Lowe v. City of Missoula, 12612

Citation165 Mont. 38,525 P.2d 551
Decision Date26 August 1974
Docket NumberNo. 12612,12612
PartiesThomas Paul LOWE et al., Plaintiffs and Appellants, v. CITY OF MISSOULA, a municipal corporation, Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Garlington, Lohn & Robinson, Missoula, William Evan Jones, argued, Missoula, for plaintiffs and appellants.

Jack K. Morton, argued, Missoula, Victor Valgenti and Fred C. Root, Missoula, for defendants and respondents.

JOHN C. HARRISON, Justice.

Plaintiffs appeal from a judgment of the district court upholding action taken by the Missoula City Council adopting a rezoning ordinance changing a 'B-Residential District' to 'RR-1 Restricted One Family Residential District'. In arriving at its judgment the district court considered evidence before the City Council and took additional evidence.

The property in question consists of 5.8 acres of land located on the southeast slope of Water Works Hill in the city of Missoula. The original comprehensive zoning map for the city of Missoula was adopted on March 4, 1968, and this particular 5.8 acres lies just outside the zoned area. It had been traditionally zoned 'B' residential. Across the road, and within the comprehensive zoned area, the area is zoned for single family homes. The 5.8 acres in question have been owned by the Lowe family for approximately 40 years.

Testimony indicated the property has certain topographical and other conditions which have a direct bearing on its development. One of the most important of these conditions is the fact the property is partially on a hillside. The zoning plan for the city of Missoula, adopted in 1968, apparently meant no change in the zoning of the 5.8 acres for they were left out of the plan.

In March 1973, certain property owners submitted to the city of Missoula, through its zoning commission, a petition to rezone the Lowe land from 'B-1' to 'RR-1', restricted one family residential. The zoning commission recommended the petition be granted, and on March 19, 1973 the City Council voted to adopt the petition.

The owners of the 5.8 acres desire to build an apartment complex on the tract and at the time they appeared before the district court they voluntarily agreed that the rigid controls imposed by the city zoning classification 'R-IV' might be imposed on the acreage. The district court upheld the City Council.

Two issues are raised on appeal:

1. Did the district court abuse its discretion in upholding the City Council's approval of rezoning ordinance No. 1549 of March 19, 1973?

2. Did the evidence before the district court support a court order upholding rezoning ordinance No. 1549?

Both sides agree that unless there can be a showing of an abuse of discretion by the trial court the judgment should be sustained. We find there was such a mistake of fact that it amounted to an abuse of discretion on the part of the trial court requiring reversal.

We are guided by the provisions of section 11-2703, R.C.M.1947:

'Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.'

This section is a part of Chapter 27, Title 11, of the Montana Codes of 1947, wherein the legislature provided the steps a city council must follow in its regulation of land. Counsel for the land owners subdivides section 11-2703 into 12 tests and then suggests that the testimony before the City Council and the district court fails to meet these tests, which are:

1. Whether the new zoning was designed in accordance with the comprehensive plan.

2. Whether the new zoning was designed to lessen congestion in the streets.

3. Whether the new zoning will secure safety from fire, panic and other dangers.

4. Whether the new zoning will promote health and general welfare.

5. Whether the new zoning will provide adequate light and air.

6. Whether the new zoning will prevent the overcrowding of land.

7. Whether the new zoning will avoid undue concentration of population.

8. Whether the new zoning will facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements.

9. Whether the new zoning gives reasonable consideration to the character of the district.

10. Whether the new zoning gives consideration to peculiar suitability of the property for particular uses.

11. Whether the new zoning was adopted with a view to conserving the value of buildings.

12. Whether the new zoning will encourage the most appropriate use of land throughout such municipality.

In summarizing the evidence introduced at the City Council and in the district court we note the record is so lacking in fact information that the action on the part of the City Council and the district court could be said to have been based on mistakes of fact, thereby constituting an abuse of discretion.

Taking the evidence introduced and weighing its merit under the tests above set forth we find that:

Test 1. Fails because the land is outside the area of the comprehensive plan, so could not be included.

Test 2. The testimony in regard to traffic clearly fails to indicate that the new zoning would lessen congestion or that the proposed complex would cause a mass dumping of traffic into the area.

Test 3. The evidence indicates the proposed rezoning is not necessary to protect adequate water, safety and fire protections for the area.

Test 4. It cannot be argued that the proposed rezoning would promote the health and welfare of the area. The health and welfare of the area would be promoted if a sewer were available and the new apartment complex plans to bring a sewer line to the complex, into an area where the homes are on septic tanks.

Test 5. The record lacks any evidence showing the proposed rezoning is necessary to protect adequate light and air.

Test 6. This test is whether the proposed rezoning will prevent the overcrowding of the land. Testimony indicated the city officials believed multiple dwelling complexes were permissible in the area and the city planner indicated if the density was reasonable the subject site would accommodate the complex. In view of the fact plaintiffs agreed to abide by density regulations, there can be no reason to rezone here to prevent land crowding.

Test 7. There was no evidence that the adoption of the rezoning would avoid an undue concentration of people in the area.

Test 8. The rezoning would in no way change or reduce the necessary public facilities, such as transportation, water, sewerage, schools, parks, etc. With respect to the objection made that the building of an apartment complex, as here proposed, would overtax the area's public facilities, we can only comment that progress and growth cannot be stopped by the lack of facilities. It is putting the cart before the horse to argue that because there are not enough facilities in a particular area it cannot grow.

Test 9. This test raises the question of whether the rezoning gives reasonable consideration to the character of the area. As of now the 5.8 acre tract has nothing on it but grass. The statute requires only that rezoning give consideration to the district, not the area. While there are single family residences in the district there are also many vacant areas plus areas that are zone 'B residence'. There was no showing that rezoning was necessary to protect the character of the district.

Test 10. Whether the rezoning gives consideration to peculiar suitability of the property for particular uses. The record indicates two architects, plus one of plaintiffs-a land planner by profession-testified the 5.8 acre tract was suitable for an apartment complex.

Test 11. This test is whether the rezoning was adopted with a view to conserving the value of buildings. This is not applicable, nor need it be considered, due to the fact the land has no buildings. Further there is no testimony indicating that the single residence homes in the area would be damaged by the apartment complex.

Test 12. Will the new zoning encourage the most appropriate use of land throughout such municipality? This raises a policy question of whether the community needs an apartment complex at this particular site. If there is a need then error was made to rezone it into single residential homes. Evidence was introduced in the form of the 'Mayor's Advisory Council on Housing Report' which indicated a continual growth in Missoula and a need to replace substandard units. The area in question is only a two minute drive and an eight minute walk from the heart of the central business district of Missoula. Viewing all of the testimony, we find that rezoning the area was an abuse of discretion.

The city argues that under Montana's section 11-2703, R.C.M.1947, it cannot be charged with an abuse of discretion if the record indicates the City Council and the district court had before them reasonable evidence or testimony upon which they could find that one or more of the purpose of the enabling statute had been accomplished. Further, that the matter was largely within the council's legislative authority and there is a presumption that it had investigated and found the conditions to be such that the legislation which it enacted was appropriate and that the courts must hold that the action of the legislative body (the City...

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