### No. 12769 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, ex re1RUSSELL CENTER, a Limited Partnership Comprised of John W. 

### Martin Construction etal., Relator and Appellant,

CITY 

### OF MISSOULA

## ,MONTANA, a Municipal Corporation, City Council of theCity of Missoula etal., Defendants and Respondents.

Appeal from: District Court of theFourth JudicialDistrict, Honorable Edward Dussault, Judge presiding. Counsel of Record : 

### For Appellant: 

### Boone, Karlberg & 

### Haddon, Missoula

# ,Montana Sam E. 

### Haddon argued and Thomas H. 

### Boone appeared,

Missoula, Montana For Respondents: 

### Worden, Thane, Haines & 

### Williams, Missoula, Montana Jeremy G. 

### Thane argued, Missoula, Montana Fred C. 

### Root and Victor F. Valgenti, Missoula, Montana

Submitted: November 

### 22, 1974

Filed: 

### Q2.2

## 31

## 4975

ClerkHonorable Gordon Bennett, sittingfor Chief Justice James 

### T. Harrison, delivered the Opinion of the Court:

Relators appeal from thejudgment of the district court, Missoula County, denying and dismissing their petition for various 

### writs of mandate and prohibition and from that court's orders denying motions to amend and supplement findings of fact and cnnclusions of law and for a new trial. The cause was tried to the court without ajury. Relators, appellants here, are the owners of a 38.79 acre tract inMissoula, 32.78 acres of which were zoned "C-1 Commercial", the remaining sixacres were zoned "planned Unit Development (P.U. D.)-Residential." On October 15, 1973, the Missoula citycouncil adopted a resolution of intention torezone the "C-1 Commercial"

area to 

### "R-2" (residential), and referred the matter toits zoning commission. On or about October 24, 1973, appellants applied to the ciry for a building permit and an off-street parking permit for a shopping center tobe constructed on their property. The area zoned P.U.D. was tobe used for off-street parking. On Friday, November 2, 1973, the citybuilding inspector issued a building permit to appellants, without an off-street parking permit. The following Monday, November 

### 5, 1973, the citycouncil, meeting in regular session, revoked by resolution thebuilding permit. By letterdated November 

### 6, 1973, an assistantbuilding inspector advised appellants that thebuilding permit had been revoked by order of the citycouncil. Appellants filed this actionNovember 

### 9, 1973, seeking,inter alia,writs of mandate directing respondent city of Pfissoula to issue a new permit toreplace the revoked building permit and a parking permit as applied for; as well aswrits of prohibition against interferencewith the issuance of such permits. No such relief could be rendered by the district court, nor
can itbe by this Court.A 

### writ of mandate isauthorized solely for the purpose of requiring public officials toperform a clear legal duty. Section 93-9102, R.C.M. 1947. Courts may enjoinby writof prohibition only such actsby public officials as are clearly unlawful. Section 93-9201, R.C.M. 1947. The district court concluded the building permit issued by the citybuilding inspector was void for three reasons: 1. It was issuedwithout reasonable compliance with Chapter 32 of the Missoula City Code dealing with parking required as a condition for issuance of a building permit under another section of the Code. 

### 2. Use of the area zoned P.U.D.-Residential for off-street parking, asproposed in the plan presented in the application for the permit, would violate a cityzoning ordinance. 3. Authority granted in the permit touse the P.U.D. area for off-street parking constituted a rezoning of the areawithout meeting the requirements forrezoning set forth in section 11-2705, R.C.M. 1947. We agreewith the district court on allthree reasons. Reason 

### 1: Section 5-1, Chapter 

### 5, of the Missoula City Code provides inpart: "The citybuilding inspector shall issue thebuilding permit only after determination that thebuilding, the survey and the application comply with the terms of this chapter and Chapter 32." Chapter 32, Section 32-14.1 of the citycode, provides in part:"SECTION IV: PLAN REQUIREMENTS: Two (2) copies of the plans of the proposed parking area shallbe submitted to the CityBuilding ~nspector's officeatthe time of the application forbuilding permit forwhich the parking area isrequired. Said plans shallbe drawn t9 a scale of not less than one (1) inch, equal tc~ fifty (50) feet, showing locations of allpertinent buildings, driveways, streets, parking arrangements, circulation patterns, traffic signs and markings, lighting, landscaping, pedestrianwalks, curbing, drainage and other pertinent features." 

### On November 

### 1, 1973, one day before thebuilding inspector approved thebuilding permit, the cityengineer informed him by written memorandum that the plans for the parking areasubmittedwith the building permit applicationwere deficient in respect to these features required tobe set forthby Section 32-14.1: (1) scale of drawing, (2) drainage, (3) landscaping, 

### (4) lighting, and 

### (5) parking arrangements. The existence of these deficiencies in the application as submitted and as it stood on that day isessentially uncontradicted inthe evidence, and there isno evidence they had been corrected by the next daywhen the building permit was approved. Reason 2. The building permit authorized an unlawful land

use inviolation of a zoning ordinance. The sixacre P.U.D.- Residential area authorizedby the permit tobe used for parking had been duly zoned by the cicy council under City Ordinance No. 1512, dated August 14, 1972, pursuant toCity Ordinance No. 1306 which authorized such rezoning. Ordinance No. 1512was in full force and effect on the day thebuilding permit was approved. The 1972 petition for rezoning, required by Ordinance No. 1306, included a plan for residential development inthe area. Ordinance No. 1306 requires that construction follow the plan as submitted and approved. Section 

### 5-3 of the Elissoula City Code adopts the "Uniform Building Code1', of which Sec. 302(a) provides: "The application, plans, and specifications filedby an applicant for a permit shallbe checked by the Building Official. Such plans may be reviewed by other departments of the cityto check compliance with the laws and ordinances under theirjurisdiction. If the Building Official is satisfied that thework described inan application for permit and the plans filed therewith conform to the requirements of this Code and other pertinent laws and ordinances, and that the fee specified in Section 303(A) has been paid, he shall issue a permit therefor to the applicant.II Clearly the plan submitted by appellants, providing for parking for a commercial development in an area then zoned forresidential development, didnot conform to the cityzoning ordinances. Under the above cited section of thebuilding code, thebuilding inspector

was not authorized to approve the plan. If the six-acre tract were tobe excluded.from the plan as providing for a use inviolation of the ordinances, then thewhole plan would failbecause, as the evidence showed, without this area for parking the project would not

### meet the parking space requirements for a shopping center as set forth in the citycodes. Section 32-14.1. Reason 3. The permit was void because it

### had the effect of rezoning the sixacre P.U.D.-Residential tract without complyingwith section 11-2705, R.C.M. 

### 1947. There can be no question but that the permit authorized a distinct change inuse of the tract from residential development, as authorized by the ordinance noted above, tocommercial parking. To effect such a change, the provisions of section 11-2705, R.C.M. 

### 1947, together with section 11-2704, should have been implemented. This would have required notice of the proposed change, a hearing, and, incase of protest, a favorable vote of three-fourths of the citycouncil. These requirements were not met in any way, prior tothe issuance of the permit. 

### A building permit issued inviolation of a municipal ordinance

or other statute

### isvoid ab initioand creates no legal rights. Weiner v. City of Los Angeles, 68 Cal.Rptr. 733, 441 P.2d 293; Ramaker v. Cities Services Oil

### Co., 27Wisc,2d 143, 133N.W.2d 789; Simeone Stone Corp. v. Oliva, 350 Mass. 31, 213 N.E.2d 230; Bingham v. City of Flint, 14Mich.App.377, 165 N.W.2d 628; Plum

v. City of Healdsburg, 237 C.A.2d 308, 46 Cal.Rptr. 827. Appellants argue that theuniform building code having been adopted by the cityof Missoula, Section 302(e) thereof makes revocation of a building permit the exclusive domain of thebuilding inspectorwho issued it. 

### That section provides: "(e) Suspension or Revocation. The Building Official may, inwriting, suspend orrevoke a permit issued under provisions of this Code whenever the permit 

### is issued in error or on the basis of incorrect information supplied, or inviolation of any ordinance orregulation or any of the provisions of this Code. II 

### Section 302 is 

### permissive and sets 

### forththebasis for revocation and the means of notice thereof. It 

### does not explicitly,

nor impliedly

## , leave sole discretionwith 

### he Building ~fficial"

as towhether the permit willbe revoked. If the Missoula city council ever made a specific or exclusive delegation of its

### power torevoke building permits, no evidence to that effectwas offeredthe district court. For lack of any such evidence, we would conclude the citycouncil has reserved to itself the power granted in section 11-904, R.C.M. 1947: "The cityor town council has power: To fixthe amount, terms and manner of issuing and revoking licenses; but the council may refuse to issue licenses when itmay deem itbest for the public interests.Il Here, the assistantbuilding inspector, acting for the building inspector, who presumably 

### is the "Building Official" referred toin Section 302(e) of the Uniform Building Code, seems essentially to have fulfilledhis role under that section. He gave notice of the revocation of thebuilding permit. He cited the citycouncil's resolution ashis authority for the revocation, but he couldjust

aswell have given as his reason the fact that the permit was issued inviolation of the ordinances referred toabove. The permit being void ab initio, the form of the notification, the reasons given in the notice or even the procedure followed inrevocation arenot critical. The critical fact is that a valid permit was never issued. The "revocation" by the citycouncil and the notice thereof by the assistantbuilding inspector aremore matters of form than substance and constitutemere recognition or affirmation that the permit was and 

### is invalid for allpurposes. In substance, the citycouncil refused to issue the permit and thisCourt isasked to order it to do so. But, under the last clause of section 11-904, the City 

### is empowered to so refuse inthe public interest and, again, there 

### isno evidence that the Missoula City Council has delegated that power toany person or agency. There iscopious evidence in the transcripts of the council's meetings that itdeemed the refusal tobe in the public interest. In addition to itsfinding on thebuilding permit, the district court also found the appellants "failed toprovide the necessary information in itsapplication for an off-street parking permit, as required by ordinance, and therefore may not compel the issuance of a permit by this action." 

### On thebasis of the substantial evidence before this Court we concur.

### As noted, Section 32-14.1 of the Missoula City Code sets forth therequirements for issuance of a parking permit. Under Section V of that section, parking plans must be reviewed by thebuilding inspector and the cityengineer to insure conformity to the requirements for off-street parking set forth in other portions of the section. The city engineer ischarged with reviewing and approving

IIthe proposed traffic control for the off-street parking areas and its impact toCity street traffic prior to the issuance of the permit." In SectionVI, certain minimum standards for off-street parking

areas are set forth. At the time of trial in the district court appellants had not supplied the cityengineer or the building inspector with data required by Plissoula Ordinance 1543 tobe supplied for their consideration of the parking permit. 

### On November 12, 1973, the city engineer set forth the deficiencies in the application in a letter toappellant John W. Martin Construction Co.. From the data that

was supplied, the cityengineer concluded the traffic circulation

was inadequate because: the kind of surfacing proposed for the parking areawas not indicated; data on drainagewas insufficient; data which was supplied indicated to the city engineer that the drainage system proposal did not meet ordinance requirements; screening of the parking area, required by the ordinance, was not described; and, no description of lighting or signswas given, as required by the ordinance. It 

### is true that allnegotiations between appellants and the City inregard to the parking permit were suspended on and after November 

### 5, 1973, because of the citycouncil's action that day revoking thebuilding permit and ordering that no parking permit be issued. But, the district court could not supply themissing data, much less determine its adequacy fqr the city engineer or the building inspector. It could not therefore direct the issuance of

a parking permit, nor forbid the citycouncil tn deny its issuance.The district court found that SectionV of Ordinance Section 32-14.1 of the ~lissoula City Code, enacted as a part of City Ordinance 1543, 

### isvalid. Appellants disagree, maintaining itunconstitutional

on its face and as applied in this case. SectionV provides: "PLAN REVIEW: The proposed plans 

### willbe reviewed by the Building Inspector and City Engineer to insure conformity torequirements contained in this Section. The City Engineer shallreview and approve the proposed traffic control for the off-street parking areas and its impact toCity street traffic prior to issuance of the permit. 11 Appellants insist this provision violates the due process provisions of the Fourteenth Amendment to theUnited States Constitution and Section 

### 17, Art. I1 of theMontana Constitution; Section 

### 29, Art. 

### I1 of the Montana Constitution, prohibiting the taking of private property forpublic use without just compensation; and Section 31 of Art. I1 of the Montana Constitution, prohibiting ex post facto laws and laws impairing the obligation of contracts. Appellants argue this 

### is sobecause the cited section purports by 

### its language togrant t~ the cityengineer authority towithhold issuance of a parking permit without reference to any standard set forth in the ordinance. This, they maintain, 

### is an unconstitutional delegation of

,---- authority@fjthecityengineer amounting toa delegation of legislative power. We findno such unconstitutional infirmity in Section V. In its first sentence copious guidelines are laid down for the building inspector and city engineerby reference to specific requirements set forth in the rest of the ordinance. In itssecond sentence it assigns to the cityengineer a fact finding function, i.e. he must discoverwhat impact the proposed plan willhave on street traffic and on that basis approve or disapprove of the plan. This calls foran exercise of expertise and judgment that would be extremely difficult todefine satisfactorily in an ordinance or statute and forwhich the citycouncil must rely on the city engineer.In State ex rel. Bennett v. Stow, 144Pfont. 599,619, 399 P.2d this Court said:

IlIt would appear that an administrative officer, bureau, agent or employee of the City may be invested with the power toascertain and determine whether the qualifications, facts, orconditions comprehended in and required under the provisions of an ordinance exist, and whether the provisions of the ordinance so fixed and declared have been complied with. In our view, the fact that such an ordinance does impose the duty of ascertaining facts relating to public health, safety, welfare, and so on, upon an administrative officer, bureau, agent or employee of the City cannot be said to confer legislative power upon such employees. In Montana, where members of citycouncils arenot full-time officials, they must depend upon administrative officers, bureaus, agents and employees to do the leg-work necessary inany type of investigation and, further, we would assume that those towhom isdelegated this laborwould be those familiar with thebusiness, the functions of the Citywith respect thereto, and the provisions of the ordinance which must be complied with." Constitutional provisions should not be so interpreted as to impose unreasonable requirements upon municipalities for the specification of itsofficials' dutieswith regard functions that are necessarily discretionary. An ordinance that attempted todefine indetailwhat "traffic impact" iswould eitherbe so technical as tobe unworkable or would fall short of being sufficientlycomprehensive. Nor do we find the application of Section V by the city engineer tobe unconstitutional. In this case the cityengineer insisted that a traffic survey be made by appellants to assist him indetermining the traffic impact. The proposed project encompassed 410,000 square feeof leaseable area, more area than existed in allof "downtown" Missoula atthat time, with three major tenants and approximately 50 specialty shops and storeswithin a climatically controlM and covered mall. Paved and lighted parking for in excess of 2,800 carswas planned. The project was in the vicinity of a schocl, another major shopping center, and two major thoroughfares. It 

### isnot unreasonable that the cityengineer feltthe necessity for some kind of survey to determine traffic impact. On the contrary, it would seem he would be remiss innot doing so. To forbid the cityengineer torequire a traffic survey under the circumstances present here would be to forbid him tocarry out theresponsibility given him under the ordinance and to forbid the City tocarry out the responsibility ithas under Montana law to protect the safety and welfare of itscitizens. Finally, appellants ask this Court to apply the doctrine of estoppel against the City of Missoula, and on such basis order the City toreissue thebuilding permit and issue the parking permit. Several facts are pertinent: On August 31, 1973, the city building inspector advised Mr. Boone, attorney for appellants, by letter "As tousing the now zoned PUD to the north of this project, for a parking lot I wquld not be able to answer. " On September 

### 26, 1973, thebuilding inspector further advised Fir. Boone:

11

Asyou know, a portion of the property located to theNorth of the project is zoned PUD 

# . While this zoning is applicable to the specific project proposed by Mr. William Curran of Curran Construction Co., Inc. I have been advised by the City Attorney that this area which is zoned 'PUD' istobe used for parking purposes inconnectionwith the shopping center. A copy of the letterby Fred C. Root, CityAttorney for the City of Missoula isattached foryour information. 11 The cityattorney's letterreferred to, dated September 

### 25, 1973, states in part:

11

You have requested my opinion as towhether you may authorize the buildingofa structurewhich qualifies under C-I or C-I1 zoning ordinances and which building would be adjacent to an area zoned P-U-D and allow thebuilders touse a portion of the P-U-D zoned area fora parking lot.

IIYour question predisposes that both areas are in a single ownership. Where this situation exists, you may authorize such a structureand permit the builder touse an area inthe P-U-D zone tomeet the parking requirements of the structure.II 

### On October 15, 1973, Mr. Boone appeared and participated on behalf of appellants at the citycouncil meeting which culminated inthe passage of the resolution of intention torezone the area, which carried 

### 9 to 

### 1,with one member absent and another not voting. It willbe recalled thebuilding permit was issued November 2, 1973, (without the parking permit being approved) and the city council ordered itrevoked on November 5, 1973. To summarize, Mr. Boone, appellants' attorney and presumably their agent, was advised by the City on August 31 that it was unknown

as towhether the P.U.D. area could be used forparking. He was advised on September 25 that in the opinion of the cityattorney if both the commercial area and the P.U.D. areawere in single ownershipthe building inspector could permit the builder touse the P.U.D.

area tomeet parking requirements, nothing whatever was said about complying with zoning ordinances and building codes. On October 15 Mr. Boone was made personally aware that the citycouncil did not approve of the commercial development and intended to rezone the

area toresidential. A Saturday and a Sunday passed between the time the building permit was issued and the time itwas revoked. There isno evidence of any change in appellants' position over that weekend. On the other hand, it is clear the proposed project would have an enormous impact on the city of Missoula and a particularly acute impact on the traffic, safety and commerce of the area in which itwas tobe located. A reading of the lengthy transcripts of meetings of the citycouncil makes it patent that a healthy majority of 

### itsmembers were stoutly opposed to the project before and after the building inspector issued the building permit, on the ground the surrounding area was incapable of handling the development. The entire record makes it clear that appellants, during September and October 1973, were in a race tobeat impending rezoning. Under these circumstances should the doctrine of equitable estoppel be applied to the municipality? We think not. Prior to the issuance of the building permit, appellants had nothing that would rise to the dignity of an assurance from the City or any of its agents that a permit would be issued in any event or that the P.U.D. area could be used for parking. Up to this point expenditures could not be said tohave been made inreliance

on any assurance from the City. It was the ordinary case of a developer spending itsmoney in the hope that approval would finally be obtained. To hold in such a case that negotiations between the developers and the City authorities somehow commits the City to the granting of authority, would have the effect of discouraging all such negotiations in the future, a highly undesirable result.

### As there 

### isno showing of change of position on the part of appellants between the time the permit was issued and the time itwas revoked, estoppel could not be invoked for this period. Even if appellants had in fact relied upon representations of the City to its detriment, which we hold 

### isnot the case, there would remain the matter of balancing the interest of the municipality against that of appellants. In State ex rel. Barker v. Town of Stevensville, Mont

# . , 523 P.2d 1388, 1391, 31 St. Rep. 496, 500, it was held:

IIIn 

### 2 1.llunlcipal Corporation Law, Antieau (1973 Ed.) 516A.06, a test 

### is suggested for circumstances inwhich the doctrine should apply: "'1t is suggested that there should be no general rule that estoppel 

### isnot tobe applied inpolice power situations. Rather courts should be encouraged toweigh in every case the gravity of the injustice to the citizen if the doctrine 

### isnot applied against the injury to the common weal if the doctrine isapplied in that case. Where anv danger to the public is slight and 

### a citizenhas made a good faithand substantialchange inposition inreasonable reliance upon the conduct or representations of municipal officialsand agents, several courts have estop ed the local government from exercising their power" in a way inconsistent with their prior representations 

### or actions. I "We agree with this approach. In cases of this kind, there should be abalancing of the municipal corporation's unwarranted assumption of risk of liability for acts or statements of its agents or employees made in excess of their authority against the harm done togood faith, innocent and unknowledgeable third parties who act inreliance upon those representations. It follows that each casewillnecessarily have to be judged upon itsown unique factual situation.II The factual situation here leaves no doubt that the equitable balance is in favor of the municipality. The judgment of the district court isaffirmed.

Hon. Gordon Bennett, sitting for Chief Justice James T. Harrison.

### We Concur: