No. 13033 

### IN THE SUPREME COURT OF THE STA?'li OF MONTANA 1975



### STERLING RYGG and 

### INGA RYGG etal., Plaintiffs andAppellants,

ULISPELL BOARD OF ADJUSTMENT OF 

### KALISPELL

## ,MONTANA, Defendant and Respondent, and WILLIAM 

### E. ASTLE and DAVID 

### L. ASTLE, Intervenors.

Appeal from; Nstrict Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel- of Record: For Appellants: Murphy, Robinson, Heckathorn and Phillips,

Kalispell, Montana I. James Heckathorn argued and George B. Best

argued, Kalispell, Montana For Respondents: Rockwood, Murray and Donahue, Kalispell, ~ontaia Norbert F. Donahue argued, Kal-ispell, Montana Xstle and Astle, Kalispell, Montana William E. Astle argued, Kalispell, Montana

Submitted: December 11, 

### 1975Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### is an appeal by plaintiffs from a judgment of the district court, Flathead County, affirming a variance order granted by the Kalispell Board of Adjustment for the operation of a law office in a zoned residential area. Plaintiffs, appellantshere, areresidents of Block 105, Kalispell, Montana. Block 105

### .iszonedrag 

### a No. 

### -1Residential District. The intervenors areWilliam E. and David L. Astle, brothers, who are lawyers. They purchased a residence in the zoned residential area and requested a variance for the operation of a professional office for the practice of law in the residentialbuilding located at

### 705 Main Street. The application for the variance was noticed for hearing. Plaintiffs, eight innumber, were present atthe hearing, represented by counsel, and testimony for and against the variance was heard. The variance was granted with restrictions that therewould be no exterior structural changes made tothe building and that the use was limited to two attorneys and two secretaries. It allowed sixmaintained off-street parking spaces and a sign erected as stated ina letter from the Board of Adjustment, Plaintiffswere opponents or objectors 

### at the hearing and they sought a 

### writ of review in the district court. The district court reviewed the evidence before the Board of Adjustment and affirmed the ruling of the Board. It 

### is from this affirmance that the appeal tothis Court 

### ismade. The facts show that the subject property fronts on U.S. Highway No. 93, a primary north-south highway route through Kalispell. It is situated on the corner of U.S. Highway No. 93 and Seventh Street East; and atthe time of the variance hearing

was the only existing single family use of the four corners ofthe intersection. Also, it 

### is the only single family use located

on the corner of an intersection from the Flathead County courthouse through the centralbusiness district of Kalispell. The existinguses of the three corners of the intersection area multi-family apartment house; a clinic officebuilding which includes a mental health clinicwith out-patient service and a Carpenters District Council Office; and a parochial grade school. The southeast corner of Block 105 has an existing law office. Across the street from that 

### is a dentist's office. Behind the law office, fronting on 

### 1stAvenue East, 

### isan insurance office. The objectors were eleven owners of five separate lots inBlock 105. Seven out of ten property owners fronting on Main Street, including the applicants, didnot oppose the application. The Board didnot have formal rules for 

### its guidancebut did have a policy toconsider neighboring commercial properties

asnot opposed unless the contrary 

### is expressed. Also the policy

was toweigh the views of the neighboring property owners in reaching a decision in thebest interests of the entire community. The subject property was viewed by the Board. The Board stated, and it 

### is obvious from the foregoing description of the uses, that this area is ina transition stage. By placing the restrictions on the variance granted, the Board made an attempt tokeep the appearance and use limited toa considerable degree. This appeal 

### ismade on thebasic proposition that the Board has undertaken torezone Block 105by the expedient of granting continual and successive use variances and this method of rezoning 

### is improper. In plaintiffs' view of the evidence, thiswas shown. However, whether the "essential character" of theneighborhood willbe changed does not appear. In fact the contrary appears.In response toa question concerning a policy of the Mayor and the Council on variances, the chairman of the Board of Adjustment testified: "A. Well, 

### it's stillthe same allof the council together with the planning board areworking on rezoning, not just this area but the entirecity and the past thinking has been that ifthis area were rezoned, not just this areabut Main Street and Idaho Street, the two U.S. Highways,if they were rezoned, any business could go inand there could be no stopping it. For instance, the request was made for the ~ac~onald's Drive-In to go right exactly on the property that we are talking about right now and it was discouraged but therewas no formal action taken. It just didn't receive encouragement. The Mayor and the Council have constantly preferred to have this area in discussion remain asresidence and letvariances be granted which would enable more pleasant and a satisfactory transition.It In the context of the entire testimony, itwas clear that only variances which would be compatible with the remaining residential

use were considered. We find the issue here 

### iswhether a use variance granted after statutoryprocedures have been followed can be setaside without a showing of an abuse of discretion? In the instant case has any such clear showing been made tojustify'reversal of the decision of theBoard of Adjustment or the affirmation thereof by the district court? Three cases inMontana establish the criteria and authority forvariances. Freeman v. Board of Adjustment, .97 Mont. 342, 34 P.2d 534; Lambros v. 

### iss sou la, 153Mont. 20, 452 P. 2d 398; andwheeler v. Armstrong, Mont

# . , 533 P.2d 964, 32 St.Rep. 314, allrecognize the ~oard's power togrant use variance of this type. The criteria established by the foregoing cases are: 1) The variance must not be contrary to public interest. 2) A literalenforcement of the zoning ordinance must result inunnecessary hardship, owing to conditions unique to the property.

### 3) The spiritof the ordinance must be observed, and substantialjustice done. First, aspreviously indicated, we arenot here concerned with a change in the essential character of theneighborhood. We recognize that plaintiffs argue that a combination of numerous use variances over theyears has essentiallychanged the character of theneighborhood, but this long period change does not affect this particular application fora variance. Plaintiffs cite Stateex rel. Russell Center etal. v. City of Missoula, Mont

# . , 533 P.2d 1087, 32 St.Rep. 292, asbeing analogous because there a change from residentialuse to commercial parking use was considered a factor, but there this Court said that to secure such a change required compliance with statutorymethods of rezoning, referring to sections 11-2704 and 11-2705, R.C.M. 1947. While this Court did not refer to section 11-2707, R.C.M. 1947, theBoard of Adjustment function, it not being necessary, neither did itreject it. Russell Center 

## - concerned the question of whether a building permit could authorize

a use variancewithout some compliance with the general zoning statutesand ordinances. Whether the Board of Adjustment has a general discretionary power togrant use variance 

### iscontrolled by Freeman, Wheeler, and Lambos. There 

### is simply no showing that the first test concerning public interestwas met by plaintiffs. As tb the hardship test, basically plaintiffs argue theAstles have created their own hardship and had knowledge of therestrictions when they bought the property. Thus they argue Astles have not met the showing necessary. In Freeman this Court in the year 1934 established broad principles which allof the subsequent cases have relied upon. In Freeman a permit for a combined grocery store and residence was sought ina residential zone inGreat Falls. The Board of Adjustmentgranted the permit in an order which found that the variation of the terms of the zoning ordinance would not be contrary to the public interest; that owing to special conditions, a literalenforcement of the provisions would result inunnecessary hardship; and the variation of the ordinance should be allowed so that the spirit of the ordinance should be observed and substantialjustice done. The Court atthat time did not discuss with specificity factors going to the determination of unnecessary hardship but did discuss whether ornot a zoning ordinancewould be constitutional atallbecause of the invasion orunjust limitationsupon the fulluse and enjoyment of property, including 

### itsvalue and 

### its

use. Having determined that property cannot be placed in a straitjacket and thatwhat is reasonable as to a restriction today might not be reasonable tomorrow, the Court reviewed the evidence and found substantial evidence tomove the discretion of the Board and affirmed the district court's review. In Freeman the opponents argued that the property owner's only reason forbuilding thenew storewas because the storehe had occupied in the same block, but inanother zone, was not as desirable asa new building would be. However, the Court found thehardship sufficiently shown. Freeman 

### is reallynot much different than the instant case, except that here the Board of Adjustment went further toprotect the other owners by applying the additionalrestrictions. In Freeman, the Court held in effect that the variance forhardship 

### isnot 

### a limited power for minor variances but of a general nature and discretionarywith considerable latitude. We find then, afterreviewing therecord, that therewas substantial evidence tomove the discretion of theBoard under the criteria previously established and that the appellantshave not shown an abuse of discretion. We affirm.

Justice /J

# ,(34&2L

### We Concur: