No. 81-367 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE ex re1 HILANDS GOLF CLUB, 

a non-profit Corporation, 

Relator and Respondent, 

THE CITY OF BILLINGS, MONTANA a 

municipal corporation, et al., 

Appellants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Peterson Law Offices, Billings, Montana 

Kenneth D. Peterson argued, Billings, Montana 

For Respondent: 

Berger, Sinclair & Nelson, Billings, Montana 

Arnold Berger argued, Billings, Montana 

Submitted: January 13, 1982 

Decided: June 24, 1982 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The City of Billings appeals a Yellowstone County 

District Court judgment which declared that the Hilands Golf 

Club is statutorily exempted from the City's attempts to 

annex it. 

The City has raised three arguments. It claims first 

that the statutory exemption for golf courses does not apply 

to annexations commenced under the Planned Community Development 

Act. Second, it claims that the Golf Club was not entitled 

to protest the City's proposed annexation because it is not 

a "resident freeholder" who is entitled to object under the 

Act, and because the Golf Club filed no written protest with 

the City, as the Act requires. Third, the City claims that 

mandamus was an improper remedy in this case because the Act 

provides for judicial review. 

We hold that the statutory exemption for golf courses 

does not apply to annexations commenced under the Planned 

Community Development Act, that corporations are "resident 

freeholders" as that term is defined by the Act, that the 

City received written notice of the Golf Club's protest to 

the annexation, and that mandamus was a premature remedy in 

this case. We also hold as a matter of law that the City 

cannot annex the Golf Club under the Planned Community 

Development Act unless the Golf Club consents to the annexation. 

We affirm and modify the District Court's judgment and dismiss 

the case. 

The Hilands Golf Club owns a 45 acre, nine-hole golf 

course which was completely surrounded by open country and 

farmlands when it was established in 1923, but which is now 

completely surrounded by the City of Billings. The City 
first attempted to annex the Golf Club in 1972, under section 

7-2-4501, et seq., MCA, a procedure for the annexation of 

wholly surrounded land. It was unsuccessful, however, 

because section 7-2-4503(2), MCA, provides that golf courses 

are exempt from annexation under that procedure. he City's 

next attempts at annexing the Golf Club over the next few 

years were terminated for a variety of reasons which need 

not be explained here. 

After the City passed a December 1980 Resolution of 

Intention to Annex the Golf Club, the Golf Club petitioned 

the Yellowstone County District Court to issue a writ of 

mandamus commanding the City to terminate its annexation 

attempt because the Golf Club was still exempt from annexation 

under section 7-2-4503(2), MCA. The District Court issued 

this writ in early January 1981, but gave no reasons for its 

command to terminate the annexation procedure. Despite the 

issuance of that writ, the City nonetheless passed an ordinance 

which would make the Golf Club's annexation effective on 

March 26, 1981. After an April 24, 1981 nonjury trial, the 

District Court adopted verbatim the Golf Club's proposed 

findings and conclusions, and held that the City was without 

jurisdiction to annex the Golf Club under section 7-2- 

4503(2), MCA. (In City of Billings v. Public Service Comrn'n. 

(19811, - Mont . - , 631 P.2d 1295, 38 St.Rep. 1162; Jensen 

v. Jensen (1981), - !!Ion t . - , 631 P.2d 700, 38 St.Rep. 1109; 

Beck v. Beck (1981), - Mont. - , 631 P.2d 282; 38 St.Rep. 

1054; Tomaskie v. Tomaskie (1981), - Mont . - , 625 P.2d 536, 

38 St.Rep. 416, we have disapproved the practice of verbatim 

adopting a party's proposed findings and conclusions.) 

The City appeals that decision, claiming that it has 

proceeded under the Planned Community Development Act (section 
7-2-4701, et seq., MCA), which provides no exemptions for 

golf courses. 

After this Court's decision in Missoula Rural Fire 

District v. City of Missoula (1975), 168 Mont. 70, 540 P.2d 

958, holding that the Planned Community Development Act 

superseded the other forms of annexation where a conflict 

existed, the 1979 Montana Legislature recodified the confusing 

maze of eight statutory annexation procedures into six 

separate "Parts" (Title 7, Ch. 2, Parts 42-47) and amended 

the Planned Community Development Act to provide that each 

of these eight methods of annexation is a separate and 

distinct procedure. Section 7-2-4204(2), IKA, states: 

"The governing body of the municipality to which 

territory is proposed to be annexed may in its 

discretion select one of the annexation procedures 

in parts 42 through 47 that is appropriate to the 

circumstances of the particular annexation. The 

The statutory exemption for golf courses pertains only 

to the situation in which a city attempts to follow the 

procedure for annexing wholly surrounded land (sections 7-2- 

4501, et seq., MCA). It is important to note that under that 

procedure the legislature provided no right to object to the 

annexation, but gave protection to certain landowners by 

providing that 

"Land shall not be annexed under --- this part 

whenever the land is used: 

" (1) for agricultural, mining, smelting, refining, 

transportation, or any industrial or manufacturing 

purpose; or 

"(2) for the purpose of maintaining or operating 

a -- golf or country club, an athletic field or aircraft 

landing field, a cemetery, or a place of public or 

private outdoor entertainment or any purpose incident 

thereto." (Emphasis added.) Section 7-2-4503, MCA. 
In this case, however, the City chose to attempt annexation 

by the method set forth in the Planned Community Development 

Act, thereby avoiding the golf club exemption contained in 

section 7-2-4503, MCA. The Planned Community Development Act 

provides no exemption for golf courses, but i& does provide that 

a majority of residents who oppose annexation may file written 

protests and thereby prevent annexation. Under this method 

of annexation the City is required to: 

"1. file a resolution of intention to annex, 

describing the hearing date to be set not 

less than 30 and not more than 60 days 

following adoption of the resolution 

(section 7-2-4707, MCA) 

"2. publish the notice for four successive 

weeks in a newspaper or in five other 

public places (section 7-2-4708, MCA) 

"3. hold a hearing on the question of 

annexation (section 7-2-4709, KA) 

"4. receive written protests from resident 

freeholders in the area proposed to be 

annexed for 20 days after the hearing 

(section 7-2-4710, MCA) 

"5. stop annexation proceedings for one year 

if a majority of resident freeholders 

protest in writing (section 7-2-4710, MCA)." 

The record shows that neither party proceeded exactly 

in conformity with these rules. Instead of directly filing 

a written protest with the City, the Golf Club served the 

City with a copy of its petition for a writ of mandamus. 

Counsel for the City admitted during argument of this case 

that the City was aware of the Golf Club's protest before it 

passed its Resolution of Intention to Annex the Golf Club, 

and that the Golf Club's petition for a writ of mandamus was 

received within 20 days after the public hearing and was 

sufficient to constitute written notice of the Golf Club's 

protest. As such, it is clear that the sufficiency of the 

Golf Club's notice is no longer in dispute, and we don't 

need to address this issue further. 
In seeking to avoid application of the protest provision 

in section 7-2-4710, MCA, the City contends that the legislature 

did not intend for corporate landowners to be considered 

"resident freeholders" with the right to object to annexations 

commenced under the Planned Community Development Act. The 

Act provides that "resident freeholder" means "a person who 

maintains his residence on real property. . . ." Section 

7-2-4704(3), MCA. The City argues that because this definition 

does not specifically include or make reference to corporate 

landowners, the Golf Club should be considered a "non-resident 

freeholder" who has no absolute right to terminate the 

City's annexation attempt, and instead, must convince the 

City to terminate it. We find this argument meritless. If 

the legislature had intended to exclude corporate landowners 

from the definition of "resident freeholders" and afford 

them fewer rights than other landowners, it should have 

stated that intention more explicitly. A corporation which 

owns real property is a "resident freeholder" as that term 

is defined in the Act. 

The City argues that annexation under the Planned 

Community Development Act is the proper way to proceed in 

this case because the City can provide - all the services the 

Golf Club may need. The City argues that the Golf Club 

presently pays no taxes to the City, but receives the benefits 

of police patrol, fire protection, and road services in the 

areas surrounding the Golf Club. The City admits that 

annexing the Golf Club would ease the burden on the City's 

taxpayers. 

The Planned Community Development Act was enacted in 

response to the situation where 
". . . in many cities city government is annexing 

and adding to cities not to the benefit of those 

being annexed, but to the benefit of the city, 

merely to derive a greater tax base." (Emphasis 

added. )-section 7-2-4702 (2),~= 

Under this Act, a City which desires to extend services to a 

non-annexed area must hold a public hearing and explain what 

services will be provided and how they will be financed. 

The resident freeholders in the area to be annexed may vote 

on any proposed capital improvements for the area. - If - a 

negative --------- vote is cast by more than 50% of the resident 

freeholders, ----- the area may not be annexed. section 7-2-4733, PeICA. 

Here, the City received a 100% negative vote (because there 

was only one resident freeholder who protested), and therefore 

was prohibited for one year from attempting to annex the 

golf course. At the end of this one year period, the City 

may again attempt to obtain the consent of the majority of 

resident freeholders. Section 7-2-4710 (2) , MCA. 

We also hold that the petition for a writ of mandamus 

in this action was premature. Under the Planned Community 

Development Act, there are extensive procedures for judicial 

review. Within 30 days following passage of the annexation 

ordinance, a majority of the resident freeholders (or the 

owners of more than 75% in assessed valuation of real property) 

may petition the court for review to determine if the statutory 

procedures were followed by the City. Therefore, the petition 

for a writ of mandamus should not have been filed until 

after the Golf Club's written protest to the City was wrongfully 

ignored. Because neither party to this action followed the 

statutory procedures, each party will bear its own costs and 

attorney fees. 

As modified, the judgment is affirmed. 
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