Freeman v. Board of Adjustment of City of Great Falls

• Decision Date: 29 June 1934
• Docket Number: 7252.
• Citation: 34 P.2d 534,97 Mont. 342
• Parties: FREEMAN v. BOARD OF ADJUSTMENT OF CITY OF GREAT FALLS et al.
• Court: Montana Supreme Court

34 P.2d 534

97 Mont. 342

FREEMAN v. BOARD OF ADJUSTMENT OF CITY OF GREAT FALLS et al.

No. 7252.

Supreme Court of Montana

June 29, 1934

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Proceeding by J. W. Freeman, as trustee, for a writ of review to vacate an order of the Board of Adjustment of the City of Great Falls and a building permit, granted pursuant thereto by Edward Henen, City Building Inspector, to L. B. Clark. From a decree affirming the order, relator appeals.

Affirmed.

Freeman Thelen & Freeman, and Ernest Abel, all of Great Falls, for appellant.

George E. Hurd, Donald J. Stocking, and Charles Davidson, all of Great Falls, for respondents.

STEWART Justice.

This is an appeal from a judgment of the district court of Cascade county affirming an order of the board of adjustment of the city of Great Falls, whereby the board ordered the city building inspector to issue a certain building permit to one L. B. Clark, one of the respondents herein.

In 1930 the city of Great Falls enacted a zoning ordinance. It was enacted and became effective on April 24, 1930. This ordinance was enacted and adopted in conformity with chapter 136, Laws of 1929. It classified use districts of the city of Great Falls as follows: (1) Suburban districts; (2) "A" residence districts; (3) "B" residence districts; (4) "C" residence districts (5) local business districts; (6) general commercial districts; (7) first industrial districts; (8) second industrial districts.

This ordinance, enacted "for the purpose of classifying regulating and restricting the location of trades and industries and the location of buildings designed for specified uses" within the city, provided that "no building shall be erected, altered or used, and no premises shall be used for any purposes except in conformity with all the regulations herein prescribed for the use district in which such buildings or premises are located."

The uses permissible within each district are specifically set out and enumerated in the ordinance. In general, the uses permitted in "A" residence districts are confined to single family dwellings, schools and colleges, parks and recreation buildings. In "B" residence districts the uses permitted are any use permitted in "A" residence districts, family dwellings, lodging houses, churches and temples, libraries and museums, and institutions of an educational nature. In the "C" residence districts the following uses are permitted: (1) Any use permitted in "A" and "B" residence districts; (2) apartment houses and multiple dwellings; (3) apartment hotels; (4) clubs and fraternity houses; (5) hospitals; (6) public service substations; (7) telephone exchanges; (8) railroad passenger stations; and (9) police and fire department stations.

The ordinance provides that any one desiring to erect a building or to occupy any land within any of the districts must first secure from the city building inspector a certificate of occupancy. It further provides for the creation and establishment of a board of adjustment, the board to consist of five members appointed by the mayor, and to be subject to confirmation by the city council. The principal duty and function of this board is to hear and determine appeals from the rulings of the building inspector concerning the enforcement of the provisions of the ordinance. Provision is made regulating and specifying both the procedure for taking an appeal to the board, and the nature of the proceedings thereafter.

The powers of the board, as enumerated in the ordinance, are in part as follows: "1. To hear and decide appeals where it is alleged there is error in order, requirement, decision or determination made by an administrative official in the enforcement of this ordinance. 2. To hear and decide special exceptions to the terms of this ordinance. 3. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this ordinance will result in unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done. In exercising the above mentioned power, such board may in conformity with the provisions of this ordinance reverse or affirm wholly or partly or modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the officer from whom the appeal is taken."

In 1930, when the zoning ordinance was enacted, the respondent Clark was engaged in the retail grocery business at 812 Seventh Avenue North, on lot 4, block 136, of the townsite of Great Falls. The appellant was owner of the building and premises, and Clark rented from him upon a month to month basis. The east half of block 136 was placed in the local business district, and the west half of the same block was in the "C" residence district.

The property at 812 Seventh Avenue North had been used for many years for the purpose of carrying on a retail grocery business. Clark had conducted such business therein since February, 1929. Since a grocery store was being conducted at this location prior to and at the time when the zoning ordinance was passed, it was not affected by the ordinance, although under it such a use was not generally permissible in the "C" residence district. This was because of an exception in the ordinance to the effect that uses in existence at the time of the adoption of the ordinance should not be disturbed thereby.

On July 1, 1932, Clark petitioned the board of adjustment for a permit to construct a building for combined retail grocery and residence purposes at 800 Seventh Avenue North. This location was in the same block and only a short distance from the location at 812 Seventh Avenue North, which Clark was then renting from appellant. Clark became the owner of this property (800 Seventh Avenue North) on July 6, 1932. On the same day the board of adjustment, on direct application of Clark, granted him a permit to construct a building at 800 Seventh Avenue North. After receiving the permission of the board, Clark entered into a contract with one E. L. Cowan for the construction of a building. On September 15, 1932, Cowan obtained a permit from the city for the construction of the building, and the work began.

Seeking to vacate the order of the board of adjustment made on July 6th, and the building permit granted on September 15th, appellant then filed a petition for a writ of review in the district court of Cascade county. The writ was based on the grounds that the application had been made direct to the board in the first instance, and not upon an appeal from the decision or action of the administrative officer of the city. On November 28, 1932, the district court entered judgment annulling the order of the board and thereby canceling the permit issued direct to Clark.

Thereafter, on December 2, 1932, Clark, seeking a permit to build a store and residence building at 800 Seventh Avenue North, filed an application with the city building inspector. This application was denied on the grounds that the proposed location was within a "C" residential district, and that, under the zoning ordinance, grocery stores could not be erected within that district. Clark then appealed to the board of adjustment. Notice was given and a hearing was conducted by the board. Appellant appeared to protest the application. Witnesses were called and evidence was produced by both sides. On December 10, 1932, the board made an order (all five members concurring) that the permit should be granted to Clark. It was recited in the order that the board found that the grant of the permit to Clark and the variations of the terms of the zoning ordinance would not be contrary to the public interest, safety, health, convenience, prosperity, or general welfare; that, owing to special conditions, a literal enforcement of the provisions of the zoning ordinance would result in unnecessary hardship; and that the variation should be allowed so that the spirit of the ordinance should be observed and substantial justice done.

Thereafter, on January 9, 1933, upon application of appellant, the district court of Cascade county ordered a writ of review to be issued requiring respondents to file a return to the court of the proceedings had before the board of adjustment. Respondents filed a return, including copies of the ordinance and other papers involved, together with the transcript of the evidence introduced before the board on the appeal of Clark from the order of the city building inspector. The court reviewed the proceedings and the evidence adduced before the board. Thereafter, on October 2, 1933, the court made an order affirming the order of the board. In this decree the court held that there was sufficient evidence to sustain the action of the board of adjustment in the matter. From the decree of the district court, appellant prosecutes an appeal to this court.

Appellant relies upon five assignments of error. It seems to us, however, that there are but three propositions involved, viz.:

(1) Is chapter 136, Laws of the Twenty-first Legislative Assembly, 1929, constitutional?

(2) Is the ordinance of the city of Great Falls, enacted under the authority of chapter 136 and creating the board of adjustment and defining its duties and powers, a legal grant of power?

(3) Were the facts and circumstances as presented to the board, and later reviewed by the district court, sufficient to sustain the order of the board?

When zoning ordinances were first enacted, they were generally attacked as unconstitutional on the...