Bryant Development Ass'n v. Dagel, 12825

• Docket Nº: No. 12825
• Citation: 531 P.2d 1320, 166 Mont. 252
• Case Date: February 21, 1975
• Court: United States State Supreme Court of Montana

Page 1320

531 P.2d 1320 166 Mont. 252 BRYANT DEVELOPMENT ASSOCIATION, Plaintiff and Appellant,
v.
Ted DAGEL et al., Defendants and Respondents,
v.
RECTOR'S GARAGE INC., Defendant and Third-Party Plaintiff,
v.
BRYANT DEVELOPMENT ASSOCIATION et al., Third-Party
Defendant-Respondent. No. 12825. Supreme Court of Montana. Submitted Jan. 16, 1975.
Decided Feb. 21, 1975.

[166 Mont. 253]

Page 1321

Smith & Harper, Charles A. Smith, (argued), Helena, for appellant.

Towe, Neely & Ball, William L. Madden, Jr. (argued), Billings, for respondents.

CASTLES, Justice.

This case is before the Court on the appeal of Bryant Development Association and the crossappeal of Rector's Garage, Inc., from an order of the district court, Lewis and Clark County, which sustained a decision of the Lewis and Clark County Board of Adjustment granting Rector's Garage, Inc., a variance from an emergency residential zoning resolution.

Since 1969 Rector's Garage, Inc., hereinafter referred to as respondent, has owned and operated an antique auto storage and repair shop at 1055 Mill Road, Lewis and Clark County. Because of the inadequate size of the company's buildings and a reluctance to scatter unrestored automobiles and parts outside where they would be unsightly and susceptible to the elements, officers of respondent had for some time been interested in constructing a new building. In July 1973, the property adjoining the existing facilities, 1035 Mill Road, was offered for sale. In reliance upon representations of appropriate county officials that no zoning or building restrictions existed nor [166 Mont. 254] were contemplated for the neighborhood before January 1974, the property was purchased for approximately $35,000.

On September 10, 1973, negotiations were entered into with a building contractor

Page 1322

for construction of a prefabricated, commercial steel building to be cut and manufactured in California and assembled at the job site by the contractor. Although the formal contract was not signed until September 17, 1973, the manufacturer was notified of the negotiations. On September 14, 1973, a purchase order in the amount of $55,500 was confirmed by the manufacturer, earnest money paid and work begun.

However, on September 13, 1973, unbeknown to officers of respondent, and without prior notice whatsoever, the Lewis and Clark County Commissioners met in an evening emergency session and purported to adopt Temporary Interim Zoning Resolution No. 1973-33 restricting further development of the area in question to 'CR-2', residential single family dwelling units. This meeting was convened upon the ex parte petition of some of the members of appellant association who reside in the neighborhood in which respondent is located with the very purpose of stopping respondent from completing the building project it had commenced. Officers of respondent were not made aware of these summary proceedings until the following week when an officer of the contractor was informed the building project had been prohibited.

On October 4, 1973, counsel for respondent filed an 'Application for Variance or, in the alternative, Appeal from the Administrative Decision of the Lewis & Clark County Commissioners' with the Lewis and Clark County Board of Adjustment to permit construction of an automobile restoration and storage facility at 1035 Mill Road. A recorded, evidentiary hearing was held on this application before the Board of Adjustment on December 10, 1973. Counsel for respondent presented testimony and a memorandum supporting the firm's [166 Mont. 255] contention that this zoning resolution was unconstitutional; that it had established and was entitled to a nonconforming use exception to the zoning; and, that in the event the zoning was found to apply to it, a variance should be granted. The Bryant Development Association, hereinafter referred to as appellant, also appeared, presented testimony in opposition to respondent's...