State ex rel. Christian, Spring, Sielbach and Associates v. Miller, 13019

CourtUnited States State Supreme Court of Montana
Citation545 P.2d 660,169 Mont. 242
Docket NumberNo. 13019,13019
PartiesSTATE of Montana ex rel. CHRISTIAN, SPRING, SIELBACH & ASSOCIATES, a Montana Corporation, and James B. Spring, Individually, Plaintiffs and Petitioners, v. Bonnie MILLER, Powell County Clerk and Recorder, et al., Defendants and Respondents.
Decision Date04 February 1976

Poore, McKenzie, Roth, Robischon & Robinson, P.C., Butte, Urban L. Roth, argued, Butte, David J. Wing argued, Butte, for plaintiffs and petitioners.

James H. Goetz, argued, Bozeman, James Masar, appeared, Deer Lodge, for defendants and respondents.


Appellant James B. Spring of the firm Christian, Spring, Sielbach & Associates filed an action on June 27, 1974, against the Clerk and Recorder and Commissioners of Powell County, seeking to compel by writ of mandamus the acceptance and recordation of a 'certificate of survey'. Hearing was had in late July 1974 and judgment for respondents was entered in the district court, Powell County in October 1974.

Several days before this action arose, the Powell County Board of County Commissioners met at special session to pass a resolution termed a 'Temporary Interim Zoning Regulation' pursuant to section 16-4711, R.C.M.1947, which provides:

'Interim zoning map or regulation. If a county is conducting, or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a master plan or zoning regulations or an amendment, extension, or addition to either pursuant to this chapter, the board of county commissioners in order to promote the public health, safety, morals, and general welfare may adopt as an emergency measure a temporary interim zoning map or temporary interim zoning regulation, the purpose of which shall be to classify and regulate uses and related matters as constitutes the emergency. Such interim resolution shall be limited to one (1) year from the date it becomes effective. The board of county commissioners may extend such interim resolution for one (1) year, but not more than one (1) such extension may be made.'

The regulation stated that a master plan was or would be under consideration within a reasonable time to cover all private land in the North Powell Soil Conservation District in the Big Blackfoot drainage area of Powell County.

Prior to the passage of that regulation, Spring contacted Bonnie J. Miller, the Powell County clerk and recorder, to inquire whether a certificate of survey regarding this area would be accepted for recordation. Spring was advised the certificate would be recorded if it properly complied with Montana law. Spring then directed his employees to survey the land in question and on June 27, 1974, presented the resulting certificate of survey for recordation, along with the statutory recording fee. By that date, the interim regulation had been passed and the clerk and recorder sought advice as to its effect. She was informed by letter of the Powell County attorney that:

'* * * the intent of the resolution was to prevent further subdivision in the north Powell Soil Conservation area * * * for an interim period while further studies could be made. While the filing of a Certificate of Survey does not necessary imply an intent to subdivide, it is my opinion that no other purpose is served by such filing and in order to implement and execute the purpose and intent of the resolution it is my recommendation that you not accept any Certificates of Survey which may be tendered to you for recording or filing until the expiration of the 90 day moratorium which may be extended.'

Guided by this opinion, the clerk and recorder rejected both the certificate and the recording fee when Spring tendered them for filing.

The parties do not dispute that the certificate of survey complied in all technical respects with the requirements of Montana law, or that the notice provisions of section 16-4705, R.C.M.1947, were not followed by the...

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5 cases
  • Carter v. City of Salina
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 3 Septiembre 1985
    ...1255 (Okl.1979); Schoeller v. Board of County Com'rs of Park County, 568 P.2d 869 (Wyo.1977); State ex rel. Christian, Spring, Sielbach and Associates v. Miller, 169 Mont. 242, 545 P.2d 660 (1976). Non-compliance with statutory requirements relating to notices and hearings are procedural de......
  • Fasbender v. Lewis and Clark County Bd., DA 08-0404.
    • United States
    • United States State Supreme Court of Montana
    • 1 Octubre 2009
    ...this Court's decisions in Bryant Dev. Ass'n. v. Dagel, 166 Mont. 252, 531 P.2d 1320 (1975), and State ex rel. Christian, Spring, Sielbach & Assoc. v. Miller, 169 Mont. 242, 545 P.2d 660 (1976). This Court invalidated an interim zoning regulation in each case due to the failures of the count......
  • City of Sanibel v. Buntrock
    • United States
    • Court of Appeal of Florida (US)
    • 30 Diciembre 1981
    ...228 N.E.2d 526 (1967); State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63 (1935); State ex rel. Christian, Spring, Sielbach & Associates v. Miller, 169 Mont. 242, 545 P.2d 660 (1976); State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 No Florida court has......
  • LIBERTY COVE, INC. v. Missoula County, DA 09-0183.
    • United States
    • United States State Supreme Court of Montana
    • 10 Noviembre 2009
    ...buildings. Bryant Dev. Assn. v. Dagel, 166 Mont. 252, 258, 531 P.2d 1320, 1324 (1975); State ex rel. Christian, Spring, Sielbach & Assocs. v. Miller, 169 Mont. 242, 245, 545 P.2d 660, 662 (1976).1 This Court recently clarified that Bryant and Christian held that due process requires that th......
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