NO. 94-395

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

THE GREENS AT FORT MISSOULA, LLC,

Petitioner and Appellant,

-vCITY OF MISSOULA,

Respondent,

and

SAVE THE FORT, INC.

Intervener.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Jeffrey Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert J. Phillips, Phillips & Williams, Missoula,

Montana

For Respondent:

Jim Nugent, Missoula City Attorney, Missoula,

Montana; Mark S. Connell, Connell, Beers &

Alterowitz, Missoula, Montana

Filed:

Heard: April 7, 1995

Submitted: April 18, 1995

Decided: June 19, 1995

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

This case is before us on grant of summary judgment to City of

Missoula and Save the Fort, Inc. by the Fourth Judicial District

court, Missoula County. We affirm.

We consider the following issue:

Did the District Court err in granting summary judgment to the

City of Missoula and Save the Fort based upon the court's ruling

that a City-wide referendum concerning Ordinance No. 2877 was an

appropriate function of the power of referendum?

This action involves an 82.31 acre tract of land known as Fort

Missoula located in Missoula County. Fort Missoula U.S. Military

Reservation was established in 1877 and has served many purposes of

historical significance over the years. In 1966, the federal

government conveyed this property to the State Board of Education

for the use and benefit of the University of Montana. In 1990, the

University conveyed the property title to the University of Montana

Foundation, a non-profit corporation which acts as agent or trustee

for the University by coordinating all fund raising for that

institution. The Foundation then sold the property to the Green's

predecessor in interest, Divot Development, for $450,000.

Divot began action to have the bulk of the property annexed to

the City and to have the City then zone it. On December 13, 1993,

the City annexed the property. At that point the tract became an

unzoned part of the City.

Divot had requested zoning of the tract, asking that the

property be rezoned as P-I (Open Space District) [with a Planned

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Unit Development (PUD) overlay]. The County had originally zoned

the tract as CP-I (County Zone.) On December 20, 1993, the

Missoula City Council enacted Ordinance No. 2877, which called for

residential housing as well as carefully designed protection for

historical buildings and open areas on the property. Following

passage of this ordinance, a group of Missoula County and City

residents formed under the name "Save the Fort" and circulated a

petition in the City with the final outcome projected to be a

referendum which would repeal the ordinance. On January 17, 1994,

the petition was filed with the Missoula County Elections Office.

The Greens filed a declaratory judgment action against

respondent City of Missoula, seeking to have the court refuse the

referendum process for this issue.

The District Court permitted the community group Save the

Fort, Inc. to intervene in the action. The Greens, the City, and

Save the Fort all moved for summary judgment. The motions were

briefed and argued on May 13, 1994. The court ruled from the bench

that the Greens' motion was denied and the City's and the

Interveners' motions were granted. The court then issued an Order

and Opinion on May 24, 1994. On Tuesday, June 7, 1994, the City of

Missoula electorate voted to repeal the City of Missoula Zoning

Ordinance No. 2877 as above described.

The Greens commenced this action against the City of Missoula

and Save the Fort was allowed to intervene permissively.

Did the District Court err in granting summary judgment to the

City of Missoula and Save the Fort based upon the court's ruling

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that a City-wide referendum concerning Ordinance No. 2877 was an

appropriate function of the power of referendum?

The Greens argue that Ordinance No. 2877 rezoned the property

in question and, therefore, the action was administrative and not

legislative. According to the Greens, administrative and quasijudicial actions by a governmental body are not subject to

referendum, only legislative actions CXI spawn referendum.

Further, the Greens argue that our holding in City of Shelby v.

Sandholm (1984), 208 Mont. 77, 676 P.Zd 178, controls and makes the

repeal of Ordinance No. 2877 unconstitutional because not all of

the electors who participated in the referendum are affected by the

ordinance. The Greens contend that the District Court gave a new

expansive reading of the referendum statute in opposition to the

prevailing case law in Montana.

The City argues that the District Court should be affirmed

because Montana's statutes and Constitution encourage public

participation in municipal government affairs and decisions. The

City contends that the facts of this case make it unique when

compared to past Montana cases considering the right of referendum.

Also, the City states that the property in question has never been

zoned by the City. According to the City, both zoning and rezoning

are legislative acts which permit referendum.

Save the Fort argues that the Montana Constitution permits

referendum on any enactment by the legislature except an act of

appropriation.

The District Court determined that the act of zoning the newly

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annexed City property was legislative in nature and, therefore,

subject to referendum by the electorate. The District Court found

that no substantive difference existed between initial zoning and

amendatory rezoning:

Whether Ordinance No. 2877 was a zoning ordinance, as the

Court concludes, or a rezoning makes no substantive

difference. In substance the questioned ordinance was

the original zoning classification of this land by the

City, and it was a legislative act. . . . Here, the City

Council has made a new land use policy, in absence of an

established municipal land use policy, for a sizeable

parcel of previously undeveloped property on the edge of

the urban area. The ordinance in auestion signifies both

a new zoninq oolicv as to this land and a fundamental

chanqe fromore-existinq county zoninq and quidelines for

development of this area. . The Court does not agree

that subjecting oriqinal zoninq classification ordinances

or amendatorv rezoninq ordinances to referendum powers

will lead to significant delays and undue burdens on

development. Minor zoning decisions which do not excite

broad public interest in a city will be unlikely to

generate the degree of controversy necessary to place the

issue before the voters. The very fact that this is the

first known case of this nature, despite Montana's long

history of municipal zoning, is itself indicative that it

would not frequently arise. (Emphasis added.)

The 1972 Constitution included a provision that made the

people's right to a referendum applicable to the actions of local

governments. Art. III, Sec. 5 and Art. XI, Sec. 8, Mont.Const.

(1972). In response, the 1977 legislature passed a bill which

created the following statutory directive to the electorate of the

state:

Right of initiative and referendum. (1) The powers of

initiative and referendum are reserved to the electors of

eachlocalgovernment. Resolutions and ordinances within

the leqislative iurisdiction and power of the qoverninq

bodv of the local qovernment, except those set out in

subsection (2), mav be proposed or amended and prior

resolutions and ordinances mav be repealed in the manner

provided in 7-5-132 through 7-5-137.

(2) The powers of initiative shall not extend to

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the following:

(a) the annual budget;

(b) bond processings, except for ordinances authorizing

bonds;

(c) the establishment and collection of charges pledged

for the payment of principal and interest on bonds; or

(d) the levy of special assessments pledged for the

payment of principal and interest on bonds. (Emphasis

added.)

Section 7-5-131, MCA. The statute permits the electorate to

propose, amend, or repeal ordinances and resolutions. The statute

does not distinguish between zoning ordinances and rezoning

ordinances. It simply refers to "prior ordinances." A prior

ordinance could either be a zoning or rezoning ordinance. Thus,

the District Court correctly interpreted this statute to mean that

referendum by the people was appropriate for both zoning ordinances

and "amended" zoning ordinances (or rezoning). We will not insert

into statutes something that is not contained therein. Section l2-101, MCA. This is not an expansive reading of the statute, but

one that is taken from the clear meaning of the language used.

The legislature did not provide within the statute any

differences in procedure to be used with public involvement in

zoning as opposed to rezoning ordinances. Both acts are within the

"legislative jurisdiction and power of the Local governing body"

and are, therefore, subject to the referendum power of the people.

The Greens argue that we must follow the precedent of Lowe v.

City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, which stated

that there is a "sound" distinction between zoning and rezoning.

Lowe -I 165 Mont. at 44, 525 P.2d at 554. We first point out that

the 1977 statute which we are interpreting in this case did not

6
differentiate between zoning and rezoning for referendum purposes.

In addition, in Schanz v. City of Billings (1979), 182 Mont. 328,

597 P.2d 67, we expressly departed from the holding in Lowe:

A review of authorities reveals no elemental

distinction between the act of "zoning" and the act of

"rezoning.11 A rezoning ordinance, like a zoning

ordinance, is a legislative enactment, and is entitled to

the presumption of validity and reasonableness.

[Citations omitted.]

[Wle depart here from the distinction expressed in

Lowe between the acts of zoning and rezoning .

Schanz, 182 Mont. at 335, 597 P.2d at 71. In order to eliminate

any confusion, we conclude it is necessary to overrule the

contradictory language in Lowe. We expressly overrule the

following language:

There is under Montana statutes and case law a sound

distinction between "zoning" and the act of "rezoning" or

granting or refusing a variance. The former constitutes

a legislative act while the latter is more of an

administrative or quasi-judicial act in applying

provisions of existing ordinance or law.

Lowe - I 165 Mont. at 44, 525 P.2d at 554. In doing so, we do not

express any opinion on granting or refusing variances.

Also, the Greens argue that the repeal of Ordinance No. 2877

is unconstitutional under the holding of this Court in City of

Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178. However,

the Sandholm case can be distinguished from the case before us.

Sandholm dealt with a vote by all of the electorate in the

city of Shelby with regard to one special improvement district

which constituted only part of the city. Special Improvement

Districts (SID's) are defined statutorily as improvements that

"will be of special benefit to the property within the boundaries
of any district created pursuant to the provisions of this part."

(Emphasis added.) Section 7-12-1102, MCA. SID's do not affect an

entire City.

Perhaps an example would best exemplify the distinction found

between the unique facts of this case and the facts of the Sandholm

holding. In Sandholm, we held that an entire city could not vote

on the propriety of one SID because the entire city was not

physically and financially affected by that SID:

But here the special improvement district encompasses

less than all of the real property in the City, and there

are qualified voters in the City who could vote on the

referendum but who are not physically or financially

affected by the special improvement district. Clearly,

the property owners who will be benefited by the

improvement, as well as assessed for the costs of the

project, should control whether the project succeeds or

fails. Section 7-12-4110, MCA, provides the protest

procedure for those affected by the special improvement

district, but the protest here was insufficient because

it did not represent 50 percent or more of the property

within the district, and the trial court so found.

Sandholm, 208 Mont. at 80, 676 P.2d at 179. We are unable to say

in the present case that only part of the City electorate would be

affected by what transpires on this tract of land. The land in

question here has historical and social significance for the entire

City. The public has used this property for many years for various

community-wide functions. Were the land to become used for the

multitude of private residential housing units that are planned,

the entire community could be affected by the added pressures--

financial, social, and environmental. Thus, the community as a

whole is affected by what happens to this property, despite not

every member of the community abutting the property in question.

8
In recognition of this, the District Court stated in its

Opinion:

The Court

developer

quasi-judi

does not accept the myopic view of the

that this action should be viewed as a single

.cial zoning decision affecting one landowner's

private property. The proposed construction of

housing for several hundred people in what has

historically been publicly accessible open space on the

edge of the City affects prospective development

residents, public services and schools, the city housing

market, nearby residents and facilities, city traffic and

development patterns. . . The number of landowners

whose property is being zoned is not material to the

issue at hand.

It is the proposed zoning's potential effect upon the City that

distinguishes the present case from Sandholm. The entire community

of Shelby was not affected by the storm sewers in one SID. The SID

created in Sandholm had no significance or importance to anyone

other than the landowners who would be required to pay for the

proposed storm sewers.

As a result, we held in Sandholm as follows:

We agree, under the facts of this case, that the City's

action creating a special improvement district, was not

. subject to referendum. (Emphasis added.)

Sandholm, 208 Mont. at 79, 676 P.2d at 179. While the foregoing

conclusion is appropriate as to Sandholm, we further conclude that

it cannot be applied to the facts of this case. Under the facts of

this case, we need do nothing beyond interpreting § 7-5-131, MCA,

as including both zoning and rezoning "ordinances" under the

umbrella of the "legislative jurisdiction and power of the

governing body of the local government." Such an inclusion

entitles the electorate of Missoula to subject the applicable

"ordinance" to a referendum vote in order to repeal the ordinance.

9
The distinction between administrative/quasi-judicial acts and

those that are legislative need not concern us under the facts of

this case. As quoted above, Schanz determined that a rezoning

ordinance, like a zoning ordinance, is a legislative enactment and

that there is no distinction between the act of zoning and the act

of rezoning. Section 7-5-131, MCA, makes no distinction between

zoning and rezoning with regard to the referendum power of the

people. As pointed out in Schanz, both a zoning ordinance and a

rezoning ordinance are legislative enactments. As a result, we do

not find it necessary to attempt to distinguish between a zoning

and rezoning ordinance for referendum purposes.

We conclude that, under the facts of this case, Ordinance 2877

is subject to the people's referendum power pursuant to 5 7-5-131,

MCA. We do not here consider whether this statute is narrower than

the constitutional directives that engendered it, as that must

remain for some future case. We hold that the District Court did

not err in allowing the June 7, 1994 voter referendum concerning

the City zoning of Fort Missoula.

Affirmed.

Chief Justice
Justice James C. Nelson specially concurs.

I concur in the result of our opinion but not in our

rationale. Basically, we affirm the District Court because we

conclude that the ordinance at issue here is a zoning ordinance and

that zoning and rezoning are indistinct, both being legislative

enactments subject to the right of referendum.

While I do not disagree with those conclusions as far as they

go, our opinion, by default, perpetuates the long-articulated

notion relied upon by the District Court and discussed in other

cases in Montana that acts of the legislative body which are

characterized as "legislative" are subject to referendum, while

"administrative" or "quasi-judicial" acts of that body are not.

See, for example, Carlson v. City of Helena (1909), 39 Mont. 82,

102 P. 39; Allen v. City of Butte (1918), 55 Mont. 205, 175 P. 595;

City of Billings v. Nore (1966), 148 Mont. 96, 417 P.2d 458;

Chouteau County v. Grossman (19771, 172 Mont. 373, 563 P.2d 1125;

Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127; Lowe

v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551; Little v.

Board of County Commissioners (1981), 193 Mont. 334, 631 P.2d 1282;

Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67. It

is with that proposition that I disagree.

Rather than perpetuate a fiction that is without

constitutional validity, I would simply hold that 5 7-5-131, MCA,

is unconstitutional as being in violation of Article III, Section

5 of the Montana Constitution to the extent that the statute

restricts the power of referendum to "legislative" acts of the

1 1
local governing body.

It is axiomatic that the Constitution is the supreme law of

the state, Associated Press v. Bd. of Public Educ. (1991), 246

Mont. 386, 391, 804 P.2d 376, 379, and that constitutional

provisions are conclusive upon the legislature and prevent the

enactment of any law which extinguishes or limits the powers

conferred by them. No11 v. City of Bozeman (1975), 166 Mont. 504,

507, 534 P.2d 880, 881.

T o determine the meaning of a constitutional

provision we employ the same rules of construction

employed to construe statutes. The intent of the framers

of a constitutional provision is controlling. The intent

should be determined from the plain meaning of the words

used. If that is possible we apply no other means of

interpretation. (Citations omitted.)

Great Falls Tribune v. Public Schools (1992), 255 Mont. 125, 128-

29, 841 P.2d 502, 504. We are to simply "ascertain the meaning of

the Constitution as written, neither to add to nor to subtract

from, neither to delete nor to distort." Rankin v. Love (19511,

125 Mont. 184, 188, 232 P.2d 998, 1000.

In Article V, Section 1, of the Montana Constitution the

people expressly reserved unto themselves the power of referendum.

In furtherance of that reservation of power, the language of

Article III, Section 5, of the Montana Constitution is unambiguous

and explicit.

Section 5. Referendum. (1) The people may approve or

reject by referendum any act of the legislature except an

appropriation of money. . . (Emphasis added.)

As that language of the Constitution clearly provides, the people

of Montana reserved unto themselves the power to approve or to

12
reject by referendum any act of the legislature -- not simply

"legislative' acts, but any acts, including "administrative" acts

and "quasi-judicial" acts. Moreover, at Article XI, Section 8, the

people directed the legislature to extend the I'. . referendum

powers reserved to the people by the constitution to the qualified

electors of each local government unit."

While s 7-5-131, MCA, was enacted in an attempt to fulfill

that latter constitutional mandate, the statute, nonetheless,

restricts the referendum powers extended to the people to

"[r]esolutions and ordinances within the legislative jurisdiction

and power of the governing body of the local government, except as

set out in subsection (2). . .'I subsection (2) being not at issue

here. (Emphasis added.) Unfortunately that language, fortified by

numerous decisions of this Court cited above, has perpetuated the

notion that "legislative" acts, resolutions and ordinances are

subject to approval or rejection by referendum, while

"administrative" or "quasi judicial" acts are not. In fact and in

law, the Constitution makes no such distinction.

In our interpretations of Article III, Section 5, we have

stated that we are guided by the principle that the "referendum

provisions of the Constitution should be broadly construed to

maintain the maximum power in the people . . .I' Chouteau County

versus Grossman (1977), 172 Mont. 373, 378, 563 P.2d 1125, 1128;

Nicholson v. Cooney (1994), 265 Mont. 406, 411, 877 P.2d 486, 488.

Yet, in this case and in the various other legislative act versus

administrative act cases cited above, we have lost sight of that

13
principle and have, to the contrary, narrowed the broad power of

referendum reserved in the people by restricting that power to

"legislative" acts. Certainly, if the people had wanted to limit

their power of referendum to "legislative" acts, they could have

done so, as they clearly did with respect to "appropriations of

money." See Art. III, Sec. 5, Mont.Const.

No legislative act versus administrative or quasi judicial act

distinction appears in the language of the Constitution, and it is

improper and in violation of our well established rules of

construction to read such a provision into that document. Section

7-5-131, MCA, restricts the constitutional right of the people to

approve or reject by referendum any act of the governing body of

the local government guaranteed by Article III, Section 5 of the

Montana Constitution. To that extent, the statute is in derogation

of the Constitution and, therefore, cannot stand. The District

Court, and now this Court, have arrived at the right result but for

the wrong reason. In the former I concur; in the latter I cannot.

Justices Karla M. Gray and W. William Leaphart join in the

foregoing special concurrence. c\

14
Justice Terry N. Trieweiler specially concurring.

I concur with the majority opinion based on the oft-stated

principle that "it is elementary that courts should avoid

constitutional questions if an issue can be resolved otherwise."

Common Cause Y. Statutory &vnmittee (1994), 263 Mont. 324, 329, 868 P.2d

6 04 , 6 0 7 (citing Wolf v. Montana Dept. of Labor and Indushy ( 19 9 2 ) , 2 5 5 Mont .

336, 339, 843 P.2d 338, 340).

I do not, by concurring in the majority opinion, mean to infer

that I necessarily disagree with anything said in the concurring

opinion of Justice James C. Nelson.

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CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

following named:

Robert J. Phillips, Esq.

Phillips & Williams, P.C.

283 West Front, Ste. 301

._. 1

MIssoma, MT 59802

ED SMITH

CLERK OF THE SUPREME

Jim Nugent

Missoula City Attorney

435 Ryman

Missoula, MT 59802

Mark S. Connell, Esq.

Connell, Beers & Alterowitz

P.O. Box 7307

Missoula, MT 59807

STATE OF MONTANA

BY: 

Deputy

-

prepaid, to the

COURT

-