No. 83-47 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

MIKE P.F. SHANNON & KATHY 

SHANNOTJ , 

Petitioners and Appellants, 

CITY OF FORSYTII, 

Respondent and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Russell K. Fillner-argued, Billings, Montana 

For Respondent : 

William F. Meisburger argued, Forsyth, YOntana 

Submitted: June 6, 1983 

Decided: July 14, 1983 

Filed: 3uL 14 1983 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellants (the Shannons) filed a petition with the City 

of Forsyth seeking a waiver to locate a mobile home on a lot 

in a "Residential A" zoning district which excludes mobile 

homes. After the City Council denied their petition, the 

Shannons filed a petition for writ 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 Residential A 

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 Lot 
2 to Mike Shannon's mother 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 Council held a hearing on the 

Shannon's petition. 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 the morning of the 

hearing to request that their names be withdrawn from the 

petition. Another signator contacted a city alderman the day 

of the hearing to ask that his name also be removed from the 

petition. 

The City Council thereafter denied the Shannons' 

petition because the Shannons had 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 

the Baukemas. 

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 done nothing. The effect 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-consenting 
landowners, 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 eastern half of Block 42, which is where 

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 appellant presented 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 unconstitutional because it 

unlawfully delegates legislative authority and police power 

to adjoining landowners and landowners residing within 300 

feet of the Shannons' property? 

We need not discuss the first issue, since the City of 

Forsyth conceded in an agreed statement of facts presented in 

the District Court that the Sha.nnons obtained 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 the Montana 

State Constitution; and (2) it represents an unwarranted 
application 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 a neighbor's withholding of 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), 61 Misc.2d 1019; 307 N.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 consents may 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 vote by 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 a mobile home on their property. 
The "consent" ordinance also represents an unwarranted 

application of police power. This Court stated in Freeman v. 

Board of Adjustment (1934), 97 Mont. 342, 356, 34 ~.2d 534, 

"In order for [an] ordinance to comply with the requirements 

essential to the exercise of police power . . . it [is] 

essential that there should be an appellate body, such as the 

board of adjustment, with the power to consider exceptional 

cases." Here, although the zoning ordinance gives the City 

Council, acting as a board of adjustment, the power to refuse 

to grant the petition, the City Council does not have the 

same power 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 

from hearing and determining the Shannons' petition. 

We therefore find the "consent" ordinance in this case 

to be unconstitutional as an unlawful delegation of 

legislative authority and police power. The judgment of the 

District Court is reversed. /--x 

We Concur: 

s4&$/ Chief Justice %@