No. 12192 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JAMES E. WHEELER and EDITH WHEELER, 

Plaintiffs and Appellants, 

RALPH ARMSTRONG, CLIFFORD PASHA, 

WALTER SALES, et a1 . , 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable M. James Sorte, Judge presiding, 

Counsel of Record: 

For Appellants : 

Lyman H, Bennett, Jr, argued, Bozeman, Montana. 

For Respondents: 

Thomas A. Olson, County Attorney, argued, Bozeman, 

Montana. 

Filed: JUN - 9 1Sh 

Submitted: April 18, 1972 

Decided : JUN - 9 1% 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from an order of the district court in Gallatin 

County, the Honorable M. James Sorte, presiding. Judge Sorte's order of 

September 28, 1971 , reads : 

"Defendants moved to dismiss the petition on file herein upon the ground that essentially the same matters 

and the same parties now before the Court, were presented in local cause No. 19205, Planning and Zoning 

Commission vs. James E. Wheeler and heard by Hon. Sid 

G. Stewart, presiding Judge, and that the final judgment 

in that cause was binding on the Zoning Commission and 

on this Court on the questions presented in the Plaintiffs' petition. 

"The matter was fully argued by both counsel and the 

Court having taken judicial notice of local causes, 

No. 18954 and No. 19205, and being fully advised as to 

the law, 

"IT IS ORDERED that Defendants' motion to dismiss the 

petition on file herein is granted, and the relief 

sought in the petition is denied." 

It is from Judge Sorte's order that the Wheelers now appeal to this 

Court. 

Appellants here were plaintiffs below and will be referred to 

hereafter as the Landowners. Respondents are members of the Zoning Board of 

Planning and Zoning District No. One, Gallatin County and will be hereafter 

referred to as the Zoning Board. Three of the named defendants are also the 

county commissioners of Gal 1 atin County. 

The Landowners owned some eight acres of land which lies directly 

west of Bozeman. In 1970, Landowners made some attempts to Use their vacant 

land for a mobile home court which eventually would contain some forty-seven 

trailers or mobile homes. At that time, there were no restrictions on the 

use of the land. 

In the same year, 1970, other landowners in the area, who had been 

trying to establish a zoning district since about the year 1966, filed an 

action seeking a writ of mandamus to force the county commissioners to act on 

establishment of a zoning district. On May 18, 1970, the parties to the mandamus action appeared before Judge Victor H. Fall and consented to the findings of fact and conclusions of law and a judgment. Judge Fall found that 
the county commissioners had appointed a planning and zoning commission 

and had created a valid planning and zoning district. He found, however, 

that no development pattern, required by the statute, had been made and he 

directed such a pattern to be adopted. 

On June 5, 1970, Landowner, James Wheeler was made a party and 

was enjoined from proceeding with the construction of the trailer court 

until a hearing could be had. Wheeler, through counsel, entered the case 

by motion to quash the restraining order and thereafter Judge Fall lifted 

the injunction. Wheeler, one of the Landowners, continued to be a party to 

the suit. 

On June 12, 1970, the Zoning Board adopted ordinances for the area 

in question which defined a rural residential zone and the existence of 

mobile home courts or parks a "conditional use". A procedure was set forth 

for obtaining permission to build a "conditional use". No appeal was taken 

by any party to that lawsuit. 

At the time of the adoption of the foregoing ordinance on June 12, 

Landowners had moved three mobile homes onto their land and had provided 

services for three more, making a total of six. Subsequently Landowners 

continued to move mobile homes onto the land. On November 2, 1970, the 

county attorney filed an action for injunction to stop the construction of 

the mobile home court. This matter was tried in the district court on January 15, 1971 , with the Zoning Board, Landowners and neighboring l andowners 

all participants. The trial court, Judge Sid Stewart then presiding, concluded that Wheelers had established a nonconforming use for six trailers. 

Wheelers were permanently enjoined from further violations of the ordinance 

and were ordered to remove all but six trailers. This order was dated May 

3, 1971. 

Wheelers did not comply with the order to remove all but six trailers; and, in fact, continued to move more trailers on in vi.olation of the 

order. 
The neighboring landowners then sought, on June 24, 1971, by 

motion to enforce the judgment, to force Wheelers to comply. 

After this attempt to enforce the judgment, the Wheelers then, 

on June 30, 1971, filed a petition for variance before the Zoning Board. 

On July 9, 1971, the Zoning Board denied the petition for variance on two 

grounds: (a) all of the matters raised have been presented to the district 

court and the district court has made its decision; and (b) it was the 

opinion of the Board that the public interest would not be served by a 

granting of the variance at this late date. 

Meanwhile, on the same day, July 9, 1971, Judge Stewart held a 

hearing on the motion to enforce the judgment mentioned above; and at the 

conclusion, the court noted that the previous judgment was clear, that the 

nonconforming use was 1 imited to six trailers, and said: 

"That is the order of the Court. And it will be 

carried out. And if counsel desires to have the defendants cited into court for contempt well, they may 

do so. If they do, that is going to be the ruling of 

the Court until it is changed and until proper procedures 

are brought for a change. Definitely, they are violating the Court Order when they have more than six trailers 

on that court. If you wish, you may draw an order to 

that effect and have the sheriff serve it upon them. 

That may eliminate a contempt procedure. The Court 

would be willing to go ahead with that." 

Judge Stewart having indicated that the next step in the proceeding would have to be a contempt hearing, Intervenors on August 3, 1971 , filed 

an action charging contempt. Judge Stewart was thereupon disqualified and 

the matter heard by the Honorable Bernard W. Thomas on September 1, 1971. 

After hearing testimony, Judge Thomas gave the Wheelers until October 12, 1971 to comply with the judgment. The Wheelers still refused to 

comply with Judge Stewart's order and failed to bring their property into 

compl iance by the dead1 ine of October 12, 1971. Thereafter, counsel for the 

Intervenors filed an affidavit stating that ten trailer houses remained on 

the property and on October 18, 1971, Judge Thomas found the Wheelers to be 

in contempt and fined each of them Two hundred fifty dollars ($250.00) plus 

the sum of Twenty-five do1 lars ($25.00) each per day that the Wheelers 
remained in contempt of court. 

On October 21, 1971, the Wheelers indicated to the Court that 

they were in compliance with Judge Stewart's order and paid to the clerk 

of the district court the sum of $600 representing a contempt fine. 

Heretofore we have recited the filing, an June 30, of the petition for variance before the Zoning Board. 

Cause No. 19630. Variance appeal presently before the Court. 

As indicated above, on or about June 30, 1971, the Wheelers submitted a 

"Petition for Variance" to the Zoning Board. Essentially the petition for 

variance set forth that the Wheelers after learning that in the spring of 

1970 there were no regulations prohibiting a mobile home court in the 

area, converted their eight acres of land into a mobile home court and received approval from the Gallatin County Health office. Also, that a nonconforming use for six trailers had been established, that the lands were 

and 

useless for any other purpose, /that the creation of the mobile home court 

was done in reliance upon assurances of the county officials that the 

Wheelers had exhausted their resources and would suffer hardship if the 

zoning ordinance were "strictly enforced" as against petitioners. Also, 

it was alleged there was no health or safety problem created and that the 

value of nearby property would not be damaged by use of the eight acres 

as a mobile home court. It was alleged that the immediate neighbors did 

not object to the maintenance of the mobile home court. 

As indicated above the Zoning Board met and considered the petition, without pub1 ic hearing, and notice, and elected to deny the petition 

upon the grounds the matter had been considered by the district court 

and the district court had made its decision. Further, the Board held 

that the public interest would not be served by the granting of a variance 

at such a late time. 

We repeat some of the dates heretofore recited. The petition for 

variance was filed June 30, 1971. The Zoning Board denied the petition 
on July 9, 1971. Judge Sorte's order dismissing the petition was on 

September 28, 1971. Meanwhile, in the other action concerned with the 

attempt of the Zoning Board to enforce Judge Stewart's judgment, the 

motion was filed on June 24, 1971 (before the petition for variance). 

On July 9, 1971 , Judge Stewart ruled as heretofore quoted. The contempt 

action was filed on August 3, 1971. Judge Thomas gave Wheelers until 

October 12, 1971 to comply, and on failure, Judge Thomas fined them for 

contempt. This was paid on October 21 , 1971 . 

Thus we have Landowners Wheeler fail ing to comply with court 

orders during the same time they are petitioning for variance for the 

very same activity they are in contempt for. A different judge now, Judge 

Sorte, considers the appeal from the order denying a variance; but takes 

judicial notice of the other files in that court. 

Appellant Landowners state four issues for review; which we summarize as being whether the Landowners are entitled to a hearing on their 

petition for variance. 

Respondents do not squarely answer the contentions of appel lants, 

but rather set up two reasons why the district court was correct. These 

reasons are (1) the issues presented on the petition for variance are the 

same as decided in local Cause No. 19250, involving the same parties, and 

(2) that the Zoning Board did not err since the issues and parties are 

the same. 

The situation here is this: Landowners Wheeler were fighting 

on one front to stop the application of the new zoning ordinances to 

their property. They succeeded to the extent of six mobile homes. While 

that battle is going on, Landowners Wheeler attempt to conform to the zoning 

ordinance by petitioning the Zoning Board for a variance. 

Meanwhile the Zoning Board battles to stop the Wheelers in the 

court action. While that battle rages, they summarily deny the petition 

for variance on the grounds that the court has decided the matter and the 
public interest would not be served at this late date. 

Respondents would have us apply the rules of res adjudicata as 

stated in Brannon v. Lewis & Clark Cty., 143 Mont. 200, 387 P.2d 706; 

Smith v. Baxter, 148 Mont. 291, 419 P.2d 752; and Smith v. County of 

Musselshell, 155 Mont. 376, 472 P.2d 878. The criteria are: 

(1) Parties the same; 

(2) Subject matter of the action the same; 

(3) The issues must be the same and must relate to the same 

subject matter; and 

(4) The capacities of other persons must be the same in reference 

to the subject matter and to the issues between them. 

It would appear, if these criteria have been met, that Landowners 

Wheeler have had due process, have had their opportunity to be heard on all 

matters. 

The respondents then go on to argue that even though a variance 

is not the same as a defense and proof of a nonconforming use, that the 

designation of the petition as a "variance" petition is somehow in bad 

faith. However, the fact that Landowners Wheeler had failed to establish 

a nonconforming use to all eight acres they owned, does not detract from 

the fact that they were successful in establishing a nonconforming use to 

six units. To then seek a variance for the balance does not strike this 

Court as evidence of "bad faith". It is true that they were in contempt 

and paid fines for contempt, but they have simply never had a hearing on 

their petition for variance. 

While the difficulties of convincing the Zoning Board under the 

facts and circumstances here are readily apparent, at the very least due 

process requires an opportunity to be heard. 

It is clear that under the criteria heretofore set forth, the 

same issue is not present. A nonconforming use and a variance are simply 

not the same. 
Accordingly Judge Sorte's order appealed from is set aside 

and the matter returned to the district court for hearing on the petition for variance.