Mack T. Anderson Ins. Agency, Inc. v. City of Belgrade, 90-238

• Docket Nº: No. 90-238
• Citation: 47 St.Rep. 2287, 803 P.2d 648, 246 Mont. 112
• Case Date: December 20, 1990
• Court: United States State Supreme Court of Montana

Page 648

803 P.2d 648 246 Mont. 112 MACK T. ANDERSON INSURANCE AGENCY, INC., Plaintiff and
Appellant,
v.
CITY OF BELGRADE, Montana, A Municipal Corporation organized
under the laws of the State of Montana and
Belgrade Board of Adjustment, Defendants
and Respondents. No. 90-238. Supreme Court of Montana. Submitted Oct. 25, 1990.
Decided Dec. 20, 1990.

Page 649

[246 Mont. 113] McKinley Anderson, Joseph W. Sabol, Bozeman, for plaintiff and appellant.

William Schreiber, City Atty., Belgrade, for defendants and respondents.

[246 Mont. 114] Leo Ward, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, for amicus curiae Montana League of Cities and Towns.

Roger Tippy, Tippy & McCue, Helena, for amicus curiae Montana Manufactured Housing and Recreational Vehicle Ass'n.

BARZ, Justice.

Plaintiff, Mack T. Anderson Insurance Agency Inc., appeals from an order of the Gallatin County District Court granting summary judgment in favor of defendants City of Belgrade and the Belgrade Board of Adjustment and dismissing plaintiff's complaint which challenged the constitutionality of a Belgrade zoning ordinance. The District Court affirmed the Belgrade Board of Adjustment's decision which upheld the denial of plaintiff's application for a building permit. We affirm.

The issues as framed by this Court are:

1. Is the zoning ordinance prohibiting the individual placement of manufactured homes in an R-4 zoning district a constitutional exercise of the City of Belgrade's police power?

2. Did the District Court abuse its discretion when it granted summary judgment in favor of the defendants without first conducting an evidentiary hearing?

On April 25, 1989, plaintiff applied for a building permit to place a manufactured (mobile) home on Lot 11 of Block 21 of the Armstrong Addition to the City of Belgrade. The manufactured home was to be placed on a permanent concrete foundation. The lot in question is located in an area having an R-4 zoning designation which is defined under Belgrade City Zoning Ordinance No. 466 as a residential-apartment district. The ordinance was enacted in accordance with a comprehensive zoning plan for the City of Belgrade which was adopted in 1972 and revised in 1979. Modular or site-built homes are treated as conventional housing under the ordinance and are a permitted use within the R-4 district. Individual placement of manufactured homes is not a permitted use within the R-4 district, however, they are permitted in R-2-M and R-S-M districts. Additionally, manufactured homes are permitted in mobile home parks as conditional uses in R-3 and R-4 districts.

Under the City zoning ordinance a manufactured home is defined as:

A factory built or manufactured transportable residential structure more than thirty-two (32) body feet in length and eight (8) feet [246 Mont. 115] or more in width, and built on one or more permanent chassis for towing to the point of use, and designed to be used without a permanent foundation as a dwelling unit when connected to sanitary facilities, and which bears an insignia issued by a state or federal regulatory agency indicating that [the] manufactured home complies with all applicable construction standards of the United States Department of Housing and Urban Development definition of manufactured home. The phrase "without permanent foundation" indicates that the support system is constructed with the intent that the manufactured home placed thereon can be moved from time to time at the convenience of the owner. A commercial coach, recreational vehicle, and motor home is not a manufactured home.

A modular home is defined as:

A factory-fabricated structure designed primarily for human occupancy to be used by itself or to be incorporated with similar units at a building site into a structure on a permanent foundation and

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which complies with the Montana Building, Plumbing, Electrical, and Mechanical Construction Codes and the rules and regulations for modular housing of the Building Code Division of the Montana Department of Administration. The term is intended to apply to major assemblies and does not include prefabricated panels, trusses, plumbing trees, and prefabricated sub-elements which are to be incorporated into a structure at the site.

The meter base for incoming wiring is attached to the exterior wall of the modular home; whereas, for a manufactured home, the meter base must be attached to a pole or a support which is isolated from the structure. The units shall be listed and assessed by the County Assessor as real or personal property.

Plaintiff's application was denied on May 4, 1989, by the City planning director on the basis that plaintiff's placement of its manufactured home in the R-4 district would violate the zoning ordinance.

Plaintiff, pursuant to Sec. 76-2-326, MCA, appealed to the Belgrade Board of Adjustment. Plaintiff argued before the board that the ordinance unduly discriminates against manufactured housing in that no substantial difference exists between manufactured housing and modular housing. The board, in its order dated June 26, 1989, found that: (1) there is a difference between a manufactured home and a modular home as those types of housing are defined under the ordinance; (2) a manufactured home is not a permitted use in an R-4 district; (3) an adequate supply of vacant parcels exist in R-S-M and R-2-M districts each in which the individual placement of [246 Mont. 116] manufactured homes is a permitted use; and (4) a petition signed by fourteen citizens protested the placement of the manufactured home in the R-4 district. Based on these findings the board concluded that the City planning director properly executed her duties and that the administrative decision to deny the building permit was correct.

On August 2, 1989, plaintiff filed a complaint in the District Court alleging that the action taken by the board in denying the building permit was unreasonable and unconstitutional. On September 21, 1989, an order for writ of certiorari to issue was entered by the District Court pursuant to Sec. 76-2-327, MCA.

The District Court heard oral argument, reviewed the entire record before it, and made an on-site inspection of the geographical area in question. On March 12, 1990, the court granted defendants' motion for summary judgment dismissing plaintiff's complaint and affirming the decision of the board of adjustment. The District Court concluded that the zoning ordinance in question was a legitimate use of the City of Belgrade's police power. The court also concluded that "[a] decision for Plaintiff in this case would have been ... an unwise move in the direction of judicial zoning, a step the [c]ourt is not prepared to take under the circumstances presented."

From this judgment plaintiff now appeals.

I.

Is the zoning ordinance prohibiting the individual placement of manufactured homes in an R-4 zoning district a constitutional exercise of the City of Belgrade's police power?

Local municipal governments in Montana are empowered to enact zoning...