January 6 2009
DA 06-0839
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 3
VIRGINIA CITY, a Municipal Corporation and
Political Subdivision of the State of Montana,
Plaintiff and Appellee,
v.
THE ESTATE OF GREG OLSEN and
PHILIP MASON, JR.,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Madison, Cause No. DV 29-99-48
Honorable Ted L. Mizner, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Andrea J. Olsen, Attorney at Law, Missoula, Montana
For Appellee:
William A. Hritsco, Davis, Warren & Hritsco, Dillon, Montana
Submitted on Briefs: October 24, 2007
Decided: January 6, 2009
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 The City of Virginia City, Montana, brought this action against Greg Olsen and
Phillip Mason Jr. (collectively, Defendants), seeking to enjoin their construction of a
house due to permit violations. Defendants answered the City’s complaint and raised
several counterclaims. Ultimately, the Fifth Judicial District Court, Madison County,
entered an order granting summary judgment to the City on both its complaint and
Defendants’ counterclaims and ordering that the house be removed from the property.
Defendants appeal, and we now affirm.
ISSUES
¶2 We address the following issues on appeal:
1. Did the District Court err in granting summary judgment to the City on its
complaint seeking to enjoin construction of the house based on violations of the
development and site zoning permits?
2. Did the District Court err in granting the City permanent injunctive relief in the
form of ordering Olsen and Mason to remove the house from the property?
3. Did the District Court err in granting summary judgment to the City on
Defendants’ counterclaims?
BACKGROUND
¶3 In the spring of 1999, Olsen requested Mason to assist him in building a house on
Olsen’s property, consisting of Lots 11 and 12 of Block 201 in Virginia City. The City
has a Design Review Zoning Ordinance (Ordinance 503) by which it controls and
manages new construction and changes to existing buildings to ensure such construction
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is consistent with the City’s historic character. Ordinance 503 incorporates by reference
the City’s Design Review Guidelines (Guidelines), as well as Titles 11 and 15 of the
Virginia City Code. The Guidelines are intended to “aid in the design of buildings within
the town of Virginia City, as well as act as the criteria for reviewing applications under
the Design Review Ordinance.” The Guidelines set forth criteria relating to the
architectural style and design, as well as location, of buildings in various districts of the
City so that new construction and changes to existing buildings are designed in a manner
to protect and enhance the unique historic character of the City. Title 11 of the City Code
establishes additional restrictions relating to size and placement of buildings in the
various City districts.
¶4 Ordinance 503 requires both a development permit and a site zoning permit for all
new construction within the City and sets forth procedures to follow in applying for the
necessary permits. In accordance with those procedures, Mason (acting as Olsen’s agent)
approached the City’s Historic Preservation Officer, Chandler Simpkins, who assisted
Mason with preparing applications for the two permits.
¶5 Upon Simpkins’ request, Mason provided two drawings illustrating front and rear
exterior views of the proposed house. Simpkins also requested a “plot plan” drawing of
the property, which is a required part of an application for a site zoning permit under
Ordinance 503. Ordinance 503 states that the drawing must show the proposed location
of the building on the property and “shall clearly show property lines, adjacent public
lands, relationship of roads & utilities, applicable setbacks, footprint, overhangs, etc.”
Mason provided a drawing which showed the property lines for Lots 11 and 12 and
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indicated that the lots were bordered on the south by Warren Street and the east by
Fairweather Street. The drawing also showed that the house’s footprint—or exterior
dimensions—was to be 40 feet wide by 30 feet deep and that the house was to be set back
25 feet from the south lot line along Warren Street and 35 feet from the east lot line along
Fairweather Street.
¶6 The permit applications, including the three drawings, were then presented to the
City’s Historic Preservation Advisory Committee for consideration. The Committee
requested design changes for the rear exterior view of the proposed house, approved the
applications with those changes, and forwarded the applications to the Town Council for
final consideration. The Council approved the permit applications and issued the permits
on June 17, 1999. As approved, the house was to be constructed with three levels. The
rear view to the north would expose all three levels, including a daylight basement, first
floor, and second floor. To the south, facing Warren Street, the view of the house is only
of the first and second floors, with the first floor extending approximately six feet further
to the front than the second and covered with a shed roof. Mason began construction of
Olsen’s house immediately upon issuance of the permits.
¶7 In late July 1999, Mason began receiving complaints from City residents that the
house, as it was being constructed, violated setback requirements. On August 3 and 4,
1999, the City’s new Historic Preservation Officer, Carl Donahue, conducted an
investigation and advised Mason of the alleged setback violations. Also on August 4,
Olsen’s neighbors submitted a written complaint to the City’s Board of Adjustments
regarding the setback violations. On August 11, Donahue sent Olsen and Mason a
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written letter requesting that they cease construction on the house immediately. Two
days later, the Town Council sent a written letter requesting that construction cease and
that Olson and Mason meet with the Council to attempt to resolve the matter. Mason
continued construction on the house.
¶8 In late August, David Bowman was commissioned to conduct a survey of Olsen’s
property and the construction site to measure the setbacks and height of the house. Based
on Bowman’s survey, the City sent notice to Olsen and Mason that it was revoking the
building permits based on permit violations and seeking an injunction preventing further
construction. The City then filed a complaint and application for preliminary injunction
in the District Court.
¶9 The City’s complaint alleged that Olsen’s house, as constructed by his agent
Mason, violated the requirements of the building permits and the City ordinances
regarding setback distances, height, window size and placement, and general structure.
The complaint requested a permanent injunction against Defendants, that the District
Court hold a show-cause hearing, and that the court issue a preliminary injunction
restraining Defendants from further construction in violation of the permits and
ordinances. The District Court held a show-cause hearing on the City’s application for
preliminary injunction and, on September 15, 1999, entered an order granting the
preliminary injunction, which precluded further construction on the house pending
further proceedings on the City’s complaint.
¶10 Defendants filed an answer to the City’s complaint in which they raised several
affirmative defenses and counterclaims. In their counterclaims, Defendants alleged that
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Ordinance 503 was unconstitutionally vague and could not be enforced against them and
that the City and its officials arbitrarily and discriminatorily enforced Ordinance 503 in a
manner that violated Defendants’ constitutional rights to due process and equal
protection.
¶11 The parties conducted discovery and eventually filed cross-motions for summary
judgment. The City argued the evidence established that Olsen’s house, as constructed,
violated the development and site zoning permits with regard to setback requirements,
height, design, and overall size, thus entitling the City to summary judgment on its
complaint. The City further argued that there was no evidence supporting Defendants’
counterclaims regarding the City’s alleged selective and arbitrary enforcement of
Ordinance 503 and that the City was entitled to summary judgment on that issue as well.
Defendants, in turn, argued that they were entitled to summary judgment in their favor
because the house met the setback requirements of the City’s ordinances or because the
ordinances were so vague as to be unenforceable. Defendants requested that the District
Court hold an evidentiary hearing on the summary judgment motions.
¶12 The District Court denied Defendants’ motion for a hearing and entered an order
regarding the summary judgment motions based on the depositions and evidence
submitted by the parties, as well as the testimony from the prior show-cause hearing. The
court granted summary judgment to the City on all issues, granted a permanent injunction
restraining further construction on the house, and dismissed Defendants’ counterclaims.
Defendants appealed, asserting that the District Court had erred in denying their request
for a hearing on the motions and in granting summary judgment to the City. On appeal,
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this Court held that the District Court had erred in denying Defendants’ request for an
evidentiary hearing. We accordingly reversed the court’s summary judgment order and
remanded the case for further proceedings. See Virginia City v. Olsen, 2002 MT 176,
¶¶ 23-25, 310 Mont. 527, ¶¶ 23-25, 52 P.3d 383, ¶¶ 23-25.
¶13 On remand, the District Court scheduled a hearing on the summary judgment
motions. Both parties appeared at the hearing and orally argued their respective
positions. Neither party presented any additional evidence or testimony in support of
their respective motions. The court subsequently entered an order granting summary
judgment to the City on its complaint and on Defendants’ counterclaims, permanently
enjoining Defendants from further construction on the house, and ordering Defendants to
remove the structure from the property and re-contour Lots 11 and 12 to their
preconstruction appearance and grade. Defendants now appeal.
STANDARD OF REVIEW
¶14 We review a district court’s grant of summary judgment de novo, using the same
criteria of M. R. Civ. P. 56 as applied by the district court. Smith v. Burlington Northern
and Santa Fe Ry. Co., 2008 MT 225, ¶ 10, 344 Mont. 278, ¶ 10, 187 P.3d 639, ¶ 10. In
that regard, Rule 56(c) provides that “[t]he judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Thus, the party
moving for summary judgment carries the initial burden to establish the absence of
genuine issues of material fact and entitlement to judgment as a matter of law. Smith,
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¶ 10. If this burden is met, the nonmoving party then must come forward with substantial
evidence raising a genuine issue of material fact essential to one or more elements of the
case. Smith, ¶ 10.
DISCUSSION
¶15 Issue 1. Did the District Court err in granting summary judgment to the City on
its complaint seeking to enjoin construction of the house based on violations of
the development and site zoning permits?
¶16 The City moved for summary judgment asserting that it had presented evidence
sufficient to establish that Olsen’s house, as constructed by his agent Mason, violated the
requirements of the building permits regarding general structure, setback distances,
height, and window size and placement. Defendants argued in response that their
evidence established that the house construction conformed to the requirements of the
permits and the City’s ordinances or, at the least, there were genuine issues of material
fact regarding whether the permits and ordinances were violated, which precluded
summary judgment. The District Court determined that there were no genuine issues of
material fact related to Defendants’ violation of the permits in the manner alleged by the
City and that the City was entitled to judgment as a matter of law on its complaint.
¶17 We observe at the outset that the parties agree that the development and site
zoning permits, including the two drawings of the exterior of the house and the plot-plan
drawing, control as to the location, size, and configuration of the house to be built. In
other words, to the extent that any requirement in the permits and accompanying
documents is at variance with the provisions of Ordinance 503 or other City ordinances,
the provisions of the permits control.
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¶18 We first address the City’s claim that the general structure of the house as
constructed by Mason violates the permits. As part of its evidence in support of its
summary judgment motion, the City provided the District Court copies of the permits
with their accompanying documents and the Bowman survey. As stated above, Mason
provided two drawings illustrating front and rear exterior views of the proposed house.
The front view (to the south, facing Warren Street) shows the first and second floors.
The drawing clearly depicts the first floor extending approximately 6 feet further forward
than the second floor and covered with a shed roof. The plot-plan drawing incorporated
into the permit requirements indicates the footprint of the proposed house to be 40 feet
long by 30 feet wide. Thus, according to these drawings, the first floor of the house was
to cover the full footprint of 40 feet by 30 feet, while the second floor would cover an
area of 40 feet by approximately 24 feet.
¶19 The Bowman survey, conducted after the first and second floors had been framed
in, indicated that the footprint of the house as constructed corresponded with the 40 by 30
foot footprint required by the permits. But the second floor, as shown in photographs of
the house under construction, was also built to the full 40 by 30 foot dimensions, rather
than being set in 6 feet. Thus, the front façade of the house is flat from the bottom of the
first floor to the top of the second floor, with no shed roof extension.
¶20 The District Court set forth these facts as being essentially undisputed. The court
thus determined there were no genuine issues of material fact that the house as
constructed violated the permit requirements regarding the design and structure of the
front façade. On appeal, Defendants present no argument and point to no evidence which
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would raise a genuine issue of material fact regarding whether the south-facing side of
the house was constructed in conformance with the permits, thus tacitly admitting that no
genuine issue of material fact exists in this regard. We conclude, therefore, that the
District Court did not err in determining that the general structure of the house as built
violated the permit requirements.
¶21 With regard to the setback issue, the District Court noted that the plot-plan
drawing incorporated into the permits indicated that the house was to be located 25 feet
from the lot line to the south along Warren Street and 35 feet from the lot line to the east
along Fairweather Street. The Bowman survey established that the house as constructed
is actually located approximately 7 feet from the south lot line and approximately 22 feet
from the east lot line. Thus, the District Court concluded Defendants had violated the
permits in regard to the setbacks.
¶22 On appeal, Defendants assert that the District Court erred in determining that they
violated the setback requirements. They rely heavily on City ordinances regulating
setbacks in various areas of the City. Pursuant to Title 11 of the City Code, which is
incorporated by reference into Ordinance 503, the minimum front-yard setback
requirement for the district in which Olsen’s property is located is “50 feet from the
center of the abutting public street or road.” Defendants argue that the location of
Olsen’s house on his property meets the setback requirements on Warren Street as set
forth in the City ordinance or that a genuine issue of material fact exists on this issue
because the ordinance fails to specify whether the 50 foot setback is to be measured from
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the public street as indicated on the official City plat or the actual traveled way currently
in use by the public.
¶23 As noted above, however, the parties agree that the development and site zoning
permits control as to the location, size, and configuration of the house, so that where any
variance exists between the provisions of Ordinance 503 or other City ordinances and the
requirements of the permits, the permits control. Here, the permits and accompanying
documents required setbacks of 25 feet from the lot line along Warren Street and 35 feet
from the lot line along Fairweather Street, rather than the setback of 50 feet specified in
Title 11 of the City Code. The Bowman survey clearly establishes that the setbacks
required by the permits were not met. We conclude, therefore, that the District Court did
not err in determining there were no genuine issues of material fact that Defendants
violated the setback requirements of the permits.
¶24 Defendants also argue that the District Court erred in concluding there were no
genuine issues of material fact related to the overall height of the Olsen’s house, as well
as the size and appearance of the windows. We determined above that the City
established the absence of genuine issues of material fact and entitlement to judgment as
a matter of law on their claims that Defendants violated the development and site zoning
permit requirements relating to the general structure of the house and the setbacks from
Warren and Fairweather Streets. The City having sufficiently established those two
violations of the permits, we conclude that it is not necessary to address whether other
violations of the permits occurred.
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¶25 We hold that the District Court did not err in granting summary judgment to the
City on its complaint seeking to enjoin construction of the house based on violations of
the development and site zoning permits.
¶26 Issue 2. Did the District Court err in granting the City permanent injunctive
relief in the form of ordering Olsen and Mason to remove the house from the
property?
¶27 The District Court granted summary judgment to the City on its complaint on the
basis that Defendants had violated the terms of the development and site zoning permits
in constructing Olsen’s house. The court further determined that monetary damages were
insufficient to remedy Defendants’ permit violations and that a permanent injunction
precluding further construction of the house was appropriate under § 27-19-102(1),
MCA. The court also ordered Defendants to remove the portions of the house already
constructed and return the property to its former appearance. Defendants contend the
District Court erred in granting the permanent injunction and ordering removal of the
house because they presented evidence establishing that the house could be completed in
its current location without injury to the historical character of the City.
¶28 Defendants point out that their expert witness, Steve Adler, a historical architect,
testified in his deposition that the house could be completed in a manner that would be
historically appropriate and not compromise the City’s historical integrity. They suggest
that design elements such as siding, door, and window configuration, as wel l as
landscaping could be completed in a manner that complies visually with the City’s
concept of proper historical design. Defendants also suggested in the District Court that
an addition with a shed roof could be added to the first floor on the south-facing side of
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the house to provide a visual break in the façade and conform to the drawings included
with the permits.
¶29 Defendants’ arguments, however, ignore the fact that the suggested exterior design
elements would not correct the permit violations regarding setbacks and the overall
structure of the house. Indeed, Defendants’ suggestion of appending a shed roof addition
to the first floor would only exacerbate the existing violations by reducing the distance
between the outer edge of the house and the lot line bordering Warren Street to
approximately 1 foot and increasing the footprint of the house beyond the 30 by 40 foot
dimensions approved in the permits.
¶30 Defendants contend that the City should have granted them a variance excusing
the building violations, rather than seeking an injunction, or that the District Court should
have held a hearing to determine whether the City should grant Defendants such a
variance. However, as the City points out, Defendants never requested that the City grant
a variance or otherwise amend the permits to conform to the building Mason actually
constructed, and Defendants provide no authority for the concept that the City was
obligated to consider a variance on its own initiative. Nor did Defendants ever request
that the District Court consider or rule upon whether the City should be required to grant
them such a variance.
¶31 A district court’s grant of a permanent injunction will not be reversed absent a
showing of manifest abuse of discretion. Shammel v. Canyon Resources Corp., 2003 MT
372, ¶ 12, 319 Mont. 132, ¶ 12, 82 P.3d 912, ¶ 12. “A ‘manifest’ abuse of discretion is
one that is obvious, evident or unmistakable.” Shammel, ¶ 10. We conclude that
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Defendants have failed to establish that the District Court manifestly abused its discretion
in this instance. We hold, therefore, that the District Court did not err in granting the City
permanent injunctive relief in the form of ordering Olsen and Mason to remove the house
from the property.
¶32 Issue 3. Did the District Court err in granting summary judgment to the City on
Defendants’ counterclaims?
¶33 In their answer to the City’s complaint, Defendants raised counterclaims asserting
that Ordinance 503 was unconstitutionally vague and could not be enforced against them
and that the City and its officials arbitrarily and discriminatorily enforced Ordinance 503
in a manner that violated Defendants’ constitutional rights to due process and equal
protection. In its order granting the City summary judgment, the District Court dismissed
Defendants’ counterclaims, essentially determining them to be moot.
¶34 Defendants first argue that the District Court’s dismissal of their counterclaims
pursuant to summary judgment violated their constitutional right to due process. They
assert that they continuously requested trial by jury on their counterclaims and, therefore,
the counterclaims were not subject to the cross-motions for summary judgment.
¶35 Yet, in their brief responding to the City’s motion for summary judgment,
Defendants requested the District Court determine, as a matter of law, that the City’s
ordinances are vague and ambiguous and that the City’s enforcement of those ordinances
against Defendants was selective and arbitrary. Defendants further requested that the
court deny the City’s request for an injunction, grant summary judgment to Defendants,
and allow the matter to proceed on the sole issue of the amount of damages suffered by
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Defendants. Furthermore, during their oral argument before the District Court, counsel
for Defendants expressly requested that the court grant summary judgment to Defendants
on the ground that the ordinances are vague and ambiguous. Thus, Defendants
themselves clearly presented their counterclaims as ripe for determination at the summary
judgment stage and cannot now complain that the District Court erred in addressing the
counterclaims in its summary judgment order.
¶36 Defendants also argue that the District Court erred in granting the City summary
judgment on their counterclaims because they presented evidence—primarily in the form
of an affidavit from Donahue (the City’s Historic Preservation Officer)—entitling them
to judgment as a matter of law. In moving for summary judgment, Defendants argued
first that the construction of the house did not violate the ordinances or permits and, in
the alternative, that even if the construction technically violated the ordinances, the
ordinances should not be enforced against them in this case because the ordinances are
unconstitutionally vague and the City arbitrarily enforced them.
¶37 We held above that the District Court did not err in granting summary judgment to
the City on the ground that the construction of Olsen’s house violated requirements of the
development and site zoning permits relating to the general structure of the house and the
setbacks. In other words, the City is entitled to summary judgment based on violations of
the permits, not violations of any City ordinances. Defendants’ counterclaims and
arguments relating to the validity and enforceability of the ordinances have no bearing on
whether the City may enforce the terms of the permits. Accordingly, having determined
that Defendants violated the terms of the permits, rather than the ordinances, the District
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Court correctly concluded that Defendants’ counterclaims essentially were moot. We
hold, therefore, that the District Court did not err in granting summary judgment to the
City on Defendants’ counterclaims.
CONCLUSION
¶38 We affirm the District Court’s order granting summary judgment to the City on its
complaint and on Defendants’ counterclaims, permanently enjoining Defendants from
further construction on the house, and ordering Defendants to remove the structure and
re-contour the property.
¶39 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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