No. 79-35 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

DOVER RANCH, ROBERT J. SCHOCK, 

EDWARD WALDHAUSER, PAUL M. WCLD , and BAR DIAMOND RANCH, 

Plaintiffs and Respondents, 

THE COUNTY OF YELLOWSTONE, 

Defendant, 

and 

GENERAL-KIMBLE, 

Intervenor-Defendant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and For the County of Yellowstone, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Harold F. Hanser, County Attorney, Billings, Montana 

David Hoefer argued, Deputy County Attorney, Billings, 

Montana 

Moulton, Bellingham, Longo and Mather, Billings, Montana 

Gerald B. Murphy argued, Billings, Montana 

For Respondents: 

McNamer, Thompson & Cashmore, Billings, Montana 

Charles R. Cashmore argued, Billings, Montana 

Submitted: March 27, 1980 

Filed: APh 1. fj 

Decided: 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by Yellowstone County and GeneralKimble, a partnership, from a judgment of the District Court 

setting aside as null and void an amended resolution of the 

Board of Yellowstone County Commissioners which granted the 

application of General-Kimble for a zoning change on a 

certain parcel of land from agricultural and restricted 

residential to residential mobile home. 

On November 18, 1976, General-Kimble filed Application 

No. 120 for a change of zoning classification from agricultural and restricted residential to residential mobile home 

on a certain parcel of land in Billings Heights. GeneralKimble desired to build a mobile home park on the tract, 

which was unused, undeveloped agricultural property classified as agricultural under the Yellow~,tone County Comprehensive Zoning Plan and surrounded by primarily vacant land 

with widely scattered residences. 

The application was considered by the staff of the 

city-county planning board, which made the following recommendation to the zoning commission: 

". . . found that this request would provide, 

when developed, mobile home spaces that are 

needed in the community as shown by low vacancies in existing parks. Alexander Road meets 

the requirement that a mobile home park of this 

size should have access to an arterially designated street. Lake Elmo will attract residential use, therefore it was found that a mobile 

home park or subdivision, after full review by 

the Food and Consumer Safety Bureau, the Yellowstone City-County Health Department and other 

reviewing agencies, would be compatible in the 

area. " 

After notice of a public hearing was published and sent 

to affected landowners, a joint zoning commission and county 

commission meeting was held on January 19, 1977, to consider 

the zoning change application. At the hearing, a member of 
the city-county planning board staff read the legal advertising and presented slides of the area, and a member of the 

zoning commission read the criteria set forth in section 76- 

2-203, MCA. General-Kimble and its consulting engineer gave 

evidence in favor of the zoning change, while two nearby 

ranchers and another area resident, as well as the chairman 

of a local school district, spoke out against the change. A 

written protest was also received. Two of the opponents are 

plaintiffs-respondents in the present suit. 

The zoning commission voted 3-1 to grant the zoning 

change and provided its recommendation to the county cammissioners, giving the following reasons for granting the 

petition: 

"1. Upon initial review, this request would appear not to be designed in accordance with the 

Comprehensive Plan. However, more thorough research reveals the following points that indicate 

it is in accordance with the Comprehensive Plan: 

"a. Item 5 (page 62) under "Mobile Homes" in the 

Comprehensive Plan calls for the following: 

"'The plan envisioned the continuation of existing mobile home parks, with the expansion of 

those with suitable area. The major projections 

for new facilities were in the Lockwood area, 

where land parcels were of sufficient size, access was good and where public facilities were 

imminent . . .' It seems that these considerations would fit the condition presented by this 

request, though it is located in the Billings 

Heights area. 

'"b. This request would not be 'leap-frog' development. It is a natural extension of existing and 

proposed development surrounding the Lake Elmo 

area. 

"2. The required access to an arterial street 

is met by the adjacent Alexander Road. 

"3. Low vacancy rates in existing mobile home 

parks indicate a need for more developed sites 

in the community." 

On February 1, 1977, the Yellowstone County commissioners 

unanimously passed a resolution granting General-Kimble's 
zoning change application. The resolution recited that it 

was being adopted pursuant to the comprehensive plan following a public hearing on January 19, 1977 (the joint zoning 

commission-county commission hearing) and after receiving 

and considering the recommendations of the zoning commission. On February 17, 1977, the county commissioners passed 

an amended resolution which recited verbatim the reasons 

given by the zoning commission for granting the zoning 

change. 

The plaintiffs-respondents did not request a rehearing 

under Article VII, Section 5(b) of the County Comprehensive 

Zoning Plan. They appealed to the District Court of the 

Thirteenth Judicial District, Yellowstone County, by filing 

a petition with that court on March 3, 1977. Motions for 

summary judgment by both parties were denied by the District 

Court on April 21, 1978, and the ratter was submitted on a 

stipulated record, after argument by counsel, on June 7, 

1979. On June 15, 1979, the court entered its findings and 

conclusions that: (1) the procedures followed by the county 

in granting General-Kimble's application for a zoning change 

did not conform with the requirements of section 76-2-205, 

MCA, and the requirements of Article VII of the County 

Comprehensive Zoning Plan; (2) the evidence did not support 

granting the zoning change under section 76-2-203, MCA; and, 

(3) the zoning change constituted illegal "spot zoning" and 

was contrary to the comprehensive zoning plan. 

General-Kimble and Yellowstone County appeal from the 

judgment of the District Court entered against them on June 

25, 1979, and raise the following issues for review by this 

Court: 
1. Whether the procedures followed in granting the 

zoning change adequately conformed to the requirements set 

forth in section 76-2-205, MCA, and Article VII of the 

County Comprehensive Zoning Plan. 

2. Whether there is sufficient evidence in the record 

to support granting the zoning change under section 76-2- 

203, MCA, or whether it was an abuse of discretion. 

3. Whether the granting of the zoning change constituted illegal "spot zoning" contrary to the comprehensive 

zoning plan. 

Appellants argue that the county complied with the 

procedural requirements of section 76-2-205, MCA, and Article VII of the County Comprehensive Zoning Plan. Subsection 

(4) of section 76-2-205, MCA, which provides that "[tlhe 

board of county commissioners may pass a resolution of 

intention to create a zoning district and to adopt zoning 

regulations for the district" is discretionary, and the 

county did not need to pass a res3:.ution of intention if the 

word "may" is given its ordinary meaning. County of Chouteau v. City of Fort Benton (1979), Mont. , 592 

P.2d 504, 36 St.Rep. 582. Appellants contend there was no 

showing that the county abused its discretion, and, in any 

case, there was substantial compliance with the procedural 

requirements mandated by the statute, since respondents' 

rights to a full and fair hearing have not been prejudiced 

by any irregularity in procedure that may have occurred. 

Appellants argue further that notices of the public 

hearing were mailed to respondents well before the hearing, 

and since respondents were present at the hearing and their 

protests heard, they should be held to have waived any 

technical failure of the county to comply with statutory 
notice requirements. They further claim that Article VII of 

the County Comprehensive Zoning Plan imposes no additional 

requirements and does not compel separate hearings by the 

zoning commission and county commissioners. 

Finally, appellants argue that subsection (4) of section 

76-2-205, MCA, applies only to an application to create a 

zoning district and does not apply to an amendment of zoning 

regulations such as occurred in the present case. 

At the outset it is necessary to examine and interpret 

the controlling statute, section 76-2-205, MCA: 

"Procedure for adoption of regulations and boundaries. The board of county commissioners shall 

observe the following procedures in the establishment or revision of boundaries for zoning districts and in the adoption or amendment of zoning 

regulations: 

"(1) Notice of a public hearing on the proposed 

zoning district boundaries and of regulations for 

the zoning district shall be published once a 

week for 2 weeks in a newspaper of general circulation within the county. The notice shall 

state: 

"(a) the boundaries of the proposed district; 

"(b) the general character of the proposed zoning 

regulations; 

"(c) the time and place of the public hearing; 

"(d) that the proposed zoning regulations are on 

file for public inspection at the office of the 

county clerk and recorder. 

"(2) At the public hearing, the board of county 

commissioners shall give the public an opportunity to be heard regarding the proposed zoning 

district and regulations. 

(3) After the public hearing, the board of 

county commissioners shall review the proposals 

of the planning board and shall make such revisions or amendments as it may deem proper. 

"(4) The board - of county commissioners may -- pass 

a resblution of intention - to create - a - 2 :oning - 

district -- and to adopt zoning regulations for the 

district. 
"(5) The board of county commissioners shall 

publish notice of passage of the resolution of 

intention once a week for 2 weeks in a newspaper 

of general circulation within the county. The 

notice shall state: 

"(a) the boundaries of the proposed district; 

" (b) the general character of the proposed zoning regulations; 

"(c) that the proposed zoning regulations are on 

file for public inspection at the office of the 

county clerk and recorder; 

"(d) that for 30 days after first publication of 

this notice, the board of county commissioners 

will receive written protests to the creation of 

the zoning district or to the zoning regulations 

from persons owning real property within the 

district whose names appear on the last completed 

assessment roll of the county. 

" (6) Within 30 days after the expiration of the 

protest period, the board of county commissioners 

may in its discretion adopt the resolution creating the zoning district and/or establishing the 

zoning regulations for the district; but if 40% 

of the freeholders within such district whose 

names appear on the last completed assessment 

roll shall have protested the establishment of 

the district or adoption of the regulations, the 

board of county commissioners shall not adopt 

the resolution and no further zoning resolution 

shall be proposed for the district for a period 

of 1 year." (Emphasis added.) 

Section 76-2-205, MCA, sets out a six-step procedure 

which is to be followed by the board of county commissioners 

in establishing or revising zoning districts and in adopting 

or revising zoning regulations. It is undisputed that Step 

No. 4 (and thus, Step Nos. 5 and 6) was not followed by the 

Board of Yellowstone County Commissioners in the present 

case. Subsection (4) of 76-2-205, MCA, provides that "the 

board of county commissioners may pass a resolution of 

intention to creates zoning district and to adopt zoning 

regulations for the district." Although the Yellowstone 

County commissioners followed the procedures set forth in 

the first three subsections of section 76-2-205 by pub- 
lishing notice of a public hearing, conducting a hearing at 

which the public was given an opportunity to be heard, and 

reviewing the proposals of the planning board, they did not 

pass a resolution of intention pursuant to subsection (4) 

nor follow the procedures subsequent thereto. 

Appellants contend that subsection (4), which provides 

that the commissioners may pass a resolution of intention, 

is discretionary. They argue the county did not need to 

pass a resolution of intention if the word "may" is given 

its ordinary meaning, citing County of Chouteau v. City of 

Fort Benton (1979), Mont. , 592 P.2d 504, 507, 36 

St.Rep. 582, for the rule of construction that, "the word 

'may', unless it has acquired a special meaning in law, is 

to be given its ordinary meaning." 592 P.2d at 507. They 

contend that the county did not abuse its discretion. 

We disagree. When section 76-2-205, MCA, is read as a 

whole, it is obvious that the legislature did not intend to 

grant the county commissioners discretion to ignore the 

statutory procedures. It is clear from the context of the 

entire statute that at Step No. 4 of the proceedings, the 

commissioners "may deny" the application or they "may pass" 

a resolution of intention if they intend to grant the application. They cannot grant the application at that time. 

They must proceed as outlined in subsections (5) and (6) . 

To hold otherwise would lead to the illogical result of 

allowing the county commissioners to determine whether or 

not they will publish notice of the passage of a resolution 

of intention and receive written protests during that 

thirty-day comment period envisioned in subsection (51, 

which provides that they "shall" publish such notice. It is 

a well-established rule of statutory construction that a 
statute be read as a whole and construed so as to avoid 

absurd results. Montana Power Co. v. Cremer (1979), - 

Mont. , 596 P,2d 483, 36 St.Rep. 1158; State ex rel. 

Jones v. ~iles (1975), 168 Mont. 130, 541 P.2d 355; Billings 

~roperties, Inc. v. Yellowstone County (1964), 144 Mont. 25, 

394 P.2d 182. 

The only absolute discretion vested by the statute in 

the county commissioners is to review the petition after 

hearing and to decide whether they should pass a resolution 

of intention to start the proceedings necessary to establish 

the zoning distr5.ct or establish regulations for a district. 

There is no rational analysis to demonstrate the legislature 

intended otherwise in view of the statute's purpose of 

providing procedures for establishing zoning districts and 

zoning regulations which guarantee to the freeholders notice 

of the proposed action and an opportunity to protest. 

The goal of statutory interpretation is to give effect 

to the purpose of the statute. Burritt v. City of Butte 

(1973), 161 Mont. 530, 508 P.2d 563. A statute will not be 

interpreted to defeat its object or purpose, and the objects 

sought to be achieved by the legislature are of prime consideration in interpreting it. Doull v. Wohlschlager (1963), 

141 Mont. 354, 377 P.2d 758. 

Appellants have cited County of Chouteau v. City of 

Fort Benton, supra, for the proposition that unless it has 

acquired a special meaning in law, the word "may" is to be 

given its ordinary meaning. "May" is used here in its 

ordinary meaning. The statute simply states that after the 

public hearing and determinations by the commissioners, they 

"may" pass a resolution of intention to create a zoning 
district and to adopt zoning regulations for the district. 

"May," of course, does not have a mandatory connotation in its 

usual meaning, so the commission could do the opposite and 

not create a district if their study indicated this course 

of action. 

"Where the state zoning enabling act prescribes 

certain procedural steps, that procedure is 

usually regarded as mandatory, and hence a substantial failure to comply with such requirements will render a zoning ordinance invalid." 

82 Am.Jur.2d Zoning - and Planning, §4?. .- 

See also 1 Anderson, American -- Law of zoning, 84.03 (2nd Ed. 

Since the Yellowstone County commissioners failed to 

comply with the procedures in section 76-2-205(4), (5) and 

(61, MCA, the District Court properly invalidated the commission's granting of General-Kimble's application for a 

zoning change. 

Appellants' argument that subsection (4) of section 76- 

2-205, MCA, applies only to an application to create a 

zoning district and does not apply to an amendment of zoning 

regulations, such as occurred in the present case, is without merit. The introductory language of section 76-2-205, 

MCA, makes it clear that: "The board of county commissioners shall observe the following procedures in the establishment or revision of boundaries for zoning districts - and 

-- in the adoption - or amendment - of zoning regulations . . ." 

In light of the disposition of the first issue, it is 

unnecessary to consider appellants' remaining specifications 

of error as they now are mmt. We repeat for further clarification that section 76-2-205, MCA, in its entirety (subsections 1 through 6) is the only statute available for use 

by the various county commissioners of this state for the 
creation of zoning districts and/or establishing zoning 

regulations for the districts. 

The judgment of the District Court is affirmed. 

We concur: 

/" ' 

~r~&h+ 

.. Justices Honorable Gordon R. Bennett, 

District Judge, sitting in 

place of Mr. Chief Justice 

Frank I. Haswell