Schanz v. City of Billings, 14458

Decision Date27 June 1979
Docket NumberNo. 14458,14458
Citation182 Mont. 328,597 P.2d 67
PartiesArthur SCHANZ et al., Plaintiffs and Appellants, v. CITY OF BILLINGS et al., Defendants and Respondents.
CourtMontana Supreme Court

Fillner & Pitet, Billings, Russell K. Fillner (argued), Billings, for plaintiffs and appellants.

Peterson & Hunt, Billings, K. D. Peterson (argued), Billings, for defendants and respondents.

SHEEHY, Justice.

Plaintiffs Arthur and Rachel Schanz appeal from the judgment of the District Court, Yellowstone County, which dismissed their claim that annexation by the defendants City of Billings, et al., of certain property known as the Hayes Subdivision was ineffective, dismissed their claim that the Hayes Subdivision should not have been zoned R-7200 when it was annexed, and ordered that plaintiffs' application for a zone change be heard and reconsidered in accordance with criteria set forth in this Court's decision in Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551.

Arthur Schanz has been in the construction business since 1953. In December 1971, Schanz purchased real property known as the Hayes Subdivision, comprised of twenty lots situated outside of, but contiguous to, the city limits of Billings, Montana. During construction of a four-plex apartment on the land, which began in June 1972, Schanz discovered that the City's water and sewer services would not be extended to the subdivision unless the property was annexed.

Schanz took no action on the matter for approximately one year, but in the meantime enlisted the services of a registered engineer, made arrangements with a contractor to install water and sewer lines, and continued with his construction work in the subdivision.

On July 5, 1973, the registered engineer, acting in Schanz's behalf, applied to the City for permission to extend water and sewer lines to the Hayes Subdivision. The Public Utilities Board approved the application, and on July 16, the City Council approved the requested extensions "subject to annexation".

A request to extend city boundaries to include the Hayes Subdivision appeared on the City Council agenda on August 6, 1973, and the resolution of intent to extend the boundaries of the City of Billings was adopted the same day. Notice of the resolution was published and the matter came before the City Council for final action on September 10, 1973, resulting in an expansion of the City's boundaries to include the Hayes Subdivision.

The City Zoning Commission sent its recommended zoning classification to the City Council on September 10, the same day the resolution was passed to extend the City's boundaries. A notice of public hearing fixing October 1, 1973, as the date of hearing before the City Council was posted September 13, 1973, by the City clerk. No one appeared to speak in favor of or against the Commission's recommendation and the City Council adopted the recommendation by passage of Ordiance No. 3744 on October 1. The land on which the four-plex had been built was classified R-6000 (multi-family dwellings) and the remainder was given a R-7200 classification (single family dwellings and duplexes only).

Schanz did not attend any of the proceedings affecting the property. However, he did continue his construction activities, and by October 1973, Schanz had built or had under construction two four-plexes and three single family dwellings. When Schanz applied to the City for more building permits and was refused because of the R-7200 zoning classification, he began what was to be a continuous series of efforts to be exempted from zoning regulations.

On or before February 11, 1974, Schanz applied for a zone change to allow for construction of more four-plexes. Persons living adjacent to the subdivision filed a protest (the subdivision is surrounded by a R-9600 classification-single family dwellings only). After failing to secure a zone change, Schanz applied for a variance. The variance was denied, and on March 3, 1975, Schanz again petitioned for a zone change. The City Council denied the zone change on April 28, 1975, reconsidered the application and denied it again on May 19, 1975. The procedure was repeated with the same result in June 1976.

This action was filed in District Court, Yellowstone County, on September 3, 1976, to have the annexation resolution declared null and void, to have the zoning classification removed, or alternatively, to secure a zone change. On July 24, 1978, the Honorable Charles Luedke entered judgment dismissing the first and second claims and ordering that the application for a zone change be reconsidered in accordance with the criteria set forth in Lowe.

On appeal, plaintiffs present three issues:

1. Can an initial zone classification be made when the notice and hearing on the matter by the City Zoning Commission and City Council came before the affected area was annexed by the City?

2. Can an initial zone classification be made when the City Zoning Commission and City Council failed to comply with the twelve-point test set forth in section 11-2703, R.C.M.1947, now section 76-2-304 MCA, and this Court's decision in Lowe?

3. Are plaintiffs estopped from asserting that the procedure for annexing the land was fatally defective, rendering the annexation void?

The Zoning Commission for the City of Billings held a hearing on September 10, 1973, to consider the zoning recommendation to be sent to the Billings City Council for the Hayes Subdivision. Notice of the hearing had been published August 16, 1973. Following the hearing, the Commission decided on a recommendation and sent it to the City Council. The recommendation reached the City Council approximately five (5) hours before the resolution annexing the Hayes Subdivision was passed. Plaintiffs contend this procedure violated section 7.03 of the Billings Zoning Ordinance, and Article II, Section 8 of the 1972 Montana Constitution. Section 7.03 of the zoning ordinance provides:

"When a parcel of land lying outside the corporate limits of the City of Billings and within the Yellowstone County Zoning jurisdiction is annexed to the City of Billings, the property shall retain the classification it has in the County but will be reviewed by the City Zoning Commission and a recommendation sent to the City Council either reaffirming the County classification or change the zoning classification, Within (90) ninety days of passage of the final resolution of annexation." (Emphasis added.)

Practically the same rules of construction apply to an ordinance as apply to a statute. State ex rel. Bennett v. Stow (1965), 144 Mont. 599, 399 P.2d 221. If the language of an ordinance is plain and unambiguous, it is not subject to interpretation or open to construction but must be accepted and enforced as written. Sheridan County Electric Co-op, Inc. v. Montana-Dakota Utilities Co. (1954), 128 Mont. 84, 270 P.2d 742.

Section 7.03 does not prohibit the Zoning Commission from sending a recommendation Before the final resolution of annexation is passed. It merely requires that the recommendation be sent no later than ninety days after the annexation resolution is passed. There is no problem here with property being zoned prior to annexation. The annexation resolution, passed on September 10, 1973, went into effect on October 10, 1973, pursuant to section 11-1106, R.C.M.1947, now section 7-5-4203(1) MCA. The actual zoning ordinance was not passed until October 1, 1973, and similarly did not take effect until thirty days later, on October 30, 1973. Consequently, the Hayes Subdivision was given a zoning classification some twenty days after the property was annexed by the City of Billings. The problem here is that the City Zoning Commission transmitted its recommendation to the City Council approximately five hours before the Council acted on the annexation resolution. Section 7.03 of the zoning ordinance does not require that the recommendation be sent after the annexation resolution passes and this Court will not impose such a requirement.

Plaintiffs fail to explain how their rights under Article II, Section 8 of the 1972 Montana Constitution have been violated. Article II, Section 8 provides:

"Right of Participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law."

The City Zoning Commission published a notice of public hearing on August 16, 1973. The hearing was held on September 10, 1973. Then the City clerk of Billings published a notice of public hearing by the City Council on the subject of the Zoning Commission's recommended classification. The hearing was held on October 1, 1973 and No person attended. Plaintiffs were given a reasonable opportunity to participate and failed to do so.

On July 22, 1974, this Court decided the case of Lowe, which involved an appeal from a judgment of the District Court upholding an ordinance passed by the Missoula City Council rezoning certain residential property. The plaintiffs challenged the adoption of the ordinance on the grounds that the ordinance had not been adopted in accordance with the provisions of section 11-2703, R.C.M.1947.

Section 11-2703, R.C.M.1947, now section 76-2-304 MCA sets forth guidelines a City Council must follow in its regulation of land:

"11-2703. Purposes of act. 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...

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    ...(Colo.1981) (rezoning is subject to quasi-judicial review but is legislative so is subject to referendum).57 Schanz v. City of Billings, 182 Mont. 328, 597 P.2d 67, 71 (1979) (rezoning is a legislative act but rezonings should still be reviewed for facts and findings).58 Machado v. Musgrove......
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