State ex rel. Diehl Co. v. City of Helena, 14721

Decision Date19 April 1979
Docket NumberNo. 14721,14721
Citation593 P.2d 458,181 Mont. 306
PartiesSTATE ex rel. The DIEHL COMPANY, a Montana Corporation, Plaintiff and Relator and Respondent, v. The CITY OF HELENA, Montana, et al., Defendants and Respondents and Appellants.
CourtMontana Supreme Court

Hull, Driscoll & Sherlock, Helena, James M. Driscoll (argued), Helena, C. W. Leaphart, Jr. (argued), Helena, for defendants and respondents and appellants.

Gene A. Picotte (argued), Helena, for plaintiff and relator and respondent.

SHEEHY, Justice.

Appeal is by the City of Helena and its City Commission (Helena) from a judgment against it entered January 12, 1979, in the District Court, First Judicial District, Lewis and Clark County. Because of the unusual circumstances presented, this Court on motion expedited the oral argument and decision in the cause.

The Diehl Company (Diehl) has been planning since 1971 for the development of a large shopping-center complex on land owned by the corporation just east of the City of Helena. In 1975, Diehl received approval from the Helena Zoning Commission for a designation of the parcel as a "B-2" zone. A B-2 zone under the Helena City ordinances allows for construction and operation of all types of businesses that would make up the contemplated shopping center. However, Diehl's plan calls for a huge planned-unit mall-type complex rather than separate stores. Helena City Ordinance 11-15-5 lists as a "conditional use" of a B-2 zone "planned-unit shopping center(s) in tracts of five or more acres . . ." In order to make such conditional use of a B-2 zone, a developer must apply for a "conditional-use permit" following procedures outlined in the City ordinances. Diehl applied.

Helena City Ordinance 11-15-2(B) provides:

"(B) A conditional use permit shall only be granted by the City Commission based upon (if warranted by the facts and circumstances) a statement of findings by the City Commission that:

"1. The use conforms generally to the objectives of the Comprehensive Plan and the intent of the ordinance, and

"2. Such uses will not adversely affect nearby properties or their occupants, and

"3. Such uses meet the overall density, coverage, yard, height and all other regulations of the district in which they are located, and "4. Public hearings have been held, after the required legal notices have been given, and the public has been given a chance to be heard upon the matter."

Before the request for a permit is ruled on by the City Commission, it is first reviewed by the Zoning Commission which makes a recommendation as to whether the permit should be issued. The Zoning Commission is an advisory body only and its recommendation has no binding effect on the City Commission.

The duty of the City Commission in acting upon requests for conditional-use permits is found in Helena City Ordinance 11-15-3, which spells out the conditional-use permit procedure. It provides that after the proper procedures have been followed to bring the request before the City Commission, then:

"The City Commission Shall, by resolution, Approve, deny, or change the recommendation of the Zoning Commission. If the City Commission denies or changes the Zoning Commission's recommendations, the reasons for such a change shall be made part of the resolution." (Emphasis added.)

On July 24, 1978, Diehl's request for a conditional-use permit for a planned shopping center came before the regular meeting of the City Commission. A reading of the transcript of the public hearing held in conjunction with that meeting indicates that a significant majority of the members of the public present opposed the granting of the permit. One of the commissioners moved that the permit be denied but the motion died for lack of a second. Another commissioner then proposed the following resolution:

"A resolution establishing a one-year moratorium on the granting of all conditional-use permits for planned-unit shopping centers outside the Central Business District in the City of Helena as defined in Section 15-5 of the City Zoning Ordinance on the basis of need for additional information and deliberation on transportation, provision of public services, the effect on residences and businesses in the City of Helena, and other aspects of the Comprehensive Plan of Helena and affecting the health, welfare, and public safety of the people of Helena."

This resolution passed.

Thereafter, Diehl commenced legal proceedings for a declaratory judgment that the moratorium was illegal and that the ordinances providing for conditional-use permits were unconstitutionally vague, and requesting a writ of mandamus to require the City Commissioners to rule on his application. On August 3, 1978, Diehl filed a petition for writ of mandate in this Court. After reviewing written arguments with respect to the petition, we dismissed the same, refusing to assume original jurisdiction on October 2, 1978, because of apparent factual controversies. On October 26, 1978, Diehl filed in the District Court his complaint and petition for a declaratory judgment, writ of mandate, and order to show cause. After two disqualifications, the Hon. W. W. Lessley was called in as presiding judge in the District Court. The matter was submitted to him on affidavits and exhibits, and each party submitted proposed findings of fact, conclusions of law, and briefs. On January 12, 1979, the District Court issued a declaratory judgment and peremptory writ of mandate, and writ of prohibition, and its adopted findings of fact and conclusions of law.

The District Court ordered and decreed as follows:

1. Helena was required to issue the conditional-use permit to Diehl forthwith and was prohibited from delaying or obstructing the course of any further necessary proceedings that may be legally perquisite to the creation of the shopping center.

2. If Helena refused to issue such conditional-use permit, Diehl was granted the right to proceed with the shopping center in all lawful ways, without the necessity of obtaining any conditional-use permit from the Commission. Helena was prohibited from any interference or obstruction of the activities of Diehl in creating said shopping center. 3. The District Court further implied in its conclusions that the conditional-use permit ordinances of Helena were unconstitutional but that the necessity for reaching the issue of the validity or constitutionality of the ordinances was not involved if Helena approved the issue of the conditional-use permit applied for by Diehl; otherwise, said ordinances were impliedly found to be unconstitutional.

Helena filed post-trial motions in the court, which were denied. Thereafter, Helena brought this appeal.

Out of the welter of issues and counter-issues raised by the parties, two main problems arise and control our decision here:

1. Whether the City Commission may adopt a moratorium against the issuance of conditional-use permits in the circumstances described here.

2. Whether the writ of mandate or declaratory judgment requiring the issuance by the City of the conditional-use permit was proper.

On those issues, we conclude and hold as follows:

1. While a City may adopt a reasonable general moratorium in proper circumstances against the issuance of conditional-use permits, if adopted as an urgency matter, the procedure required by section 76-2-306 MCA (formerly section 11-2711, R.C.M. 1947), must be followed.

2. The discretion of the City Commission to approve, modify or deny the recommendation of the Zoning Commission as to the issuance of a conditional-use permit cannot be controlled by writ of mandate, prohibition, or by declaratory judgment.

3. A writ of mandate requiring the City Commission to act on Diehl's application for a conditional-use permit within a reasonable time is proper under the circumstances in this case.


The first grant of statutory authority for zoning by municipalities occurred in this State in 1929. Chapter 136, Laws of 1929. Historically, the grant of the zoning authority is broadly stated, as characterized in section 76-2-301 MCA (section 11-2701, R.C.M. 1947):

"(Municipal Zoning Authorized.) For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council . . . is hereby empowered To regulate and restrict . . . the density of population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." (Emphasis added.)

No specific statutory authority in Montana appears for the adoption of moratoriums with respect to zoning or the issuance of permits under zoning ordinances. The power to adopt moratoriums, if it exists, must be found within the paste and cover of the broad statutory grant "to regulate and restrict" the use of land. Other courts have found such power in local governments where the purpose of the moratorium is to allow for a rational and reasonable growth. Golden v. Planning Board of Town of Ramapo (1972), 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291; Smoke Rise, Inc. v. Washington Suburban Sanitary Commission (D.C.Md.1975), 400 F.Supp. 1369. Moratoriums appear to be a development of the exercise of the police power in local government. Smoke Rise, Inc., supra.

A moratorium itself must be reasonable in length of time and scope. In Smoke Rise, Inc., it is said:

"While a police power(ed) moratorium must be reasonably limited as to time, it is clear that the reasonableness of the duration of the moratorium must be measured by the scope of the problem which is being addressed." 400 F.Supp. at 1386.

A moratorium must also be limited in its purpose. It must promote the health, safety, morals or the general welfare of the community. Section 76-2-301 MCA (formerly section 11-2701, R.C.M. 1947), and designed to meet the purposes of zoning as set forth in section 76-2-304 MCA (formerly section 11-2703, R.C.M. 1947).

We perceive...

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5 cases
  • State ex rel. Feeney v. District Court of Seventh Judicial Dist.
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    ...P.2d 332. Nonetheless, Montana has allowed mandamus to be utilized to correct an abuse of discretion. See State ex rel. Diehl Company v. City of Helena, Mont. 1979, 593 P.2d 458, 463; Cain v. Department of Health and Environmental Sciences, There are numerous other appellate decisions which......
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