Schumacher v. City of Bozeman

No. 13672
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977

DOUGLAS L. SCHUIVIACHER, M.D., et al.,
Plaintiffs and Appellants,

THE CITY OF BOZEMAN, et al.,
Defendants and Respondents.

Appeal from: District Court of the Eighteenth Judicial
District,
Honorable peter:% Meloy, Judge presiding.
Counsel of Record:
For Appellants:

McKinley Anderson argued, Bozeman, Montana
Drysdale, McLean & Screnar, Bozeman, Montana
James J. Screnar argued, Bozeman, Montana
Bennett and Bennett, Bozeman, Montana
Lyman Bennett I11 argued, Bozeman, Montana
For Respondents:

Berg, Angel, Andriolo & Morgan, Bozeman, Montana
Ben E. Berg Jr. argued, Bozeman, Montana

Submitted: October 4, 1977
Decided :Bm)
Filed:
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SPV - 13 a:-:?
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Clerk
M r . J u s t i c e Gene B. Daly delivered the Opinion of t h e Court.

I n t h e D i s t r i c t Court, County of G a l l a t i n , p l a i n t i f f s

sought 1) a w r i t of prohibition t o r e s t r a i n t h e City of

Bozeman from any f u r t h e r a c t i o n i n Special Improvement D i s t r i c t

No. 565 t o e s t a b l i s h an o f f - s t r e e t parking f a c i l i t y i n t h e

downtown area of Bozeman; 2) an injunction enjdning the City

from s e l l i n g s p e c i a l improvement d i s t r i c t bonds o r assessing

property i n Special Improvement D i s t r i c t No. 565; and 3) a

judgment declaring i n v a l i d the proceedings of the City of

Bozeman i n the c r e a t i o n of Special Improvement D i s t r i c t No. 565.

The proceedings undertaken by the City of Bozeman i n

the c r e a t i o n of Special Improvement D i s t r i c t No. 565 f o r the

purpose of e s t a b l i s h i n g o f f - s t r e e t parking f a c i l i t i e s i n t h e

downtown area may be chronologically summarieed:

1. On June 16, 1976, the City Commission by Resolution

No. 1795 announced i t s i n t e n t i o n t o c r e a t e Special Improvement

D i s t r i c t No. 565 f o r the purpose of e s t a b l i s h i n g an o f f - s t r e e t

parking f a c i l i t y i n downtown Bozeman; designated the boundaries

of the d i s t r i c t ; and, estimated the c o s t a t $750,000.

2. O t h e same day, June 16, 1976, the City Commission
n

a l s o provisionally passed Ordinanee No. 962, s e t t i n g f o r t h a

proposed formula f o r the assessment of property t o finance

the o f f - s t r e e t parking f a c i l i t y . A t the time of the adoption

of the ordinance, t h e City Commission designated July 7 , 1976,

a s the t i m e f o r hearing p r o t e s t s a g a i n s t t h e proposed formula.

3. On J u l y 30, 1976, the City Commission amended i t s

o r i g i n a l resolution of i n t e n t i o n t o c r e a t e Special Improvement

D i s t r i c t N o . 565 by Resolution No. 1802 and-designateed J u l y 21,
1976, a s t h e time f o r hearing p r o t e s t s a g a i n s t t h e c r e a t i o n of

S p e c i a l Improvement D i s t r i c t No. 565. Notices of t h e t i m e and

p l a c e of hearing were published and mailed a s required by

s e c t i o n s 11-2204 and 11-2205, R.C.M. 1947.

4. On J u l y 7 and again on J u l y 21, 1976, t h e C i t y

Coannission h e l d hearings on t h e proposed formula. They were

attended by both proponents and opponents. A s a r e s u l t of t h e

hearings t h e formula was amended t o include t h e d e f i n i t i o n of

"park" and a s amended was f i n a l l y passed and adopted on J u l y

21, 1976.

5. T h e r e a f t e r , on J u l y 28, 1976, Resolution No. 1808 c r e a t i n g

S p e c i a l Improvement D i s t r i c t No. 565 was passed and adopted by

t h e City Commission.

6. O n August 18, 1976, p l a i n t i f f s f i l e d t h e i r complaint

and t h e c o u r t issued a temporary r e s t r a i n i n g o r d e r and a w r i t

of p r o h i b i t i o n , scheduling both f o r hearing on August 31, 1976.

On t h e l a t t e r d a t e hearing was h e l d , evidence introduced and

t h e r e a f t e r on September 27, 1976, t h e c o u r t made f i n d i n g s of

f a c t and conclusions of law i n favor of defendants and judgment

was entered on t h a t day quashing t h e w r i t of p r o h i b i t i o n ,

d i s s o l v i n g t h e i n j u n c t i o n and dismissing t h e a c t i o n . From t h a t

f i n a l judgment, p l a i n t i f f s appeal.

Appellants pres'ent a number of i s s u e s f o r review by t h i s

Court which will be t r e a t e d i n order:

F i r s t . Appellants a l l e g e t h e City d i d n o t have j u r i s d i c t i o n

t o c r e a t e S p e c i a l Improvement D i s t r i c t (SID) 565, because 30

days had n o t elapsed a f t e r t h e adoption of Ordinance No. 962

when t h e C i t y passed Resolution No. 1808 c r e a t i n g SID 565. This

30 day requirement i s found i n s e c t i o n 11-1106, R.C.M. 1947.

-3-
This s e c t i o n i s not applicable because it does n o t apply t o

s p e c i a l improvement d i s t r i c t s but only a p p l i e s t o matters of

general l e g i s l a t i o n ~ o nwhich a l l e l e c t o r s whether taxpayers o r

n o t , may vote. Carlson v. City of Helena, 39 Mont. 82, 113,

102 P. 39 (1909).

Second. Appellants a l l e g e Ordinance No. 962 adopting a

formula f o r assessment of o f f - s t r e e t i n g parking improvements,

v i o l a t e s both the due process and the equal protection clauses

of the Uniked-States and the 1972 Montana Constitutions, because:

(a) The n o t i c e of hearing was defective.

(b) The formula i s inequitable.

(c) The c i t y unlawfully delegated a u t h o r i t y t o determine

t h e formula f o r assessment.

The formula had one very minor e r r o r which was corrected

i n the course of the hearing by the addition t o the ordinance

formula of the l e t t e r "P=existing parking" when the ordinance

was f i n a l l y adopted. This did not make the n o t i c e of the hearing

defective.

A t t h e o u t s e t we recognize it i s fundamental t o assessments

f o r s p e c i a l improvements t h a t the assessment be i n proportion

t o the b e n e f i t s conferred hy the improvement. Smith v. City

of Bozeman, 144 Mont. 528, 398 P.2d 462 (1965). The formula

f o r assessment adopted by the City Commission includes a l l s i x

f a c t o r s required by section 11-2224(1)(d), R.C.M. 1947, but i s

divided b a s i c a l l y i n t o four components, being a r e a , d i s t a n c e ,

demand and assessed value. To support t h e i r claim t h a t the

formula i s discriminatory, appellants r e f e r t o four separate

property comparisons drawn from a computer c a l c u l a t i o n of 172

separately evaluated p r o p e r t i e s within the proposed SID 565.
W note here t h a t the computer layouts a r e n o t assessments
e

made o r t o be made by the City of Bozeman under the adopted

f o m l a , but r a t h e r a r e estimates of c o s t comparisons made

i n a study conducted by t h e Parking Commission of the City of

Bozeman. J u d i c i a l review of b e n e f i t s o r detriments t o t h e

property owners i s premature u n t i l t h e a c t u a l assessments have

been levied, and u n t i l then no c o n s t i t u t i o n a l question a s t o

the v a l i d i t y of the formula of assessment can be r a i s e d o r con-

sidered by t h e court. Murphy v. City of Bismarck, N.D. 1961,

109 N.W.2d 635.

Appellants claim t h e assessment formula was conceived

by an unlawful delegation of commission powers. The s t u d i e s

r e l a t i n g t o a downtown parking f a c i l i t y were commenced by t h e

Parking Commission of t h e City of Bozeman i n 1974. The o r i g i n a l

study was financed through t h e City by a $10,000 appropriation.

The.Downtown Development Association continued the study and

advanced an a d d i t i o n a l $10,000, From the j o i n t e f f o r t s of

these two e n t i t i e s , a formula was devised and estimates made a s

t o the approximate c o s t of t h e f a c i l i t y t o a l l p r o p e r t i e s i n t h e

proposed d i s t r i c t . A l l of t h i s information was submitted t o the

City Commission j o i n t l y by t h e two organizations by a l e t t e r

dated May 26, 1976. Thus, although the f a c t u a l information f o r

explaining t h e application of the formula was gathered by both

t h e City Parking Commission and the Downtown Development Associa-

t i o n , the formula f o r assessment did not become e f f e c t i v e u n t i l

a f t e r hearing by the City Commission and the f i n a l adoption by

t h e City Commission.

2 McQuillin, Municipal Corporations, 3rd ed, 510.41, p.

856, summarizes the law on delegation:
 "* * * Thus, t h e council may c r e a t e committees o r o t h e r
bodies t o i n v e s t i g a t e given methods, t o procure i n -
formation, t o make r e p o r t s and recoamendations, the
committee may be given a u t h o r i t y t o employ p r i v a t e
consultants, but t h e council alone must f i n a l l y d e t e r -
mine every subject committed t o i t s d i s c r e t i o n and
judgment. "

And f u r t h e r i n 4 McQuillin, 3rd ed., Municipal Corporations,

513.51, p. 573, i t i s s t a t e d :

"While it i s t r u e t h a t the council may not
delegate i t s power t o a committee, when i t r a t i -
f i e s t h e a c t of the committee i n due form it becomes
t h e a c t of the council.''

Third. Appellants contend the determination by the City

C o d s s i o n t h a t s i n g l e family residences and churches would

not be s p e c i f i c a l l y benefited by a downtown parking f a c i l i t y

was a r b i t r a r i l y a v i o l a t i o n of t h e equal protection and due

process clauses of t h e United S t a t e s and Montana Constitutions.

The record d i s c l o s e s no evidence was offered showing t h a t

churches and s i n g l e family residences would be benefited by

the o f f - s t r e e t parking f a c i l i t y and therefore should be

assessed. Jenner v. City Council of City of Covina, 164

C.A.2d 490, 331 P.2d 176;181 (1958), i s almost i d e n t i c a l on

t h e f a c t s and i s s u e s presented here. I n Jenner the parking

d i s t r i c t consisted of 1 6 1 parcels, two were churches and 72

were r e s i d e n t i a l . Testimony before t h e assessing board and

i n court indicated these properties would n o t be benefited.

The t r i a l c o u r t found the omission of t h e r e s i d e n t i a l property

from the d i s t r i c t was n o t a r b i t r a r y , unreasonable o r an abuse

of d i s c r e t i o n . O n appeal, the 8uperior Court of Los Angeles

County, held the evidence supported t h e findings t h a t t h e

d i s t r i c t was properly formed; t h a t t h e assessments were i n

keeping with the b e n e f i t s ; and the s t a t u t e was not unconsti-

t u t i o n a l on t h e ground t h a t i t permitted docal a u t h o r i t i e s t o
omit property from the d i s t r i c t . ,The D i s t r i c t Court of Appeal of

California affirmed saying:

"Absent a showing of fraud o r mistake, the d e t e r -
mination of the City Council t h a t c e r t a i n property
would not be benefited by t h e c r e a t i o n of the parking
d i s t r i c t i s conclusive. ***
I n Larsen v. City and
County of San Francisco, 182 Cal. 1, a t page 14, 186
P. 757, a t page 763, i n an analogous s i t u a t i o n , t h e
court s t a t e d t h a t 'under t h e p r i n c i p l e s established
i n t h i s s t a t e and elsewhere, t h i s f i n a l decision of the
supervisors a s t o the property benefited *** i s con-
c l u s i v e , unless attacked on the ground of fraud o r m i s -
take.' A examination of the record f a i l s t o d i s c l o s e
n
any fraud, mistake o r a r b i t r a r y a c t i o n on the p a r t of
t h e City Council i n f i x i n g the boundaries of the d i s t r i c t . "
331 P.2d 181.

The c l e a r r a t i o n a l e of ' t h e s e cases i s t h a t i f reasonable

men might disagree a s t o whether s i n g l e family residences and

churches w i l l o r w i l l not be s p e c i a l l y benefited by an o f f - s t r e e t

parking f a c i l i t y , then i n t h e absence of a c l e a r showing of

fraud o r mistake, the determination of the City Commission t h a t

such property w i l l not be s p e c i a l l y benefited i s conclusive. 14

McQuillin, Municipal Corporations, 3rd ed., 538.186.

Fourth. Appellants contend an o f f - s t r e e t parking f a c i l i t y

i n downtown Bozeman i s a general government b e n e f i t r a t h e r than

a s p e c i a l b e n e f i t t o the p r o p e r t i e s within the s p e c i a l improvement

district.

Appellants c i t e no cases supporting t h e i r contention. There

i s a u t h o r i t y d i r e c t l y on point and s p e c i f i c a l l y deciding t h a t a

downtown parking f a c i l i t y i s a s p e c i a l b e n e f i t t o the property i n

t h e v i c i n i t y of t h e f a c i l i t y . I n Northern P a c i f i c Railway Co. v.

City of Grand Forks, N.D. 1955, 73 N.W.2d 348, 350, the North
+

Dakota Court answered the same contention:
 "The c o n s t i t u t i o n a l question i s general i n
nature and resolves i n t o the question of whether
i n any circumstances t h e s p e c i a l assessment de-
v i c e can be used t o defray the c o s t of a public
o f f s t r e e t parking l o t without doing violence t o
t h e Constitution. A a f f i r m a t i v e answer t o t h i s
n
question depends upon whether property, i n the
v i c i n i t y of t h e parking l o t , which has been
c o n s t i t u t e d a s p e c i a l assessment d i s t r i c t , derives
a s p e c i a l b e n e f i t from the improvement i n addi-
t i o n t o the general b e n e f i t i n which t h e whole
c i t y shares.

" e have no doubt but t h a t property i n the
W
v i c i n i t y of a parking l o t derives s p e c i a l b e n e f i t
therefrom. P a r t i c u l a r l y i s t h i s t r u e i n the case
of a congested business d i s t r i c t which had i t s
development before automobiles and trucks had
become t h e g r e a t convenience and problem t h a t they
a r e today. I n recent years there has been a trend
toward a d e c e n t r a l i z a t i o n , evidenced by t h e removal
of many businesses from congested areas t o outlying
d i s t r i c t s where parking l o t s f o r customers were
a v a i l a b l e . It i s generally acknowledged and l o g i c a l l y
so, t h a t the provision of parking space _ i n the v i c i n i t y
of a congested mercantile a r e a , by making i t conveniently
a c c e s s i b l e t o t r a d e , tends t o reverse t h i s trend and
thus s t a b i l i z e business i n the area. This i s a s p e c i a l
b e n e f i t s u f f i c i e n t t o j u s t i f y s p e c i a l assessments .'I
73 N.W.2d 350.
Fifth. Appellants contend the method of the measurement

of distance i n the d i s t r i c t i s i n e r r o r and cannot stand. This

argument i s apparently based on the idea t h a t the formula f a i l s

t o properly account f o r distance because it measures distance

on a s t r a i g h t l i n e r a t h e r than t h e a c t u a l walking distance. In
I

t h i s respect t h e s t a t u t e , s e c t i o n 1 - 2 2 1 , R.C.M. 1947, does

not specify the means of measuring distance and therefore i t

would seem t h e City has the l i b e r t y of s e l e c t i n g the most common,

uniform, standard and s h o r t e s t distance between two p o i n t s , i . e .

t h e s t r a i g h t l i n e , r a t h e r than the c i r c u i t o u s and meandering

routes suggested by appellants. I f the City had selected appel-

l a n t s ' method of measuring i t woudd seem t o impose a more d i f f i -

c u l t problem on the City Cornmission t o apportion the assessment

t o a t t a i n equity of b e n e f i t .
 Sixth. Appellants question the s t a t u t o r y a u t h o r i t y of

t h e City t o purchase an o f f - s t r e e t parking f a c i l i t y . They r e l y

on s e c t i o n 11-2201, R.C.M. 1947, t o support t h e i r position.

~ e ' f i n d support f o r t h a t proposition when the s e c t i o n
no

i s read a s a whole with p a r t i c u l a r reference t o the f i r s t

paragraph which s t a t e s i n p a r t :

"* * * the c i t y counsel of each municipality ***
i s hereby invested with j u r i s d i c t i o n t o acquire
p r i v a t e property f o r r i g h t of way ***under t h e
proceedings h e r e i n a f t e r described." (Emphasis added.)

Subparagraph (4)(a) of section 11-2201 s p e c i f i c a l l y authorizes

formation of s p e c i a l improvement d i s t r i c t s f o r o f f - s t r e e t

parking f a c i l i t i e s . F i n a l l y , subparagraph (4) (e) of s e c t i o n

11-2201, s t a t e s :

"(e) A improvement d i s t r i c t formed f o r t h e purposes
n - -
of e s t a b l i s h i n g a pedestrian mall o r o f f - s t r e e t parking
may be financed i n accordance with t h e provisions of
s e c t i o n 11-2214, R.C.M. 1947, and/or i n accordance with
the methods of financing s e t f o r t h f o r the construction
of water o r sewer systems a s s e t f o r t h i n section 11-2218,
R.C.M. 1947." (Emphasis added.)

With no ambiguity the s t a t u t e authorizes the a c q u i s i t i o n

of p r i v a t e property, and purchase i s n o t excluded, f o r s p e c i a l

improvement d i s t r i c t s f o r the purposes s p e c i f i c a l l y authorized.

F i n a l l y , financing i s authorized by assessment o r revenue bond

sales.

Seventh. The most serious matter we a r e asked t o review

concerns t h e voting p a r t i c i p a t i o n on the s p e c i a l improvement

d i s t r i c t i n question by Commissioner Taylor, who i s alleged

t o have a f i n a n c i a l i n t e r e s t i n the d i s t r i c t parking.

P r i o r t o t h e c r e a t i o n of t h e SID, Commissioner Taylor

purchased business property within the boundaries of the SID

with i n t e n t t o remodel f o r o f f i c e use. On April 20, 1976,

Taylor applied f o r a building permit and was denied because he
only provided for 51 off-street parking stalls instead of the
191 required by the area zoning. Taylor appealed to the Board
of Adjustment and hearing was had and appeal denied on May 4, 1976.
Taylor applied again after the resolution to form the SID was
passed and upon which he voted. He was again denied because
of the 51 off-street parking stalls and the present-requirement
for 183 stalls. Taylor again appealed to the Board of Adjustment.
We note here there is nothing in the record to indicate what
transpired at the hearing on appeal before the Board of Adjust-
ment. A variance was approved for 88 off-street parking stalls
for Commissioner Taylor.
The question is whether the voting participation of
Commissioner Taylor, disqualified because of his interest, voids
the entire proceedings even though his vote was not needed to
constitute the required number to pass SID No. 565 and there
were no dissents.
Generally a city councilman may not vote on an issue in
which he has a direct or indirect interest. Not every interest
of a councilman is considered to disqualify him; each instance
is necessarily a factual question. For example, it is generally
held that the fact a councilman has an interest in property
within a proposed special improvement district does not disqualify
him from acting on the formation of the district. 4 McQuillin,
Municipal Corporations, 3rd ed., 913.35a.
The tests of disqualification are variously stated, in
some instances by statute. In 4 McQuillin, Municipal Corporations,
3rd ed., $13.35, p. 529, it is stated that disqualification is
warranted:
 "* * * whenever a public official, by reason of
his personal interest in a matter, is placed in
a situation of temptation to serve his own pur-
poses, to the prejudice of those for whom the law
authorizes him to act. I t
Taylor would not be disqualified from voting on whether
to create a special improvement district solely because he owned
property within the district. However, here, Taylor had an
appeal before the local Board of Adjustment requeeting a variance
from the number of off-street parking stalls he would have to
provide for his business property. The difference between the
number of required stalls and the number he proposed in his
building permit was substantial--- approximately 183 stalls
required as opposed to 51 proposed. The resolutions creating
the special improvement district to finance building additional
off-street parking were passed in June and July, 1976. Whether
these resolutions actually had any effect on the Board of
Adjustment's August 4, 1976 decision to grant Taylor the variance
is unknown. The variance, however, saved him substantial additional
expenditure.
As a city commissioner, Taylor is entrusted with certain
duties and responsibilities to carry out the governing func-
tions of the city. His position places him on a different level
of review regarding his business transactions, than would be
that of the ordinary citizen.
All courts that have considered the issue are agreed if a
disqualified commissioner's vote was necessary to constitute
the number required for passage, such a vote renders the entire
proceeding void. Not all jurisdictions, however, are agreed as
to what effect a vote by a disqualified commissioner has on the
proceedings where his vote is not necessary to pass the issue.

Some jurisdictions hold that such a vote has no effect on the
validity of the proceedings. Others hold that such a proceeding
-
is void, while still others hold that it is only voidable.
62 C.J.S. Municipal Corporations $402.
Although we have not previously dealt with this question,
the legislature has passed statutes governing city councilmen
and connnissioners in an analogous situation. No city councilman
nor commissioner may be interested, directly or indirectly, in
any contract with the city. Sections 11-3127 and 11-3214, R.C.M.
1947. Section 11-3214 also provides the commission may declare
void any contract in which a commissioner is or may be interested.
New York, New Jersey and Iowa hold that a vote cast by a
commission member who is disqualified renders the proceedinq
either void or voidable, even though the disqualified membeh
vote was not needed to pass the issue. Baker v. Marley, 8 N.Y. 2d
365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Aldom v. Borough
of Roseland, 42 N.J.Super. 495, 127 A.2d 190, 197 (1956);
Wilson v. Iowa City, Iowa 1969, 165 N.W.2d 813, 820. These
decisions do not clearly distinguish between whether the action
of the comission is void or merely voidable. Often such a
decision is governed by statute. See: Section 11-3214, R.C.M.
1947.
Numerous reasons are given for declaring such action void
or voidable. Pyatt v. Mayor & Council of Borough of Dunellen,
9 N.J. 548, 89 A.2d 1, 5 (1952), states:
''Public policy forbids the sustaining of munici-
pal action founded upon the vote of a member of the
municipal governing body in any matter before it
which directly or immediately affects him individually ."
Other courts hold that when a municipal body passes on resolutions
and ordinances, it acts in a quasi-judicial manner. If any of
the council members who participated as a quasi-judge were
at the time disqualified by reason of private interest at

variance with the impartial performance of his public duty,
such proceedings are void. Aldom v. Borough of Roseland, supra;
Pyatt v. Mayor & Council of Borough of Dunellen, supra. The bias
of the interested person taints the action of the whole body.
Pyatt v Mayor & Council of Borough of Dunellen, supra.
. In

Piggott v. Borough of Hopewell, 22 N.J.Super.106, 91 A.2d 667,
670 (1952), this was found to be so for two reasons:
"'First, the participation of the disqualified
member in the discussion may have influenced the
opinion of the other members; and, secondly,
such participation may cast suspicion on the
impartiality of the decision. [Citing cases.]
It being impossible to determine whether the
virus of self-interest affected the result, it
must needs be assumed that it dominated the
body's deliberations, and that the judgment was
its product. 111
The cases which have held the vote of a disqualified
commissioner does not vitiate the proceedings where his vote
was not needed to pass the issue have rejected the two factors
considered in Piggott. See: Singewald v. Minneapolis Gas
Company, 274 Minn. 556, 142 N.W.2d 739 (1966); Eways v. Reading
Parking Authority, 385 Pa. 592, 124 A.2d 92 (1956); Marshall
v. Ellwood City Borough, 189 Pa. 348, 41 A. 994 (1899). The
rationale behind Eways and Marshall is that the "illegal1'vote
does not affect the "legal1'votes. The Marshall court downplays
the influence the "illegal" voter may have on the "legal" voters,
particularly when there is a large group of voters and only one
illegal voter.
As our discussion reveals there seems to be no question
on the issue of Commissioner Taylor being disqualified under the
circumstances t h a t e x i s t e d . There i s a l s o no question t h a t h i s

vote was not required t o pass the ordinance which opens the

proceedings t o a wide range of opinion a s t o v a l i d i t y , a s here-

t o £ore discussed.

Although Montana has n o t t r e a t e d t h i s matter j u d i c i a l l y ,

t h e l e g i s l a t u r e has spoken through i t s enactment of s e c t i o n

1&
1£
&,
- R.C.M. 1947, which i s l e g a l l y and e t h i c a l l y analogous

t o the i n s t a n t s i t u a t i o n and permits a c i t y commission o r council

t o examine the f a c t s , and, i f so moved, t o void the transaction.

A s heretofore s t a t e d , we a r e lacking f a c t s i n the record before

us t o make determinations beyond the l e g a l finding t h a t the

City Commission o r Council could i n i t i a l l y examine the t r a n s -

a c t i o n and make a finding. However, i n case of r e f u s a l t o a c t

by t h e Commission o r Council o r an adverse finding t o the

p e t i t i o n e r s , t h e r e would be the customary recourse t o t h e courts.

The judgment of the d i s t r i c t cou

W e Concur]: