No. 12769 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex re1 RUSSELL CENTER, 

a Limited Partnership Comprised of John 

W. Martin Construction et al., 

Relator and Appellant, 

CITY OF MISSOULA , MONTANA, a Municipal Corporation, 

City Council of the City of Missoula et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

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 3 1 4975 

Clerk 
Honorable Gordon Bennett, sitting for Chief Justice James T. 

Harrison, delivered the Opinion of the Court: 

Relators appeal from the judgment 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 a jury. 

Relators, appellants here, are the owners of a 38.79 acre 

tract in Missoula, 32.78 acres of which were zoned "C-1 Commercial", 

the remaining six acres were zoned "planned Unit Development (P. U. 

D.)-Residential." On October 15, 1973, the Missoula city council 

adopted a resolution of intention to rezone the "C-1 Commercial" 

area to "R-2" (residential), and referred the matter to its 

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 to be constructed on their property. The area 

zoned P.U.D. was to be used for off-street parking. On Friday, 

November 2, 1973, the city building inspector issued a building 

permit to appellants, without an off-street parking permit. The 

following Monday, November 5, 1973, the city council, meeting in 

regular session, revoked by resolution the building permit. By 

letter dated November 6, 1973, an assistant building inspector 

advised appellants that the building permit had been revoked by 

order of the city council. 

Appellants filed this action November 9, 1973, seeking, inter 

alia,writs of mandate directing respondent city of Pfissoula to 

issue a new permit to replace the revoked building permit and a 

parking permit as applied for; as well as writs of prohibition against 

interference with the issuance of such permits. 

No such relief could be rendered by the district court, nor 

can it be by this Court. 
A writ of mandate is authorized solely for the purpose of 

requiring public officials to perform a clear legal duty. Section 

93-9102, R.C.M. 1947. Courts may enjoin by writ of prohibition only 

such acts by public officials as are clearly unlawful. Section 

93-9201, R.C.M. 1947. 

The district court concluded the building permit issued by 

the city building inspector was void for three reasons: 

1. It was issued without 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, as proposed in the plan presented in the application for 

the permit, would violate a city zoning ordinance. 

3. Authority granted in the permit to use the P.U.D. area 

for off-street parking constituted a rezoning of the area without 

meeting the requirements for rezoning set forth in section 11-2705, 

R.C.M. 1947. 

We agree with the district court on all three reasons. 

Reason 1: Section 5-1, Chapter 5, of the Missoula City Code 

provides in part: 

"The city building inspector shall issue the building 

permit only after determination that the building, the 

survey and the application comply with the terms of this 

chapter and Chapter 32." 

Chapter 32, Section 32-14.1 of the city code, provides in 

part : 

"SECTION IV: PLAN REQUIREMENTS: Two (2) copies of the 

plans of the proposed parking area shall be submitted to 

the City Building ~nspector's office at the time of the 

application for building permit for which the parking 

area is required. Said plans shall be drawn t9 a scale 

of not less than one (1) inch, equal tc~ fifty (50) feet, 

showing locations of all pertinent buildings, driveways, 

streets, parking arrangements, circulation patterns, 

traffic signs and markings, lighting, landscaping, pedestrian walks, curbing, drainage and other pertinent features." 

On November 1, 1973, one day before the building inspector 

approved the building permit, the city engineer informed him by 

written memorandum that the plans for the parking area 
submitted with the building permit application were deficient in 

respect to these features required to be set forth by 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 is essentially uncontradicted 

in the evidence, and there is no evidence they had been corrected 

by the next day when the building permit was approved. 

Reason 2. The building permit authorized an unlawful land 

use in violation of a zoning ordinance. The six acre P.U.D.- 

Residential area authorized by the permit to be used for parking 

had been duly zoned by the cicy council under City Ordinance No. 

1512, dated August 14, 1972, pursuant to City Ordinance No. 1306 

which authorized such rezoning. Ordinance No. 1512 was in full 

force and effect on the day the building permit was approved. The 

1972 petition for rezoning, required by Ordinance No. 1306, included 

a plan for residential development in the 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 filed by 

an applicant for a permit shall be checked by the 

Building Official. Such plans may be reviewed by other 

departments of the city to check compliance with the 

laws and ordinances under their jurisdiction. If the 

Building Official is satisfied that the work described 

in an 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. I I 

Clearly the plan submitted by appellants, providing for parking 

for a commercial development in an area then zoned for residential 

development, did not conform to the city zoning ordinances. Under 

the above cited section of the building code, the building inspector 

was not authorized to approve the plan. If the six-acre tract were 

to be excluded.from the plan as providing for a use in violation 

of the ordinances, then the whole plan would fail because, 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 city codes. Section 32-14.1. 

Reason 3. The permit was void because it had the effect of 

rezoning the six acre P.U.D.-Residential tract without complying with 

section 11-2705, R.C.M. 1947. There can be no question but that the 

permit authorized a distinct change in use of the tract from 

residential development, as authorized by the ordinance noted above, 

to commercial 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, in case of protest, a favorable vote of 

three-fourths of the city council. These requirements were not 

met in any way, prior to the issuance of the permit. 

A building permit issued in violation of a municipal ordinance 

or other statute is void ab initio and 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, 133 N.W.2d 789; 

Simeone Stone Corp. v. Oliva, 350 Mass. 31, 213 N.E.2d 230; 

Bingham v. City of Flint, 14 Mich.App.377, 165 N.W.2d 628; Plum 

v. City of Healdsburg, 237 C.A.2d 308, 46 Cal.Rptr. 827. 

Appellants argue that the uniform building code having been 

adopted by the city of Missoula, Section 302(e) thereof makes 

revocation of a building permit the exclusive domain of the building 

inspector who issued it. That section provides: 

"(e) Suspension or Revocation. The Building Official 

may, in writing, suspend or revoke a permit issued under 

provisions of this Code whenever the permit is issued in 

error or on the basis of incorrect information supplied, 

or in violation of any ordinance or regulation or any of 

the provisions of this Code. I I 

Section 302 is permissive and sets forth the basis for 

revocation and the means of notice thereof. It does not explicitly, 

nor impliedly , leave sole discretion with he Building ~fficial" 

as to whether the permit will be revoked. If the Missoula city 

council ever made a specific or exclusive delegation of its power 

to revoke building permits, no evidence to that effect was offered 
the district court. For lack of any such evidence, we would conclude the city council has reserved to itself the power granted in 

section 11-904, R.C.M. 1947: 

"The city or town council has power: To fix the 

amount, terms and manner of issuing and revoking 

licenses; but the council may refuse to issue 

licenses when it may deem it best for the public 

interests. I l 

Here, the assistant building inspector, acting for the building 

inspector, who presumably is the "Building Official" referred to in 

Section 302(e) of the Uniform Building Code, seems essentially to 

have fulfilled his role under that section. He gave notice of the 

revocation of the building permit. He cited the city council's 

resolution as his authority for the revocation, but he could just 

as well have given as his reason the fact that the permit was issued 

in violation of the ordinances referred to above. The permit being 

void ab initio, the form of the notification, the reasons given in 

the notice or even the procedure followed in revocation are not 

critical. The critical fact is that a valid permit was never 

issued. The "revocation" by the city council and the notice thereof 

by the assistant building inspector are more matters of form than 

substance and constitute mere recognition or affirmation that the 

permit was and is invalid for all purposes. In substance, the 

city council refused to issue the permit and this Court is asked to 

order it to do so. But, under the last clause of section 11-904, 

the City is empowered to so refuse in the public interest and, again, 

there is no evidence that the Missoula City Council has delegated 

that power to any person or agency. There is copious evidence in 

the transcripts of the council's meetings that it deemed the refusal 

to be in the public interest. 

In addition to its finding on the building permit, the district 

court also found the appellants "failed to provide the necessary 

information in its application for an off-street parking permit, as 

required by ordinance, and therefore may not compel the issuance 

of a permit by this action." On the basis of the substantial evidence 

before this Court we concur. 
As noted, Section 32-14.1 of the Missoula City Code sets forth 

the requirements for issuance of a parking permit. Under Section V 

of that section, parking plans must be reviewed by the building 

inspector and the city engineer to insure conformity to the requirements for off-street parking set forth in other portions of the 

section. The city engineer is charged with reviewing and approving 

II the proposed traffic control for the off-street parking areas and its 

impact to City street traffic prior to the issuance of the permit." 

In Section VI, 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 city engineer or the building inspector with data 

required by Plissoula Ordinance 1543 to be 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 

to appellant John W. Martin Construction Co.. From the data that 

was supplied, the city engineer concluded the traffic circulation 

was inadequate because: the kind of surfacing proposed for the 

parking area was not indicated; data on drainage was 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 signs was given, as 

required by the ordinance. 

It is true that all negotiations between appellants and the 

City in regard to the parking permit were suspended on and after 

November 5, 1973, because of the city council's action that day 

revoking the building permit and ordering that no parking permit 

be issued. But, the district court could not supply the missing 

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 city council tn deny its issuance. 
The district court found that Section V of Ordinance Section 

32-14.1 of the ~lissoula City Code, enacted as a part of City Ordinance 

1543, is valid. Appellants disagree, maintaining it unconstitutional 

on its face and as applied in this case. 

Section V provides: 

"PLAN REVIEW: The proposed plans will be reviewed by 

the Building Inspector and City Engineer to insure 

conformity to requirements contained in this Section. 

The City Engineer shall review and approve the proposed 

traffic control for the off-street parking areas and 

its impact to City street traffic prior to issuance of 

the permit. 11 

Appellants insist this provision violates the due process provisions of the Fourteenth Amendment to the United States Constitution 

and Section 17, Art. I1 of the Montana Constitution; Section 29, Art. 

I1 of the Montana Constitution, prohibiting the taking of private 

property for public 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 so because the cited section purports by its language 

to grant t~ the city engineer authority to withhold issuance of a 

parking permit without reference to any standard set forth in the 

ordinance. This, they maintain, is an unconstitutional delegation of 

,-- -- authority@fjthe city engineer amounting to a delegation of legislative power. 

We find no such unconstitutional infirmity in Section V. In 

its first sentence copious guidelines are laid down for the building 

inspector and city engineer by reference to specific requirements 

set forth in the rest of the ordinance. In its second sentence 

it assigns to the city engineer a fact finding function, i.e. he 

must discover what impact the proposed plan will have on street 

traffic and on that basis approve or disapprove of the plan. This 

calls for an exercise of expertise and judgment that would be extremely difficult to define satisfactorily in an ordinance or statute 

and for which the city council must rely on the city engineer. 
In State ex rel. Bennett v. Stow, 144 Pfont. 599,619, 399 P.2d 

this Court said: 

I l It would appear that an administrative officer, bureau, 

agent or employee of the City may be invested with the 

power to ascertain and determine whether the qualifications, 

facts, or conditions 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 city councils are not full-time 

officials, they must depend upon administrative officers, 

bureaus, agents and employees to do the leg-work necessary 

in any type of investigation and, further, we would assume 

that those to whom is delegated this labor would be those 

familiar with the business, the functions of the City with 

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 its officials' duties with regard functions that are 

necessarily discretionary. An ordinance that attempted to define 

in detail what "traffic impact" is would either be so technical as 

to be unworkable or would fall short of being sufficiently comprehensive. 

Nor do we find the application of Section V by the city 

engineer to be unconstitutional. In this case the city engineer 

insisted that a traffic survey be made by appellants to assist 

him in determining the traffic impact. The proposed project 

encompassed 410,000 square feeof leaseable area, more area than 

existed in all of "downtown" Missoula at that time, with three major 

tenants and approximately 50 specialty shops and stores within a climatically controlM and covered mall. Paved and lighted parking for 

in excess of 2,800 cars was planned. The project was in the vicinity 

of a schocl, another major shopping center, and two major thoroughfares. It is not unreasonable that the city engineer felt the 

necessity for some kind of survey to determine traffic impact. On 

the contrary, it would seem he would be remiss in not doing so. To 

forbid the city engineer to require a traffic survey under the circumstances present here would be to forbid him to carry out the 
responsibility given him under the ordinance and to forbid the 

City to carry out the responsibility it has under Montana law to 

protect the safety and welfare of its citizens. 

Finally, appellants ask this Court to apply the doctrine of 

estoppel against the City of Missoula, and on such basis order the 

City to reissue the building 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 to using 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, the building inspector further advised Fir. Boone: 

11 As you know, a portion of the property located to 

the North 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' is to be used for parking 

purposes in connection with the shopping center. A 

copy of the letter by Fred C. Root, City Attorney for 

the City of Missoula is attached for your information. 11 

The city attorney's letter referred to, dated September 25, 1973, 

states in part: 

11 You have requested my opinion as to whether you may 

authorize the building ofa structure which qualifies 

under C-I or C-I1 zoning ordinances and which building 

would be adjacent to an area zoned P-U-D and allow 

the builders to use a portion of the P-U-D zoned area 

for a parking lot. 

I I Your question predisposes that both areas are in a 

single ownership. Where this situation exists, you 

may authorize such a structure and permit the builder 

to use an area in the P-U-D zone to meet the parking 

requirements of the structure. I I 

On October 15, 1973, Mr. Boone appeared and participated on 

behalf of appellants at the city council meeting which culminated 

in the passage of the resolution of intention to rezone the area, 

which carried 9 to 1, with one member absent and another not voting. 

It will be recalled the building permit was issued November 2, 

1973, (without the parking permit being approved) and the city 

council ordered it revoked 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 to whether the P.U.D. area could be used for parking. He was 

advised on September 25 that in the opinion of the city attorney if 

both the commercial area and the P.U.D. area were in single ownership 
the building inspector could permit the builder to use the P.U.D. 

area to meet 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 city council did not 

approve of the commercial development and intended to rezone the 

area to residential. A Saturday and a Sunday passed between the 

time the building permit was issued and the time it was revoked. 

There is no 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 it was to be located. A reading of the lengthy transcripts 

of meetings of the city council makes it patent that a healthy 

majority of its members 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 to beat 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 to have been made in reliance 

on any assurance from the City. It was the ordinary case of a 

developer spending its money 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 is no showing of change of position on the part of 

appellants between the time the permit was issued and the time 

it was 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 is not 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, Mon t . , 523 P.2d 1388, 1391, 31 

St. Rep. 496, 500, it was held: 

I I In 2 1.llunlcipal Corporation Law, Antieau (1973 

Ed.) 516A.06, a test is suggested for circumstances in which the doctrine should apply: 

"'1t is suggested that there should be 

no general rule that estoppel is not to be 

applied in police power situations. Rather 

courts should be encouraged to weigh in every 

case the gravity of the injustice to the citizen 

if the doctrine is not applied against the injury 

to the common weal if the doctrine is applied in 

that case. Where anv danger to the public is 

slight and a citizen has made a good faith and 

substantial change in position in reasonable 

reliance upon the conduct or representations 

of municipal officials and 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 a balancing 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 to good faith, 

innocent and unknowledgeable third parties who 

act in reliance upon those representations. It 

follows that each case will necessarily have to 

be judged upon its own unique factual situation. I I 

The factual situation here leaves no doubt that the equitable 

balance is in favor of the municipality. 

The judgment of the district court is affirmed. 

Hon. Gordon Bennett, sitting for 

Chief Justice James T. Harrison. 
We Concur: