No. 79-35 INTHE 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: DistrictCourt 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:

# APh1.fj Decided:

ClerkMr. 

### 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 applicationof General-Kimble for a zoning change on a certainparcel of land from agricultural and restricted residential toresidentialmobile home. On November 18, 1976, General-Kimble filedApplication No. 120

### for a change of zoning classification from agricultural and restrictedresidential toresidential mobile home

on a certainparcel of land inBillings Heights. GeneralKimble desired tobuild a mobile home park on the tract, which was unused, undeveloped agriculturalproperty classified as agriculturalunder theYellow~,tone County Comprehensive Zoning Plan and surrounded by primarily vacant land with widely scattered residences. The applicationwas considered by the staff of the city-county planning board, which made the following recommendation to the zoning commission: 

# ".

. . found that thisrequest would provide, when developed, mobile home spaces that are needed inthe community as shown by low vacancies inexistingparks. Alexander Road meets the requirement thata mobile home park of this size should have access to an arteriallydesignated street. Lake Elmo 

### willattractresidential

### use, therefore it

### was found that a mobile home park or subdivision, after fullreview by theFood 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 toaffected landowners, a joint zoning commission and county commission meeting 

### was held on January 19, 1977, toconsider 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 commissionvoted 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 requestwould appear not to be designed in accordancewith the Comprehensive Plan. However, more thorough research reveals the following points that indicate it is in accordancewith the Comprehensive Plan: "a. Item 5 (page 62)under "Mobile Homes" in the Comprehensive Plan calls for the following: "'Theplan 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 conditionpresented by this request, though it is located in the Billings Heights area.

'"b. This requestwould 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 adjacentAlexander Road. "3. 

### Lowvacancy rates in existing mobile home parks indicate a need formore developed sites in the community." On February 1, 1977, the Yellowstone County commissioners unanimously passed a resolution granting General-Kimble'szoning 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 afterreceiving and considering the recommendations of the zoning commission. On February 17, 1977, the county commissioners passed

an amended resolutionwhich recited verbatim the reasons given by the zoning commission for granting the zoning change. The plaintiffs-respondents did not request a rehearing under ArticleVII, Section 5(b)of the County Comprehensive Zoning Plan. They appealed to the DistrictCourt of the Thirteenth Judicial District, Yellowstone County, by filing

a petition with thatcourton 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 ingranting General-Kimble's application for a zoning change did not conform with the requirements of section 76-2-205, MCA, and the requirements of ArticleVIIof 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 DistrictCourt entered against them on June 25, 1979, and 

### raise the following issues for review by this Court:1. Whether the procedures followed ingranting the zoning change adequately conformed to the requirements 

### set forth in section 76-2-205, MCA, and ArticleVIIof 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, orwhether 

### 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 ArticleVIIof the County Comprehensive Zoning Plan. Subsection (4) of section 76-2-205, MCA, which provides that "[tlhe board of county commissioners 

### maypass a resolution of intention tocreate a zoning district and toadopt zoning regulations for the district" 

### is discretionary, and the county did not need topass a res3:.ution of intention if the word "may" 

### isgiven 

### its ordinarymeaning. County of Chouteau 

### v. City of Fort Benton (1979), Mont. 

## , 592 P.2d 504, 36 St.Rep. 582. Appellants contend there was no showing thatthe county abused 

### its discretion, and, inany case, there

### was substantial compliance with the procedural requirements mandated by the statute, sincerespondents' rights to a fulland fairhearing have not been prejudiced by any irregularity inprocedure thatmay have occurred. Appellants argue further that notices of the public hearing 

### weremailed torespondents 

### wellbefore the hearing, and since respondents 

### werepresent 

### atthe hearing and their protests heard, they should be held tohave waived any technical failure of the county tocomply with statutory

### notice requirements. They further claim thatArticle 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 toan application to create a zoning districtand does not apply to an amendment of zoning regulations such asoccurred in the present case. At

### the outset it 

### isnecessary toexamine and interpret the controlling statute, section 76-2-205, MCA: 

### "Procedure for adoption of regulations and bound

### aries. The board of county commissioners shall observe the following procedures inthe establishment orrevision of boundaries for zoning dis

### tricts and inthe adoption or amendment of zoning regulations: "(1) 

### Notice of a 

### public hearing on the proposed zoning districtboundaries and of regulations for the zoning district shallbe published once a week for 2weeks 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 

### timeand place of the public hearing; "(d)that the proposed zoning regulations areon fileforpublic 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 tobe heard regarding the proposed zoning districtand regulations. (3) 

### After the public hearing, the board of county commissioners shallreview the proposals of the planning board and shallmake such revisions or amendments 

### as it

### may deem proper. "(4)

## Theboard - 

### of county commissioners may pass 

### -- :oning 

### a resblution of intention 

## - to create - 

### a 

### - 2 - 

### districtand toadopt zoning regulations for the 

### -- district."(5)The board of county commissioners shall publish notice of passage of the resolution of intentiononce a week for 2weeks 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 fileforpublic inspection atthe office of the county clerk and recorder; "(d) that for 30 days after firstpublication of this notice, the board of county commissioners 

### willreceive written protests to the creation of the zoning districtor to the zoning regulations from persons owning 

### real property within the districtwhose names appear on the lastcompleted assessment rollof 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 districtand/or establishing the zoning regulations for the district; but if 40% of the freeholders within such districtwhose names appear on the 

### last completed assessment roll shall have protested the establishment of the districtor 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 

### 1year." (Emphasis added.) Section 76-2-205, MCA, 

### sets out 

### a six-step procedure which 

### is tobe followed by the board of county commissioners inestablishing orrevising zoning districts and in adopting

orrevising zoning regulations. It 

### isundisputed that Step No. 

### 4 (and thus, StepNos. 5 and 6) was not followed by the Board of Yellowstone County Commissioners inthe 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 districtand to adopt zoning regulations for the district." Although the Yellowstone County commissioners followed the procedures setforth in the firstthree 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 tobe 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 

### maypass a resolution of intention, 

### isdiscretionary. They argue the county did not need to pass 

### a resolution of intention if the word "may" 

### is given 

### its ordinary meaning, citingCounty of Chouteau v. City of Fort Benton (1979), Mont. 

## , 592 P.2d 504, 507, 36 St.Rep. 582, for the rule of construction that, "theword 'may', unless 

### ithas acquired a specialmeaning in

### law, 

### is tobe given 

### itsordinarymeaning." 592 P.2d at507. They contend that the county did not abuse 

### its discretion. We disagree. When section 76-2-205, MCA, 

### isread 

### 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 atStep 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 atthat 

### time. They must proceed asoutlined 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 

### willpublish 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 astatute 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; Stateex rel. Jones 

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

### v. Yellowstone County (1964), 

### 144Mont. 25, 394 P.2d 182. The only absolute discretionvested by the statute in the county commissioners 

### is toreview the petition after hearing and to decide whether they should pass a resolution of intention to startthe proceedings necessary to establish the zoning distr5.ctor establish regulations for a district. There 

### isno rational analysis to demonstrate the legislature intended otherwise inview 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 toprotest. The goal of statutory interpretation 

### is to give effect to the purpose of the statute. Burritt

### v. City of Butte (1973), 161Mont. 530, 508 P.2d 563. A statute

### willnot be interpreted to defeat 

### its object or purpose, and the objects sought tobe achieved by the legislature areof prime consideration ininterpreting 

### it. Doull v. Wohlschlager (1963), 141Mont. 354, 377 P.2d 758. Appellants have cited County of Chouteau 

### v. City of FortBenton, supra, for the proposition that unless 

### it has acquired a specialmeaning in

### law, the word "may" 

### is tobe given 

### its ordinarymeaning. "May" isused here in

### its ordinary meaning. The statute simply statesthat after the public hearing and determinations by the commissioners, they "may" pass 

### a resolution of intention to

### create a zoningdistrict 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 districtif their study indicated this course of action. "Where the state zoning enabling actprescribes certain procedural steps, thatprocedure 

### is usually regarded asmandatory, and hence a substantial failure tocomply with such requirements 

### willrender a zoning ordinance invalid." 82 Am.Jur.2d Zoning and Planning, §4?. 

### -.- See also 1Anderson, 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 DistrictCourt 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 asoccurred inthe present case, iswithout

### merit. The introductory language of section 76-2-205, MCA, makes 

### it clear that: "The board of county commissioners shallobserve the following procedures in the establishment or revision of boundaries for zoning districts 

### - and inthe adoption or amendment of zoning 

### regulations

# .

# . ." -- - - In lightof the disposition of the firstissue, 

### it 

### is unnecessary to consider appellants' remaining specifications of error as they now aremmt. We repeat for further clarification that section 76-2-205, MCA, in 

### its entirety (subsections 1through 6) is the only statuteavailable for use by the various county commissioners of this state for the

### creation of zoning districtsand/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, sittingin place of Mr. 

### Chief Justice Frank I. 

### Haswell