No. 12192 INTHE 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

# -91Sh Submitted: April 18, 1972 Decided : 

### JUN

# -91%

### Mr. JusticeWesley Castles delivered the Opinion of the Court. This isan appeal from an order of the districtcourt in Gallatin County, 

### the Honorable M. James Sorte, presiding. Judge Sorte'sorder of September 28, 1971

### ,reads: "Defendants moved to dismiss the petition on fileherein upon the ground that essentially the same matters and the same parties now before the Court, were presented inlocal 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 inthat cause was binding 

### on the Zoning Commission and on this Court on the questions presented in the Plaintiffs' petition. "Thematter was fully argued by both counsel and the Court having taken judicial notice of local causes, No. 18954 and No. 19205, and being fullyadvised as to the law, "IT IS ORDERED that Defendants' motion todismiss the petition on fileherein isgranted, and the relief sought inthe petition isdenied." It

### is from Judge Sorte's order that the Wheelers now appeal 

### tothis Court. Appellants here were plaintiffs below and will be referred to hereafter as the Landowners. Respondents aremembers 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 Gal1 atin County. The Landowners owned some eight acres of land which liesdirectly west of Bozeman. In 1970, Landowners made some attempts to Use their vacant land for a mobile home court which eventuallywould contain some forty-seven trailers ormobile homes. Atthat time, therewere no restrictions on the

use of the land. In the same year, 1970, other landowners inthe area, who had been trying to establish a zoning district since about theyear 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 themandamus action appeared before Judge Victor H. Fall and consented to the findings of fact and conclusions of law and ajudgment. Judge Fall found thatthe 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 tobe 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 inquestion which defined a rural residential zone and the existence of mobile home courts orparks a "conditional use". A procedure was setforth forobtaining permission tobuild a "conditional use". No appeal was taken by any party to that lawsuit. Atthe 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 threemore, making a total of six. Subsequently Landowners continued tomove mobile homes onto the land. On November 2, 1970, the county attorneyfiled an action for injunction to stop the construction of themobile home court. This matter was tried in the district court on January 15, 1971

### ,withthe Zoning Board, Landowners and neighboring landowners all participants. The trial court, Judge Sid Stewart then presiding, concluded thatWheelers had established a nonconforming use for sixtrailers. Wheelers were permanently enjoined from furtherviolations of the ordinance and were ordered to remove all but sixtrailers. Thisorder was dated May 3, 1971. Wheelers did not comply with the order to remove all but sixtrailers; and, infact, continued tomove more trailerson invi.olation of the order.The neighboring landowners then sought, on June 24, 1971, by motion to enforce thejudgment, to forceWheelers tocomply. After this attempt to enforce thejudgment, theWheelers then,

on June 30, 1971, filed a petition for variance before the Zoning Board. On July 9, 1971, the Zoning Board denied the petition forvariance on two grounds: (a)all of the matters raised have been presented to the district court and the districtcourt has made itsdecision; and (b) itwas the opinion of the Board that the public interestwould not be served by a granting of the variance atthis latedate. Meanwhile, on the same day, July 9, 1971, Judge Stewart held a hearing on themotion toenforce thejudgment mentioned above; and atthe conclusion, the court noted that the previous judgment was clear, that the nonconforming use was 1 imited to six trailers, and said: "That isthe order of the Court. And itwill be carried out. And if counsel desires tohave the defendants cited into court for contempt well, they may do so. If they do, that isgoing to be the ruling of the Court until itischanged and until proper procedures arebrought for a change. Definitely, they areviolating the Court Order when they have more than sixtrailers on that court. If you wish, you may draw an order to that effect and have the sheriff serve itupon them. That may eliminate a contempt procedure. The Court would be willing to go ahead withthat." Judge Stewart having indicated that the next step inthe proceeding would have tobe a contempt hearing, Intervenors on August 3, 1971

### ,filed

an action charging contempt. Judge Stewartwas thereupon disqualified and thematter heard by the Honorable Bernard W. Thomas on September 1, 1971. After hearing testimony, Judge Thomas gave the Wheelers until October 12, 1971 tocomply withthejudgment. The Wheelers still refused to comply withJudge Stewart's order and failed to bring their property into compliance by the dead1ine 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 fiftydollars ($250.00) plus the 

### sum of Twenty-five do1lars ($25.00) each per day thatthe Wheelersremained incontempt of court. On October 21, 1971, theWheelers indicated to the Court that they were incompliance withJudge Stewart's order and paid to the clerk of the districtcourt 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, theWheelers submitted a "Petition for Variance" tothe Zoning Board. Essentially the petition for variance setforth that the Wheelers after learning that in the spring of 1970 there were no regulations prohibiting a mobile home court inthe 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 forany other purpose,/that the creation of the mobile home court

was done inreliance upon assurances of the county officialsthat the Wheelers had exhausted theirresources and would suffer hardship if the zoning ordinance were "strictly enforced" as against petitioners. Also, itwas alleged there was no health or safetyproblem created and that the value of nearby property would not be damaged by use of the eight acres

as a mobile home court. Itwas alleged that the immediate neighbors did not object to the maintenance of themobile home court. As indicated above the Zoning Board met and considered the petition, without pub1ichearing, and notice, and elected todeny the petition upon the grounds thematter had been considered by the districtcourt and the districtcourt had made itsdecision. Further, the Board held that the public interestwould not be served by the granting of a variance atsuch 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 petitionon July 9, 1971. Judge Sorte's order dismissing the petition was on September 28, 1971. Meanwhile, inthe 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 failing to comply with court orders during the same time they are petitioning for variance for the very same activitythey are incontempt for. A differentjudge now, Judge Sorte, considers the appeal from the order denying a variance; but takes judicial notice of the other files inthat court. Appellant Landowners statefour issues for review; which we summarize as being whether the Landowners are entitled to a hearing on their petition forvariance. Respondents do not squarely answer the contentions of appellants, but rather setup two reasons why the districtcourt was correct. These

reasons are (1) the issues presented 

### on the petition forvariance arethe

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 isthis: 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 sixmobile homes. While that battle isgoing on, Landowners Wheeler attempt to conform to the zoning ordinance by petitioning the Zoning Board fora variance. Meanwhile the Zoning Board battles to stop the Wheelers inthe court action. While that battle rages, they summarily deny the petition for variance on the grounds that the court has decided thematter and thepublic interestwould not be served atthis latedate. Respondents would have us apply the rules of res adjudicata as stated inBrannon 

### v. Lewis & Clark Cty., 143Mont. 200, 387 P.2d 706; Smith 

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

### v. County of Musselshell, 155Mont. 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 subjectmatter; and (4)The capacities of other persons must be the same inreference tothe subjectmatter and tothe issues between them. Itwould appear, if these criteria have been met, that Landowners Wheeler have had due process, have had their opportunity tobe heard on all matters. The respondents then go on to argue that even though a variance isnot the same as a defense and proof of a nonconforming use, that the designation of the petition as a "variance" petition issomehow inbad faith. However, the factthat 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". Itistrue that they were in contempt and paid fines for contempt, but they have simply never had a hearing on their petition forvariance. While the difficultiesof convincing the Zoning Board under the facts and circumstances here are readily apparent, atthe very least due process requires an opportunity tobe heard. It

### is clear that under the criteria heretofore setforth, the

same issue isnot present. A nonconforming use and a variance are simply 

### notthe same.Accordingly Judge Sorte's order appealed from is set aside and the matter returned to the district court for hearing on the petition forvariance.