No. 80-244
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1981
TOM D. LITTLE e t a l . ,
P l a i n t i f f and R e s p o n d e n t ,
THE BOARD O COUNTY COMMISSIONERS
F
O FLATHEAD COUNTY, e t a l . ,
F
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d .
H o n o r a b l e R o b e r t N. H o l t e r , J u d g e p r e s i d i n g .
M.
C o u n s e l o f Record:
For A p p e l l a n t s :
Ted Lympus, County A t t o r n e y , K a l i s p e l l , Montana
J o n a t h a n B. S m i t h , Deputy County A t t o r n e y , a r g u e d ,
K a l i s p e l l , Montana
Murphy, Robinson, H e c k a t h o r n and P h i l l i p s , K a l i s p e l l ,
Montana
D a n i e l D. J o h n s a r g u e d , K a l i s p e l l , Montana
E i l e e n S h o r e , Pub. S e r . Comm'n, H e l e n a , Montana
F o r Respondent:
N a r b e r t Donahue, C i t y A t t o r n e y , a r g u e d , K a l i s p e l l , Montana
Keller and G i l m e r , K a l i s p e l l , Montana
R o b e r t S. K e l l e r a r g u e d , K a l i s p e l l , Montana
Murray, Kaufman, V i d a l and Gordon, K a l i s p e l l , Montana
- -
- ~p -~
Submitted: January 1 4 , 1981
Decided: JUL 2 1 198f
Filed:
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Flathead County Commissioners, the defendants, appeal
from a Flathead County District Court order enjoining them
from proceeding further with their resolution of intent to
zone Cameron Tract (a 59-acre tract) for commercial use so
that a shopping center could be built on the land. The
developers, Developers Diversified, Ltd., defendants by
their own intervention, appeal from that part of the District
Court order which stopped the defendant City of Kalispell
from issuing a building permit which would allow the construction
to begin. Plaintiffs are landowners adjacent to the Cameron
Tract who oppose the plans to construct the shopping center.
They started this litigation by asking the trial court to
enjoin the County from rezoning the land from residential to
commercial and to enjoin the City of Kalispell from issuing
a building permit to the Developers.
In granting the injunction, the trial court ruled that
the county commissioners had violated the law in several
ways. First, it held that the commissioners adopted an
illegal resolution (Resolution 291) by which they could zone
land only if 50 percent of the landowners in an area petitioned
to have their land given a certain zoning classification.
The court held that this resolution was "the most flagrant
invitation to spot zoning that one could come across." As
applied to this case, the court held that illegal spot
zoning would result if the commissioners zoned the land as
commercial, because that would fly in the face of the
master plan's recommendation that the Cameron Tract be
zoned as medium-density residential. Second, the court
ruled that the comprehensive plan (the master plan) must be
followed, and that commercial use of the Cameron Tract could
be effectuated only by amending the master plan with the
approval of both the City of Kalispell and Flathead County.
Third, the court ruled that the City of Kalispell could not
issue a building permit to the Developers because the zoning
would not be in compliance with the law. The court did not
give any reasons for prohibiting the issuance of the building
permit, but we assume that the decision was based on the
conclusion that a building permit for a commercial use could not
be issued where the master plan recommended a residential use.
The County raises three issues but fails to address the
rulings of the trial court. First, without discussing the
legality of the action taken by the county commissioners,
the County argues that the commissioners were engaged in the
legislative process and that until a final decision had been
reached (either granting or denying the zoning request) the
trial court had no right to intervene by granting injunctive
relief to the plaintiffs. The County argues that the plaintiffs
were not irreparably harmed by the commissioners' threatened
action and therefore there was no reason to invoke the
exception that a court may intervene with the legislative
process where irreparable harm will result. Second, the
County argues that the trial court erred in ruling that the
County should have followed the comprehensive plan (master
plan). (The County does not suggest, however, what status
this plan should have, other than arguing that the plan is
merely a guide in zoning decisions.) Third, the County
argues that in holding that the county commissioners did not
adhere to and give proper consideration to the comprehensive
plan (master plan), the trial court improperly substituted
its judgment for that of the county commissioners.
The Developers, though technically not appealing the
ruling enjoining the county commissioners from proceeding
with their zoning request, do argue that the trial court had
no right to enjoin the commissioners from that activity. The
Developers, however, primarily attack the ruling which
enjoined the City of Kalispell from issuing a building
permit to the Developers.
On the building permit issue, the Developers first
challenge the right of the plaintiffs to contest the issuance
of the building permit. They contend the plaintiffs did
not show they would be irreparably harmed by the issuance of
the permit, and therefore the question should be solely a
matter between the Developers and the City. Second, the
Developers argue that even if the plaintiffs have the right
to challenge the issuance of the permit, the issuance of the
permit could not be refused on the ground that the proposed
use would not be in accordance with the comprehensive plan
(master plan). This second argument assumes that unzoned land
can be used for any purpose not specifically prohibited.
The City's position on appeal is contrary to its position
at trial. Plaintiffs named the City as a defendant because
the City has jurisdiction over the issuance of building
permits. Although the City did not challenge the plaintiffs'
standing to contest the issuance of the permit, the City
nonetheless argued that it had a duty to continue processing
the building permit application because Cameron Tract was
unzoned and therefore not in violation of any zoning laws.
Before the trial court decided the case, however, the City
switched positions and claimed that it could refuse to
process the building permit application once it determined
that the use proposed by the Developers violated the use
specified in the comprehensive plan (master plan), even
though the land was unzoned. The City takes that same
position before this Court.
For reasons which we will explain later, we affirm the
trial court's decision. We will first set out the factual
background of this lawsuit together with the intermeshing
legal background of planning and zoning.
BACKGROUND OF THE LAWSUIT
The land involved, Cameron Tract, is on the north end
of the City of Kalispell and is surrounded on three sides by
the boundaries of the City. The City has never annexed the
tract, and, as we shall later explain, the City cannot
legally do so, nor has this land ever been zoned. In
1974, the City of Kalispell adopted a master plan for this
area, which recommends that this tract be zoned medium-
density residential. In 1978, a joint City of Kalispell-
Flathead County Master Plan was adopted for this same area,
and it also recommends that the land be zoned medium-density
residential. In fact, the 1978 master plan simply adopts
the 1974 master plan.
The City has proceeded to zone most of the City of
Kalispell pursuant to its own 1974 master plan. The land
surrounding Cameron Tract has been zoned residential.
In December 1975, Flathead County adopted a detailed
set of zoning regulations that applied to that part of the
County in the Kalispell-City County Planning Board jurisdictional
area. That action by the County prevents the City of Kalispell
from promulgating and enforcing its own zoning ordinances
anywhere outside the city limits. (See, section 76-2-310(1),
MCA.) If the County had not done this, the City would have
had certain limited rights to promulgate and enforce its own
zoning ordinances outside its actual city boundaries (section
76-2-311, MCA). The important point here Is that the City
has applied its zoning ordinances to all city property, but
Flathead County has not applied its zoning ordinances to all
county property.
In 1978, Flathead County adopted a comprehensive develop-
ment plan for the entire county, and this included the 1974
master plan adopted by the City to cover the area which it
had a right to plan. (The parties have not stated whether
this 1978 comprehensive development plan is a "master plan"
or some other planning device.) In any event, in adopting
this comprehensive plan in 1978 by Resolution 291, the
commissioners also adopted in the same resolution an official
policy of zoning property only upon specific petition of the
owners who wanted a particular zoning classification. This
policy has had a dual effect. First, the majority of the
County property in the area remains unzoned. Second, even
where it - zoned within the Kalispell-City County Planning
is
Board jurisdictional area, the zoning is very haphazard and
extremely selective. The trial court best characterized the
inevitable result of such a policy by stating that Resolution
291 "is the most flagrant invitation to spot zoning that one
could come across . . ."
For these reasons, Cameron Tract, although within the
Kalispell-City County Planning Board jurisdictional area,
and designated as residential by the 1974 master plan, has
not been zoned and therefore remains in a twilight zone. The
Developers stepped into this twilight zone with their plans
for a regional enclosed shopping center. Recognizing the
policy of the county commissioners inherent in ~esolution
291, the Developers acquired a sufficient interest in Cameron
Tract , and petitioned the county cornrnissioners to zone the
land as commercial.
-6-
Because Cameron Tract is unzoned, the Developers
assumed that there were no use restrictions preventing the
construction of a shopping center on the land. But they
were faced with the obstacle of getting water and sewage
services for the shopping center. That problem indirectly
raised the problem of zoning. Although Cameron Tract is
within the County, the county commissioners adopted a
policy requiring that city water and sewage services be used
if they are "reasonably available." So, the Developers
first had to determine if these services were "reasonably
available."
City water and sewer lines ran under Cameron Tract.
The Developers asked the City for hook-ups to its water and
sewer lines, but City ordinances and state statutes stood
in the way. The ordinances make City services available
only after annexation of the property into the City. The
ordinances also state that any annexation and zoning classification
within the City must be consistent with the City-County
Comprehensive Plan (the master plan). This plan recommended
that Cameron Tract be classified as medium-density residential.
This meant that before a shopping center could be built on
Cameron Tract, the master plan would first have to be amended.
The Developers asked for an amendment to accomodate the
shopping center, but on October 1, 1979, the City-County
Planning Board, voted five to three to keep the plan as it
was. As a result, the Developers could not get water and
sewer services from the City. This meant that the Developers
could apply to the County to provide the water and sewage
services. The county commissioners cooperated and granted
the Developers an on-site water and sewage disposal permit.
The Developers have always proceeded on the assumption
that they could build the shopping center--or anything
else--on Cameron Tract because it was unzoned. Nonetheless,
they petitioned the county commissioners to either amend the
master plan to permit a commercial classification or to zone
Cameron Tract as commercial. The Developers also submitted
their building plans and applied to the City for a building
permit for the proposed shopping center. By statute, the City
is given certain extraterritorial jurisdiction to process
building permits and enforce building code regulations.
See, section 50-60-106, MCA.
The mandatory procedure for the creation of zoning
districts or promulgation of applicable zoning regulations,
is set out in section 76-2-205, P4CA, and it includes public
notice and a hearing. Notice was given and a hearing was
held. City of Kalispell officials appeared and recommended
against the zoning application because the master plan for
the area designated the land as residential rather than
commercial.
On December 7, 1979, three days after the public hearing,
the county commissioners adopted a resolution of intent to
zone Camerbn Tract as commercial. In doing so, however, they
failed to take a mandatory step. Before a zoning district
can be created, section 76-2-204, MCA, requires that "the
board of county commissioners shall require the county
planning board and the city-county planning board to recommend
boundaries and appropriate regulations for the various
zoning districts." In addition, the statute requires the
county and the city-county planning board to make written
reports of their recommendaticnsto the board of county
commissioners, but also provides that such recommendations are
"advisory only."
The commissioners neither demanded, requested, nor
received written recommendations from the City-County planning
board before they adopted the resolution of intent. Without
these recommendations, the county commissioners had no right
to proceed with its resolution of intent to zone Cameron
Tract as commercial. The applicable statutes clearly mandate
that the planning board's recommendations be considered before
the commissioners can proceed with a resolution of intent.
Section 76-2-205 (3) states:
"After the public hearinq, the board of county
-
commissioners shall review the proposals of
the planning board and shall make such revisions
or amendments as it may deem proper." (Emphasis
added. 1
This step in subsection (3) must be taken before the com-
missioners can proceed to subsection (4) which gives the
commissioners the power to adopt the resolution of intent.
Although the plaintiffs did not rely at trial on the
County's failure to involve the planning board, it is
nonetheless clear on the face of the record that the
Commissioners' action was invalid.
Once a resolution of intent to zone is passed, sections
76-2-205(5) and (6), MCA, also prescribe mandatory steps
to be taken before a zoning district can be created or
regulations promulgated. Subsection (5) provides for the
method of giving public notice and sets out the contents of
such notice. The commissioners complied with this subsection.
There is also a 30-day period in which the proposed action
can be protested, and, at the end of that period, the commissioners
can either create the zoning district and promulgate applicable
regulations, or they can decide against the resolution.
However, only those within the proposed zoning area
can contest the proposed action. Section 76-2-205(6), MCA.
If 40 percent of the landowners within the affected area
protest, the resolution cannot be adopted and the commissioners
cannot again take action on another zoning resolution for
that area for at least one year. Because the Developers owned
the entire tract on which the commercial zoning was requested,
no one could protest. The plaintiffs, all of whom own land
adjacent to Cameron Tract, had no statutory basis to contest
the commissioners' proposed action to zone Cameron Tract as
commercial.
The plaintiffs were also faced with another immediate
official decision affecting Cameron Tract. While the county
commissioners were processing the Developers' zoning request,
the Developers had also applied to the City of Kalispell for
a building permit, and the issuance of this permit was
imminent, although not legal, as we shall later explain.
The building code requires that the appropriate officials
determine if the building site (Cameron Tract here) is in
compliance with "applicable laws . . ." and "other pertinent
- - ordinances
laws and . . ." (Kalispell City Ordinance,
Uniform Building Code, § 303(a).) Because Cameron Tract was
unzoned, city officials had assumed there were no use restrictions,
thus they were in the later stages of processing the building
permit application apd checkin9 for technical compliance~~with
the building codes.
In anticipation of receiving the building permit, the
Developers moved heavy machinery onto Cameron Tract to grade
the land in preparation for the start of construction.
There is some evidence that the Developers had also started
groundbheaking.
This was the situation when the plaintiffs filed a
lawsuit asking the District Court to enjoin the commissioners
from zoning Cameron Tract as commercial, and asking the
court to enjoin the City of Kalispell from issuing the
building permit. Additional plaintiffs later joined the
lawsuit and asked for the same relief against the County and
the City.
The plaintiffs obtained first a temporary restraining
order, later a temporary injunction, and, after a hearing on
the merits, a final order and injunction stopping the county
commissioners from zoning Cameron Tract as commercial, and
stopping the City of Kalispell from issuing the building
permit to the developers.
THE QUESTION OF WHETHER THE TRIAL COURT PROPERLY INTERFERRED
WITH A CONTINUING LEGISLATIVE PROCESS
In preventing the county commissioners from adopting
their resolution of intent, the County claims that the trial
court violated the long-standing rule that a court will wait
for the completion of the legislative process before acting
to enjoin enforcement of the legislation. Although the
County recognizes an exception to this rule--that a court
may enjoin enforcement of the proposed legislation where
the threatened harm will be irreparable and where there is
no adequate remedy--the County argues that this exception does
not apply here. We have no quarrel with this abstract
statement of the law, but it has no application here. The
plaintiffs were challenging not only the result that the
commissioners intended--they were also contesting the procedures
used in reaching that result.
The County fails to acknowledge the Catch-22 bind in
which the plaintiffs had been placed. The plaintiffs were
faced not only with the obvious attempt by the county commissioners
to zone Cameron Tract as commercial. They were also faced
with an imminent decision by the City to issue a building
permit to the Developers. If the plaintiffs had waited any
longer, they would have taken the chance that the building
permit would be issued, and that construction would begin.
The Developers would then undoubtedly have argued that it
would be inequitable to deny them the right to build a
shopping center after they had already in the beginning
stages of construction, spent so much money. These were the
realities when the plaintiffs filed their lawsuits.
This situation was a sufficient basis for the trial
court to grant a restraining order preserving the status
quo.
The County dignifies form over substance by arguing
that the county commissioners were engaged in the legislative
process when acting on the Developers' request to zone
Cameron Tract as commercial. The commissioners were not
involved in adopting a general policy of zoning for the
area. Rather, they were involved in selecting a specific
tract of land for a special zoning consideration for a
particular owner. This activity is more of a quasi-judicial
decision-making process than a legislative-zoning process.
The commissioners have no power to engage in such a process.
See, South of Sunnyside, Etc.,v. Bd. of Commissioners, Etc (1977), 280
Or. 3, 5 6 9 P.2d 1063. The quasi-judicial power under the
zoning laws applicable to counties is reserved to the County
Board of Adjustment (sections 76-2-221 through 76-2-228,
not
MCA). However, even the Board of Adjustment could/have granted
the relief required here. The Board of Adjustment can act
only in relation to zoning regulations already in effect for
an area, but here the area had not yet been zoned.
The failure of the county commissioners to implement
the comprehensive plan (master plan) by creating zoning
districts and promulgating applicable zoning regulations,
brings us to the issue of spot zoning. Neither the County
nor the Developers have discussed this issue in their briefs,
even though the trial court specifically held that the policy
inherent in Resolution 291 leads to the worst kind of spot
zoning.
THE SPOT ZONING ISSUE
By any definition, this case involves spot zoning of
the worst kind. The commissioners were about to zone
as commercial a 59-acre tract of land solely to accommodate
the Developers, who wanted to build a regional shopping
center. The land is surrounded on three sides by City of
Kalispell boundaries, and this entire area is, by the trial
court's findings, 99 percent residential. Further, the
comprehensive plan in effect for this area recommends that
the land involved be used for residential purposes. Zoning
as was about to take place here is the very opposite of
planned zoning.
In a memorandum accompanying its findings and conclusions,
the trial court aptly characterized the effect of the county
commissioners' policy:
"This case arose because of the policy of
the County Commissioners of Flathead County
not zoning a tract of land until the owners
of that tract petitioned the Commissioners
to do so. (Resolution 291) ... The type
of zoning here has been condemned as piece-
meal zoning and should be struck down . . .
the action of the County Commissioners (or
should we say inaction) is the most flagrant
invitation to spot zoning that one could come
across. Without regard to any effort put into
the comprehensive plan, the commissioners simply
refused to consider any zoning except upon
application."
Due to the failure of the County and the Developers to
address this issue, we can only assume that they concede
this to constitute spot zoning, but that somehow should
be overlooked.
There is no single, comprehensive definition of spot
zoning applicable to all fact situations. Generally, however,
three factors enter into determining whether spot zoning
exists in any given instance. First, in spot zoning, the
requested use is significantly different from the prevailing
use in the area. Second, the area in which the requested use
is to apply is rather small. This test, however, is concerned
more with the number of separate landowners benefited by
the requested change than it is with the actual size of the
area benefited. Third, the requested change is more in the
nature of special legislation. In other words, it is designed
to benefit only one or a few landowners at the expense of the
surrounding landowners om the general public. See, Williams, 1
American Land Planning Law,at 563; Hagman, Urban Planning
-- Development Control - (1971), at 169; Rhyne, The
and Land Law
-- - Local Government Operations (1980), at 760-761.
Law of
In explaining the third test, Hagman gives this qualification:
"The list is not meant to suggest that the
three tests are mutually exclusive. If spot
zoning is invalid, usually all three elements
are present or, said another way, the three
statements may merely be nuances of one another."
Hagman at 169.
This qualification must be heeded because any definition of
spot zoning must be flexible enough to cover the constantly
changing circumstances under which the test may be applied.
For example, in Rodgers v. Village of Tarrytown (1951),
302 N.Y. 115, 96 N.E.2d 731, the New York Court of Appeals,
in holding that the practices involved constituted spot
zoning, stated that spot zoning is the process of singling
- "a- small parcel - -
out - - 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. But in Thomas v. Town of Bedford (1961),
222 N.Y.S.2d 1021, afftd. (1962), 11 N.Y.2d 428, 230 N.Y.S.2d
684, 184 N.E.2d 285, the argument was that the practices
involved did not constitute spot zoning because the tract of
land involved was not small--it was 123 acres. The court
then held that the reference in Rodgers to "a small parcel
of land" was inappropriate. Rather, it is really a question
of preferential treatment for one or two persons as against
the general public, regardless of the size of the tract
involved.
Undoubtedly, the county commissioners were engaged in
spot zoning here. First, the requested use of Cameron Tract
for the commercial development of a regional shopping center
is significantly different from the prevailing residential
use in the surrounding area. The land is surrounded on three
sides by the City boundaries, and this entire area is, by
the trial court's findings, almost 99 percent residential.
Further, the master plan in effect for this area recommends
that the land be used for residential purposes. Zoning such
as was about to take place here is the very opposite of
planned zoning.
Under the third test for spot zoning, Hagman, supra,
states that the inquiry should involve whether the requested
use "is - accord with a comprehensive plan."
- in -- (Emphasis
added.) Although the cases cannot be harmonized completely
because of the differences in statutes, zoning has been held
invalid as spot zoning when it is not in accordance with a
comprehensive plan. See, for example, Hines v. Pinchback-
Halloran Volkswagen, Inc. (Ky. 1974), 513 S.W.2d 492; Fasano
v. Bd. of County Commrs. (1973), 264 Or. 574, 507 P.2d 23;
Jablon v. Town Planning & Zoning Comm'n. (1969), 157 Conn.
434, 254 A.2d 914. We cannot ignore this test when our
zoning statutes place great weight on the comprehensive plan
as a guide in zoning. For example, section 76-2-203, supra,
specifically states that zoning shall be conducted "in
accordance with a comprehensive development plan." Applied
here, a commercial regional shopping center can hardly be
said to fit into a medium-density residential area recommended
by the master plan.
The second test concerns the size of the area for the
requested use. Although most often the size of the area is
rather small, that is not always the case, as demonstrated
by Rodgers v. Village of Tarrytown, supra. An important
inquiry under this test is how many separate landowners will
benefit from the zone classification. See, Spot Zoning and
the Comprehensive Plan (Spring 1959), 10 Syracuse L.Rev.
303, at 306. Also, as we have already noted, size may not
be the vital factor if the real issue is a question of
preferential treatment for one or a few persons as against
the general public. Thomas v. Town of Bedford, supra.
Here, the area is not small (59 acres), but it does involve .
the owners of Cameron Tract receiving preferential treatment
so that they can build a shopping center in an area designated
for residential use in the master plan.
The objective of the requested zone classification was
clearly to give a special advantage to the Developers. By
promulgating Resolution 291, the county commissioners announced
to the general public that they were in the business of
granting special zoning classifications to owners if at
least 50 percent of them in an area asked for a particular
classification. The Developers, who owned all of Cameron
Tract, seized on this resolution, to secure special yaini&ages
for themselves, but it was to the detriment of the plaintiffs
who did not want a regional shopping area in the midst of
their residential area.
Based on these factors, we hold that the county
commissioners were engaged in a pernicious system of spot
zoniny devoid of any redeeming qualities.
THE ROLE OF THE COMPREHENSIVE PLAN (MASTER PLAN) IN THE
CREATION OF ZONING DISTRICTS
The question inevitably arises as to how closely the
comprehensive plan must be followed. The trial court ruled
that the county commissioners failed to follow the comprehensive
plan (master plan) and that the zoning of Cameron Tract
could not take place without first amending this plan. There
remains the question of how closely the plan must be followed
when creating zoning districts and promulgating zoning
regulations.
The County argues that the comprehensive plan (master
plan) is advisory only, and that the governing body having
the authority to zone under the plan, is free to give it
whatever weight it wants. In support of its argument, the
County has marshalled the statutes which set out the role of
the planning boards both before and after adoption of the
comprehensive plan (master plan). Because the planning
boards serve in an advisory capacity to the local governing
bodies, the County assumes that the comprehensive plan
(master plan) has that same advisory status. his logic
is not supported by the statutes.
The City, on the other hand, argues that although the
comprehensive plan need not be religiously followed in every
detail, substantial compliance is required. The City
suggests that to zone Cameron Tract for commercial use
would first require an amendment to the comprehensive plan,
approved by the governing bodies of the City and County. It
appears that the plaintiffs argue that there must be at
least substantial compliance with the comprehensive plan
(master plan) also.
The statutory scheme contemplates that once a "master
plan" is adopted by a governing body, any later references
in the statutes to the terms "comprehensive plan" or "com-
prehensive development plan" are synonymous to the term
"master plan. " In Title 76, Ch. 1 (Planning Boards) , a
definitional statute, section 76-1-103(4), MCA, explains the
terms :
"'Master plan' means a comprehensive development
plan or any of its parts such as a plan of land
use and zoning, of thoroughfares, of sanitation,
of recreation, and of other related matters."
Applied here, the "master plan" adopted by the county com-
missioners, is within the meaning of section 76-1-103(4), a
"comprehensive development plan."
The question then becomes one of how closely the
governing body must follow the "comprehensive development
plan" (master plan) when creating zoning districts and when
promulgating zoning regulations. Section 76-1-605, MCA,
particularly deals with how an adopted master plan shall be
used in making zoning decisions:
"After adoption - - master plan, the city
of the
council, the board of county commissioners,
or other governing body within the territorial
jurisdiction of the board -- -
shall be guided by
and give consideration to the general policy
--
and pattern of development set out in the
master plan in the ... ( 4 ) adoption of zoning
ordinances o r ,resolutions." (~mphasisadded.)
7
This statute unequivocally tells local governing bodies
that once a master plan is adopted, it must be used for
their guidance in zoning. Further the zoning statutes
9.
covering county zoning, Title 76, Ch. 2, sections 76-x-101
through 76-2-112, MCA, undeniably lead to the conclusion that
the master plan is of paramount importance. In fact, the
unmistakable message of these statutes is that if no comprehensive
plan (master plan) has been adopted (section 76-2-201, MCA),
and if no jurisdictional area has been created after the
adoption of the master plan (section 76-2-202, MCA), the
counties are without authority to zone except on an interim
basis.
The objective under these statutes is that there be the
final adoption of a master plan, and then that the master
plan be followed once it has been adopted. The planning and
organization statutes (sections 76-1-101 through 76-2-112,
MCA) set out a step-by-step basis by which a master plan is
to be derived. The term "comprehensive development plan"
contained in section 76-2-201, refers back to these organization
and planning statutes. As we have already mentioned, without
a master plan in effect and without a jurisdictional area
carved out after the adoption of the master plan, the counties
have no authority to institute permanent zoning classifications.
Rather, their only authority to zone is on a temporary
interim emergency basis as set out in section 76-2-206, MCA.
Even the temporary emergency zoning statute seems
designed to encourage the adoption of a master plan, for it
sets out only two conditions under which emergency zoning
can be adopted, and further states that temporary emergency
zoning can be adopted for no more than a two-year period.
Section 76-2-206(1) states that temporary emergency zoning
may be used only when the governing body has not yet completed
the planning stages of a comprehensive plan (Title 76, Ch. 1)
or when the governing body has not yet implemented the
zoning regulations after a zoning district has been established.
Subsection (2) of this statute strictly limits to two years
the time within which the temporary emergency zoning may
remain in effect.
Without regard to how closely the comprehensive plan
(master plan) must be followed, these statutes leave no
doubt that great reliance is placed on the comprehensive
plan (master plan) as a guide in zoning.
Because a master plan was in existence and the county
commissioners had carved out a jurisdictional area, the
county commissioners had the authority to permanently zone
the area which includes Cameron Tract. Section 76-2-202,
MCA, states in part that "the board of county commissioners
may by resolution establish zoning districts and zoning
regulations for all or part of the jurisdictional area."
But the commissioners did nothing after this point. Rather,
they had adopted the policy (Resolution 291) of not zoning
at all unless the property owners in the area involved asked
for a particular zoning classification. That policy surfaced
in this case when the commissioners were about to accommodate
the wishes of the Developers by zoning Cameron Tract (59 acres)
for commercial use, although the master plan recommended
that the area be zoned for medium-density residential use.
The county zoning statutes (sections 76-2-201 through
76-2-228, MCA) rely heavily on the master plan and on the
role of the planning board in providing maximum input to the
county commissioners on the question of planning and zoning.
Before the county commissioners can create a zoning district
or promulgate zoning regulations for the district, section
76-2-204, MCA, requires the county commissioners to direct
the planning board to "recommend boundaries and appropriate
regulations for the various zoning districts." Tl3s statute furtbr
requires the planning board to make "written reports of
their recommendations to the board of county commissioners.
. . ." Even though the statute also provides that the planning
board's recommendations "shall be advisory only," this is
because the final zoning authority is given to the county
commissioners rather than to the planning boards. The
intent of these statutes is to require maximum input from
the planning boards to the county commissioners before the
commissioners reach a zoning decision. This is simply a
recognition that the planning board is in continuing and
closer touch with the comprehensive plan (master plan) than
are the county commissioners.
The master plan would have little meaning unless the
planning board had a significant and continuing role in the
processes which finally lead to a decision by the county
commissioners. The significance of the planning board's
role can be better understood in light of the statutory
criteria that must be followed in all zoning decisions.
Section 76-2-203, MCA, sets out the general objectives of
county zoning, and the criteria that must be considered.
Virtually the same language is contained in the city zoning
statute, section 76-2-304, MCA, which we interpreted in Lowe
v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551.
The first phrase of section 76-2-203 sets the tone for
all that comes after it. It states that "the zoning
regulations shall - - -in accordance with 2 comprehensive
be made
development plan . . ." (Emphasis added.) We assume here
that the term "zoning regulations" is also meant to cover
the term "zoning districts." We cannot ignore the mandatory
language ("shall") of this statute.
We again emphasize that the continuing role of the
planning board in the zoning process is set out in the
statute (section 76-2-205, MCA) providing that mandatory
steps be taken in the creation of zoning districts and in
the promulgation of zoning regulations. After public notice
has been given and public hearing held pursuant to subsections
(1) and (2), subsection (3) requires that "after the public
county
hearing, the board of/commissioners shall review the proposals
of the planning board and shall make such revisions or
amendments as it may deem proper." The commissioners must
do this before they can take the next step provided in
subsection ( 4 ) , that of adopting a resolution of intent to
create a zoning district or to promulgate zoning regulations.
This statutory scheme requires the county commissioners to
obtain maximum input from the planning board, even though
the final decision is left to the governing body--the county
commissioners.
The vital role given the planning boards by these
statutes cannot be undercut by giving the governing body the
freedom to ignore the product of these boards--the master
plan. We hold that the governmental unit, when zoning, must
substantially adhere to the master plan.
ADHERENCE TO THE MASTER PLAN WHEN ZONING
To require strict compliance with the master plan would
result in a master plan so unworkable that it would have to
be constantly changed to comply with the realities. The
master plan is, after all, a plan. On the other hand, to
require no compliance at all would defeat the whole idea of
planning. Why have a plan if the local governmental units
are free to ignore it at any time? The statutes are clear
enough to send the message that in reaching zoning decisions,
the local governmental unit should at least substantially
comply with the comprehensive plan (or master plan). This
standard is flexible enough so that the master plan would
not have to be undergoing constant change. Yet, this standard
is sufficiently definite so that those charged with adhering
to it will know when there is an acceptable deviation,
and when there is an unacceptable deviation from the master
plan.
As we have explained, the statutes require a reading
that the legislature intended the master plan to have substance.
If a master plan must be in existence before the county
commissioners can permanently zone, and if the right to
adopt emergency interim zoning is limited to two years, it
makes little sense to then permit the local governing body
to ignore the master plan once it has been created. If the
master plan is important enough to be a condition precedent
to permanent zoning, it is also important enough to be followed
once it is in existence. For these reasons, we hold that
only substantial compliance is mandated by the statutes.
We are aware that changes in the master plan may well
be dictated by changed circumstances occurring after the
adoption of the plan. If this is so, the correct procedure
is to amend the master plan rather than to erode the master
plan by simply refusing to adhere to its guidelines. If the
local governing bodies cannot cooperate to this end, the
only alternative is to ask the legislature to change the
statutes governing planning and zoning.
THE DEVELOPERS' APPEAL--THE BUILDING PERMIT
As mentioned, the Developers, although disagreeing with
the trial court's decision enjoining the county commissioners
from zoning Cameron Tract for commercial use, concentrate
on the argument that the court had no right to enjoin the
City of Kalispell from issuing the building permit. They
argue that the plaintiffs had no standing to challenge the
issuance of the building permit, and further, assuming that
the plaintiffs had such standing, they argue that the laws
governing issuance of building permits do not stand in the
way of obtaining a permit to build on land that has not been
zoned. In effect, the Developers contend they have a right
to a building permit, and therefore to build, regardless of
any decision enjoining the county commissioners from zoning
the land as commercial.
As set out in detail before, the situation facing the
trial court was that if an injunction was not issued against
the City of Kalispell enjoining it from issuing the building
permit pending resolution of the lawsuit, construction might
have started despite the filing of the lawsuit. So, even if
the trial court later ruled that the county commissioners
had no right to zone Cameron Tract as commercial, the Developers
would nonetheless ask the trial court to dismiss the plaintiffs'
lawsuit because the Developers had already spent large sums
of money in the preliminary stages of construction. We
have no doubt, therefore, that the trial court was correct
in enjoining the issuance of the building permit until all
the legal questions were resolved. Stopping the City of
Kalispell from issuing the building permit until all legal
issues were decided was the only way of preserving the
status quo.
Based on these factors, the Developers are in no
position to avail themselves of a technical argument that
the plaintiffs did not prove special damage to them if the
building permit were to issue and construction to begin.
Further, plaintiffs presented evidence that demonstrates
they would be more adversely affected by the regional shopping
center than would the general public. Although there were
other factors involved, we are convinced that the increased
traffic alone was sufficient to show that plaintiffs, as
adjacent owners, would be injured in a manner that the
general public would not.
According to the Developers' own studies, the shopping
mall would attract 13,000 cars per day. These studies also
showed, and the trial court found, that the side streets
near the shopping center, which presently bear 3,000 cars
per day, would have to bear 13,000 cars per day if the
shopping center were built. The studies were completed by
the State Department of Highways and Stahly Engineering, at
the specific request of the Developers. The Developers now
attack these studies, saying that they are mere speculation.
The studies were probative on the question of whether the
Developers would proceed with building a shopping center
and they should be equally probative and available to the
plaintiffs to show that their neighborhoods would be adversely
affected by the increased traffic flow.
We hold, therefore, that the plaintiffs had standing to
challenge the issuance of the building permit. Not only was
the damage to them different from that of the general public--
an increase of 10,000 cars per day over their neighborhood
streets--but enjoining the City from issuing the building
permit was also necessary for the trial court to assume its
equitable power of granting complete relief. It would not
have been fair to the plaintiffs had the trial court ruled
that the County could not zone Cameron Tract for commercial
use, and to hold that the Developers had the right to start
construction upon obtaining the building permit from the
City.
RELATIONSHIP OF MASTER PLAN TO DUTY OF CITY IN PROCESSING
BUILDING PERMIT APPLICATION
The Developers further argue that even assuming the
plaintiffs had standing to challenge the issuance of the
building permit, the City of Kalispell was nonetheless
required to issue the building permit once it found the
building plans to be in order. This argument is based on a
distinction the Developers believe exists between zoning
laws and the master plan. The Developers concede that the
City could refuse to process a building permit if the proposed
use was. in violation of a zoning law, but the Developers
argue that the City had no right to refuse to process a
building permit solely because the proposed use would not be
in compliance with the master plan. The Developers argue
that because the land was unzoned, therefore permitting any
use not specifically prohibited, the City had the duty to
issue the building permit.
We first note that this argument cannot prevail because
we have already held that the District Court had the right
to grant complete relief by preserving the status quo until
all issues were decided. Accordingly, the court had the
right to order the City to stop processing the building
permit application. But beyond this we also hold that the
trial court was correct by holding in essence that the city
officials could refuse to process a building permit application
where the proposed use is not in compliance with the master
plan for the area involved.
We have already noted in this opinion that the statutory
scheme for planning and zoning sets up a continuing process
until finally all property within the County has been zoned.
We have ruled that the zoning must be in substantial compliance
with the master plan. The problem existing here on the
building permit question is that the City was confronted
with a twilight zone created by the county commissioners'refusal
to zone unless the property owners involved make a special
request (Resolution 291). It was this failure to zone which
placed the city officials in a dilemma when the Developers
applied for a building permit.
City officials knew they could refuse to process a
building permit application if the proposed use was in
violation of zoning law, but they did not know what to do
where the proposed use was only in violation of the recornrnenda-
tions of the master plan. They proceeded, erroneously, we
now hold, on the basis that if the land was unzoned they had
a duty to process the building permit application.
In summary, we hold that the county commissioners used
illegal zoning procedures and that injunctive relief was
proper; that the county commissioners, had they zoned
Cameron Tract as commercial, in addition to statutory
violations, would have committed a most flagrant act of
illegal spot zoning; that when zoning decisions are made
(either creating zoning districts or promulgating applicable
zoning regulations for the districts) they must be made
in substantial compliance with the comprehensive plan (master
plan); that the plaintiffs had standing to challenge the
issuance of the building permit; that in any event, the
trial court had the right to stop the issuance of the
building permit in order to preserve the status quo; and
finally, that city officials have the right to refuse processing
of a building permit application because the proposed use is
in violation of the use recommended in the comprehensive
plan (master plan).
The judgment granting injunctive relief is affirmed.
We Concur:
~h?ef Justice
Justices