No. 14721
I N THE S P E E COURT O THE STATE OF M3TANA
UR M F
1979
STATE ex rel., THE DlEHL CQMPANY,
A bbntana Corporation,
P l a i n t i f f , Relator and Respondent,
-vs-
THE CITY O HELENA, KNTANA et a l . ,
F
Defendants, Respondents and Appellants.
AppedL f m : D i s t r i c t Court of t h e F i r s t J d i c i a l D i s t r i c t ,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellants:
H u l l , Driscoll and Sherlock, H e l e n a , &bntana
J m s D r i s c o l l argued, Helena, mntana
C. W. Leaphart, Jr., argued, Helena, mntana
For Respondent:
G n A. Picotte argued, Helena, mntana
ee
Suhnitted: March 26, 1979
.-
Decided :
ApR 1' J
- - +
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal is by the City of Helena and its City Commission
(Helena) from a judgment against it entered January 12,
1979, in the District Court, First Judicial District, Lewis
and Clark County. Because of the unusual circumstances
presented, this Court on motion expedited the oral argument
and decision in the cause.
The Diehl Company (Diehl) has been planning since 1971
for the development of a large shopping-center complex on
land owned by the corporation just east of the City of
Helena. In 1975, Diehl received approval from the Helena
Zoning Commission for a designation of the parcel as a "B-2"
zone. A B-2 zone under the Helena City ordinances allows
for construction and operation of all types of businesses
that would make up the contemplated shopping center. However,
Diehl's plan calls for a huge planned-unit mall-type complex
rather than separate stores. Helena City Ordinance 11-15-5
lists as a "conditional use" of a B-2 zone "planned-unit
shopping center(s) in tracts of five or more acres. . . I' In
order to make such conditional use of a B-2 zone, a developer
must apply for a "conditional-use permit" following procedures
outlined in the City ordinances. Diehl applied.
Helena City Ordinance 11-15-2(B) provides:
"(B) A conditional use permit shall only be granted
by the City Commission based upon (if warranted by
the facts and circumstances) a statement of findings
by the City Commission that:
"1. The use conforms generally to the objectives
of the Comprehensive Plan and the intent of the
ordinance, and
"2. Such uses will not adversely affect nearby
properties or their occupants, and
"3. Such uses meet the overall density,
coverage, yard, height and all other
regulations of the district in which
they are located, and
"4. Public hearings have been held, after
the required legal notices have been given,
and the public has been given a chance to
be heard upon the matter."
Before the request for a permit is ruled on by the
City Commission, it is first reviewed by the Zoning Commission
which makes a recommendation as to whether the permit should
be issued. The Zoning Commission is an advisory body only
and its recommendation has no binding effect on the City
Commission.
The duty of the City Commission in acting upon requests
for conditional-use permits is found in Helena City Ordinance
11-15-3, which spells out the conditional-use permit procedure.
It provides that after the proper procedures have been followed
to bring the request before the City Commission, then:
"The City Commission shall, by resolution,
approve, deny, or change the recommendation
of the Zoning omm mission. If the City
Commission denies or changes the Zoning
Commission's recommendations, the reasons
for such a change shall be made part of
the resolution." (Emphasis added.)
On July 24, 1978, Diehl's request for a conditional-
use permit for a planned shopping center came before the
regular meeting of the City Commission. A reading of the
transcript of the public hearing held in conjunction with that
meeting indicates that a significant majority of the members
of the public present opposed the granting of the permit.
One of the commissioners moved that the permit be denied but
the motion died for lack of a second. Another commissioner
then proposed the following resolution:
"A resolution establishing a one-year moratorium
on the granting of all conditional-use permits
for planned-unit shopping centers outside the
Central Business District in the City of Helena
as defined in Section 15-5 of the City Zoning
Ordinance on the basis of need for additional in-
formation and deliberation on transportation,
provision of public services, the effect on
residences and businesses in the City of Helena,
and other aspects of the Comprehensive Plan of
Helena and affecting the health, welfare, and
public safety of the people of Helena."
This resolution passed.
Thereafter, Diehl commenced legal proceedings for a
declaratory judgment that the moratorium was illegal and
that the ordinances providing for conditional-use permits
were unconstitutionally vague, and requesting a writ of
mandamus to require the City Commissioners to rule on his
application. On August 3, 1978, Diehl filed a petition for
writ of mandate in this Court. After reviewing written
arguments with respect to the petition, we dismissed the
same, refusing to assume original jurisdiction on October 2,
1978, because of apparent factual controversies. On October
26, 1978, Diehl filed in the District Court his complaint
and petition for a declaratory judgment, writ of mandate,
and order to show cause. After two disqualifications, the
Hon. W. W. Lessley was called in as presiding judge in the
District Court. The matter was submitted to him on affidavits
and exhibits, and each party submitted proposed findings of
fact, conclusions of law, and briefs. On January 12, 1979,
the District Court issued a declaratory judgment and peremptory
writ of mandate, and writ of prohibition, and its adopted
findings of fact and conclusions of law.
The District Court ordered and decreed as follows:
1. Helena was required to issue the conditional-
use permit to Diehl forthwith and was prohibited from delaying
or obstructing the course of any further necessary proceedings
that may be legally prequisite to the creation of the shopping
center.
2. If Helena refused to issue such conditional-use permit,
Diehl was granted the right to proceed with the shopping
center in all lawful ways, without the necessity of obtaining
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any conditional-use permit from the Commission. Helena was
prohibited from any interference or obstruction of the
activities of Diehl in creating said shopping center.
3. The District Court further implied in its conclusions
that the conditional-use permit ordinances of Helena were
unconstitutional but that the necessity for reaching the
issue of the validity or constitutionality of the ordinances
was not involved if Helena approved the issue of the con-
ditional-use permit applied for by Diehl; otherwise, said
ordinances were impliedly found to be unconstitutional.
Helena filed post-trial motions in the court, which
were denied. Thereafter, Helena brought this appeal.
Out of the welter of issues and counter-issues raised
by the parties, two main problems arise and control our
decision here:
1. Whether the City Commission may adopt a moratorium
against the issuance of conditional-use permits in the
circumstances described here.
2. Whether the writ of mandate or declaratory judgment
requiring the issuance by the City of the conditional-use
permit was proper.
On those issues, we conclude and hold as follows:
1. While a City may adopt a reasonable general moratorium
in proper circumstances against the issuance of conditional-
use permits, if adopted as an urgency matter, the procedure
required by section 76-2-306 MCA (formerly section 11-2711,
R.C.M. 1947), must be followed.
2. The discretion of the City Commission to approve,
modify or deny the recommendation of the Zoning Commission
as to the issuance of a conditional-use permit cannot be
controlled by writ of mandate, prohibition, or by declaratory
judgment.
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3. A writ of mandate requiring the City Commission to
act on Diehl's application for a conditional-use permit
within a reasonable time is proper under the circumstances
in this case.
THE MORATORIUM:
The first grant of statutory authority for zoning by
municipalities occurred in this State in 1929. Chapter 136,
Laws of 1929. Historically, the grant of the zoning authority
is broadly stated, as characterized in section 76-2-301 MCA
(section 11-2701, R.C.M. 1947) :
"Municipal Zoning Authorized. For the
purpose of promoting health, safety, morals,
or the general welfare of the community,
the city or town council . . .
is hereby
empowered to regulate - restrict .
and ..
the densityof population; and the
location and use of buildings, structures,
and land for trade, industry, residence,
or other purposes." (Emphasis added.)
No specific statutory authority in Montana appears for
the adoption of moratoriums with respect to zoning or the
issuance of permits under zoning ordinances. The power to
adopt moratoriums, if it exists, must be found within the
paste and cover of the broad statutory grant "to regulate
and restrict" the use of land. Other courts have found such
power in local governments where the purpose of the moratorium
is to allow for a rational and reasonable growth. Golden v.
Planning Board of Town of Ramapo (1972), 30 N.Y.2d 359, 285
N.E.2d 291; Smoke Rise, Inc. v. Washington Suburban Sanitary
Commission (D.C. Md. 1975), 400 F.Supp. 1369. Moratoriums
appear to be a development of the exercise of the police
-
power in local government. -Smoke Rise, - .3upra.
Inc,.,
A moratorium itself must be reasonable in length of
time and scope. In Smoke - - it is said:
Rise, Inc.,
"While a police powered moratorium must be
reasonably limited as to time, it is clear
that the reasonableness of the duration of
the moratorium must be measured by the scope
of the problem which is being addressed." 400
F.Supp. at 1386.
A moratorium must also be limited in its purpose. It
must promote the health, safety, morals or the general
welfare of the community. Section 76-2-301 MCA (formerly
section 11-2701, R.C.M. 19471, and designed to meet the
purposes of zoning as set forth in section 76-2-304 MCA
(formerly section 11-2703, R.C.M. 1947) .
We perceive therefore in the statutes a legislative
intent for a broad general grant of power to municipalities
in their zoning regulations, and that implied in the power
to restrict the use of land, as an exercise of police power,
is the authority to adopt reasonable moratoriums. The
procedure for the adoption of such moratoriums, however,
must be according to the statutes out of which the implied
authority arises. In this case, unless an urgency existed,
it was the duty of the City Commission, intending to adopt a
moratorium, to follow the procedure set forth in section 76-
2-303 MCA (formerly section 11-2704, R.C.M. 1947). That
statute provides that the municipality, in adopting "regu-
lations and restrictions" must first provide a public hearing
with notice to parties in interest and citizens. That
procedure was not followed in this case.
The moratorium adopted here properly should have been
enacted as an urgency measure under the procedures set forth
in section 76-2-306 MCA (formerly 11-2711, R.C.M. 1947),
relating to interim zoning ordinances. That statute limits
such measures as to duration, and further, requires a public
hearing with notice beforehand. Since this statute was not
followed by the City Commissi~n,the moratorium was invalid.
It is only in following this statute that the City Commission
could act on a moratorium without first referring the matter
to the Zoning Commission. See section 76-2-307 MCA (formerly
section 11-2706, R.C.M. 1947).
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Not only did the City of Helena not follow a valid
procedure in adopting the moratorium here, but it effected
to adopt such a moratorium when it was considering a specific
application for a conditional-use permit presented by Diehl.
At that time, the authority of the City Commission in acting
upon the application of Diehl was circumscribed by Helena
City Ordinance 11-15-3. Under that ordinance, the Commission
was mandated to approve, deny or change the recommendation
of the Zoning Commission by resolution, and if it denied or
changed the recommendation, to state its reasons in the
resolution. Helena had before it only one application for a
conditional-use permit, that of Diehl. Therefore, the adoption
of the moratorium in effect constituted a denial of the
permit without stating its reasons. The obvious purpose of
Helena Ordinance 11-15-3, is to provide a final decision
with respect to any such application. The office of the
statement of reasons for denial or change is the same as the
office of findings of a court. It provides a reviewing
authority, such as a District Court, with a method of measuring
whether the action of the City Commission is arbitrary or
capricious.
This Court had a similar situation in State ex rel.
Spring v. Miller (1976), 169 Mont. 242, 545 P.2d 660. In
that case, Powell County had adopted a regulation which had
the effect of preventing further subdivision in a Powell
County area "for an interim period while further studies
could be made." The regulation was adopted pursuant to
section 76-2-206 MCA (formerly section 16-4711, R.C.M.
1947), but without complying with the notice and hearing
requirements set forth in section 76-2-205 MCA (formerly
section 16-4705, R.C.M. 1947). We held that temporary interim
zoning regulations to be null and void for failure to follow
the notice and hearing requirements before the adoption of
the regulation. See also, Bryant Development Association v.
Dagel (1975), 166 Mont. 252, 531 P.2d 1320.
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In like manner, we hold the moratorium adopted by
Helena in this case to be void and of no effect.
HELENA'S - - -ACT:
DUTY TO
The District Court mandated that the conditional-
use permit be issued to Diehl forthwith. It added some
prohibitions regarding further actions on the permit by
Helena, but in essence, the mandamus, prohibition, and
declaratory judgment of the District Court are all in the
order of mandamus directing Helena to issue the permit without
further ado. In this the District Court erred, because
in any event, the City Commission of Helena has the discretion
under its ordinances to take one of three actions on the
permit application: approve, deny or change.
There is no power in our courts to control the discretion
of a municipal body or officer by mandamus. Barnes v. Town
of Belgrade (1974), 164 Mont. 467, 470, 524 P.2d 1112,
and cases cited therein. An abuse of discretion by such a
body or officer can be reviewed in proper cases in a proceedings
for writ of review or certiorari. For example, Bryant,
supra. Here the City Commission never got around to
exercising its discretion regarding the conditional-use permit.
Until that discretion is exercised, the right to act remains
lodged in the City Commission, and no court may usurp the
discretionary right of the City Commission to make one of
the decisions provided by the ordinance on the Diehl application.
We can however, compel the City Commission to act on the
application, where a delay in the exercise of discretion
appears to be arbitrary and capricious. Barnard v. McInerney
(1973), 162 Mont. 309, 316, 511 P.2d 330, 343, and cases
cited therein. The City Commission can be compelled to
perform an act it is legally bound to perform. Erie v.
State Highway Commission (1969), 154 Mont. 150, 153, 461 P.2d
207, 209. While the adoption of the moratorium and the
processing of this appeal might be indications of the attitude
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of the City Commission with respect to the Diehl application,
we cannot completely say on the record that if the City
Commission exercises discretion, it would not grant the
conditional-use permit, or that it would deny or change the
recommendation of the Zoning Commission without explaining
its reasons. The record shows all of the requisite hearings
have been held, the proceedings before the Zoning Commission
are concluded, and all that remains for final action on the
Diehl application is the decision of the City Commission.
It may be necessary for the Commission to have one additional
hearing before taking final action, but it is certainly
within our power to compel the City Commission to proceed
with all reasonable dispatch to a decision on the Diehl
application. Barnes, supra.
Nothing we say here should be taken to indicate that we
abrogate or relinquish in the slightest the role of judicial
review and authority in matters such as the case under
consideration. See the opinion and dissenting opinion in
Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551.
OTHER ISSUES:
There are other issues raised by the parties to this
appeal which we have no need under our holding to discuss.
The District Court did not finally reach the question of
constitutionality of Helena's zoning ordinances nor the
statutes relating to zoning, as adopted or applied. It is
not necessary to go into that issue here.
There is dispute among the parties as to whether the
Helena Zoning Commission did in fact make a recommendation
relating to the Diehl application. While Helena argues
otherwise, it does appear the majority of the Zoning
Commission recommended issuance of the conditional-use
permit, and the City Commission treated the application as
having Zoning Commission approval.
No other issues require discussion.
In sum, the decision of the District Court in this case
is reversed. The City of Helena and its City Commissicn are
ordered to proceed with all reasonable dispatch to make and
enter a resolution pursuant to Helena City Ordinance 11-15-
3, approving, denying or changing the recommendation of
approval by the Helena Zoning Commission of the Diehl
conditional-use permit application; and further, if the same
is denied or changed, said resolution shall state the reasons
for such denial or change in accordance with the ordinance.
This Court would not look with favor upon the adoption of
any further interim moratorium under section 76-2-306 MCA,
insofar as the same might apply to the Diehl application.
Each party shall pay its own costs and attorney fees. A
copy of this opinion served by the Clerk on counsel shall
serve the office of writ of mandate insofar as the mandatory
provisions of this opinion are concerned.
/ Justice 1
We Concur:
/he
pif Justice-
...........................
Justices
Mr. Justice Daniel J. Shea concurring with the majority
Opinion.
I concur in the decision of the majority that a writ
of mandamus was not a proper remedy, but I would not confine
the ruling to such holding. The record reveals that there
was absolutely no foundation for many of the crucial findings
and conclusions reached by the District Court. The District
Court adopted virtually in toto the proposed findings and
conclusions presented by The Diehl Company, and they were
totally without an evidentiary foundation. Indeed, when
the smoke was cleared away, one cannot find evidence that
there was ever a flame.
Because of the unusual circumstances surrounding the
need for an immediate decision in this case, I have not yet
prepared a detailed analysis of the evidence upon which the
District Court acted. I will do so at a later time but I
will not delay the opinion.
pdd-JA ice