Shannon v. City of Forsyth

No. 83-47

IN THE SUPREME COURT OF THE STATE OF MONTANA
1983

MIKE P.F. SHANNON & KATHY
SHANNOTJ,
Petitioners and Appellants,

CITY OF FORSYTII,
Respondent and Respondent.

Appeal from: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable A. B. Martin, Judge presiding.

Counsel of Record:
For Appellant:

Russell K. Fillner-argued, Billings, Montana

For Respondent :
William F. Meisburger argued, Forsyth, YOntana

Submitted: June 6, 1983
Decided: July 14, 1983

Filed:3uL 1 4 1983

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellants (the Shannons) filed a petition with the City
of Forsyth seeking a waiver to locate a mobile home on a lot
in a "Residential A" zoning district which excludes mobile
homes. After the City Council denied their petition, the
Shannons filed a petition for writ of review in the District
Court of the Sixteenth Judicial District, Rosebud County.
The District Court affirmed the decision of the City Council
and this appeal followed.
The City of Forsyth is divided into four zoning
districts: Residential A, Residential B, Commercial C, and
Industrial D. Mobile homes are excluded from Residential A
districts unless a person seeking a variance of the zoning
restrictions submits a proper petition to the City Clerk and
the City Council thereafter grants the variance. A proper
petition must include 1) the signatures of at least 80% of
the landowners residing within 300 feet of the proposed
location of the mobile home; and 2) the signatures of the
adjoining landowners.
On May 12, 1982, the Shannons presented a petition to
the City Clerk of Forsyth seeking a variance in order to
place a mobile home on their property at Lot 2, Block 42,
which is located in a Residential A district. The petition
contained the signatures of at least 80% of the landowners
residing within 300 feet of the lot. However, since the
petition did not contain the signatures of the adjoining
landowners, it was returned to the Shannons on May 14, 1982.
When the Shannons discovered they could. not obtain the
necessary approval of the owners of adjoining Lot 3, they
deeded a one-foot strip of land on the south boundary of Lot
2 to Mike Shannon's mother and step-father, Theresa and Rink
Baukema. The Shannons also deeded all of adjoining Lot 1 to
the Baukemas, who signed the petition as adjoining
landowners. The Shannons thereafter resubmitted the
petition.
On June 28, 1982, the City Council held a hearing on the
Shannon's petition. At that time, Mike Shannon explained to
the City Council that he had deeded the one-foot strip of
Land to the Baukemas to obtain their consent as adjoining
landowners, since the owners of Lot 3 would not give their
consent to the variance. The City Clerk then informed the
City Council that three persons who had signed the original
petition had called the Clerk's office on the morning of the
hearing to request that their names be withdrawn from the
petition. Another signator contacted a city alderman the day
of the hearing to ask that his name also be removed from the
petition.
The City Council thereafter denied the Shannons'
petition because the Shannons had failed to obtain signatures
from 80% of the owners residing within 300 feet of the lot
and because of the Shannons' "attempt to circumvent the
intent of the city code by deeding one foot of property" to
the Baukemas.
The Shannons thereafter sought a writ of review in the
District Court, which upheld the City Council's ruling. In
so holding, the District Court stated, "In the present case
the non-consenting landowner has done nothing. The effect of
his doing nothing is that the City Council can do nothing
except observe the zoning restriction. This is not a
delegation of a legislative power to the non-consenting
landowners, because it is the city ordinance that restricts
the petitioners' use of their property."
It should be noted that there are currently four mobile
homes located on the eastern half of Block 42, which is where
the Shannons' lot is located. One of these belongs to the
owners of adjoining Lot 3, who refused to consent to the
Shannons' petition. There are also no houses on the eastern
half of Block 42.
The appellant presented two issues in this appeal:
1. Can the City Council remove names from a qualified
petition where it acts on information received by its clerk
over the telephone or orally from an alderman on the day of
the hearing?
2. Is the zoning ordinance unconstitutional because it
unlawfully delegates legislative authority and police power
to adjoining landowners and landowners residing within 300
feet of the Shannons' property?
We need not discuss the first issue, since the City of
Forsyth conceded in an agreed statement of facts presented in
the District Court that the Sha.nnons obtained the signatures
of 80% of the landowners residing within 300 feet of the

Shannons' property.
Next, the Shannons challenge the constitutionality of
the zoning ordinance on the grounds that (1) it unlawfully
delegates legislative authority to adjoining landowners and
80% of the landowners residing within 300 feet of their
property, thus depriving them of due process and equal
protection under the 1st and 14th Amendments of the United
States Constitution and Article 2, §§4 and 17 of the Montana
State Constitution; and (2) it represents an unwarranted
application of police power. We agree with the Shannons on
both grounds.
To be upheld as a lawful delegation of legislative
authority, a "consent" ordinance such as the one adopted by
the City of Forsyth must contain standards or guidelines
which can be used by a board of adjustment to judge the
propriety of a neighbor's withholding of consent. See Eubank
v. City of Richmond (1912), 226 U.S. 137, 33 S.Ct. 76, 57
L.Ed. 156; Janas v. Town Board & Zoning Board of Appeals
(App. Div. 1976), 382 N.Y.2d 394; State ex rel. Daniels v.
Kasten (Mo. App. 1964), 382 S.W.2d 714. A "consent"
ordinance will fail if it is found to be arbitrary or
capricious. See Seattle Title Trust Co. v. Roberge (1928),
278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210; People v. Deeks
(1969), 61 Misc.2d 1019; 307 N.Y.S.2d 914.
In this case, we find that the "consent" ordinance must
fail on both counts. The ordinance provides no standard
whatsoever by which the consents may be judged. The effect
of the ordinance is to make the right to locate the mobile
home in a "Residential A" district dependent wholly on the
will and whim of the adjoining owners and 80% of the owners
within 300 feet of the property without the application of
any sensible fixed guidelines or standards, calculated to
protect the interests of all the inhabitants. The result is
unequal treatment under the law. Kasten at 717. The
"consent" ordinance is also arbitrary and capricious, since
the exercise of a negative vote by one resident could defeat
the Shannons' petition. The arbitrariness of the ordinance
is obvious when the Shannons' adjoining neighbors, who live
in a mobile home, can withhold their consent and deny the
Shannons the right to locate a mobile home on their property.
 The "consent" ordinance also represents an unwarranted
application of police power. This Court stated in Freeman v.
Board of Adjustment (1934), 97 Mont. 342, 356, 34 ~ . 2 d
534,
"In order for [an] ordinance to comply with the requirements
essential to the exercise of police power . . . it [is]
essential that there should be an appellate body, such as the
board of adjustment, with the power to consider exceptional
cases." Here, although the zoning ordinance gives the City
Council, acting as a board of adjustment, the power to refuse
to grant the petition, the City Council does not have the
same power to determine whether a variance should be granted
unless a petition is submitted with the required consent
signatures. Thus, the City Council is effectively precluded
from hearing and determining the Shannons' petition.
We therefore find the "consent" ordinance in this case
to be unconstitutional as an unlawful delegation of
legislative authority and police power. The judgment of the
District Court is reversed.
/-
-x

We Concur:

%@
s & / Chief Justice
4$