No. 13019 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA ex re1 CHRISTIAN, SPRING, 

SIELBACH & ASSOCIATES, a Montana corporation, 

and JAMES B. SPRING, individually, 

Plaintiffs and Petitioners, 

BONNIE MILLER, Powell County Clerk and 

Recorder; and NEWMAN RAYMOND, SANDY REIERSON 

and HERMAN N. SMETS, Powell County Commissioners, 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Plaintiffs : 

Poore, McKenzie, Roth, Robischon & Robinson, 

Butte, Montana 

Urban L. Roth argued, Butte, Montana 

Daniel Wing argued, Butte, Montana 

For Respondents: 

James H. Goetz argued, Bozeman, Montana 

James Masar appeared, Deer Lodge, Montana 

Submitted: November 6, 1975 

Decided: Ff-.j. 2 ,j,g 

Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Appellant James B. Spring of the firm Christian, Spring, 

Sielbach & Associates, filed an action on June 27, 1974, against 

the Clerk and Recorder and Commissioners of Powell County, seeking 

to compel by writ of mandamus the acceptance and recordation of a 

1 I certificate of survey". Hearing was had in late July 1974 and 

judgment for respondents was entered in the district court, Powell 

County in October 1974. 

Several days before this action arose, the Powell County 

Board of County Commissioners met at special session to pass a 

1 t resolution termed a Temporary Interim Zoning Regulation" 

pursuant to section 16-4711, R.C.M. 1947, which provides: 

11 Interim zoning map or regulation. If a county is 

conducting, or in good faith intends to conduct studies 

within a reasonable time, or has held or is holding a 

hearing for the purpose of considering a master plan 

or zoning regulations or an amendment, extension, or 

addition to either pursuant to this chapter, the board 

of county commissioners in order to promote the public 

health, safety, morals, and general welfare may adopt 

as an emergency measure a temporary interim zoning 

map or temporary interim zoning regulation, the purpose 

of which shall be tc classify and regulate uses and 

related matters as constitutes the emergency. Such 

interim resolution shall be limited to one (1) year 

from the date it becomes effective. The board of county 

commissioners may extend such interim resolution for 

one (1) yearn but not more than one (1) such extension 

may be made. 

The regulation stated that a master plan was or would be under 

consideration within a reasonable time to cover all private land 

in the North Powell Soil Conservation District in the Big Blackfoot drainage area of Powell County. 

Prior to the passage of that regulation, Spring contacted 

Bonnie J. Miller, the Powell County clerk and recorder, to inquire 

whether a certificate of survey regarding this area would be 

accepted for recordation. Spring was advised the certificate would 

be recorded if it properly complied with Montana law. Spring then 

directed his employees to survey the land in question and on June 

27, 1974, presented the resulting certificate of survey for recordation, along with the statutory recording fee. By that date, 
the iterim regulation had been passed and the clerk and recorder 

sought advice as to its effect. She was informed by letter of 

the Powell Cdunty attorney that: 

"* >k * the intent of the resolution was to prevent 

further subdivision in the north Powell Soil Conservation area * * * for an interim period while further 

studies could be made. While the filing of a Certificate of Survey does not necessarily imply an intent 

to subdivide, it is my opinion that no other purpose 

is served by such filing and in order to implement and 

execute the purpose and intent of the resolution it is 

my recommendation that you not accept any Certificates 

of Survey which may be tendered to you for recording 

or filing until the expiration of the 90 day moratorium 

which may be extended. I' 

Guided by this opinion, the clerk and recorder rejected both the .. " 

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certificate and the recording fee when spring tendered them for 

filing. 

The parties do not dispute that the certificate of survey 

complied in all technical respects with the requirements of Montana 

law, or that the notice provisions of section 16-4705, R.C.M. 1947, 

were not followed by the board of county commissioners in adopting 

the regulation. It is further admitted the document involved here 

I1 is a certificate of surveyw within the meaning of section 11-3861, 

R.C.M. 1947, and not a "subdivision plat" as defined by that 

statute. For the purposes of this appeal we accept the county 

attorney's advice that this certificate of survey has no other 

purpose. 

Spring challenges the validity of the temporary interim 

zoning resolution for a variety of reasons. But for purposes of 

this appeal, we need only discuss the undisputed failure of the 

county board of commissioners to comply with the notice and hearing 

requirements set forth in section 16-4705, R.C.M. 1947. In Bryant 

Development Association v. Dagel, Mon t . , 531 P.2d 1320,1324, 

32 St.Rep. 213, this Court recognized the direct applicability 

of section 16-4705 to county action authorized by section 16-4711: 
"1n viewing Chapter 47, Tirle 16, R.C.M. 1947, as a 

whole, it is clear that section 16-4711, providing 

for the enactment of emergency zoning regulations, 

is governed by the provisions of section 16-4705, 

I providing for notice and hearing in the adoption or 

amendment of zoning regulations."' 

Respondents recognize that Bryant is dispositive and 

controlling of this issue, but urge the reconsideration and 

reversal of the Bryant rule. In support respondents cited several 

cases from other jurisdictions. These cases hold, in the interest 

of preserving the status quo under circumstances sufficiently urgent 

to warrant an emergency resolution, that the due process requirements need not be followed until a permanent ordinance is under 

consideration. Metro Realty v. County of El Dorado, 222 C.A.2d 

508, 35 Ca1,Rptr. 480; McCurley v. City of El Reno, 138 Okla. 92, 

280 P. 467. 

We recognize the underlying policy which engendered the 

rule as announced by such cases as Metro Realty - and McCurley. 

But the law of Montana has been clearly and recently set forth in 

Bryant. We believe it to be the better rule, and the rule 

supported by the majority of authorities. City of Miami Beach v. 

State, Fla, 108 S.2d 614, cert.den., 111 S.2d 437; Lancaster 

Development, Ltd. v. Village of River Forest, 84 Ill.App.2d 395, 

228 N.E.2d 526, 30 ALR3d 1190; Krajenke Buick Sales v. Kopkowski, 

322 Mich. 250, 33 N.W.2d 781; State ex rel. Kramer v. Schwartz, 336 

Mo. 932, 82 S.W.2d 63. 

In Montana, the salutary statutory scheme comprised of the 

Montana Subdivision and Platting Act, sections 11-3859 et seq., 

R.C.M. 1947, and such provisions as section 16-4711, R.C.M. 1947, 

must be tempered by the fundamental right to notice and the opportunity to be heard. The district court erred when it denied appellant's 

petition for a writ of mandamus. This particular temporary interim 

zoning regulation is null and void for the failure to observe the 

proper procedures upon its enactment. 
The cause is remanded to the district court with 

directions to grant attorney fees. 

ustice 

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We Concur: I' / \