No. 83-47 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1983

MIKE P.F. SHANNON & KATHY SHANNOTJ

## , PetitionersandAppellants,

CITY OF FORSYTII, Respondent and Respondent.

Appeal from: DistrictCourt of the Sixteenth Judicial District, Inand for theCounty of Rosebud, TheHonorableA. B. Martin, Judgepresiding.

Counsel of Record: ForAppellant: Russell 

### K. Fillner-argued,Billings, Montana

ForRespondent: William F. Meisburger argued,Forsyth,YOntana

Submitted: June 6, 1983 Decided: July 14,1983

Filed: 

## 3uL14

## 1983

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appellants (theShannons) filed apetitionwith the City of Forsyth seeking awaiver to locate amobile home on a lot in a "ResidentialA" zoning district which excludes mobile homes. After the City Council denied their petition, the Shannons filed a petition forwrit of review in the District Court of the Sixteenth Judicial District, Rosebud County. The District Court affirmed the decision of the City Council and this appeal followed. The City of Forsyth is divided into four zoning districts: Residential A, Residential 

### B, Commercial C, and Industrial D. Mobile homes are excluded from ResidentialA districts unless a person seeking a variance of the zoning restrictions submits a proper petition to the City Clerk and the City Council thereafter grants the variance. A proper petition must include 1) the signatures of at least 80% of the landowners residing within 300 feet of the proposed location of the mobile home; and 2) the signatures of the adjoining landowners. On May 12, 1982, the Shannons presented a petition to the City Clerk of Forsyth seeking a variance in order to place a mobile home on their property at Lot 2, Block 42, which is located in a Residential A district. The petition contained the signatures of at least 80% of the landowners residing within 300 feet of the lot. However, since the petition did not contain the signatures of the adjoining landowners, it was returned to the Shannons on May 14, 1982. When the Shannons discovered they could.not obtain the necessary approval of the owners of adjoining Lot 3, they deeded a one-foot strip of land on the south boundary of Lot2 to Mike Shannon'smother and step-father,Theresa and Rink Baukema. The Shannons also deeded all of adjoining Lot 1 to the Baukemas, who signed the petition as adjoining landowners. The Shannons thereafter resubmitted the petition. On June 28, 1982,the City Councilheld ahearing on the Shannon'spetition. At that time,Mike Shannon explained to the City Council that he had deeded the one-foot strip of Land to the Baukemas to obtain their consent as adjoining landowners, since the owners of Lot 3 would not give their consent to the variance. The City Clerk then informed the City Council that three persons who had signed the original petition had called the Clerk's office on themorning of the hearing to request that their names be withdrawn from the petition. Another signator contacted a city alderman theday of the hearing to ask that his name alsobe removed from the petition. The City Council thereafter denied the Shannons' petition because the Shannonshad failed to obtain signatures from 80% of the owners residing within 300 feet of the lot and because of the Shannons' "attempt to circumvent the intent of the city code by deeding one foot of property" to theBaukemas. The Shannons thereafter sought a writ of review in the District Court,which upheld the City Council's ruling. In

so holding, the District Court stated, "In the present case the non-consenting landowner has donenothing. Theeffect of his doing nothing is that the City Council can do nothing except observe the zoning restriction. This is not a delegation of a legislative power to the non-consentinglandowners,because it is the city ordinance that restricts the petitioners' use of their property." It should be noted that there are currently four mobile homes located on the easternhalf of Block 42,which iswhere the Shannons' lot is located. One of these belongs to the owners of adjoining Lot 3, who refused to consent to the Shannons'petition. There are also no houses on the eastern half of Block 42. The appellantpresented two issues in this appeal: 1. Can the City Council remove names from a qualified petition where it acts on information received by its clerk

over the telephone or orally from an alderman on the day of the hearing? 2. Is the zoning ordinance unconstitutionalbecause it unlawfully delegates legislative authority and police power to adjoining landowners and landowners residing within 300 feetof the Shannons' property? We need not discuss the first issue, since the City of Forsyth conceded in an agreed statementof facts presented in the District Court that the Sha.nnonsobtained the signatures of 80% of the landowners residing within 300 feet of the Shannons'property. Next, the Shannons challenge the constitutionality of the zoning ordinance on the grounds that (1) it unlawfully delegates legislative authority to adjoining landowners and 80% of the landowners residing within 300 feet of their property, thus depriving them of due process and equal protection under the 1st and 14th Amendments of the United States Constitution and Article 2, §§4 and 17 of theMontana State Constitution; and (2) it represents an unwarrantedapplication of police power. We agree with the Shannons on both grounds. To be upheld as a lawful delegation of legislative authority, a "consent" ordinance such as the one adopted by the City of Forsyth must contain standards or guidelines which can be used by a board of adjustment to judge the propriety of aneighbor's withholdingof consent. See Eubank

v. City of Richmond (1912), 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156; Janas v. Town Board & Zoning Board of Appeals

(App. Div. 1976), 382 N.Y.2d 394; State ex rel. Daniels v. Kasten (Mo. App. 1964), 382 S.W.2d 714. A "consent" ordinance will fail if it is found to be arbitrary or capricious. See Seattle Title Trust Co. v. Roberge (1928), 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210; People v. Deeks (1969),61Misc.2d 1019; 307N.Y.S.2d 914. In this case,we find that the "consent" ordinance must fail on both counts. The ordinance provides no standard whatsoever by which the consentsmay be judged. The effect of the ordinance is to make the right to locate the mobile home in a "Residential

### A" district dependent wholly on the will and whim of the adjoining owners and 80% of the owners within 300 feet of the property without the application of any sensible fixed guidelines or standards, calculated to protect the interests of all the inhabitants. The result is unequal treatment under the law. Kasten at 717. The "consent" ordinance is also arbitrary and capricious, since the exercise of a negative voteby one resident could defeat the Shannons' petition. The arbitrariness of the ordinance is obvious when the Shannons' adjoining neighbors, who live in a mobile home, can withhold their consent and deny the Shannons the right to locate amobile home on theirproperty.

### The "consent" ordinance also represents an unwarranted application ofpolicepower. This Court stated inFreemanv. Board of Adjustment (1934), 97

### Mont. 342, 356, 34 ~.2d 534, "Inorder for [an]ordinance to complywith the requirements essential to the exercise of police power 

# . . . it [is] essential that there shouldbe an appellatebody, suchas the board of adjustment, with the power to consider exceptional cases." Here, although the zoning ordinance gives the City Council,actingas a

### board of adjustment, thepower to refuse to grant the petition, the City Council does not have the

samepower to determine whether a variance should be granted unless a petition is submitted with the required consent signatures. Thus, the City Council is effectively precluded fromhearing and determiningthe Shannons'petition. We therefore find the "consent" ordinance in this case to be unconstitutional as an unlawful delegation of legislativeauthority and police power. The judgmentof the District Court is reversed. /--x



### We Concur: 

### s4&$/Chief Justice 

# %@