No. 13033 

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

1975 

STERLING RYGG and INGA RYGG et al., 

Plaintiffs and Appellants, 

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, 

Ka lispell, 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, 1975 
Mr. Justice Wesley 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, appellants here, are residents of Block 

105, Kalispell, Montana. Block 105 .is zonedrag a No. -1 Residential District. The intervenors are William 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 residential building located at 705 Main Street. 

The application for the variance was noticed for 

hearing. Plaintiffs, eight in number, were present at the 

hearing, represented by counsel, and testimony for and against the 

variance was heard. The variance was granted with restrictions 

that there would be no exterior structural changes made to the 

building and that the use was limited to two attorneys and two 

secretaries. It allowed six maintained off-street parking spaces 

and a sign erected as stated in a letter from the Board of Adjus tment , 

Plaintiffs were 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 to this Court is made. 

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 at the time of the variance hearing 

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

on the corner of an intersection from the Flathead County courthouse through the central business district of Kalispell. 

The existing uses of the three corners of the intersection are a multi-family apartment house; a clinic office building 

which includes a mental health clinic with 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 1st Avenue East, is an insurance office. 

The objectors were eleven owners of five separate lots 

in Block 105. Seven out of ten property owners fronting on Main 

Street, including the applicants, did not oppose the application. 

The Board did not have formal rules for its guidance but 

did have a policy to consider neighboring commercial properties 

as not opposed unless the contrary is expressed. Also the policy 

was to weigh the views of the neighboring property owners in 

reaching a decision in the best 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 in a transition stage. By placing the 

restrictions on the variance granted, the Board made an attempt 

to keep the appearance and use limited to a considerable degree. 

This appeal is made on the basic proposition that the 

Board has undertaken to rezone Block 105 by the expedient of 

granting continual and successive use variances and this method of 

rezoning is improper. In plaintiffs' view of the evidence, this was 

shown. However, whether the "essential character" of the neighborhood will be changed does not appear. In fact the contrary appears. 
In response to a question concerning a policy of the 

Mayor and the Council on variances, the chairman of the Board 

of Adjustment testified: 

"A. Well, it's still the same all of the council 

together with the planning board are working on 

rezoning, not just this area but the entire city 

and the past thinking has been that if this area 

were rezoned, not just this area but Main Street 

and Idaho Street, the two U.S. Highways,if they were 

rezoned, any business could go in and 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 there was 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 as residence and 

let variances be granted which would enable more 

pleasant and a satisfactory transition. I t 

In the context of the entire testimony, it was clear that only 

variances which would be compatible with the remaining residential 

use were considered. 

We find the issue here is whether a use variance granted 

after statutory procedures have been followed can be set aside 

without a showing of an abuse of discretion? 

In the instant case has any such clear showing been 

made to justify'reversal of the decision of the Board of Adjustment or the affirmation thereof by the district court? 

Three cases in Montana establish the criteria and 

authority for variances. Freeman v. Board of Adjustment, .97 

Mont. 342, 34 P.2d 534; Lambros v. iss sou la, 153 Mont. 20, 452 P. 

2d 398; andwheeler v. Armstrong, Mon t . , 533 P.2d 964, 

32 St.Rep. 314, all recognize the ~oard's power to grant 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 literal enforcement of the zoning ordinance must 

result in unnecessary hardship, owing to conditions unique to the 

property. 
3) The spirit of the ordinance must be observed, and 

substantial justice done. 

First, as previously indicated, we are not here concerned 

with a change in the essential character of the neighborhood. 

We recognize that plaintiffs argue that a combination of numerous 

use variances over the years has essentially changed the character 

of the neighborhood, but this long period change does not affect 

this particular application for a variance. 

Plaintiffs cite State ex rel. Russell Center et al. v. 

City of Missoula, Mont . , 533 P.2d 1087, 32 St.Rep. 

292, as being analogous because there a change from residential use 

to commercial parking use was considered a factor, but there this 

Court said that to secure such a change required compliance with 

statutory methods 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, the Board of Adjustment function, it not 

being necessary, neither did it reject it. Russell Center - concerned the question of whether a building permit could authorize 

a use variance without some compliance with the general zoning 

statutes and ordinances. Whether the Board of Adjustment has a 

general discretionary power to grant use variance is controlled 

by Freeman, Wheeler, and Lambos. 

There is simply no showing that the first test concerning 

public interest was met by plaintiffs. 

As tb the hardship test, basically plaintiffs argue 

the Astles have created their own hardship and had knowledge 

of the restrictions 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 all of the subsequent cases have relied upon. In 

Freeman a permit for a combined grocery store and residence was 

sought in a residential zone in Great Falls. The Board of Adjustment 
granted 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 literal enforcement of the provisions would result in unnecessary hardship; 

and the variation of the ordinance should be allowed so that the 

spirit of the ordinance should be observed and substantial justice 

done. 

The Court at that time did not discuss with specificity 

factors going to the determination of unnecessary hardship but did 

discuss whether or not a zoning ordinance would be constitutional 

at all because of the invasion or unjust limitations upon the 

full use and enjoyment of property, including its value and its 

use. Having determined that property cannot be placed in a 

straitjacket and that what is reasonable as to a restriction today 

might not be reasonable tomorrow, the Court reviewed the evidence 

and found substantial evidence to move the discretion of the 

Board and affirmed the district court's review. 

In Freeman the opponents argued that the property owner's 

only reason for building the new store was because the store he 

had occupied in the same block, but in another zone, was not as 

desirable as a new building would be. However, the Court found 

the hardship sufficiently shown. Freeman is really not much different than the instant case, except that here the Board of Adjustment went further to protect the other owners by applying the 

additional restrictions. In Freeman, the Court held in effect that 

the variance for hardship is not a limited power for minor variances 

but of a general nature and discretionary with considerable latitude. 

We find then, after reviewing the record, that there was 

substantial evidence to move the discretion of the Board under the 

criteria previously established and that the appellants have not 

shown an abuse of discretion. 

We affirm. 

Justice /J 

,(34&2L 
We Concur: