DeVoe v. the City of Missoula, DA 11–0565.

• Docket Nº: No. DA 11–0565.
• Citation: 2012 MT 72, 364 Mont. 375, 274 P.3d 752
• Case Date: April 03, 2012
• Court: United States State Supreme Court of Montana

2012 MT 72
274 P.3d 752
364 Mont. 375

Clayton E. DeVOE, Plaintiff, Appellant and Cross–Appellee,
v.
The CITY OF MISSOULA, Montana; The Missoula City Board of Adjustment; and John Does 1–20, Defendants and Appellees,
v.
Connie Poten; Andrew Sponseller, Defendants and Cross–Appellants.

No. DA 11–0565.

Supreme Court of Montana.

Submitted on Briefs Feb. 22, 2012.Decided April 3, 2012.

[274 P.3d 754]

For Appellant: George C. DeVoe; DeVoe Law Offices, Missoula, Montana.

For Appellees: William L. Crowley, Tracey Neighbor Johnson; Boone Karlberg, Missoula, Montana (for City of Missoula and Board of Adjustment).

For Appellees: Jon Beal, John B. Horrell; Beal Law Firm, PLLC, Missoula, Montana (for Cross–Appellants Poten and Sponseller).Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[364 Mont. 376] ¶ 1 Clayton DeVoe appeals from orders of the District Court upholding application of the zoning ordinances of the City of Missoula, and awarding attorney fees to Connie Poten and Andrew Sponseller. Poten and Sponseller cross-appeal the District Court's refusal to award part of the attorney fees they requested. We affirm.

BACKGROUND

¶ 2 In February, 2005 DeVoe applied to the City of Missoula for a building permit for a large (over 3300 square feet) storage building to be located on a vacant lot that he owned in the Rattlesnake area. By letter of June 14, 2005, the City's Office of Planning and Grants, through its director Cynthia Klette, wrote a detailed letter to DeVoe explaining that under applicable zoning regulations he could only build an “accessory” building as defined in § 19.04.020 of the Missoula Municipal Code. That section provided that an “ ‘accessory use or building’ is a use or building customarily incidental to, and accessory to, the principal and ordinary use of a building or premises located on the same premises with such principal use or building.” The letter stated that to qualify as an accessory building the structure must be “customarily incidental to, and accessory to” the principal use of an existing building, and must be located on the same premises as that building. The letter informed DeVoe that his proposed building was [364 Mont. 377] essentially a warehouse, and that its size and magnitude “far surpasses anything that reasonably could be considered customarily incidental to, and accessory to, a single-family residence in a municipal setting.” The area that DeVoe proposed for the building was zoned for single-family residences. The letter informed DeVoe that he could appeal the determination to the City Board of Adjustment or could locate the building in another area where such structures were permitted.

¶ 3 DeVoe did not appeal the rejection of his application for a building permit, but in July, 2005 submitted a new application for a building permit for a similarly-sized structure to be located on a nearby lot in an area zoned for single-family residences. That lot contained a single-family dwelling that DeVoe maintained as a rental. In September, 2005 the City's Office of Planning and Grants issued a building permit, and DeVoe razed an existing structure on the site and began construction of the new building.

¶ 4 Men working on the building site told inquisitive neighbors that DeVoe intended to use the building to store furniture and bedding from his sizeable number of rentals in the Missoula area. Several neighbors complained to the City that DeVoe's new building was not intended as an accessory to the existing rental unit on the property. On September 23, 2005, the Missoula City Attorney and the City's Senior Planner wrote a letter to DeVoe informing him of the complaints and again setting out the City's zoning requirement that the storage building must be an accessory to the existing rental unit on the property, again quoting the requirements of § 19.04.020. The letter warned that any building or use that did not comply with the zoning requirements could result in a zoning violation and enforcement action.

¶ 5 On September 30, 2005, Poten and Sponseller, who live next to the new building

[274 P.3d 755]

site, appealed the decision to grant DeVoe a building permit to the City Board of Adjustment, as provided in § 76–2–326, MCA. The City then issued a stop-work order to DeVoe and suspended the building permit. Poten and Sponseller objected that the DeVoe building was not an accessory to the existing rental unit on the property, that it was to be used to store materials arising from DeVoe's numerous rentals in the Missoula area, and that the size and character of the building would conflict with the existing neighborhood. DeVoe responded that he did not intend to make a commercial use of the building, but intended to store “personal property” including furniture, boats, autos and “other personal property items customarily [364 Mont. 378] maintained at most residences.”

¶ 6 On October 26, 2005, the Board of Adjustment held a public hearing and received testimony on whether DeVoe's building permit complied with the City's zoning requirements. At the conclusion of the hearing the Board voted 6–1 to revoke DeVoe's building permit, finding that the storage building was not going to be used as an accessory to the existing single-family rental; that DeVoe intended to use the building to store “business assets, which are going to be used offsite,” and that the size (48' by 70') and character of the building showed that “it is not customarily incidental and accessory to the existing single-family home on the site.”

¶ 7 In November, 2005, DeVoe filed a civil action in District Court against the City of Missoula, its Board of Adjustment, Poten, Sponseller and numerous John Does. He claimed violation of constitutional rights, violation of civil rights, deprivation of property, estoppel, vague ordinances, selective enforcement, and negligence. DeVoe's complaint sought preliminary and permanent injunctions and restraining orders, damages, punitive damages and attorney fees against the defendants.

¶ 8 In December, 2006, the District Court granted Sponseller's and Poten's motions to dismiss, finding that neither of them was necessary or a proper party to the action, and that DeVoe's claims against them were frivolous and utterly without merit. The District Court concluded that lawsuits like DeVoe's “against individuals solely on the basis of their lawful participation in lawful public processes only serve to stifle public participation in government.” The District Court awarded attorney fees and costs to Sponseller and Poten of about $25,000, because DeVoe had forced them to defend a frivolous action and because he had unreasonably and vexatiously multiplied the proceedings as specified in § 37–61–421, MCA.

¶ 9 DeVoe and the City subsequently stipulated that the claims for judicial review of the Board of Adjustment decision could be decided based upon affidavits and other evidence submitted to the District Court in writing. The District Court remanded the issue to the Board of Adjustment...