

they argue that the District Court erred by admitting it. In

making their argument, however, the Appellants do not indicate how

the transcript differed from the actual proceedings or how the

transcript tainted the court’s ultimate decision. The Appellants

also fail to show what information the District Court lacked.

Interestingly, the Appellants never requested a transcript of the

Board of Adjustment hearing; the City of Great Falls ordered the

transcript. Furthermore, the Appellants did not request that the

court listen to the tape of the hearing. Their failure to request

a transcript or ask the court to listen to a tape of the transcript

undermines the Appellants’ claim that an incomplete record of the

hearing prejudiced their case.
¶18 In Anderson, we ruled that declining to take additional

evidence was within the district court’s discretion where it had

documents and maps submitted by both parties, oral testimony, the

board of adjustment’s written decision and a tape of the board’s

meeting. See Anderson, 246 Mont. at 121, 803 P.2d at 653-54.

Notably, no written transcript was present in Anderson. Here, in

addition to the transcript, the court had the pre-hearing briefs of

both parties, numerous related documents, including the Board’s

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written decision, and oral arguments from both sides. Therefore,

we conclude that the District Court did not abuse its discretion in

declining to admit additional evidence or appoint a referee.

ISSUE TWO

¶19 Did the District Court err as a matter of law when it ruled

that the Board of Adjustment acted within the framework of the law?

¶20 The Appellants argue that the Board of Adjustment failed to

follow the Uniform Code of Abatement of Dangerous Buildings (the

“Uniform Code”). They contend that the Board failed to find that

the Linden Terrace Apartments were dangerous. Judge Neill,

however, held that the Appellants’ time to appeal this issue had

expired. The Appellants never appealed this conclusion. Judge

Neill further held that the Appellants’ attempts to re-open the

issue of dangerousness were res judicata. The Appellants, however,

claim that the Re-Notice operated as an entirely new notice, which

therefore entitled them to an appeal on all of the underlying

issues, particularly that of a finding of “dangerousness.” In

particular, they assert that the Re-Notice added new requirements

to those previously listed in the Original Notice.
¶21 Despite the Appellants’ assertions, we fail to note any

appreciable difference between these two notices. The Re-Notice

required that the “application must be submitted by you or your

representative to repair the items listed to standards required by

the Uniform Building Code, Uniform Plumbing Code, Uniform

Mechanical Code and National Electrical Code.” The Original

Notice, on the other hand, stated that “[t]he submittal will be

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reviewed for compliance with the applicable code regulations and,

if satisfactory, approved for permit issuance.” The difference

between stating “applicable code regulations” and setting out the

applicable code regulations is, at most, one of semantics.

¶22 The Appellants also contend that the Board of Adjustment

“nearly violated every provision” of the Uniform Code. In

particular, the Appellants assert that the Board violated their

rights under § 604.6 of the Uniform Code to examine witnesses and

introduce other evidence. They claim that the Board’s failure to

consider witness testimony and require the production of documents

essentially precluded discovery. We disagree.
¶23 Section 603.1 of the Uniform Code states that the Board “may

obtain the issuance and service of a subpoena for the attendance of

witnesses or the production of other evidence at a hearing . . .

upon the written demand of any party.” When interpreting a

statute, we give words and phrases their plain, ordinary and usual

meaning. See Goyen v. City of Troy (1996), 276 Mont. 213, 221, 915

P.2d 824, 829. We have long held that use of the word “may”

denotes a permissive or discretionary choice. See In re Minder's

Estate (1954), 128 Mont. 1, 9-10, 270 P.2d 404, 409. Thus, while a

party may request subpoenaed witnesses and documents, the Board

decides to accept such requests at its own discretion.

¶24 The Appellants imply that the Board refused to hear testimony

of five subpoenaed city employees by quashing the subpoenas. The

City points out, however, that the Board quashed only the subpoena

for the Assistant City Manager because she was out of town and a

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different subpoenaed witness was available and possessed the same

information. The Appellants never called any other subpoenaed

witness to testify. Instead, they asked to cross-examine the

building inspectors regarding dangerousness. The Board denied this

request on the grounds that any issues relating to dangerousness

were res judicata.

¶25 While the Appellants’ claim that the Board either quashed or

ignored their requests set forth in subpoenas, they specifically

cite only the Board’s refusal to require the production of all

permit applications issued by the City of Great Falls where the

plans were not prepared and designed by an engineer or architect

licensed by the State of Montana. When opposing this request at

the hearing, the City explained to the Board that such a request

involved at least 4,200 applications and would take the staff of

the Community Development Department 43 weeks to produce them.

After a dialogue between the Board and the parties, the Board

granted the City’s request for a protective order. The Appellants

do not dispute that this was their only request for subpoenaed

documents.
¶26 On appeal, the Appellants offer no suggestion why the Board’s

individual decisions concerning witness testimony or document

production were incorrect. Instead, they intimate that the Board’s

actions precluded the Appellants from conducting any discovery. In

each case, the Board had a rational basis to decide against the

Appellants’ discovery requests. Such decisions were within the

Board’s discretion.

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¶27 The District Court examines the wisdom of the Board’s decision

to see if the Board acted within its jurisdiction and its actions

were not illegal. See Schendel, 237 Mont. at 283, 774 P.2d at 382.

The Appellants do not contest the Board’s jurisdiction and can

offer no evidence that the Board acted illegally other than

pointing to the fact that the Board declined to hear certain

evidence, which was within its discretion to do. Therefore, we

conclude that the District Court was within its discretion in

concluding that the Board acted within the law.
ISSUE THREE

¶28 Did the District Court err when it failed to consider evidence

outside the record when considering the Appellants’ claim that the

City’s condemnation process was arbitrary and capricious?

¶29 The Appellants argue that the City’s condemnation process was

arbitrary and capricious. In support of their argument, the

Appellants cite Skyline Sportsmen’s Ass’n v. Board of Land Comm’rs

(1997), 286 Mont. 108, 951 P.2d 29, for the proposition that a

district court must review all of the underlying facts to decide

whether a lower court acted in an arbitrary or capricious manner.

The City points out, however, that the Appellants do not cite

authority that supports their assumption that the District Court

should have examined the City’s condemnation process under an

arbitrary and capricious standard. We agree; the Appellants

misapply the District Court’s scope of review.

¶30 The District Court reviews the decisions of the Board of

Adjustment, not the decisions of the City. Compare § 76-2-326, MCA

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(authorizing appeals from administrative officers to the Board of

Adjustment) with § 76-2-327, MCA (authorizing appeals from the

Board of Adjustment to a court of record). So long as the Board of

Adjustment acted within its discretion when reviewing the City’s

actions, the District Court must uphold the Board’s decisions. See

Schendel, 237 Mont. at 283, 774 P.2d at 382. Therefore, we

conclude that the District Court did not err by not considering

evidence outside the record.

¶31 Affirmed.

/S/ JIM REGNIER

We Concur:

/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE

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