No. 14768 

IN THE 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: District Court 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 : fiF;; a - 1 9$0 
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 of Anaconda adopted a zoning 

ordinance based upon land use designations in its comprehensive 

plan. The governments for the City of Anaconda and The County 

of Deer Lodge were merged into a new governmental unit, 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 Renewal Agency. 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 the purchase of the property Cutone applied to 

the Board of Adjustment for a variance to allow him to open a bar 

and restaurant. The Board of Adjustment 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 findings to the court. The Board of Adjustment found 

that granting a variance would not be in the best interests of 
the 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 the proposed use, that it would 

constitute a fire hazard, and that the off-street parking requirements of the zoning ordinance would 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 testimony was introduced by both parties. The 

court made the following findings and conclusions: (1) that 

Cutone, at the time of purchase, either had knowledge of the zoning designation or had the means of acquiring the knowledge and 

either made no inquiry or assumed that a variance would be granted; 

(2) that the Board of Adjustment has consistently refused to grant 

variances for commercial use in an area zoned "RM"; (3) that the 

original adoption of the zoning ordinance was 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 the Anaconda-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 for public use without due process of law; 

4. Whether the zoning ordinance is an unconstitutional 

denial of equal protection on its face; 

5. Whether the ordinance as applied to Cutone violates 
th~ Fourteenth Amendment. guarantee of equal protection of 

the law. 

First, appellant contends that the zoning commission 

failed to follow Montana statutory law when enacting the zoning 

ordinance in question. The thrust of this contention is that 

the best and most appropriate use of the property 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 " . . . [£]or the purpose of promoting 

health, safety, morals, or the general welfare of the community 

[the local governmental unit] . . . is hereby 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. 

"Purposes of 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 its peculiar suitability for 

particular uses and with a view to conserving the 

value of buildings and encouraging the most appropriate use of land throughout such municipality." 

(Emphasis added.) 

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 considerations and procedures 

used by the planning board in adopting zoning ordinances for the 
City of Anaconda. The planning 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 for buildings, traffic patterns and traffic density; (4) the overall safety of the public 

looking again to traffic patterns, 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 for adopting zoning ordinances was 

properly followed. 

In essence, the appellant is actually contending that 

there was a violation because he is not 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 each parcel of real estate within the zones 

or community. In fact, section 76-2-304, MCA, requires that the 

peculiar ~uitak~ilities and most appropriate use of the land throughout the municipality be considered. Based upon the record, we 

find substantial evidence that Anaconda-Deer Lodge County has 

acted within the authority delegated to it by 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 legislation would be defeated. 

Next, section 76-2-323, MCA, must be considered in addressing appellant's challenge to the Board of Adjustment's denial of 

the variance request. The statute provides, in pertinent part: 
"Powers of board of adjustment. (1) The Board 

of adjustment shall have the following powers: 

"(c) to authorize upon appeal in specific cases 

such variance 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 shall be observed 

and substantial justice done . . ." 

Montana case law clearly establishes that the following 

conditions must 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 conditions unique to the 

property; and (3) the spirit of the ordinance must be observed 

and substantial justice done. Lambros v. Missoula (1969), 153 

Mont. 20, 452 P.2d 398; Rygg v. Kalispell Board of Adjustment (1976)

169 Mont. 93, 544 P.2d 1228. These cases bdhstate 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 of Adjustment 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 

built within inches of the neighboring buildings, which creates 

a fire hazard. This hazard would be even greater if the buildings were converted into a tavern. In addition, expert testimony 

reveals that a tavern generates an average increased volume of 

traffic from both patrons and business service personnel. This 

increase in traffic would create parking problems as well as 

emergency vehicle access difficulties. In this instance the hazard 

is even more acute than it would be in other portions of the city, 

since Park Street is one of Anaconda's two major fire lanes. 
This evidence supports the District Court's finding that 

the granting of the variance in this case would 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. The property purchased, a 

140' x 75' lot with 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 a minimal number of off-street parking spaces. Also, the 

appellant owns eight houses in Anaconda, has owned and operated 

the Ace 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 land was zoned prior 

to the purchase. 

With regard to appellant's contention that he has been 

deprived of property without due process of law, it is apparent 

that he does not state a claim on which 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 ordinance occurred prior to his ownership. 

Appellant next contends that the zoning ordinance is an 

unconstitutional denial of equal protection on its face. However, 

it is well established that such an ordinance is a valid exercise 

of police power and will be upheld if any reasonable basis exists 

for the classification within the ordinance. 

The ordinance being attacked in this appeal contains 46 

enumerated qualifying uses within the zone, many of which pertain 

strictly to residential occupation. It appears that appellant's 

challenge focuses primarily upon the following permitted uses, 
nonresidential in character: a retail apothecary shop selling 

only medical related supplies and 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, 34 P.2d 534, addressed the constitutionality of 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 "the weight 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." 97 Mont. 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 ordinance which restricted the 

plaintiff's land to residential use, the Court said: 

"The ordinance now 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 . . . If the validity of the legislative classification for zoning purposes be fairly 

debatable, the legislative judgment must be allowed 

to control." (Emphasis added.) 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 occasion 
to review a more restrictive ordinance. 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 ordinance would 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 law be 

'"reasonable, not arbitrary"' (quoting Royster 

Guano Co. v. Virginia, 253 U.S. 412, 415) and 

bears 'a rational 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 reason why 

three or four may 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. 

This Court is also unwilling to sit as a super-legislature. 

The City of Anaconda, 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 toApermissible state objective," the promotion of 

public safety. It is unquestioned that the local government could 

have imposed greater restrictions to protect the public to a greater 

extent, or placed the interest of individual property owners above 

the public interest; however the line must 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 

unconstitutional denial of equal protection as applied. This 

issue is usually raised in cases in which a statute which is 

constitutionally valid on its face is administered in an arbitrary and discriminatory fashion. See Yick Wo v. Hopkins (1886), 

118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed 220. In our present appeal, 

the District Court found that "the Board has consistently refused 

to grant variances for commercial use based upon the RM designation of the area." Appellant raises no 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 another means 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 discriminating manner, that the City of Anaconda acted within its delegated authority in enacting the ordinance by complying with statutory requirements, and that the Board 

of Adjustment and the District Court were fully justified in finding that the granting of the requested variance would not be in 

the public interest. 

The judgment is affirmed. 

Chief Justice 

We concur: 

n 

Justices 
Mr. Justice John C. Sheehy dissenting: 

The property here consists of 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 Club Moderne. It was vacant for two years, leased as a 

bar premises again, closed for a couple of years and became a 

bar again in 1964. In 1972 it was used for storage, and in 

1974 leased as a book shop, but the lessees failed to get financing. 

A grocery was located at 805 East Park until 1960, then 

it was vacant for two years, and used as a parachute rigging 

shop and then as a taxidermy shop until Cutone purchased 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 is mostly commercial, except that across the 

street from this property there are 3 family residences and 4 

or 5 family residences on the same side of the street in the 

same block. 

The description of the property is characteristic of that 

area of Anaconda. 

The zoning ordinance itself recognizes the heterogeneous 

character of the neighborhood because of the permitted uses 

contained in the ordinance. In fact, the ridiculous nature of 

the denial of a variance in this case may be demonstrated by 

placing the alleged reasons for denial side by side with some 

of the permitted uses in the same ordinance: 
REASONS FOR DENYING VARIANCE: PERMITTED USES UNDER THE 

ZONING ORDINANCE: 

1. fire hazard 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. emergency vehicle 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 

The permitted uses make 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 tomorrow with 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), 166 Mont. 363, 533 P.2d 964. 

Under section 76-2-304, MCA, zoning decisions shall be 

made with a view to conserving the value of buildings and 
"encouraging the most appropriate use" (not the highest and 

best use) of land throughout the municipality. Here the most 

appropriate use of the property under the evidence, from its 

history and present surroundings, is commercial, not residential. 

I would reverse. 

I join in the foregoing dissent.