Foster v. City Commission of and for City of Bozeman, 14520

• Decision Date: 08 August 1980
• Docket Number: No. 14520,14520
• Citation: 189 Mont. 64,37 St.Rep. 1362,614 P.2d 1072
• Parties: Robert S. FOSTER, Petitioner and Respondent, v. CITY COMMISSION OF AND FOR the CITY OF BOZEMAN et al., Respondents and Appellants.
• Court: Montana Supreme Court

Page 1072

614 P.2d 1072

189 Mont. 64

Robert S. FOSTER, Petitioner and Respondent, v. CITY COMMISSION OF AND FOR the CITY OF BOZEMAN et al Respondents and Appellants.

No. 14520.

Supreme Court of Montana.

Submitted Sept. 13, 1979.

Decided Aug. 8, 1980.

Berg, Morgan, Coil & Stokes, Ben E. Berg (argued), Bozeman, for respondents and appellants.

Joseph W. Sabol (argued), Bozeman, for petitioner and respondent.

SHEA, Justice.

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 Commission 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, however, 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 contends 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.

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 than 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 consideration 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.

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 agricultural-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 Commission 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 Commission 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 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...