No. 79-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
MONTANA WILDLIFE FEDERATION and
GALLATIN WILDLIFE FEDERATION,
1/,/
Plaintiffs and Appellants,
and
MICHAEL AND SUSAN COPELAND,
Intervenors,
GEORGE SAGER, JOHN BUTTLEMAN, JOY NASH,
COUNTY COMMISSIONERS OF GALLATIN COUNTY,
et al.,
Defendants and Respondents.
Appeal from: ~istrict Court of the Eighteenth Judicial District,
In and for the County of Gallatin.
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellants:
Goetz and Madden, Bozeman, Montana
James Goetz argued, Bozeman, Montana
For Respondents:
Donald E.White, County Attorney, Bozeman, Montana
Gregory Todd argued, Deputy County Attorney, Bozeman,
Montana
For Intervenors:
Landoe, Brown, Planalp, Kommers and Lineberger,
Bozeman, Montana
James Kommers argued, Bozeman, Montana
For Amicus Curiae:
Roy H. Andes, Helena, Montana
Submitted: September 10, 1980
Decided :
Filed: 1 6 1980
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Montana Wildlife Federation and Gallatin Wildlife
Association appeal from a judgment of the District Court,
Eighteenth Judicial District, Gallatin County, upholding the
actions of the Board of County Commissioners of Gallatin
County in establishing two planning and zoning districts,
and in permitting a zoning amendment with respect to one of
those districts. Respondents Sager, Buttleman, Nash, White,
and Babb constitute the planning and zoning commissions for
each of the districts. The intervenors, Michael D. Copeland
and Susan B. Copeland are the owners of one of the parcels
of land involved.
The major question presented by this appeal is whether
the Board of County Commissioners may adopt a planning and
zoning district under Part 1, Chapter 2, Title 76, MCA
(section 76-2-101 through -112, MCA) before a comprehensive
development plan for the jurisdictional area has been adopted,
and without considering the criteria and guidelines for
zoning regulations set forth in section 76-2-203, MCA. We
hold in this case that such an adopted planning and zoning
district is valid.
Montana Wildlife Federation and Gallatin Wildlife
Association are nonprofit Montana corporations concerned
essentially with environmental protection, preservation of
wildlife and wildlife habitat, and the protection of general
aesthetic values in land planning. Other public interest
organizations appeared before us as amici curiae, they
being: Bozeman Environmental Information Center, Madison-
Gallatin Alliance, Montana Environmental Information Center,
Coalition for Canyon Preservation, Bitterroot Citizens for
Sensible Growth and Grandview Homeowners Association.
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In late 1978, a group of freeholders, owning parcels of
land extended generally along the west foothills of the
Bridger Mountain range, north of the City of Bozeman in
Gallatin County, initiated meetings to propose a general
planning and zoning district in that area for the approval
of the Gallatin County commissioners. They hired a planner
to work up a master plan, and an attorney to do the pre-
liminary legal work. Because additional subdivision
activity was imminent in the area, the citizens circulated a
petition calling for an interim subdivision moratorium until
the whole area could be brought into a general planning and
zoning district. The citizens decided against the moratorium,
but agreed that the planning effort should go forward.
In the meantime, Michael D. and Susan B. Copeland,
owners of 120 acres within the area proposed for general
planning, filed a petition with the Board of County Com-
missioners for the creation of a separate planning and
zoning district for their own lands. Michael Copeland
testified that his petition was filed with the express
purpose of escaping the application of the proposed large
zoning district. Another separate petition for such a
planning and zoning district was filed by Arnold and Rhoda
Craig, who owned 80 acres in the general area.
The separate petitions of Copelands and ~raigssought
the establishment of separate planning and zoning districts,
each coextensive with the boundaries of the parcels of the
owners, under section 76-2-101, MCA. There is no question
that no comprehensive plan was prepared for either the
Copeland or the Craig lands prior to their petitions nor
while they were being considered by the Gallatin County
Commissioners; and likewise, no question that the Gallatin
County subdivision staffs prepared written reports to the
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commissioners which were adverse to the adoption of the
planning and zoning districts.
On March 2, 1979, the County Commissioners adopted a
planning and zoning district for the Copeland parcel which
became Sypes Canyon'Planning and Zoning District No. 1. On
March 22, 1979, the County Commissioners adopted a planning
and zoning district for the Craig property which became
Sypes Canyon Planning and Zoning District No. 2.
Subsequently, the Planning and Zoning Commission for
these districts adopted a development pattern for each
district under section 76-2-104, MCA, consisting of a "Sypes
Canyon Zoning Ordinance and Zoning Map", one adopted for
each district.
In May 1979, the Copelands petitioned the Planning and
Zoning Commission of their district to amend their initial
zoning district so as to provide a greater density of lots
on a portion of their lands. The amendment or zoning request
was granted on May 22, 1979 by the Planning and Zoning Com-
mission, again over the negative recommendation of the
Gallatin County Subdivision staff.
The Federation and the Association filed their complaint
on June 13, 1979, challenging the creation and implementation
of Sypes Canyon Planning and Zoning Districts Nos. 1 and 2
(Copeland and Craig). While the action was pending, Copelands
filed an application for approval by the Gallatin County
Commissioners of a subdivision plat, which application was
set for hearing on July 5, 1979. The scheduled subdivision
hearing was preliminarily enjoined by the presiding district
judge. Meanwhile, the Copelands intervened in the pending
action and filed a counterclaim against the plaintiffs for
damages. The counterclaim was ultimately dismissed by the
District Court after trial. The intervenors filed a cross-
appeal on the dismissal of the counterclaim, which appeal
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was dismissed by agreement of counsel. The trial of all the
issues except the counterclaim was held before Judge W. W.
Lessley on August 15 and 28, 1979. On September 15, 1979,
the District Court issued its findings of fact and con-
clusions of law and based on these, entered a judgment from
which this appeal arises.
The issues we address in this case are these:
(1) The defendants contend that under section 76-2-
110, MCA, the Federation and the Association should have
appealed from the decisions of the Board of County Commis-
sioners within 30 days, and since they did not do so, the
commissioners argue that the District Court was without
jurisdiction to hear the plaintiffs' appeals.
(2) The defendants further contend that under section
27-19-104, MCA, in actions where public interest groups seek
injunctive relief, they are required by that statute, if
there is an injury to a property or civil right of an
individual member of the Association, distinguishable from
of the
an i n j ~ r ~ / ~ u b lgenerally, to set forth in the complaint
ic
the names and addresses of the injured members and a statement
of the injury. The Federation and the Association contend
that section 27-19-104, MCA,is unconstitutional because it
denies them equal access to the courts and impairs their
right to freedom of association.
(3) The Federation and the Association contend that
the Planning and Zoning Districts established in this case
are invalid as contrary to the public interest in orderly
planning and zoning, and because they are not based on a
comprehensive plan, nor on reasonably adequate planning
information, and because the districts constitute spot
zoning.
(4) The Federation and the Association further contend
that the "rezoning" of Sypes Planning and Zoning District
No. 1 (Copeland) is invalid because the commission failed to
follow the statutory requirements enumerated in Lowe v. City
of Missoula (1974), 165 Mont. 38, 525 P.2d 551.
The county commissioners adopted a Planning and Zoning
District for the Copeland parcel on March 2, 1979, and for
the Craig property on March 22, 1979. The Federation and
Association filed their complaint on June 13, 1979. It is
on this basis that the county commissioners contend that
under section 76-2-110, MCA, the action should have been
filed within 30 days. Since plaintiffs did not do so, the
commissioners argue that the District Court was without
jurisdiction to hear what were in effect appeals from the
actions of the County Commissioners in adopting the Planning
and Zoning Districts.
The Federation and Association did not appeal from the
rulings of the county commissioners in a direct sense.
Their action is for declaratory judgment, filed June 13,
1979. The county filed a motion to dismiss on June 28, 1979
without specifying as a ground for dismissing the complaint
the appeals limitations statute. The Copelands intervened
in the action on July 16, 1979, and the answer to their complaint
did not set out as an affirmative defense the appeal limit-
ations statute. The subsequent answer of the county
officers did not raise as an affirmative defense the pro-
visions of section 76-2-110, MCA. The court, on July 30,
1979, set down the cause "for total hearing" on August 15,
1979. On the latter date, defendants filed a written motion
to dismiss the appeal on the ground that the time limitation
of section 76-2-110, MCA, had not been complied with. The
District Court denied the motion apparently on the ground
that it was untimely raised. The District Court was correct.
The proper method of raising the question of a timely appeal
is by an affirmative defense pleaded in an answer to the
complaint. Rule 8(c), M.R.Civ.P. Since the issue was not
properly raised below, we will not consider it here.
The county commissioners also contend that under section
27-19-104, MCA, it was the duty of the plaintiffs, as public
interest groups, to allege in their complaint an injury to
the property or to a civil right of the individual members
of the association, distinguishable from an injury to the
public generally, and to set forth in the complaint the
names and addresses of the injured members and a statement
of the injury, in order to obtain injunctive relief. The
District Court found that the Federation and the Association
did in fact have standing to file the complaint for in-
junctive relief, without supplying the names and addresses
and a statement of the respective injuries of the members of
the Association.
The District Court was correct in so holding. The
plaintiffs allege in their complaint "for purposes of the
present action, plaintiffs allege injury in fact which is
similar to injuries suffered by other members of the public
generally." The plaintiffs therefore brought themselves
within the standing-to-sue statute, section 27-19-104, MCA,
which provides as follows:
"Whenever an action for injunctive relief
is initiated by a citizen's group or other
public interest association and it appears
by the complaint that there is an injury to
a property or civil right of individual
members of the association, which injury
is distinguishable from an injury to the
public generally, the names and addresses
, of injured members and a statement of the
injuries shall be provided in the complaint.
An injunction may not be granted unless such
information is provided in the complaint."
The plaintiffs allege in their complaint essentially
that their alleged injury was coextensive with the injury of
the public generally. No damages for individual injuries
are sought in the complaint. The organizations therefore
had standing to sue under the statute. Since the District
Court allowed the Federation and Association to prosecute
their action for injunction, there is no necessity to reach
the constitutional question whether section 27-19-104, MCA,
denies the plaintiffs in this case equal access to the
courts or impairs their right to freedom of association.
We turn now to the contention of the Federation and the
Association that the county commissioners acted unlawfully
in adopting the Sypes Canyon Planning and Zoning Districts.
Chapter 2, Title 76, MCA, contains the statutes that
relate to planning and zoning. Chapter 2 is divided into
three parts. Part 1 (sections 76-2-101 through -112, MCA)
relates to the establishment of county planning and zoning
commissions. It is under Part 1 that the county commissioners
acted in this case. Part 2 (sections 76-2-201 through -228,
MCA) relates to county zoning. This part applies only to
those cases where the governing body has adopted a com-
prehensive development plan for the jurisdictional areas
involved. Part 3 (sections 76-2-301 through -328, MCA)
relates to municipal zoning, with which we are not here
concerned.
When we examine Part 1, Chapter 2, Title 76, MCA, in
greater detail, we find that section 76-2-101, MCA,provides
that "whenever the public interest or convenience may require"
upon petition of 60 percent of the freeholders affected
thereby, the Board of County Commissioners is authorized and
empowered to create a planning and zoning district and to
appoint a commission consisting of five members. No such
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district may be created in an area which has been zoned by
an incorporated city.
Under section 76-2-102, MCA, the planning and zoning
commission, though appointed by the Board of County Com-
missioners, is designated by statute to consist of the three
county commissioners, the county surveyor, and the county
assessor. Under section 76-2-103, MCA, this planning and
zoning commission has such powers as are appropriate to
enable it to fulfill its functions, to promote county
planning, and to carry out the purposes of Part 1, Chapter
2, Title 76, MCA.
Once the planning and zoning commission in a planning
and zoning district is established, it then becomes the duty
of the planning and zoning commission to adopt a development
pattern for the physical and economic development of the
planning and zoning district under section 76-2-104, MCA. A
pertinent part of section 76-2-104 provides:
" (2) Such development pattern, with accompanying
maps, plats, charts and descriptive matter, shall
show the planning and zoning commission's recommend-
ations for the development of the districts, within
some of which it shall be lawful and within other of
which it shall be unlawful to erect, construct, alter,
or maintain certain buildings or to carry on certain
trades, industries, or callings or within which
the height and bulk of future buildings and the
area of the yards, courts, and other open spaces
and the future uses of the land or buildings shall
be limited and future building setback lines
shall be established."
Section 76-2-106, MCA, provides for the adoption by the
Planning and Zoning Commission of the development district
or any change therein after public notice and hearing.
In the case before us, the statutory procedures set
forth in Part 1, Chapter 2, Title 76, FICA, as we have set
them out above, were followed by the Board of County Com-
missioners, and subsequently by the Planning and Zoning
Commission in each district. In each, there was a petition
by 60 percent (actually 100 percent) of the freeholders;
the action of the Board of County Commissioners creating
the Planning and Zoning District based on each petition;
the appointment of the Planning and Zoning Commission;
the adoption of development pattern by the Planning and
Zoning Commission; and in the case of the Copeland District,
an amendment in May 1979 of their Planning and Zoning
District amending the initial zoning ordinance so as to
provide a greater density of lots on a portion of their
lands.
The Federation and Association argue that the Sypes
Districts are invalid because they are not based on a
comprehensive plan. They contend that we must read into
Part 1, Chapter 2, Title 76, MCA, the provisions taken from
Part 2 of that Chapter (section 76-2-203, MCA), which set
out the criteria and guidelines for zoning regulations where
county zoning under Part 2 is concerned. A prerequisite to
zoning under section 76-2-203 is that zoning regulations
shall "be made in accordance with a comprehensive develop-
ment plan". Allen v. Flathead Cty. (1979), Mont . I
601 P.2d 399, 36 St.Rep. 1839. Otherwise, the Federation and
the Association contend, the establishment here of the
districts and the adoption of the development patterns are
not based on rational criteria and are defective on con-
stitutional grounds because the zoning decisions are either
inconsistent with governing statutory standards or are
clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals or general
welfare. They point to the reports of the Gallatin County
Subdivision staff which indicate among other things, that in
the Sypes Districts, there was little or no information by
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which to determine traffic needs or water availability when
the Districts were created and that essentially, these could
come only from a comprehensive plan. The Federation and
Association are equally insistent that we should turn aside
the adoption of the Planning and Zoning Districts here
because there was no evidence before the Board of County
Commissioners or realistic finding by the District Court
that the "public interest and convenience" required the
establishment of the Districts.
The evidence in this case is that no comprehensive plan
has been adopted which would affect the jurisdictional areas
in which the Sypes Canyon Planning and Zoning Districts were
established. We need only point out that while the adoption
of a comprehensive plan is a prequisite to action under Part
2, Chapter 2, Title 76, MCA, there is no statutory require-
ment for such a comprehensive development plan when the
county commissioners act under Part 1, Chapter 2, Title 76,
MCA .
In City of Missoula v. Missoula County (1961), 139
Mont. 256, 362 P.2d 539, this Court found the statutes which
are the forerunners of Part 1, Chapter 2, Title 76, MCA,
valid as against an attack that the statutes constituted
an unlawful delegation of legislative power. In the decision,
this Court found that the statute validly delegated admini-
strative authority and that its provisions were sufficiently
clear, definite and certain to enable the agency to know its
rights and obligations, speaking particularly of the fore-
runner of section 76-2-104, MCA.
In Doull v. Wohlschlager (1963), 141 Mont. 354, 377
P.2d 758, this Court, in construing the same sections, the
forerunners of Part 1, Chapter 2, Title 76, MCA, determined
that a county-wide comprehensive plan was not necessary
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prior to the adoption of a county planning and zoning
district, and further, that in making and adopting a
development district, it was not necessary that there be
created a county-wide development pattern.
Realizing the effect of the decision in Doull, the
plaintiffs contend that the statutes which now comprise Part
2, Chapter 2, Title 76, MCA, did not come into effect until
1963, whereas those statutes comprising Part 1 of that
chapter had been in effect since 1953, and were the statutes
in effect at the time of the --
Doull decision. Therefore,
contend the plaintiffs, the Montana court did not consider
whether it should construe Part 1 and Part 2 of Chapter 2,
Title 76, MCA, - -
in pari materia; and that this Court, to
avoid unconstitutional implications relating to lack of due
process, should consider the provisions of Part 2 as - -
in pari
materia with Part 1, and require that the criteria and
guidelines found in section 76-2-203, MCA (contained in Part
2) should be the guidelines to be followed by the Board of
County Commissioners and by the Planning and Zoning Com-
mission when they act under Part 1.
In City of Missoula v. Missoula County, supra, this
Court determined that there were sufficient guidelines in
section 76-2-104, MCA, to sustain the constitutional validity
of the statute. We said:
"We shall not quote the entire act, but with
respect to the procedure, the law provides
definite outlines and limitations. The
zoning district may come into being only
upon petition of sixty percent of the free-
holders in the area. The adoption of the
development district must be by a majority
of the Commission, after definitely prescribed
public notice and public hearing. The resolution
must refer to maps, charts, and descriptive
matters. In other words, quite adequate pro-
cedural matters are contained in the act itself
.. . 139 Mont. at 260, 261, 362 P.2d at 541.
When the county commissioners adopt a Planning and
Zoning District under section 76-2-101, MCA, so as to
establish the boundaries of the District, they take but the
first step. If they were to do nothing further, their
action would be useless. The establishment of the boundaries
is but preliminary to the adoption of the development pattern
under section 76-2-104, MCA. It is at the adoption stage of
the development pattern that guidelines are established
under the statutes for the administrative functions of the
County Planning and Zoning Commission, with provisions for
notice and public participation included.
The provisions of section 76-2-101, t4CA, authorizing
the establishment of boundaries of a Planning and Zoning
District, must be read in conjunction with the provisions of
section 76-2-104, MCA, providing for the adoption of a
development pattern. When read together, we must conclude,
as this Court previously concluded in City of Missoula v.
Missoula County, supra, that these statutes are in fact
constitutional and that such constitutionality extends to
the acts of the county commission in establishing the
boundaries of the Planning and Zoning Districts in this
case.
We must be conscious of the result if we should hold
the procedures under section 76-2-101, MCA, unconstitutional
for lack of statutory guidelines. It would then become
impossible for a landowner, unless he could find an exemption,
to change the agricultural use of his land or to subdivide
and convey tracts from his land where the county, for
whatever reason, had not adopted a comprehensive development
plan for the jurisdictional area involved. The legislature
must have contemplated the establishment of Planning and
Zoning Districts that occurred here in the absence of the
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adoption of a comprehensive development plan. Plaintiffs
and amici argue that the legislature, by expanding the
potential jurisdiction of the county commissioners under
Chapter 273, Laws of 1971, so as to become possibly
coextensive with the boundaries of the entire county
thereby expressed a legislative mandate that the guidelines
of section 76-2-203, MCA, be imposed on the determination of
jurisdictional areas under section 76-2-101, MCA. Section
76-2-101, and its following statutes have been in effect
essentially since 1953, without further amendment of the
legislature, and the subsequent parts of the Planning and
Zoning Statutes have been added to Part 1, rather than
enacted in lieu of Part 1. We must therefore deem that
the legislative intent is that Part 1 is to have its own
meaning and effect. Fletcher v. Paige (1950), 124 Mont.
114, 119, 220 P.2d 484, 486.
The Federation and Association contend just as strong-
ly that under section 76-1-101, MCA, a Planning and Zoning
District may be created only when the "public interest or
convenience" may require and that there was no evidence
before the county commissioners, nor before the District
Court, to justify a finding by either the county commission-
ers or the Court, that the Planning and Zoning Districts
should be created.
The District Court found that the public interest and
convenience of the statute was met in that "by the creation
of the zoning district, the Copelands substituted the
County Commissioners for themselves as the individuals
to have the ultimate control over the development of the
real property in the zoning district. By that substitution
the residents of Gallatin County are assured adequate hearings
prior to planning and development in the zoning district and
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legitimate access to their own elected officials who
ultimately controlled the development within the zoning
district." This finding of the District Court the plaintiffs
attack as bogus and transparent because Montana's sub-
division laws provide ultimate control in the county
commissioners when the subdivision plats are filed for
approval under section 76-3-601, MCA. We do not negate this
conclusion of the District Court as to the public interest
being thereby served. It is plain that section 76-2-104,
MCA, when read in conjunction with section 76-2-101, MCA,
does involve a transfer to the Planning and Zoning Com-
mission by the landowner of full authority as to what uses
shall be made of the lands in the district, what kinds of
buildings shall be allowed, and what future uses of the
lands shall be limited. This is the stage at which the
public interest in orderly development is protected, and it
is a stage in which the public may participate at a hearing
after due notice. Section 76-2-106, MCA.
Another argument of the Federation and Association
against the validity of the Planning and Zoning Districts
is that the Board of County Commissioners gave little or no
consideration to wildlife or wildlife habitat existing on
the parcels which became the Sypes Canyon Districts. Their
contentions about wildlife were strong enough that the
District Court regarded them as "reindeer games" and found
occasion to quote the first sixteen bars of "Rudolph the
Red-Nosed Reindeer" in its opinion supporting its findings
in this case.
The case of In Re the Red-Nosed Rudolph has not
attained a noticeable level of acceptance as legal pre-
cedent. We point out, however, that the plaintiffs have
not been foreclosed from considerations of wildlife in this
matter. When subdivision plats relating to the Sypes
Canyon Planning and Zoning Districts are presented for
approval, at that point the criteria for local government
review set forth in section 76-3-608, MCA, come into play.
Those criteria include, among other things, a determination
of the effects on wildlife and wildlife habitat.
In essence, what we are saying respecting the con-
tentions of the plaintiffs is that when dealing with the
police power to protect the public safety and welfare, it
is for the legislature to decide what regulations are needed.
McCallin v. Walsh (1978), 64 A.D.2d 46, 407 N.Y.S.2d 852.
For due process purposes, governmental action does not have
to be the only alternative or even the best alternative for
the procedures to be reasonable and constitutional. Bell v.
Wolfish (1979), 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447.
The Federation and Association next contend that in the
adoption of the Sypes Districts, the county and the land-
owners have illegally circumvented the Montana Subdivision
and Platting Act.
This contention comes about because in adopting the
development patterns for the Copeland lands, the county
commissioners first developed a density of 28 lots for the
parcel, and later amended the zoning regulations so as to
permit the same number, 28 lots, but permitted these lots to
be platted in one-acre tracts. This had the effect of
increasing the density of lots by lowering the acreage for
which a lot could be subdivided. The ~ederationand Assoc-
iation maintain that since the greater density was esta-
blished in the development pattern, this necessarily fixed
the density that will be considered by the county commission-
ers when the subdivision plats are presented for approval.
The county commissioners in testifying before the District
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Court admitted that the density would probably remain
unchanged when they considered the subdivision plats. We
note that the Copelands have filed a subdivision plat
which has been approved during the pendency of this
litigation.
Again we point out that many of the considerations for
which the Federation and Association are contending here as
to criteria to be considered in approving Planning and
Zoning Districts are available to those organizations at
the time the subdivision plats are presented for approval.
Unless a subdivision is entitled to summary review (section
76-3-505, MCA) or other exemption, it must be examined by
the governing body under section 76-3-604, MCA, to determine
whether it conforms to the local master plan, if one has
been adopted, and to the criteria of the subdivision chapter
as set out in section 76-3-608, MCA. The governing body
must make written findings of fact which weigh among other
things, expressed public opinion, the effects on natural
environment, the effects on wildlife and wildlife habitat,
and the effect on public health and safety. At the time of
review of the proposed subdivision plat, under section 76-3-
608, MCA, the effect of the proposed density of lots on
wildlife and wildlife habitat is an issue to be decided by
the local governing bodies if submitted at the hearing
required by section 76-3-605, MCA. The issue of density
therefore has not been foreclosed, because it is open for
consideration by the Commission in reviewing the proposed
subdivision plat for the "effects on wildlife and wildlife
habitat." Section 76-3-608(g), MCA.
The next contention of the Federation and Association
is that in establishing the Planning and Zoning Districts
here the county engaged in "spot zoning." In State ex
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rel. Gutkowski v. Langhor (1972), 160 Mont. 351, 502 P.2d
1144, we defined "spot zoning" as follows:
". . . spot zoning ...
is the 'process of
singling out a small parcel of land for a
use classification totally different from
that of the surrounding area, for the benefit
of the owner of such property and to the
detriment of other owners.'" 160 Mont. at
353, 502 P.2d at 1145.
The facts on which the spot zoning argument is made
do not seem to be in dispute. There is Grandview Heights
Subdivision south of Sypes Canyon District No. 2 where the
parcels average 3.8 acres; the Craigs' property is between
the Copeland property and Grandview Heights, but the Craigs
have abandoned their subdivision plans and have sold in 2
twenty-acre and 4 ten-acre parcels; Wheatland Hills sub-
division is approximately one mile away and does not
border the Sypes Districts; all the land east of the Sypes
Districts is in public ownership and not subdivided; north
of the Sypes District is a 60 acre unit, though platted in
smaller units; south of the Sypes Districts the land is
platted in 3 five-acre parcels and 1 two-acre parcel; no
areas other than the two Sypes Districts are zoned in the
immediate vicinity.
On these facts, the Federation and the Association
contend that the allowance of the Sypes Districts amounts to
spot zoning. They contend that the zoning districts and the
density requirements adopted therein differ sharply from
the surrounding area and that this was pointed out by
the Gallatin County Subdivision staff to the county
commissioners. Again the argument is made that such
zoning as occurred in the Sypes Canyon Planning and
Zoning Districts should be done only after the adoption of
a comprehensive plan.
In accepting the legality of procedures under Part
1, Chapter 2, itl lo 76, MCA, as we have stated we
are bound to accept the consequences that reasonably flow
therefrom. One of the consequences is that parcels of 40
acres or more are entitled to be designated as planning
and zoning districts under section 76-2-101, MCA, without
being considered "spot zoning". A statute will not be
interpreted to defeat its evident object or purpose; the
objects sought to be achieved by the legislation are prime
consideration in interpreting statutes. Doull v.
Wohlschlager, supra.
We have found no case, nor have the parties led us to
one, which has held that the adoption of a planning and
zoning district within an otherwise unplanned area con-
stitutes spot zoning.
The final contention of the Federation and the Associa-
tion is that the County Planning and Zoning Commission acted
illegally in rezoning Sypes Canyon Planning and Zoning
District No. 1. As we have indicated, the effect of the
rezoning was to increase the density allowable on a portion
of that district.
Lowe v. City of Missoula, supra, is advanced by the
plaintiffs as supporting their contention. In Lowe, this
Court reversed the District Court and set aside the city
action in granting a zone change from residential to
restricted one-family residential status. Our reversal was
based on the failure of the city council to follow the
criteria set forth in the municipal zoning section, section
76-2-304, MCA.
The logic expressed by the plaintiffs in support of
their claim of illegality of the rezoning is that Lowe
decided that municipal rezoning must include a consideration
of the criteria set forth in section 76-2-304, MCA; that
with.respect to county zoning, the criteria set forth in
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section 76-2-203, MCA, virtually identical to section 76-2-
304, MCA, must be considered when county rezoning is under-
taken; therefore, plaintiffs contend that either criteria
must be considered mandated when district rezoning occurs
under Part 1, Chapter 2, Title 76, MCA.
We are foreclosed from mandating the criteria from
other parts of the Planning and Zoning Statutes to apply
to Part 1, Chapter 2, Title 76, MCA, for the reason that
section 76-2-106, MCA, provides not only for the original
adoption of the Planning and Zoning Development District,
but that "any change therein may be in whole or in part"
adopted by the affirmative vote of the majority of the
Planning and Zoning Commission. Accordingly, the Planning
and Zoning Commission, in amending or changing the Planning
and Zoning District, need only refer to the criteria set
forth in section 76-2-104, that is, the guidelines applying
to the original establishment of the development pattern.
Under the latter section, the Planning and Zoning commission
has full power to determine "the area of the yards, courts,
and other open spaces and the future uses of the land. . ."
Section 76-2-104(2), MCA. We are not at liberty to set the
exercise of that discretion of the Planning and zoning
Commission aside. A judgment of the District Court uphold-
ing the discretion of zoning officials will not be set
aside unless clearly erroneous. Rule 52(a), M.R.Civ.P.;
Melton v. City of Durant (Okla. 1974), 521 P.2d 1372.
In their brief filed with this Court, amici curiae
have set forth other grounds attacking the constitutionality
of Part 1, Chapter 2, Title 76, MCA. We have respectfully
declined to discuss the extended or enlarged issues on
constitutionality presented by amici. Since amici curiae
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are not parties and cannot assume the functions of parties,
nor create, extend or enlarge issues, we have considered the
briefFof amici only insofar as as they coincide with the
issues raised by the parties to the action. See Long v.
Odell (1962), 60 Wash.2d 151, 372 P.2d 548; City of Phoenix
v. Phoenix Civic Aud. & Con. Cent. Ass'n. (1965), 99 Ariz.
270, 408 P.2d 818, reh-den. 412 P.2d 43.
The District Court held in essence that the county
commissioners and the Planning and Zoning Commission had
acted lawfully in establishing the Sypes Canyon Planning and
Zoning District Nos. 1 and 2, and the amendment to Sypes
Canyon Planning and Zoning District No. 1, and so refused
injunctive and declarative relief to the plaintiffs. We
find that the rulings of the District Court in this regard
are correct. In view of our holding, we deny the pending
motion of the Federation and Association for an injunction
pendente lite against further subdivision of the districts.
The judgment of the District Court is affirmed.
Justice
We Concur:
Chief Justice