No. 1,3028
LN THE SUPREME COUKT OF THE S T A T E dF MONTANA
197 5
THE STATE OF MONTANA, ex r e l .
URIEL MAY et: a l . ,
Relators,
-vs -
FRED U R T S O N , Havre Bldg. I n s p e c t o r and
gavre C i t y Engineer,
Respondent,
RUDY I'KAMELLI and BOB MURRAY,
I n t e r v e n o r s and Respondents.
~ p p e a ifrom: District Court of t h e T w e l f t h J u d i c i a l D i s t r i c t ,
Honorable B. W. Thomas, Judge p r e s i d i n g .
Counsel of Record:
For R e l a t o r s :
Weber, Bosch, Kuhr, Dugdale, Warner and M a r t i n ,
Havre, Montana
1,or Yespondents :
Church, H a r r i s , Johnson & W i l l i a m s , G r e a t F a l l s ,
Montana
C h a r l e s Love11 argued and R o b e r t P a Goff a r g u e d ,
G r e a t F a l l s , Montana
Waldo N. Spangelo a r g u e d , Havre, Montana
Submitted: J u l y 30, 1975
Decided: AUCi 12 197s
Clerk
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from a judgment and decree denying
appellants their request for a writ of mandate instructing the
city of Havre's building inspector to command Rudy Tramelli and
Bob Murray, Jr., Contractors, to conform their apartment buildings
which are now in the process of being built to the zoning require-
ments cf residential rather than commercial buildings.
The city of Havre on August 5, 1974, adopted a new zoning
ordinance. The ordinance, City of Havre Ordinance No. 599, allows
about 370 different uses for the various zoning districts. Through
a clerical error, the ordinance failed to provide for the building
of apartment houses in any one of the zoning districts under the
ordinance. However no party to this dispute contends that the
building of apartment buildings is in violation of the zoning or-
dinance.
Rudy Tramelli and Bob Murray, Jr., hereinafter referred to
as Builders, in December of 1974 went to Havre and took options
on two parcels of land for the purpose of building two 12-plex
apartment houses. The two building sites are located in an area
zoned Commercial-Local. The two sites consist of lots 37 through
40 and lots 41 through 44 in Highland Park Addition to the city of
Havre .
In mid-January 1975, the Builders contacted the office
of the city engineer and building inspector in Havre and described
to Deputy Gerald Grabofsky the two parcels of land under option
and asked what was required in order that a 12-plex apartment
house could be located on each parcel. Requirements for building
set-back were outlined by Grabofsky in that and subsequent telephone
conversations upon which the Builders relied in preparing their
site and plans for the two buildings. The apartment buildings were
each to be set back from Eleventh Street a distance of thirty feet,
from Washington Avenue a distance of thirty-nine feet, from the
alley a distance of thirty feet, and from the adjoining lots to
the north and south a distance of thirty-eight feet. On this
same date, because they had been advised orally by the City that
they had complied with all requirements, the Builders exercised
their option to purchase the two parcels of land to be used as
the building sites for the apartment houses.
The building plans and plot plans were reviewed by build-
ing inspector Hartson and his assistant Grabofsky. The City re-
quested changes to bring the buildings into conformance with the
Uniform Building Code which changes were agreed to by the Builders.
On February 4, 1975, building permits were issued by the City for
each of the two 12-plex apartment buildings. The City determined
that the set-back requirement of 30 feet from the alley for com-
mercial buildings applied, as opposed to the 40 feet requirement
for residential property.
On February 17, 1975, the two building sites were sur-
veyed and the four corners of each site were staked.
On March 3, 1975, Murray with his foreman located the
buildings on the two building sites and began excavation. Im-
mediately following, the footings for the foundations were poured.
The daylight basement partitions were framed and framing of ex-
terior walls up to the second floor level was completed. At the
time of the hearing, the Builders had invested approximately
$114,000 in the land and buildings and the project was one-third
completed from a cost standpoint.
On the afternoon of Friday, March 21, 1975, Grabofsky
went to the building site and notified Builders' foreman that he
had been requested to tell them that there was a possible error
in the set-back of the buildings from the alley. Builders were
not requested to stop work nor were they requested to change the
buildings in any way.
At a neighborhood meeting on Sunday, March 23, 1975,
in response to questions and objections from people present,
Grabofsky stated that there was a possibility of error; and,
that if the error was confirmed, construction would be halted
until a solution was found. By Tuesday, March 25, 1975, the
building engineer decided that apartment buildings were a commer-
cial use and were in compliance with the zoning ordinance.
Various Residents, who are now appellants in this appeal,
brought this action on March 26, 1975, the day after learning of
the building inspector's reaffirmation of his previous determin-
ation that there was no violation. Residents petitioned the dis-
trict court to issue a writ of mandate requiring the building
inspector to issue written notice to Buil6ers specifying that the
two 12-plex apartments which they were building failed to conform
to Ordinance No. 599 in that the buildings did not meet the set-
back requirements of the zoning ordinance and further commanding
the City to take all other necessary and proper steps to enforce
the Ordinance including but not limited to initiation of approp-
riate civil and criminal proceedings as provided for in section
11-2708, R.C.M. 1947, and Ordinance No. 599. Residents further
sought an award of attorney's fees and other damages and costs of
suit. Builders' motion to intervene was granted without objection.
Each of the parties appeared through counsel and presented testi-
mony and documentary evidence to the district court sitting with-
out a jury. Briefs were filed and the court entered its findings
of fact, conclusions of law, and decree. The court concluded that
the City, its officials and agents, including IIartson, the build-
ing inspector and city engineer, were estopped from taking the
action which the Residents sought to require of them and decreed
that the Residents' application be denied and the alternative
writ of mandate quashed. Residents have appealed from that
decree.
Numerous issues were raised by all sides on this appeal.
However, we find it unnecessary to discuss any issue other than
the impropriety of the remedy of mandamus in this action.
This Court has often discussed when a writ of mandate may
be properly issued. Issuance of a writ of mandate is controlled
by statute. It is an extraordinary remedy to be permitted only
when no other adequate remedy lies. See Kennedy v. District
Court, 121 Mont. 320, 194 P.2d 256.
Sections 93-9102 and 93-9103, R.C.M. 1947, define the
circumstances under which a writ of mandate may issue:
"93-9102. When and by what court issued. It (writ
of mandamus) may be issued by the supreme court or
the district court, or any judge of the district
court, to any inferior tribunal, corporation, board,
or person, to compel the performance of an act which
the law specially enjoins as a duty resulting from
an office, trust, or station; or to compel the ad-
mission of a party to the use and enjoyment of a
right or office to which he is entitled, and from
which he is unlawfully precluded by such inferior
tribunal, corporation, board or person.
-
"93-9103. Writ--when and upon what to issue. The
writ must be issued in all cases where there is
not a plain, speedy, and adequate remedy in the
ordinary course of law. It must be issued upon
affidavit, on the application of the party bene-
ficially interested." (Emphasis supplied)
The burden is therefore upon Residents, as applicants for a writ
of mandate, to establish sufficient facts to entitle them to
relief. Among the facts which they must establish is the fact
that there is no other remedy available to them. See Duggan v.
District Court, 65 Mont. 197, 210 P. 1062. Residents in this
case introduced no evidence to support their contention that they
had no speedy and adequate remedy at law. To the contrary, the
secretary of the Zoning Board of Adjustment, Gerald Grabofsky,
testified that to his knowledge no appeal had been taken from the
issuance of the permits in question or any other related action
of the office of the building inspector.
Article 18 of City of Havre Ordinance No. 599, entitled
"Enforcement", p. 23, provides in pertinent part:
"This Ordinance shall be enforced by the Build-
ing Inspector or his assistants, subject to such
variations and interpretations which may be made
by the Board of Adjustment. Appeal of any de-
cision of the enforcing officer, may be made to
the Board of Adjustment as provided in the law of
the State of Montana."
In section 11-2707 ( 3 ) , ( 4 ) , (5), & (6), R.C.M. 1947, this
right of appeal is set forth statutorily:
"(3) Appeals to the board of adjustment may be
taken by any person aggrieved or by any officer,
department, board, or bureau of the municipality
affected by any decision of the administrative
officer. Such appeal shall be taken within a
reasonable time, as provided by the rules of the
board, by filing with the officer from whom the
appeal is taken and with the board of adjustment
a notice of appeal specifying the grounds thereof.
The officer from whom the appeal is taken shall
forthwith transmit to the board all papers con-
stituting the record upon which the action ap-
pealed was taken.
"The board of adjustment shall fix a reasonable
time for the hearing of the appeal, give public
notice thereof, as well as due notice to the parties
in interest, and decide the same within a reasonable
time. Upon the hearing any party may appeal in
person or by attorney.
"(5) The board of adjustment shall have the follow-
ing powers:
"To hear and decide appeals where it is alleged
there is error in any order, requirement, decision,
or determination made by an administrative official
in the enforcement of this act or of any ordinance
adopted pursuant thereto.
"(6) In exercising the above-mentioned powers such
board may, in conformity with the provisions of this
act, reverse or affirm, wholly or partly, or modify
the order, requirement, decision or determination
appealed from and may make such order, requirement,
decision, or determination as ought to be made, and
to that end shall have all the powers of the officer
from whom the appeal is taken."
This Court has held that where the right of appeal
exists, a writ of mandate will not issue since the appellants
have a "plain, speedy and adequate remedy in the ordinary
course of law." See Malone v. District Court, 74 Mont. 488,
241 P. 240.
This is the first time that Ordinance No. 599 has been
interpreted with respect to any applications for building permits
for apartment buildings since its adoption. The building inspec-
tor determined that commercial set-back regulation applies to
apartment buildings. The Board of Adjustment has the right to
review that determination on appeal under section 11-2707.
The Residents argue that any such appeal would not be
speedy for the statute has an indefinite notice and hearing
period. We cannot agree. The statute calls for a reasonable
notice and hearing period. To assert that such notice and hearing
period would be lengthy is mere speculation on the part of
Residents.
Residents also argue that the Board has no power to pass
on the validity of the zoning ordinance itself. We find such
argument irreievant for the Residents do not challenge the validity
of the ordinance. Their appeal is directed to the interpretation
of the ordinance.
Residents further argue that the Board cannot determine
if the City is estopped to enforce the ordinance or if Residents
are guilty of laches. However, such questions do not become im-
portant until it has been determined if the interpretation of the
ordinance by the building inspector is invalid. We must keep the
donkey before the cart.
Finally, Residents argue that the Board could not enforce
any decision once it was made. We find, however, that the appeal
statute allows for sufficient enforcement of the Board's decision.
This Court therefore finds that section 11-2707 provides
Residents with a speedy and adequate remedy at law, and there-
fore hold that a writ of mandate will not lie in this case.
Further, in light of our decision in Barker v. Town of
Stevensville, 164 Mont. 375, 523 P.2d 1388, 31 St.Rep. 496, we
hold that the city of Bavre was estopped in revoking its build-
ing permit after it was issued and the Builders relied on it to
their detriment and we affirm the district court finding. Even
if Builders had reviewed the zoning ordinance themselves as
argued by Residents, nowhere could they have discovered the build-
ing permit was erroneously issued, if indeed it had been.
The decree of the district court is therefore affirmed
in all particulars.
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Justices