No. 14768 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

CARMINE CUTONE, Plaintiff and Appellant,

ANACONDA DEER LODGE, Successor to City of Anaconda, Montana et al., Defendant and Respondent.

Appeal from: DistrictCourt of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: Leonard J. Haxby argued, Butte, Montana For Respondent: John Radonich, County Attorney, Anaconda, Montana Kevin Campana argued, Deputy County Attorney, Anaconda,

Montana

Submitted: January 18, 1980 Decided: 

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### Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff and appellant Carmine Cutone appeals from

an order of the Deer Lodge County District Court affirming the Anaconda-Deer Lodge County Board of Adjustment's denial of Cutone's request for a zoning variance. In July, 1973, the City ofAnaconda adopted a zoning ordinancebased upon land use designations in its comprehensive plan. The governments for the City of Anaconda and The County of Deer Lodgewere merged into a new governmentalunit,AnacondaDeer Lodge County, in May 1977. Anaconda-Deer Lodge County, the respondent, is the successor to all legislation of the City of Anaconda, including the zoning ordinance. Cutone owned the Ace Bar, 320 East Park Street, Anaconda, until December, 1977,when he sold the building to the Anaconda Urban RenewalAgency. In February, 1978,Cutone purchased two buildings at 803-805 East Park Street intending to relocate his bar. The block was and is within a district zoned "RMW,which stands for "Multiple-Family Residential", even though there are several commercial establishments in the immediate area. Prior to Cutone's purchase the premises had been used partially for storage and partially as a taxidermy shop. Following thepurchase of theproperty Cutone applied to the Board ofAdjustment for a variance to allowhim to open a bar and restaurant. The Board ofAdjustment denied the request for a variance after holding a public hearing. Cutone filed a complaint in District Court seeking to overturn the Board of Adjustment's decision, or in the alternative, to have the zoning ordinance declared unconstitutional. The District Court directed the Board to review its denial and to return its findingsto the court. The Board of Adjustment found that granting a variance would not be in the best interestsofthe community as a whole and that the proposed use would not be in harmony with the general purpose and intent of the zoning ordinance. The Board based its decision upon findings that the premises was unsuitable for theproposed use, that itwould constitute a fire hazard,and that the off-street parking requirementsof the zoning ordinancewould not be met. The Board of Adjustment had received a petition and oral testimony from 28

area residents who were opposed to the granting of a variance. After the Board of Adjustment reviewed its denial of the variance request, the District Court allowed the appellant a full hearing and testimonywas introduced by both parties. The court made the following findingsand conclusions: (1)that Cutone,at the time of purchase, either had knowledgeof the zoning designation or had themeans of acquiring the knowledge and either made no inquiry or assumed that a variance would be granted; (2) that the Board ofAdjustment has consistently refused to grant variances for commercial use in an area zoned "RM"; (3) that the original adoption of the zoning ordinancewas proper, since there

was no compelling evidence to show a failure to reasonably consider the character of the district and its peculiar suitability for particular uses; and 

### (4)that the ordinance was constitutional. The following issues have been considered on appeal: 1. Whether the zoning board failed to comply with state law in adopting the zoning ordinance; 2. Whether theAnaconda-Deer Lodge County Board of Adjustment and the District Court abused their discretion in denying the requested variance; 3. Whether the ordinance results in a taking of Cutone's property forpublic use without due process of law; 4. Whether the zoning ordinance is an unconstitutional denial of equalprotection on its face; 5. Whether the ordinanceas applied to Cutoneviolatesth~ FourteenthAmendment.guarantee of equalprotection of the law.First,appellant contends that the zoning commission failed to followMontana statutory lawwhen enacting the zoning ordinance in question. The thrust of this contention is that the best and most appropriate use of theproperty within the district was not considered. In looking to the statutory framework to be followed by the local government, section 76-2-301,MCA, in pertinent part,provides that 

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# . . . [£]or the purpose of promoting health, safety, morals, or the generalwelfare of the community

[the local governmental unit] 

# .. . ishereby empowered to regulate and restrict

# .. . the location and use of buildings, structures,and land for trade, industry, residence,or other purpose.

### " Section 76-2-304,MCA, as set out below, establishes criteria to be considered by the local government in adopting a zoning ordinance. "Purposesof zoning. (1) Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, w'3ter,sewerage, schools,parks, and other public requirements. "(2)Such regulations shall be made with reasonable consideration,among other things, to the character of the district and itspeculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging themost appropriate use of land throughout suchmunicipality."

(Emphasisadded.) Gene Marcille, a past-president of the City of Anaconda planning board and former planning director for Deer Lodge County, testified a:- trial concerning the considerationsand procedures used by theplanning board in adopting zoning ordinances for theCity of Anaconda. Theplanning board, in general and in zoning Park Street,reviewed zoning recommendations proposed by a consulting firm to determine whether the zones were properly proposed. Public hearings and meetings were also held. According to Mr. Marcille's testimony, the board considered the following factors in adopting the proposed zoning ordinances: (1)The density of housing; (2)the density of population; (3) fire protection problems including access forbuildings, traffic patterns and traffic density; (4) the overall safety of the public looking again to trafficpatterns, traffic density and off-street parking; and (5) of primary importance, the highest and best use within the various portions of the community. Based on this testimony the record contains substantial credible evidence that the Montana statutory framework foradopting zoning ordinances was properly followed. In essence, the appellant is actually contending that there was a violation because he isnot being allowed to use his property for its highest and best use. However, the statute does 

### - not require that the zoning ordinances take into account the highest and best use of eachparcel of real estatewithin the zones

or community. In fact, section 76-2-304,MCA, requires that the peculiar ~uitak~ilities andmost appropriate use of the land throughout themunicipality be considered. Based upon the record, we find substantial evidence thatAnaconda-Deer Lodge County has acted within the authority delegated to itby the legislature. Were we to hold that a zoning ordinance must ensure each property owner the highest and best use of his property, an intolerable burden would be placed on local governments,and the entire purpose of local planning legislationwould be defeated. Next, section 76-2-323, MCA,must be considered in addressing appellant's challenge to theBoard ofAdjustment's denial of the variance request. The statuteprovides, in pertinent part:"Powersof board of adjustment. (1)The Board of adjustment shallhave the followingpowers:

"(c) to authorize upon appeal in specific cases suchvariance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions,a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shallbe observed and substantial justicedone

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Montana case law clearly establishes that the following conditionsmust be present before the granting of a variance is proper: (1) The variance must not be contrary to the public interest; (2)a literal enforcement of the zoning ordinance must result in unnecessary hardship owing to conditionsunique to the property; and (3)the spiritof the ordinancemust be observed and substantial justice done. Lambrosv. Missoula (1969), 153 Mont. 20, 452 P.2d 398; Rygg v. Kalispell Board ofAdjustment (1976), 169 Mont. 93, 544 P.2d 1228. These casesbdhstate that the scope of review is to be limited to the determination of whether competent and substantial evidence exists to support the finding and whether the court or Board ofAdjustment has clearly abused its discretion. Testimony at trial reveals that the two buildings,owned by the appellant and located at 803-805 East Park Street, are builtwithin inchesof the neighboring buildings, which creates

a fire hazard. This hazard would be even greater if the buildingswere converted into a tavern. In addition, expert testimony reveals that a tavern generates an average increased volume of traffic from both patrons and business servicepersonnel. This increase in traffic would createparking problems aswell as emergency vehicle accessdifficulties. In this instance the hazard is evenmore acute than itwould be in other portions of the city, since Park Street is one of Anaconda's twomajor fire lanes.This evidence supports the District Court's finding that the granting of the variance in this casewould be contrary to the public interest and the spirit of the ordinance. The spirit of the ordinance is obviously to limit commercial growth in this area in the interest of public safety and well being. The denial of a variance also does not result in an unnecessary hardship to the appellant. Theproperty purchased, a 140' x 75' lotwith two buildings on it,was purchased for $15,000. The buildings would require extensive remodelling to convert them into a tavern and to bring them up to building code specifications, and a part of a building would have to be destroyed in order to create aminimal number of off-streetparking spaces. Also, the appellant owns eight houses in Anaconda, has owned and operated theAce Bar, and has leased and operated the 919 Bar. These facts point to the conclusion that Mr. Cutone should have had sufficient real estate knowledge to determine how the landwas zoned prior to the purchase. With regard to appellant's contention that he has been deprived of property without dueprocess of law, it is apparent that he does not state a claim onwhich relief can be granted. The ordinance was passed in 1973 and appellant did not purchase the property until 1978. Thus, any diminution in value occasioned by the ordinanceoccurred prior to his ownership. Appellant next contends that the zoning ordinance is an unconstitutionaldenial of equal protection on its face. However, it iswell established that such an ordinance is a valid exercise of police power and will be upheld if any reasonablebasis exists for the classification within the ordinance. The ordinance being attacked in this appeal contains 46 enumerated qualifying useswithin the zone,many of which pertain strictly to residential occupation. It appears that appellant's challenge focusesprimarily upon the followingpermitted uses,nonresidential in character: a retail apothecary shop selling only medical related suppliesand located within a clinic or hospital, clinics, colleges,hotels not catering to transient guests, fraternal lodges, coliseums, stadiums,gymnasiums, churches, and mortuaries. It is appellant's contention that no reasonable basis exists for allowing the above uses and not allowing nonconforming commercial uses such as restaurants or taverns. This Court, in Freeman v. Board of Adjustment (1934),97 Mont. 342, 34P.2d 534, addressed the constitutionalityof zoning ordinances under both the due process clause and the equal protection clause. In dicta, the Court stated that the trend of decisions is to support the validity of the ordinances and the statutes authorizing them, and that "theweight of judicial opinion so clearly preponderates in support of such provisions that

we may well take the principle as established." The basis for the finding of constitutionality is that such ordinances "constitute a valid exercise of the police power; that is to say, they have a substantial bearing upon the public health, safety,morals and general welfare of a community." 97Mont. at 352, 34 P.2d

Freernar.v. Board of Adjustment, supra, followed the landmark United States Supreme Court case of Euclid v. Amber Realty Co. (1926),272 U.S. 365, 47 S.Ct. 114, 71 L Ed 303. In addressing the constitutionality of the ordinancewhich restricted the plaintiff's land to residentialuse, the Court said: "Theordinancenow under review,and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation

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# . . If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." (Emphasisadded.) 272 U.S. at 387- 388, 47 S.Ct. at 118, 71 L.Ed at 310-311. More recently, the United States Supreme Court had occasionto review amore restrictiveordinance. The ordinance restricted land use to one-family dwellings,preventing the occupation of residences by more than two unrelated individuals within the district. The action challenging the constitutionality of the ordinance was brought by the owner of a residence and three of his six unrelated tenants. Justice Douglas stated that he realized that upholding the ordinancewould have an economic impact on the rental values within the community. However, the Court, in upholding the ordinance, stated: "We deal with the economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the lawbe

'"reasonable,not arbitrary"' (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415) and bears 'arational relationship to a [permissible] state objective.' Reed v. Reed, 404 U.S. 71, 76. "It is said,however, that if two unmarried people can constitute a 'family,'there is no reasonwhy three or fourmay not. But every line drawn by a legislature leaves some out that might well have been inclrlcled. That exercise of discretion,however, is a legislative, not a judicial,function." Village of Belle Terre v. Boraas (1974),416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797. ThisCourt is also unwilling to sit as a super-legislature. The City ofAnaconda,pursuant to its comprehensive plan, passed this ordinance in an attempt to reduce the average increased volume of traffic and congestion created by commercial establishments along Park Street, a major fire lane within the city. The ordinance is "reasonable, not arbitrary," and "bears a rational 5 relationship toApermissiblestate objective," the promotion of public safety. It is unquestioned that the local government could have imposed greater restrictionstoprotect the public to a greater extent, or placed the interest of individual property owners above thepublic interest; however the linemust be drawn somewhere. The local government is in a better position to draw that line, and we must defer to its judgment.The appellant also contends that the ordinance is an unconstitutionaldenial of equal protection as applied. This issue is usually raised in cases in which a statute which is constitutionallyvalid on its face is administered in an arbitrary and discriminatory fashion. SeeYick Wo v. Hopkins (1886), 118U.S. 356, 6 S.Ct. 1064, 30 L.Ed 220. Inour present appeal, the District Court found that "theBoard has consistently refused to grant variances for commercial use based upon the RM designation of the area." Appellant raisesno evidence attacking this findin3 and the record does not reveal any instances of arbitrary

or discriminatory administration of the ordinance. It appears that this argument is but anothermeans for appellant to assert that a variance should have been granted. As previously discussed Montana statutory and case law clearly delineates the instances in which a variance is to be granted. We .there.fore conclude that the ordinance is constitutional

as a valid exercise of police power, that it has not been applied in an arbitrary or discriminatingmanner, that the City of Anaconda acted within its delegated authority in enacting the ordinance by complyingwith statutory requirements,and that the Board ofAdjustment and the District Court were fully justified in finding that the granting of the requested variancewould not be in the public interest. The judgment is affirmed.

Chief Justice We concur:

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JusticesMr. JusticeJohn C. Sheehydissenting:

The property here consistsof two buildings. Since 1925 they have housed or been used as commercial establishments, except for short periods of non-use between lessees. A bar

was located at 803 East Park until 1938, when its leasee built the ClubModerne. Itwasvacant for two years, leased as a bar premises again, closed for a couple of years and became a bar again in 1964. In 1972 itwas used for storage, and in 1974 leased as a book shop,but the lessees failed to get financing. A grocerywas located at 805 East Park until 1960, then itwas vacant for twoyears, and used as a parachute rigging shop and then as a taxidermy shop until Cutonepurchased it. The Club Moderne is right next door, at 801 East Park. Across the street is a Buick new and used car dealership. There is a gas station on the corner,apartment houses next door to that, and the JFK bar across the street from the Club Moderne. The whole area ismostly commercial, except that across the street from this property there are 3 family residences and 4

or 5 family residenceson the same side of the street in the

same block. Thedescription of theproperty is characteristic of that

area of Anaconda. The zoning ordinance itself recognizes the heterogeneous character of the neighborhood because of thepermitted uses contained in the ordinance. In fact, the ridiculous nature of the denial of a variance in this casemay be demonstrated by placing the alleged reasons for denial side by sidewith some of the permitted uses in the same ordinance:REASONS FOR DENYINGVARIANCE: PERMITTEDUSES UNDER THE ZONING ORDINANCE: 1. firehazard because of nearby buildings 1. coliseum, stadium, gymnasium 2. greater fire hazard risk 2. churches of tavern 3. fraternal lodges 3. increased traffic from patrons and business visitors 4. mortuaries 4. parking problems 5. drug stores in clinics 5. emergencyvehicle access 6. clinics difficulties 7. hospitals 8. catering establishments 9. trade schools,business schools,dancing schools 10. convalescent and nursing homes 11. apartment hotels 12. mobile home parks 13. public and private grade and high schools 14. public and private colleges 15. taxi stands for 5 taxis 16. tourist homes 17. libraries and art galleries Thepermitted usesmake a laughing stock out of any effort to restrain the use of 803-805 East Park as a tavern. Any fraternal organization,national or local, could move in there and open a bar tomorrowwith impunity. Application of the zoning ordinance to deny the variance does therefore result in an unconstitutional application as to Cutone. The variance is clearly within the criteria required by Wheeler v. Armstrong

(1975), 166Mont. 363, 533 P.2d 964. Under section 76-2-304,MCA, zoning decisions shallbe made with a view to conserving the value of buildings and"encouraging themost appropriate use" (notthehighest and best use) of land throughout themunicipality. Here themost appropriate use of theproperty under the evidence, from its history and present surroundings, is commercial, not residential. Iwould reverse.

I join in the foregoing dissent.