No. 1,3028 

LN THE SUPREME COUKT OF THE STATE dF MONTANA 

19 7 5 

THE STATE OF MONTANA, ex rel. 

URIEL MAY et: al., 

Relators, 

-vs - 

FRED URTSON, Havre Bldg. Inspector and 

gavre City Engineer, 

Respondent, 

RUDY I'KAMELLI and BOB MURRAY, 

Intervenors and Respondents. 

~ppeai from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Relators : 

Weber, Bosch, Kuhr, Dugdale, Warner and Martin, 

Havre, Montana 

1,or Yespondents : 

Church, Harris, Johnson & Williams, Great Falls, 

Montana 

Charles Love11 argued and Robert Pa Goff argued, 

Great Falls, Montana 

Waldo N. Spangelo argued, Havre, Montana 

Submitted: July 30, 1975 

Decided: AUCi 12 197s 

Clerk 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment and decree denying 

appellants their request for a writ of mandate instructing the 

city of Havre's building inspector to command Rudy Tramelli and 

Bob Murray, Jr., Contractors, to conform their apartment buildings 

which are now in the process of being built to the zoning requirements cf residential rather than commercial buildings. 

The city of Havre on August 5, 1974, adopted a new zoning 

ordinance. The ordinance, City of Havre Ordinance No. 599, allows 

about 370 different uses for the various zoning districts. Through 

a clerical error, the ordinance failed to provide for the building 

of apartment houses in any one of the zoning districts under the 

ordinance. However no party to this dispute contends that the 

building of apartment buildings is in violation of the zoning ordinance. 

Rudy Tramelli and Bob Murray, Jr., hereinafter referred to 

as Builders, in December of 1974 went to Havre and took options 

on two parcels of land for the purpose of building two 12-plex 

apartment houses. The two building sites are located in an area 

zoned Commercial-Local. The two sites consist of lots 37 through 

40 and lots 41 through 44 in Highland Park Addition to the city of 

Havre . 

In mid-January 1975, the Builders contacted the office 

of the city engineer and building inspector in Havre and described 

to Deputy Gerald Grabofsky the two parcels of land under option 

and asked what was required in order that a 12-plex apartment 

house could be located on each parcel. Requirements for building 

set-back were outlined by Grabofsky in that and subsequent telephone 

conversations upon which the Builders relied in preparing their 

site and plans for the two buildings. The apartment buildings were 

each to be set back from Eleventh Street a distance of thirty feet, 
from Washington Avenue a distance of thirty-nine feet, from the 

alley a distance of thirty feet, and from the adjoining lots to 

the north and south a distance of thirty-eight feet. On this 

same date, because they had been advised orally by the City that 

they had complied with all requirements, the Builders exercised 

their option to purchase the two parcels of land to be used as 

the building sites for the apartment houses. 

The building plans and plot plans were reviewed by building inspector Hartson and his assistant Grabofsky. The City requested changes to bring the buildings into conformance with the 

Uniform Building Code which changes were agreed to by the Builders. 

On February 4, 1975, building permits were issued by the City for 

each of the two 12-plex apartment buildings. The City determined 

that the set-back requirement of 30 feet from the alley for commercial buildings applied, as opposed to the 40 feet requirement 

for residential property. 

On February 17, 1975, the two building sites were surveyed and the four corners of each site were staked. 

On March 3, 1975, Murray with his foreman located the 

buildings on the two building sites and began excavation. Immediately following, the footings for the foundations were poured. 

The daylight basement partitions were framed and framing of exterior walls up to the second floor level was completed. At the 

time of the hearing, the Builders had invested approximately 

$114,000 in the land and buildings and the project was one-third 

completed from a cost standpoint. 

On the afternoon of Friday, March 21, 1975, Grabofsky 

went to the building site and notified Builders' foreman that he 

had been requested to tell them that there was a possible error 

in the set-back of the buildings from the alley. Builders were 

not requested to stop work nor were they requested to change the 
buildings in any way. 

At a neighborhood meeting on Sunday, March 23, 1975, 

in response to questions and objections from people present, 

Grabofsky stated that there was a possibility of error; and, 

that if the error was confirmed, construction would be halted 

until a solution was found. By Tuesday, March 25, 1975, the 

building engineer decided that apartment buildings were a commercial use and were in compliance with the zoning ordinance. 

Various Residents, who are now appellants in this appeal, 

brought this action on March 26, 1975, the day after learning of 

the building inspector's reaffirmation of his previous determination that there was no violation. Residents petitioned the district court to issue a writ of mandate requiring the building 

inspector to issue written notice to Buil6ers specifying that the 

two 12-plex apartments which they were building failed to conform 

to Ordinance No. 599 in that the buildings did not meet the setback requirements of the zoning ordinance and further commanding 

the City to take all other necessary and proper steps to enforce 

the Ordinance including but not limited to initiation of appropriate civil and criminal proceedings as provided for in section 

11-2708, R.C.M. 1947, and Ordinance No. 599. Residents further 

sought an award of attorney's fees and other damages and costs of 

suit. Builders' motion to intervene was granted without objection. 

Each of the parties appeared through counsel and presented testimony and documentary evidence to the district court sitting without a jury. Briefs were filed and the court entered its findings 

of fact, conclusions of law, and decree. The court concluded that 

the City, its officials and agents, including IIartson, the building inspector and city engineer, were estopped from taking the 

action which the Residents sought to require of them and decreed 

that the Residents' application be denied and the alternative 
writ of mandate quashed. Residents have appealed from that 

decree. 

Numerous issues were raised by all sides on this appeal. 

However, we find it unnecessary to discuss any issue other than 

the impropriety of the remedy of mandamus in this action. 

This Court has often discussed when a writ of mandate may 

be properly issued. Issuance of a writ of mandate is controlled 

by statute. It is an extraordinary remedy to be permitted only 

when no other adequate remedy lies. See Kennedy v. District 

Court, 121 Mont. 320, 194 P.2d 256. 

Sections 93-9102 and 93-9103, R.C.M. 1947, define the 

circumstances under which a writ of mandate may issue: 

"93-9102. When and by what court issued. It (writ 

of mandamus) may be issued by the supreme court or 

the district court, or any judge of the district 

court, to any inferior tribunal, corporation, board, 

or person, to compel the performance of an act which 

the law specially enjoins as a duty resulting from 

an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a 

right or office to which he is entitled, and from 

which he is unlawfully precluded by such inferior 

tribunal, corporation, board or person. 

"93-9103. Writ--when and upon what to issue. The - 

writ must be issued in all cases where there is 

not a plain, speedy, and adequate remedy in the 

ordinary course of law. It must be issued upon 

affidavit, on the application of the party beneficially interested." (Emphasis supplied) 

The burden is therefore upon Residents, as applicants for a writ 

of mandate, to establish sufficient facts to entitle them to 

relief. Among the facts which they must establish is the fact 

that there is no other remedy available to them. See Duggan v. 

District Court, 65 Mont. 197, 210 P. 1062. Residents in this 

case introduced no evidence to support their contention that they 

had no speedy and adequate remedy at law. To the contrary, the 

secretary of the Zoning Board of Adjustment, Gerald Grabofsky, 

testified that to his knowledge no appeal had been taken from the 
issuance of the permits in question or any other related action 

of the office of the building inspector. 

Article 18 of City of Havre Ordinance No. 599, entitled 

"Enforcement", p. 23, provides in pertinent part: 

"This Ordinance shall be enforced by the Building Inspector or his assistants, subject to such 

variations and interpretations which may be made 

by the Board of Adjustment. Appeal of any decision of the enforcing officer, may be made to 

the Board of Adjustment as provided in the law of 

the State of Montana." 

In section 11-2707 (3), (4), (5), & (6), R.C.M. 1947, this 

right of appeal is set forth statutorily: 

"(3) Appeals to the board of adjustment may be 

taken by any person aggrieved or by any officer, 

department, board, or bureau of the municipality 

affected by any decision of the administrative 

officer. Such appeal shall be taken within a 

reasonable time, as provided by the rules of the 

board, by filing with the officer from whom the 

appeal is taken and with the board of adjustment 

a notice of appeal specifying the grounds thereof. 

The officer from whom the appeal is taken shall 

forthwith transmit to the board all papers constituting the record upon which the action appealed was taken. 

"The board of adjustment shall fix a reasonable 

time for the hearing of the appeal, give public 

notice thereof, as well as due notice to the parties 

in interest, and decide the same within a reasonable 

time. Upon the hearing any party may appeal in 

person or by attorney. 

"(5) The board of adjustment shall have the following powers: 

"To hear and decide appeals where it is alleged 

there is error in any order, requirement, decision, 

or determination made by an administrative official 

in the enforcement of this act or of any ordinance 

adopted pursuant thereto. 

"(6) In exercising the above-mentioned powers such 

board may, in conformity with the provisions of this 

act, reverse or affirm, wholly or partly, or modify 

the order, requirement, decision or determination 

appealed from and may make such order, requirement, 

decision, or determination as ought to be made, and 

to that end shall have all the powers of the officer 

from whom the appeal is taken." 
This Court has held that where the right of appeal 

exists, a writ of mandate will not issue since the appellants 

have a "plain, speedy and adequate remedy in the ordinary 

course of law." See Malone v. District Court, 74 Mont. 488, 

241 P. 240. 

This is the first time that Ordinance No. 599 has been 

interpreted with respect to any applications for building permits 

for apartment buildings since its adoption. The building inspector determined that commercial set-back regulation applies to 

apartment buildings. The Board of Adjustment has the right to 

review that determination on appeal under section 11-2707. 

The Residents argue that any such appeal would not be 

speedy for the statute has an indefinite notice and hearing 

period. We cannot agree. The statute calls for a reasonable 

notice and hearing period. To assert that such notice and hearing 

period would be lengthy is mere speculation on the part of 

Residents. 

Residents also argue that the Board has no power to pass 

on the validity of the zoning ordinance itself. We find such 

argument irreievant for the Residents do not challenge the validity 

of the ordinance. Their appeal is directed to the interpretation 

of the ordinance. 

Residents further argue that the Board cannot determine 

if the City is estopped to enforce the ordinance or if Residents 

are guilty of laches. However, such questions do not become important until it has been determined if the interpretation of the 

ordinance by the building inspector is invalid. We must keep the 

donkey before the cart. 

Finally, Residents argue that the Board could not enforce 

any decision once it was made. We find, however, that the appeal 

statute allows for sufficient enforcement of the Board's decision. 
This Court therefore finds that section 11-2707 provides 

Residents with a speedy and adequate remedy at law, and therefore hold that a writ of mandate will not lie in this case. 

Further, in light of our decision in Barker v. Town of 

Stevensville, 164 Mont. 375, 523 P.2d 1388, 31 St.Rep. 496, we 

hold that the city of Bavre was estopped in revoking its building permit after it was issued and the Builders relied on it to 

their detriment and we affirm the district court finding. Even 

if Builders had reviewed the zoning ordinance themselves as 

argued by Residents, nowhere could they have discovered the building permit was erroneously issued, if indeed it had been. 

The decree of the district court is therefore affirmed 

in all particulars. 

our: A 1 

C$~ tice . 3 

Justices