### No. 81-237 IN THE SUPREME COURT OF THE STATE OF MONTANA

HARRY G. and 

### LILLIAN MARTZ, husband and wife, et al., Plaintiffs and Respondents,

BUTTE-SILVER BOW GOVERNMENT, STATE OF MONTANA, et al., Defendants and Appellants.

Appeal from: District Court of the Second Judicial District, In and for the County of Silver Bow HonorableArnold Olsen, Judge presiding. Counsel of Record:

For Appellants: Robert M. McCarthy argued, County Attorney, Butte, For Respondents: Cannon, Parish and Sheehy, Helena, Montana Ross W. Cannon argued and Edmund F. Sheehy argued,

Helena,Montana

Submitted: October 27, 1981 Decided: January 26, 1982 Filed:

## JAN

## 26

# 2522 MontanaMr. Justice Fred J. Weber delivered the Opinion of the Court

# . Defendant appeals from summary judgment 

### inthe District Court of Butte-Silver Bow inwhich Butte-Silver Bow Ordinance No. 53 was found tobe (1)invalid because itwas enacted in violation of Montana laws governing zoning, and (2) unconstitutionally exclusivebecause it restrictedmobile homes and mobile home parks to an impermissibly 

### smallpercentage of the area zoned. We vacate the summary judgment and remand totheDistrictCourt for further proceedings. The following issues arepresented tothis Court for review: 

### (1) Did the District Court err inconcluding that Ordinance No. 53 

### was not enacted inaccordance with Montana law governing planning and zoning? (2) Did the DistrictCourt 

### err inholding Ordinance No. 53 unconstitutional because of 

### its exclusionary effect

on mobile homes and mobile home parks? (3) Did the District Court 

### err when it granted plaintiffs' amended motion for summary judgment? On March 

### 14, 1972, the Butte-Silver Bow City-County Planning Board adopted a comprehensive master plan for the City of Butte and portions of Silver Bow County. The master plan covered the entirejurisdictional area of thatPlanning Board and was accepted by both the citygovernment and the county government within a few months. InMay of 1977, the City of Butte and the County of Silver Bow consolidated into a singlepolitical entityknown

as "Butte-Silver Bow," thejurisdictional area of which was allof SilverBow County except Walkerville.

### InAugust of 1978, the government of Butte-Silver Bow approved and enacted Ordinance No. 53,which had been recommended to them in January of 1978 by the old City-County Planning Board, acting as the Zoning Commission. OrdinanceNo. 53 covered the entire jurisdictional area of the old CityCounty Planning Board, but no more. At the time itwas enacted, the new government of Butte-Silver Bow had no planning board and no comprehensive plan for its total jurisdictional area. OrdinanceNo. 53 zones an area of 44,134.3 acres comprising the City of Butte and land within four-and-one-halfmiles of the Butte city limits prior to consolidation. Ordinance No. 53 permits mobile homes on private lots in areas zoned R-4 and R-4s but permits mobile home parks only in areas zoned R-4. Theminimum lot size in areas zoned R-4s is one acre. 95% of the total area zoned is zoned residential,but only 2.2% is zoned R-4 and 4.5% zoned R-4s. The percentage of vacant land in the R-4 and R-4s areas amounts, respectively, to .9% and 4.2% of the total area zoned. The parties agree that there is a shortage of adequate on-site conventional housing in the Butte-Silver Bow area, and that, by 1990, some 2,250 new homes will be needed

(4,440considering displacementand replacement of existing housing). On April 4, 1979,plaintiffs Martz requested permission of the Butte-Silver Bow office of Building and Code Enforcement to place a mobile home upon their land on Eagle Street in Butte, in an area zoned R-2. Their requestwas denied,but theMartzes commenced installing a mobile home anyway. On April 16, 1979,Butte-Silver Bow served plaintiff Great Western Trailer Sales with a compliance order to stop installingtheMartz mobile home. The next day, a Building and Code Enforcement officer informed the Martzes that they would have toremove their mobile home from the Eagle Street lot. Plaintiffs filed their complaint on April 23, 1979, and obtained a temporary restraining order, which, by stipulation, became an injunction pendente 

### lite. On March 31, 1981, the DistrictCourt granted plaintiffs' amended motion for summary judgment, holding that: (1) There were no genuine issues of material fact; (2) Ordinance No. 53 was invalid because it 

### was not enacted inaccordance with Montana law governing planning and zoning; and (3) Ordinance No. 53 was unconstitutional because of its exclusionary effectupon mobile homes and mobile home parks. Defendants appeal. Execution of the order permanently enjoining enforcement of Ordinance No. 53 has been stayed pending appeal. 

### I. In deciding that Ordinance No. 53 was not enacted 

### in accordance with Montana 

### law, the District Court relied upon sections 76-1-601 and 76-2-304, MCA, which state, respectively, inpertinent part: "The planning board shallprepare and propose a master plan for the jurisdictional area. 

# . ." and "Such [municipal zoning] regulations shall be made inaccordance with a comprehensive plan 

# . . ." The DistrictCourt concluded that these statutesrequire a master plan embracing the jurisdictional area of the planning board for the new, consolidated entity (Butte-Silver Bow) before the governing body of that entitymay enact zoningregulations. The District Court alsorelied upon thisCourt's decision inAllen v. Flathead County (1979), Mont. 

## , 601 P.2d 399, 36 St.Rep. 1839, wherein 

### we held certain zoning regulations inFlathead County tobe invalid. A planning board for the whole of Flathead County 

### was created in 1972. Several years 

### later, the Flathead County Commissioners created a separate, smaller zoning districtwithin Flathead County and adopted regulations pursuant to

### a 1974 zoning plan for that smaller district. Weheld as follows: 

# ".

.

# .[Tlheclear and unambiguous language of section 76-2-201, MCA, requires that a county adopt a comprehensive development plan for an entirejurisdictional 

### area. Only after the adoption of such a plan may a county adopt zoning regulations." Allen v. Flathead County, Mont. 

## , 601 P.2d at402, 36 St.Rep. at1842. The District Court concluded thatAllen, likethe above statutes, required a comprehensive master plan for allof Butte-Silver Bow before valid zoning regulations could be enacted. Section 76-2-201, MCA, requires "a - comprehensive development 

### -- plan forjurisdictional areaspursuant 

### - tochapter 1" before county commissioners areauthorized toenact - zoning regulations. Chapter 1 (Part 5 

### - Jurisdictional Area) isquite clear that the jurisdictional areas contemplated

arethose of theplanning boards, not the governing entities. In Allen, supra, Mont. at 

## , 601 P.2d at400, 36 St.Rep. at1840, the parties stipulated that thejurisdictional

area 

### -- of theplanning board was allof Flathead County (except Columbia Falls). The MCA sections on planning and zoning (Title76, Chapter 2) indicate the need for a master plan for the jurisdictional area, but do not specify whether the

### area referred to is that of the planning board or that of the governing body. In light of section 76-2-201, MCA, above,we find that the jurisdictional area referred to in these sections is that of the planning board. In most cases, as in Allen, supra, the jurisdictional area of the planning board will be identical to that of the governing body. In fact, that is now the case in ButteSilver Bow,where, in December of 1978, somemonths after the effective date of Ordinance No. 53, the Council of Commissioners created a Butte-Silver Bow Planning Board. But at the time OrdinanceNo. 53 was enacted, the ButteSilver Bow Planning Board did not exist. The Council of Commissioners, in enacting Ordinance No. 53, relied upon a properly-enacted comprehensive plan for the entire jurisdictional

area of the planning board which developed thatplan. Under the circumstances, that is sufficient. Plaintiffsdo not argue that the comprehensiveplan adopted by the city-county authorities in 1972,prior to consolidation, was improperly enacted. They do question whether the extension of jurisdictional area pursuant to section 76-1-505,MCA, to four-and-one-halfmiles beyond the Butte city limits conflicts with section 76-2-310(2), MCA, limiting extension of municipal zoning to threemiles beyond the city limits of larger cities such as Butte. We need only point out that section 76-1-505. MCA, explicitly addresses the 

### extension of boundaries of city-county planning board jurisdictional area and is controlling in this case. We are aware that this interpretation of Montana's zoning statutes could encourage newly-consolidated governing bodies to delay creating their own planning boards in order to quickly enact zoning regulations in accordance with preexisting properly adopted master plans for smaller areaswithin the consolidated area. That is, nevertheless, preferable tomandating a period of inactivity from the 

### timeof consolidation tothe

### timethe new government can createa planning board and thatboard can develop a comprehensive plan for the jurisdictional area of the consolidated government. It is true, as thisCourt noted inAllen, supra, that, when a master plan 

### is inthe works, a county government may adopt interim zoning as an emergency measure, which zoning cannot continue effective formore than two years. Section 76-2-206, MCA. But, inthis case, the new government had neither planning board nor comprehensive plan; nor was the development of a comprehensive plan contemplated until

### well after the information relating topopulation densities and land use became available through the 1980 United States Census. We cannot say that the circumstances here supported interim zoning. Wefind thatButte-Silver Bow Ordinance No. 53 

### was enacted inaccordance with Montana law. 11. The second issue raised by appellants 

### iswhether the District Court erred inconcluding that Ordinance No. 53 had

an unconstitutionally exclusionary effectupon mobile homes and mobile home parks. The ~istrict Court relied upon defendants' answers tointerrogatories, which stated that (1)only .9%of the total area zoned was vacant land zoned R-4 (mobilehomes and mobile home parks permitted) and only 4.2%was zoned R-4s (mobilehomes permitted 

### -- one acre minimum lotsize); and (2) by 1990, 2,550 new dwelling units would be required (4,440, considering replacement) to satisfythe shortage of satisfactory on-site conventional housing.The DistrictCourt concluded that a municipality must insure that a fair share of housing 

### iswithin the reach of persons of low and moderate incomes; where a zoning ordinance 

### limitsmobile home parks to

### less than 

### 1% of the land zoned, the zoning is tantamount toan exclusionary ban on mobile home parks and isunconstitutional; and pointed out that a zoning ordinancewhich permits mobile homes on lotshaving a largeminimum sizemay be exclusionary. With regard tothis zoning ordinance, the District Court further concluded in part: "The minimum lotsize in an R-4s zone, as shown inFinding of Fact No. VI, is exclusionary since mobile homes arepermitted on smaller lotsonly inR-4 zones which comprise 2.2%of the total land area zoned as 

### set out inFinding of Fact No. X. [9%of vacant R-4 zoned land.] "The practical effect of allowingmobile homes inR-4s zones where theminimum lotsizeis one acre 

### is toexclude low and moderate income families desiring to live inmobile homes from locating them in the Butte-Silver Bow area. It is especially so sincemobile homes provide the only available, decent and suitableform of low costhousing. O& Forest Mobile Home 

### -- Park, 

### - Inc. v. City of Oak Forest, 27 Ill. App. 3d 303, 326 

## N.E. 2d373975). 

# ".

.

# . [Tlhe amount of land made available for mobile home use under Ordinance No. 53, 

### is de factoexclusionary and unconstitutional because it has the practical effect of banning additionalmobile homes from Butte-Silver Bow. Mobile homes and mobile home parks are legitimate land uses and may not be banned from a community. Colonial 

### -- ~a;kforMobile Homes, Inc. v. New 

### --- Britain Township, 408A.2d 1160 (Pa. 1979)." Defendants concede that

### it would be an improper exclusionary device toprohibit mobile homes or toconfine them only to mobile home parks. Defendants argue that the ordinance does provide extensive area outside of mobile home parks for mobile homes which 

### -- do notmeet theUniform Building Codes (UBC) standards. Of particular significance

### is the contention of defendants thatmobile homes which meet UBC standards arenot excluded from R-1, R-2 or R-3 zones. Defendants point - out thatunder the ordinance, if mobile homes meet UBC requirements, they can be located inany residential zone. Defendants further argue thatmobile homes which fallbelow UBC standards may pose a real and substantial threat to health and welfare. From the definitions contained inOrdinance No. 53, we

arenot able todetermine if a mobile home meeting UBC standards could be classed as a "modular dwelling" or a "residence," ascontended by defendants. The record fails to show if a mobile home can be made toconform toUBC standards, and thereby become acceptable as a residence in

zones R-1, R-2 and R-3. The record does not show any comparison of the standards required under the UBC and the United States Department of Housing and Urban Development (HUD). 1 The defendants' answer toan interrogatory established that there 

### is a distinct difference between the UBC and the HUD standards:"In addressing the issue relating specifically tothe quality of individual housing units in Butte-Silver Bow, the Council of Commissioners adopted theUniform Building Codes as a minimum community standard for housing development. Mobile Homes, however, areconstructedunder an entirelydifferent setof codes which were developed by the United States Department of Housing and Urban Development. The two codes take a distinctly different approach toward housing construction." If a mobile home meeting HUD standards can be made toconform toUBC standards without unreasonable expense, and if such conformity renders a mobile home acceptable in allresidential zones, there is no basis to claim an exclusion. However, if UBC standards arenot attainable by most mobile homes, as suggested by counsel inthe course of oral arguments, then

'~11 mobile homes manufactured after June 15, 1976, must conform toHUD standards. (Defendants' Admission No. 9, dated July 8, 1980.)

### mobile homes could be effectively banned from residential

zones R-1, 

### R-2 and R-3 

### under the zoning ordinance,raising the question of an unconstitutional exclusion. The record before us therefore discloses a critical issueof material fact. This Court has held that the question to be determined

on a motion for summary judgment is whether there exists a 

### genuine dispute of material facts, stating in Byrd v. Bennett

(1981), Mont. P.

### 2d 

## , 38 St.Rep. 1083, 1084,as follows: "In 

### a summary judgmentproceeding, the formal issuespresented by the pleadings are not controlling. The question to be decided in a motion for summary judgment is whether there exists a genuine dispute over material facts. The party moving for summary judgment has the burden of showing the complete absence of material factual questions. The proof proffered by themovant is closely scrutinized. The party opposing the motion may block summary judgment by offering proof that 

### a dispute exists regarding facts material to the claim for relief." This Courthas held that summary judgment is appropriate when the movant shows a complete absence of genuine issues of material factand the defendants fail to present evidence of such an issue. Willson v. Taylor (1981), Mont. I 

### P.

### 2d 

## , 38 St.Rep. 1606, 1611. The presence of the above described issues of material factwhich are critical to the determination of this case makes a summary judgment decision not appropriate. Without additional information in the record before it, the District Court is unable to determine if 

### the UBC standards referred to in the zoning ordinance effectively excludemobile homes from certain areas. We reverse the lower court and remand with instructions to enter a 

### judgment finding that Butte-Silver Bow Ordinance No. 53 

### was properly enacted in accordancewith Montana law; and with instructions to the District Court to conduct suchfurther proceedings as the District Court finds tobe necessary inorder todetermine the facts regarding the standards of construction required for the construction of mobile homes under the UBC standards and the HUD standards, and thereafter again consider the claim of the plaintiffs.

We Concur: