NO. 88-202 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

CONRAD MITCHELL, 

Plaintiff and Appell-ant., 

-vsTOWN OF WEST YELLOWSTONE, 

a municipal corporation, by and 

through its town council, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas R. Anacker argued; Kirwan & Rarrett, Bozeman, 

Montana 

For Respondent: 

Lineberger & Harris; Peter S. Lineberger argued, 

Rozeman, Montana 

Submitted: October 12, 1988 

Decided: December 8, 1988 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Conrad Mitchell appeals from a summary judgment entered 

against him and in favor of the Town of West Yell-owstone in 

the District Court, Eighteenth Judicial District, Gallatin 

County. Mitchell had filed a declaratory judgment action 

challenging the constitutionality of a town ordinance. 

The issue on appeal is whether the District Court 

lacked subject matter jurisdiction of the declaratory 

judgment action because Mitchell had failed to exhaust his 

administrative remedies under the ordinance before filing 

suit. We determine that the District Court had subject 

matter jurisdiction in this cause and reverse. 

The Town of West Yellowstone has adopted an ordinance 

applicable in the business district which provides that 

before building permits will be issued for new or expanded 

uses within the district, the applicant for a permit must 

provide specified off-street parking spaces. Cash-in-lieu 

payments may be made instead of providing off-street parking 

spaces. If the applicant for a permit seeks a variance from 

the off-street parking requirements, he may appear before a 

Board of Adjustment established under the ordinance. This 

Board has the power to vary the requirements when strict 

compliance with the ordinance would create unnecessary 

hardship or be unreasonable under the circumstances. A 

person aggrieved by the decision of the Board of Adjustment, 

or any taxpayer or interested person may, under the 

ordinance, present to a district court a petition that the 

decision is illegal, within 30 days after the filing of the 

decision in the office of the Board. 

Mitchell, a general contractor, who had resided in West 

Yellowstone since 1971, is the owner of Lot 9, Block 1 of the 

original townsite of West Yellowstone. Prior to this case, 
he had been engaged in one way or another with more than 25 

contruction projects requiring building permits in the Town 

of West Yellowstone, and never, prior to this case, had any 

dispute with the process for obtaining building permits. 

The off-street parking ordinance was adopted by the town 

council of West Yellowstone in 1982. Before that, Mitchell. 

had architectural plans prepared for future construction on 

Lot 9, which Mitchell intended to be implemented over a 

period of time as money became available. He implemented his 

first phase of construction on Lot 9 before the ordinance 

took effect. After the effective date of the zoning 

ordinance, Mitchell had constructed other buildings on Lot 9, 

each time obtaining a building permit and going through the 

proper procedure prior to construction. 

In May, 1986, Mitchell gave Don Buettner, the town 

building official, a copy of his architectural plans and 

discussed with Buettner his proposal to construct another 

commercial building on Lot 9. Mitchell did not fill out a 

building permit application, but he did make it known to 

Buettner that he intended to do the further construction. 

Buettner took the plans to the West Yellowstone Planning 

and Zoning Board in 1986. He testified that the Planning and 

Zoning Board requested a "variance procedure" because of the 

parking "problem." 

Mitchell did nothing further until January, 1987, when 

he again asked for a permit for the project, and Buettner 

told him that his request WAS "negative" because of the 

previous planning and zoning board "procedures." 

Buettner treated the July, 1986, and January, 1987, 

verbal inquiries as requests for a building permit by 

Mitchell, and gave him a decision on March 22, 1987, by 

letter. The letter informed Mitchell that the judgment of 

the Planning and Zoning Board was to "come forth for review, 
and obtain a variance." Mitchell was further informed by the 

letter that a total of nine parking spaces would be needed 

for the unfinished portion of his complex on Lot 9. 

Mitchell did not take any further steps to procure a 

permit through the provisions of the ordinance. Instead, he 

filed a declaratory judgment action in the District Court, 

against West Yellowstone, challenging the validity of the 

ordinance on grounds that it was invalidly enacted under 

state law, and that it denied equal protection because it 

unreasonably discriminated against new development in favor 

of existing development by applying funds received as 

cash-in-lieu payments from new development to improve parking 

areas located within areas of existing development. 

Eventually, the District Court granted the motion of 

West Yellowstone for a summary judgment saying: 

I am persuaded to require plaintiff to complete his 

application process through the zoning commission 

in West Yellowstone. I do this in view of the 

discretion vested in the commission to consider the 

particular piece of property involved and the 

public parking available. There is even a question 

as to whether plaintiff made a formal application 

for a building permit. Finally, the commission may 

set the cash-in-lieu figure low enough to make a. 

full blown constitutional attack unwise. Plaintiff 

has too many administrative options open to him. 

This matter is dismissed for failure to exhaust 

administrative remedies. 

On appeal, Mitchell argues that the zoning ordinance is 

unconstitutional on its face, that the right to challenge a 

town ordinance is accorded plaintiffs under the Uniform 

Declaratory Judgment Act, adopted by Montana, B 27-8-101, et 

seq., MCA; that administrative agencies do not have the power 

to determine the constitutionality of a zoning ordinance; 

that declaratory relief is independent of administrative 

remedies; and therefore a constituti.ona1 attack against the 
validity of a town ordinance may be brought in District Court 

without first exhausting administrative remedies under the 

ordinance. 

The Town of West Yellowstone responds that the District 

Court lacked subject matter jurisdiction because Mitchell 

failed to exhaust his administrative remedies; that 

Mitchell's primary objection to the ordinance is that he was 

not "grandfathered" thereunder; that the exhaustion of 

administrative remedies doctrine applies unless the 

administrative avenue is futile; and that in any event, the 

Town of West Yellowstone is immune from suit in this case 

pursuant to § 2-9-111, MCA. 

Section 27-8-202, MCA, provides, among other things, 

that any person interested under a municipal ordinance may 

have determined, any question of construction of validity 

arising under the ordinance and obtain a declaration of 

rights, status or other legal relations thereunder. Section 

27-8-201, MCA, provides that courts of record have power to 

declare rights, status and other legal relations whether or 

not further relief could be claimed. We agree that the power 

to decide the constitutionality of an ordinance in a 

declaratory judgment action is as was affirmed in Driscoll v. 

Austintown Associates (Ohio 1975), 328 N.E.2d 395, 399, where 

the Court said: 

The "general powers conferred in section 2721.02" 

to render declaratory judgments are contained in 

the first sentence of that statute: "Courts of 

record may declare rights, status and other legal 

relations whether or not further relief is or could 

be claimed." This general grant of power is 

certainly broad enough to encompass actions 

contesting the constitutionality of township zoning 

ordinances. 

Moreover, in this case, Driscoll had standing to bring a 

declaratory judgment action because of his personal stake in 
the outcome of the controvery before the District Court. 

Western Litho v. Board of City Commissioners, et al. (1377) 

174 Mont. 245, 247, 570 P.2d 891, 892. 

The District Court, therefore, had the power, and the 

plaintiff had the right to sue, to determine the 

constitutionality of the zoning ordinance in a declaratory 

judgment action, in ordinary circumstances. The question 

here is whether he must first exhaust his administrative 

remedies under the ordinance before seeking a declaratory 

judgment . The District Court recognized, and the briefs on appeal 

show that there is a split of authority on this question 

among the states. West Yellowstone cites authority that 

zoning applicants must first exhaust their administrative 

remedies before seeking relief in the courts: Inc. v. City of 

Overland Park (Kan. 1986), 718 P.2d 1302; Hatch v. Utah 

County Planning Department (Utah 1984) , 695 P. 2d 550; Turner 

v. Lane County (Ore. 1982), 665 P.2d 370; Hansen v. Keim 

(Colo. 1982), 650 P.2d 1313; Johnson County Memorial Gardens, 

and Minor v. Cochise County (Ariz. 1980), 608 P.2d 309. 

West Yellowstone also relies heavily on English v. City of 

Carmel (Ind. 1978), 381 N.E.2d 540; and Ackerly 

Communications v. City of Seattle (Wash. 1979), 602 P.2d 

1177. The District Court in its order seemed to rely on Anne 

Arundel County Commissioners v. Buch (Md. 1948), 58 A.2d 672. 

Mitchell, on the other hand, sets store on Kingsley v. 

Miller (R.I. 1978), 388 A.2d 357; Texas State Board of 

Pharmacy v. FJalgreen Texas Company (Tex. 1975), 520 S.W.2d 

845; KMIEC v. Town of Spider Lake (Wis. 1973), 211 N.W.2d 

471; and Clayton v. Bennett (Utah 1956), 298 P.2d 531. 

Mitchell cites especially State of Wyoming v. Kraus, et al. 

(Wy. 1985), 706 P.2d 1130, holding that declaratory relief 

was appropriate to challenge the validity of the agency 
regulations but that it was not proper merely to obtain 

review of an administrative decision. 

Admitting that the respective parties may draw comfort 

from the cases upon which they rely, we look to the decisions 

from this Court for guidelines. 

In Bailey v. Department of Health and Environmental 

Sciences (1983), 204 Mont. 253, 664 P.2d 325, Bailey appealed 

a district court ruling denying his application for a writ of 

mandamus. Bailey had submitted plans for expansion of a 

trailer park in Missoula County in 1968, and claimed that the 

zoning officials had given him "blanket approval" to build 

according to his plans. On subsequent applications to the 

zoning authorities for permission to develop further trailer 

spaces, his applications were denied. He did. not proceed 

further in the administrative proceedings. This Court upheld 

the denial of mandamus since he had not established a clear 

legal duty on the part of the zoning authorities to grant the 

permits. There is no issue in Bailey involving a 

constitutional attack against the zoning ordinance itself. 

In Selon v. Board of Personnel Appeals (Mont. 1981), 634 

P.2d 646, 38 St.Rep. 1676, we held that the District Court 

had no jurisdiction for judicial review under the 

Administrative Procedure Act of an order of the State Board 

of Personnel Appeals, where the appellant, the Department of 

Administration, had failed to exhaust its administrative 

remedies. In Selon, the jurisdictional issue did not involve 

a constitutional attack upon the ad.ministrative procedures. 

In BGM Enterprises v. State Department of Social and 

F-ehabilitation Services (1983), 673 P.2d 1205, 40 St.Rep. 

1827, this Court dismissed an appeal for lack of jurisdiction 

because the appellant had not taken advantage of a hearing in 

the administrative proceedings which wou1.d have been provided 

if RGM had acted in time. No quest.ion of constitutional 
validity of the statutes under which the Department was 

acting was involved in the BGM appeal. 

The controlling case for this action is Jarussi v. Board 

of Trustees (1983), 204 Mont. 131, 135, 664 P.2d 316, 318. 

In that case, Jarussi appealed the dismissal by the school 

board of his employment as principal and teacher in St. 

Ignatius, Montana. His appeal was based on violations of 

Montana's open meeting law, 5 2-3-203, MCA. The school 

board, after judgment against it in the District Court, 

raised on appeal the issue that Jarussi had not exhausted his 

administrative remedies before filing in the District Court. 

In holding that Jarussi was not required to exhaust 

administrative remedies, this Court said: 

Moreover, the exhaustion doctrine does not apply to 

constitutional issues. (Citing authority.) Here, 

Jarussi claims violation of his constitutional 

right to observe the deliberations of the School 

Board under the right to know provisions of the 

Montana Constitution, Art. 11, 5 9. Constitutional 

questions are properly decided by a judicial body, 

not an administrative official, under the 

constitutional principle of separation of powers. 

Art. 111, Section 1, 1972 Mont. Const. 

Mitchell's complaint in this case raises directly the 

constitutional question of equal protection under the 

provisions of the off-street parking ordinance adopted by 

West Yellowstone. The determination of that question is not 

within the power of the Board of Adjustment of West 

Yellowstone. When such a bona fide constitutional issue is 

raised, a plaintiff has a right to resort to the declaratory 

judgment act for a determination of his rights; and he may 

not be required to submit himself to the provisions of the 

ordinance which he claims are unconstitutional. This is so, 

even though, as the District Court implied, the monetary 

result to the plaintiff under the zoning ordinance may be 
inconsequential. The first business of courts is to provide 

a forum in which the constitutional rights of all citizens 

may be protected. 

As to the claim of West Yellowstone that it is immune 

from suit under the Declaratory Judgment Act because of § 

2-9-111, MCA, this issue was not disposed of by the District. 

Court, and we do not therefore address it on appeal. 

Accordingly, we reverse the summary judgment granted in 

the District Court and remand the cause for further 

proceedings. 

Justice v 

/ 

' chief Justice 

Justice v 

We concur: 

/' 

Justices