No. 14520
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
ROBERT S. FOSTER,
Petitioner and Respondent,
CITY COMMISSION OF AND FOR THE
CITY OF BOZEMAN, et al.,
Respondents and Appellants.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellants:
Berg, Morgan, Coil and Stokes, Bozeman, Montana
Ben E. Berg argued, Bozeman, Montana
For Respondent:
Joseph W. Sabol argued, Bozeman, Montana
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Submitted: September 13, 1979
Decided : AU G 8 - 1g80
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The Bozeman City Commission appeals from an order of
the Gallatin County District Court which granted a writ of
mandamus to Robert S. Foster and directed the Bozeman City
Commission to hold a rehearing on Foster's request for a
master plan zone change, to keep a full record of the
rehearing, and to issue written findings in support of its
decision.
The central controversy arises from a denial on May 10,
1978, by the City Commission of Foster's request that his
forty acres of land be changed from an agricultural-suburban
zoning classification (which permits subdivisions of no less
than ten acres) to a single family residential zoning
classification. Upon receipt of this adverse decision,
Foster, through his attorney, demanded a rehearing of his
rezoning request and alleged that the City Commission had
engaged in several procedural irregularities with reference
to its previous hearings. On May 24, 1978 the City Commission
denied Foster's demand for a rehearing on the merits, and on
May 25, 1978, Foster obtained an alternative writ of mandate
from the District Court. The alternative writ ordered that
Foster either be granted a rehearing or that the City Com-
mission show cause why it had not complied with the court
order. The City Commission chose to show cause. After an
evidentiary hearing, the District Court issued a writ of
mandate ordering the City Commission to grant a rehearing on
the merits and to comply with the procedural requirements of
an adjudicatory proceeding.
In applying for a writ of mandamus Foster acknowledged
that a writ of review (certiorari) is normally the appropriate
and adequate remedy by which to test the legality of the
proceedings before the City Commission. He alleged, how-
ever, that in this case a writ of review is not adequate
because the City Commission had failed to keep a verbatim
record of its proceedings had in relation to the Foster
rezoning application and had failed to enter findings of
fact in support of its decision. Thus Foster contended,
there was essentially nothing for the District Court to
review, and that the only adequate remedy would be a writ
commanding the City Commission to hold another hearing on
the merits together with the procedural safeguards he con-
tends were denied him at the initial hearings.
In applying for a writ of mandamus, Foster framed his
complaint in seven counts, but the central contention is
that after the May 3 hearing and before the May 10 decisional
meeting of the City Commission, the city manager circulated
a secret memorandum to the Commission members which was
calculated to and did deprive Foster of his rights to a fair
hearing on his rezoning application. He contends that he
did not have a chance to respond to or rebut the matter
contained in the secret memo before the City Commission made
its decision at the May 10 meeting.
Accompanying this central contention is his claim that
the City Commission failed to keep a verbatim record of its
May 3 and May 10 meetings in relation to the rezoning
application, and that the City Commission had failed to
enter written findings in support of its decision denying
the rezoning application. Essentially, Foster argues that
the failure to keep a hearing record and to enter findings,
effectively deprived him of the right to seek judicial
review of the City Commission's decision denying his rezoning
application. He therefore claims that he was deprived of
due process of law.
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Based on his underlying contention that the City
Commission had a duty to keep a full hearing record and to
enter written findings, it is impossible to determine whether
the City did in fact rely on the secret memo circulated by
the city manager. Because the City Commission denied Foster's
request for a rehearing, he argues that the only remedy to
cure the due process violations is for a court to order the
City Commission to rehear the case on the merits.
The District Court held an evidentiary hearing on his
complaint and then issued a writ of mandamus directing the
City Commission to hold a rehearing on the merits. Findings
of fact and conclusions of law were entered, and a supporting
memorandum was filed by the District Court. The District
Court ordered the City Commission to immediately hold a
rehearing on the merits of Foster's rezoning application, to
keep a verbatim hearing record of all evidence introduced,
both oral and documentary, and to issue written findings in
support of its decision based on the testimony and documentary
evidence introduced at the hearing. The City Commission
appeals from this order.
The District Court ruled that the proceedings involved
were adjudicative in nature rather than legislative, and for
this reason, that the City Commission must keep a verbatim
record and enter written findings in support of its decision.
The statutory framework was not considered at all. Rather,
the District Court concluded that under the rationale of
Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551,
the proceedings were adjudicative rather that legislative.
In reaching the issue of the so-called secret memo, the
District Court ruled that absent written findings, it could
not be determined whether the City Commission had in fact
relied on the memoranda circulated by the city manager.
This being so, the District Court concluded that the only
remedy was to order a rehearing on the merits coupled with
the procedural safeguards set forth.
Boiled down to the essentials, the City Commission
contends that when acting on the forty acre rezoning application
it was acting in a legislative capacity rather than in an
adjudicative or quasi-judicial capacity. Thus it contends
that the District Court had no right to impose procedures on
its activities which are applicable to quasi-judicial functions,
such as keeping a verbatim record of the proceedings and
making findings of fact in support of its decision. From
this essential premise, the City argues that since it is not
required by statute to grant rehearings from denials of
rezoning applications, the decision as to whether it will do
so is discretionary. Because a writ of mandamus will not
issue to control a discretionary act, the City thus argues
that mandamus could not properly issue to compel it to grant
a rehearing on the merits to Foster. Although other issues
exist, we believe that the underlying issue is whether the
proceedings involved here are such that standards in relation
to quasi-judicial proceedings should be imposed.
For reasons which we will fully explain, we determine
that the writ of mandamus was not a proper remedy in this
case and that it was, moreover, entered without proper con-
sideration of the actual state of the procedural record and
of Foster's action or inaction in creating that record. The
facts do not permit us to extricate him from the situation
which he helped to create. Before commencing our analysis,
however, we first set forth the factual background leading
to the dispute involved here.
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The forty acres involved is outside the Bozeman city
limits but within the jurisdiction of the City Commission
and the City-County Planning Board and the Zoning Commission.
In October 1977, Foster initially filed an application with
the Bozeman City Commission to rezone his land from agri-
cultural-suburban to single family residential. The City
Commission initially referred this request to the City-
County Planning Board and the Zoning Board. Each of these
Boards held hearings and each recommended that the petition
for rezoning be denied. The primary reason given for the
denial recommendation was that the master plan would be
revised in the near future and therefore any present zoning
changes would be precipitous.
On or about December 20, 1977, the City Commission
conducted a public hearing on Foster's request for a rezone.
No members of the public appeared in support of or in
opposition to the requested zone change. The City Com-
mission denied Foster's rezoning request pending initial
consideration and recommendations by the City-County Planning
Board. It appears that all concerned believed that a master
plan change would be forthcoming.
On March 8, 1978, Foster went to the City commission
and asked it when the changes in the master plan could be
expected. Having no answer for Foster, the City omm mission
decided that it had better consider Foster's rezoning
request on the merits without regard to a future change in
the master plan. As preliminary steps, the City Commission
referred the latter to the City-County Planning Board and to
the Zoning Commission, and asked each body to consider
Foster's rezoning application on the merits and to forward
their recommendations to the City Commission. Each of the
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Boards held hearings and each forwarded its recommendations
to the City Commission, but with different conclusions. The
City-county Planning Board recommended against the zoning
change but the Zoning Board recommended in favor of the
zoning change.
On May 3, 1978, the City Commission held its hearing on
the requested zoning change. The record before us together
with admissions from Foster's attorney in response to
questions from the bench during the hearing of this appeal,
supports the conclusion that a court reporter, at the request
of Foster's attorney, reported the May 3 hearing in relation
to Foster's rezoning application. Foster and his attorney
fully participated in the hearing.
One of the opponents of the rezoning application was
Joel Shouse, a member of the City-County Planning Board, and
also one of the members of a committee which drafted a report
concerning the water supply and water table in the Gallatin
Valley. The report, entitled 'Blue Ribbons Draft Final
Repore', had already been publicly released and was available
to the general public upon request, Shouse testified in
detail concerning his fears that water pollution would
result if a rezone were granted. He was particularly con-
cerned about the nitrate pollution which would appear in the
ground water if the property was rezoned for residential
use. During his testimony, Shouse frequently referred to
the Blue Ribbons Report. Neither Foster nor his attorney
objected to Shouse's testimony. Foster's attorney questioned
Shouse extensively concerning his conclusions that the
rezoning should not be granted.
The City Commission did not vote on the Foster rezoning
application on May 3, but decided rather that it would
render its decision on May 10, the next regular weekly
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meeting of the Commission. The allegation that the City
Commission later considered evidence not presented at this
May 3 hearing, arose in relation to an agenda of the May 10
meeting circulated on May 9 to the City Commission members
by the city manager.
It is the custom of the city manager to prepare an
agenda and circulate it to each commission member before the
weekly meeting. The Foster rezoning application was one of
i
several items on the agenda. In the agenda, the city manager
recommended to the City Commission that it deny Foster's
rezoning application and he set forth his response. Also
appended to the agenda was a letter from Joel Shouse and the
report of the Blue Ribbons Planning Organization. Shouse
had referred to this report during his testimony at the May
3 hearing. Shouse testified at the District Court hearing
on the order to show cause, that he had submitted this
letter and report to the City Commission to clarify and
support his testimony that ground water pollution would occur
if the City Commission granted the rezoning application.
Specifically, he wanted to clarify certain testimony given
in response to questions from Foster's attorney.
Foster claims that the agenda and attached letter and
report, comprised a secret memo which the city manager had
circulated to the City Commission members, that it was
calculated to defeat his rezoning application, and that he
was given no opportunity to meet or rebut this evidence.
For this reason, he claims he was denied due process of law.
The record, however, does not support his contention that he
was caught flat-footed at the May 10 meeting of the City
Commission. Rather, it supports a conclusion that Foster's
attorney was offered a copy by the city manager before the
meeting started, but that Foster's attorney specifically
declined.
The city manager testified at the District Court
hearing concerning the agenda he had prepared for the May 10
meeting of the City Commission. This agenda, of course,
included his own recommendation with supporting reasons,
that the City Commission deny the rezoning application. He
unequivocally testified that sometime before the May 10
meeting began, he offered to supply a copy of the agenda to
Foster's attorney but that Foster's attorney refused this
offer. He was not specifically asked whether he also
offered a copy of the Shouse letter and accompanying water
report. The testimony of the city manager stands unrefuted.
The city manager, furthermore, testified that at the
May 10 meeting, he briefly spoke to the City Commission an6
recommended that it deny the rezoning application. It is
clear that Foster and the attorney knew or should have known
that the City Commission would receive the recommendations
of the city manager that the rezoning application be denied.
The record does not indicate that Foster or his attorney
were at liberty to participate at the May 10 meeting.
Nonetheless, neither Foster nor his attorney did anything to
object to the use of the memorandum or to the statements of
the city manager.
There is also not the slightest evidence that Shouse's
letter or the water study report were reported to by the
City Commission during the May 10 meeting. At least three
witnesses, including one commission member, testified at the
District Court hearing that Shouse's letter and water report
were not discussed by the City Commission during the meeting.
There was no contrary testimony. At this public meeting the
Commissioners discussed the Foster rezoning application for
at least a period of fifteen minutes, and then by a divided
vote, decided to deny the rezoning.
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We note that Foster's attorney had a court reporter
present to record the May 10 proceedings held in relation
to the rezoning application. This fact was brought forth
during the District Court hearing on the order to show
cause, and in response to questions of Foster's attorney
during the argument of this appeal. Under these circum-
stances, Foster was in no position to argue that the City
Commission was obligated to but failed to provide him with a
record of the proceedings. A record existed, but Foster's
attorney chose not to have it transcribed. The City Com-
mission cannot be held responsible for this.
We thus have a situation where neither Foster nor his
attorney ever requested the City Commission to keep a
verbatim record of its proceedings in relation to the re-
zoning application. There is neither existing statutory law
nor Montana case law requiring this procedure, and it is
difficult for us to determine that the City Commission
nonetheless had a mandatory duty to keep such a record. The
fact that Foster did have a record if he chose to use it,
obviates any prejudice occurring because of an absence of a
record. It is difficult for us to see how he could claim in
District Court that review was inadequate because the city
had not recorded the proceedings, but where he actually had
his own record of the proceedings.
Nor is there any existing statutory or case law in this
state which requires a City Commission when hearing a
rezoning application, to enter findings in support of its
decision. If there is such a duty, it is only the duty that
the District Court had been asked to create by its decision,
and that this Court has been asked to ratify. Foster did
not ask the City Commission to enter findings of fact in
support of whatever decision it made. Rather, the only time
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findings became an issue is when Foster petitioned the City
Commission for a rehearing and claimed as one of the grounds
for a rehearing that the City Commission had precluded him
from seeking judicial review because it had not made findings
in support of its decision.
Thus, as to both a record of the proceedings, and
requested findings, Foster and his attorney remained silent
during the May 3 and May 10 meetings of the City Commission.
It appears that he was gambling on a favorable decision, but
in the event it was adverse, was carrying his due process
argument as an ace in the hole to spring on the City Com-
mission in favor of a rehearing on the merits. Thus, it was
only when Foster appeared before the City Commission on May
17 and demanded a rehearing that the City Commission learned
for the first time that Foster was contending it should have
kept a record of its proceedings and should have entered
findings in support of its decision.
Nor are we impressed by Foster's contention that the
City Commission surreptitiously relied on beyond the record
evidence in reaching its decision. At the May 3 hearing
Joel Shouse testified in detail concerning his feelings
about the water pollution problems inherent in allowing
residential development of the property involved. He was
extensively examined by Foster's attorney. It was in response
to these questions that Shouse sent a letter and the
accompanying Blue Ribbons Report with appropriate references
to the area where Foster's land is located. Shouse testified
that he sent this letter and Blue Ribbons Report to clarify
his testimony at the May 3 hearing. This Blue Ribbons
Report was not a secret document. It had already been
released to the public and Foster or his attorney had access
to it if they so desired. Furthermore, the city Manager
testified at the District Court show cause hearing that he
had offered the City Commission agenda to Foster's attorney,
but that he had declined, stating that he would look at the
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information later. Under these circumstances, we can hardly
conclude that Foster and his attorney were caught flat-
footed at the May 10 City Commission meeting. Furthermore,
there is no indication that the City Commission relied on
the Shouse letter or Blue Ribbons Report in reaching its
decision.
As we previously stated, the underlying and controlling
issue is whether it was appropriate for the District Court
here to issue a writ of mandamus, in essence directing the
City Commission to undertake certain procedures which it had
not had a duty to perform, prior to that time.
Before the District Court decision, there was no require-
ment under law that the City Commission in support of a
decision granting or denying a rezoning request, enter
written findings of fact. Before the District Court decision,
there was no requirement under law that the City Commission
was required to keep a verbatim record of the proceedings.
Before the District Court decision, there was no requirement
under law that the City Commission conduct its proceedings
in an adjudicative manner so as to give an applicant full
procedural due process rights. If there was no antecedent
duty of the City Commission to perform these functions, we
fail to see how the District Court, could, by a writ of
mandamus, order the City Commission to do so.
Nor are the equities on the side of Foster in relation
to the procedural problems created. It was not until the
City Commission turned down Foster's rezoning application
that he first raised the issues of the failure of the City
Commission to keep a verbatim record and the failure of the
City Commission to enter written findings of fact in support
of its decision. Furthermore, it appears from the record in
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the District Court and the admissions made before this Court
that Foster's attorney actually had a court reporter present
for the purpose of recording the City Commission proceedings
in relation to Foster's rezoning application. And, of
course, it appears that Foster's attorney knew or should
have known that the City Commission would, on May 10, hear
from the city manager with respect to his recommendations
and that his recommendations were based at least in part on
the letter from Joel Shouse and the accompanying Blue Ribbons
Report. It was only after Foster had banked on a favorable
decision from the City Commission and was turned down on his
rezoning application that he first raised all of the procedural
due process questions. This, we believe, is not sufficient
to invoke the powers of a District Court to issue a writ of
mandamus against a City Commission for not following law
that prior to the District Court order had no existence at
all in this state.
Based on the record before us, we see no reason why we
should be impelled to engage in a legal discussion as to
whether the City Commission should be bound by adjudicatory
hearing procedures when undertaking and considering an
application for rezoning. We note, furthermore, that the
legislature has not seen fit to impose adjudicatory hearing
procedures in cases of this nature, although it has done so
in cases which involve proceedings before a local board of
adjustment. See sections 76-2-221 through 76-2-228, MCA;
and see also, sections 76-2-321 through 76-2-328, MCA.
Although we recognize potential procedural problems in
questions involving rezoning applications, we will not,
under the state of this record, determine whether
adjudicatory-type hearing safeguards are required in a
rezoning application.
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It was clearly improper to use a writ of mandamus to
impose, in effect, retroactive rules governing the pro-
ceedings of the City Commission. The judgment of the
District Court is reversed.
We Concur:
Chief Justice