Knight v. City of Billings, 81-36

• Decision Date: 29 March 1982
• Docket Number: No. 81-36,81-36
• Citation: 642 P.2d 141,39 St.Rep. 385,197 Mont. 165
• Parties: Earle and Hazel KNIGHT, et al., Plaintiffs and Appellants, v. The CITY OF BILLINGS, a municipal corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 141

642 P.2d 141

197 Mont. 165

Earle and Hazel KNIGHT, et al., Plaintiffs and Appellants, v. The CITY OF BILLINGS, a municipal corporation, Defendant and Respondent.

No. 81-36.

Supreme Court of Montana.

Submitted Nov. 30, 1981.

Decided Feb. 25, 1982.

Rehearing Denied March 29, 1982.

Pedersen, Herndon, Harper, Munro & Hartman, Rodney Hartman argued, Billings, for plaintiffs and appellants.

Peterson Law Firm, K. D. Peterson argued, Billings, for defendant and respondent.

SHEEHY, Justice.

This is an appeal from a judgment by the District Court, Thirteenth Judicial District, Yellowstone County, finding no inverse condemnation by the City of Billings of residential properties owned by the plaintiffs.

Plaintiffs are individual homeowners who own residences on the west side of 24th Street West between Lewis and Broadwater Avenues in Billings. They purchased their properties in the years between 1954 and 1976.

Twenty-fourth Street West is a major arterial street in Billings. It provides substantial "desire-line" access from a large portion of the Billings environs to a substantial mall, high school, church, and commercial area, located south of these residences. A part of the commercial area extends along 24th Street West itself.

The residences are all located within the Lillis Subdivision which was created in 1954. Lillis Subdivision was not in the City of Billings at the time of its creation. The land in Lillis Subdivision is subject to private deed restrictions which allow only single family dwellings until the year 2000. The portion of 24th Street West involved in this case was annexed to the City in 1959. Before that, in 1953, Yellowstone County had restricted the speed limit on 24th Street West to 35 miles per hour, and had installed stop signs for traffic entering the street from the east and west at intersections. Until 1972, 24th Street West was a two lane roadway with on-street parking. The first traffic lights on the street were installed at the intersection of Grand Avenue in 1970. The second followed in 1971 and there are at least four traffic lights now in existence at intersections along 24th Street West.

In 1972, 24th Street West was widened to provide four lanes of traffic and the residences here involved lost their on-street parking rights or privileges.

Rimrock Mall, now Montana's largest shopping center, was opened in 1975 on 24th Street West, south of plaintiffs' properties. There are also along the street two large discount stores, a supermarket, a hardware store, a mini-mall, two convenience stores, and several office buildings. Another supermarket is presently under construction on 24th Street West near plaintiffs' properties. The arterial also provides access to an interstate highway from the city proper.

Traffic development, as shown by traffic counts on 24th Street West indicates: in April 1966, an average daily vehicular traffic flow of 6,330 vehicles; in August 1970, 9,684 vehicles; on July 15, 1975, a traffic count of 17,040; and in 1979, an average daily traffic count of 18,018. Projections for the year 2000 range from 23,350 to 36,850 average daily vehicles.

In 1976, the City of Billings held public meetings concerning a possible condemnation procedure on 24th Street West, and thereafter, widened the arterial by condemning real property exclusively on the east side. No real property was taken from the west side of 24th Street West, where the plaintiffs have their properties.

The District Court found that no changes on 24th Street West were undertaken by the City until conditions existed which indicated that an adjustment was necessary to handle the traffic already there.

Plaintiffs' properties are subject to a zoning ordinance which was adopted in 1972. The zoning ordinance followed extensive public hearings and an election. The properties on which plaintiffs have their residences were zoned R-7200, which zoning classification still applies to plaintiffs' properties. An R-7200 classification permits single family dwellings, and also duplexes if the lots involved encompass more than 9,600 square feet. None of the lots owned by plaintiffs meet the area specification necessary for duplex properties. All of the plaintiffs' properties here involved are single family dwellings and have been during all of the time that the plaintiffs have occupied the same, through the events that are being recounted here.

In 1978, after the condemnation of the property from the east side of 24th Street West, the street was widened by the addition of a fifth lane situated in the middle of the other four lanes, to provide for left-hand turns from 24th Street West. Also in 1978, the City created a lighting maintenance district to provide lighting for the arterial. The lights used were of a higher intensity than normally found on a residential street. Several of the plaintiffs protested the proposal for the lighting district, but their protest was denied as insufficient when numbered against all of the properties that were included in the lighting maintenance district.

Also in 1978, the plaintiffs petitioned the City Council of Billings for a zoning change which would permit plaintiffs' properties to be reclassified residential professional. However, a protest from the remaining property owners in Lillis Subdivision, located on streets other than 24th Street West, triggered the application of section 76-2-305, MCA. Section 76-2-305 provides that a proposed zoning change that is protested shall not become effective except by a favorable vote of three-fourths of all the members of the city council. In this case, the proposed zoning change was defeated because only six of the ten council members, not the required three-fourths, voted in favor of the change. In consequence, plaintiffs' properties remain zoned R-7200 for residential purposes only.

After the failure of their petition for a zoning change, the plaintiffs filed this action against the City of Billings charging inverse condemnation of their properties.

At trial, plaintiffs' witnesses characterized the changes that had occurred on 24th Street West. Formerly it was relatively quiet, and had but two traffic lanes. The front yards of the residences were suitable for family or social gatherings. Residents or their guests could park their cars on the street. There was no difficulty getting in and out of driveways. Sidewalks were safe from passing traffic. Noise and pollutant levels were low and not distracting or harmful. There was no undue refuse. Family pets were safe. There was no noticeable vibration from passing traffic and the area was quiet at night.

After the 1976-78 condemnation project on 24th Street West was completed, conditions changed. There is now no free access into driveways, but instead long waits in the fifth lane for passing traffic. Free access to and from the driveways is nearly impossible. There have been traffic accidents in front of the residential properties, and sometimes upon their properties. Children and pets are not safe in the front yards and pedestrian traffic along the sidewalks a few feet from passing vehicular traffic is dangerous. Average traffic flows at 22 miles per hour past their houses. Rocks and rubbish from passing traffic are thrown upon their lawns and into their houses. The sidewalks are constantly filthy, especially in winter. The noise from the passing traffic is so loud that front doors must be closed for conversation to be heard inside. Traffic noise is loud and aggravating at night. The houses cannot be ventilated from the east side because of dust and exhaust fumes. The houses and contents are constantly subject to vibrations. One of the residents testified that she had to tape her windows to avoid the bright light from the high intensity sodium vapor lighting that was installed.

There appears to be general agreement that the houses are unsuitable for residential living. A local realtor testified that it was "inappropriate" that the properties be zoned single family residential. The former city engineer, though testifying for the City, stated that he would "not want to live in one of those houses." The City Planning Department representative testified that he does not consider it appropriate to have residential housing along that section of 24th Street West. The City Zoning Commission in fact recommended the zoning change which was denied by the City Council. The District Court said:

"By reason of changed conditions on 24th Street West, said properties are no longer desirable for residential use and cannot be put to the highest and best use without a change in zoning restrictions and regulations."

The District Court, however, found that the conditions on 24th Street West were not caused by the City but by persons using business establishments situated on 24th Street West; that the widening project of 1978 merely accomodated the existing traffic in a "more efficient, more safe, less noisy manner and with less pollution potential;" that the deed restrictions were more restrictive than the R-7200 zoning; that the plaintiffs' real properties were less valuable in their present situs than they would be in a different neighborhood, but that nevertheless the value of their real properties had not been sufficiently lessened to constitute a taking by the City of Billings; that the actions of the City of Billings were within the proper exercise of the City's police power.

Issues raised by the plaintiffs are that (1) the District Court erred in holding there was no inverse condemnation; (2) the District Court erred in holding that the City of Billings acted within its police power and that it was not liable for damages; (3) the District Court erred in failing to take judicial notice of its own files and decisions in two civil causes involving restrictions on nearby properties; and (4) the District Court erred in holding that the private deed restrictions precluded any claim for...