No. 13019 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA ex re1CHRISTIAN, 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. JusticeJohn Conway Harrison delivered theOpinion of the Court. Appellant James B. Spring of the firmChristian, Spring, Sielbach & Associates, filedan action on June 27, 1974, against the Clerk and Recorder and Commissioners of Powell County, seeking to compel by 

### writof mandamus the acceptance and recordation of 

### a
1Icertificate of survey". Hearingwas had in lateJuly 1974 and judgment forrespondents was entered in the districtcourt, Powell County in October 1974. Several days before this action arose, the Powell County Board of County Commissioners met at special session topass a
1t resolution termed a Temporary InterimZoning Regulation" pursuant to section 16-4711, R.C.M. 1947, which provides:

11

Interimzoning map orregulation. If a county 

### is conducting, or in good faithintends toconduct studies within a reasonable time, or has held or 

### isholding a

hearing for the purpose of considering a master plan or zoning regulations or an amendment, extension, or addition to eitherpursuant tothis chapter, theboard of county commissioners in order topromote the public health, safety, morals, and generalwelfare may adopt as an emergency measure a temporary interimzoning map or temporary interim zoning regulation, the purpose of which shallbe tcclassify and regulate uses and related matters asconstitutes the emergency. Such interimresolution shallbe limited to one (1) year from the date it becomes effective. The board of county commissioners may extend such interim resolution for one (1) yearnbut not more than one (1) such extension may be made. The regulation stated that a master plan was orwould be under consideration within a reasonable time to cover allprivate land in the North Powell SoilConservation 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 clerkand recorder, to inquire whether a certificate of survey regarding this area would be accepted forrecordation. Springwas advised the certificatewould be recorded if it properly complied with Montana law. Spring then directed his employees to survey the land inquestion and on June 

### 27, 1974, presented the resulting certificate of survey forrecordation, along with the statutoryrecording 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 theresolution was toprevent further subdivision inthenorth Powell Soil Conservation area

# *** foran interimperiod while further studies could be made. While the filing of a Certificate of Survey does not necessarily imply an intent to subdivide, it 

### ismy 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 thatyou not accept any Certificates of Survey which may be tendered toyou forrecording or filinguntil the expiration of the 90 day moratorium which may be extended. I' Guided by thisopinion, the clerk and recorder rejectedboth the

.. "., ,- certificateand the recording feewhen spring tendered them for filing. The parties do not dispute that the certificate of survey complied inalltechnical respects with the requirements of Montana law, or that thenotice provisions of section 16-4705, R.C.M. 1947,
were not followed by theboard of county commissioners in adopting theregulation. It 

### is further admitted the document involved here

I1 

### is a certificate of surveywwithin the meaning of section 11-3861, R.C.M. 1947, and not 

### a "subdivision plat" asdefined by that statute. For the purposes of this appeal we accept the county attorney's advice that this certificateof survey has no other purpose.Spring challenges the validity of the temporary interim zoning resolution fora variety of reasons. But forpurposes of this appeal, we need only discuss theundisputed failure of the county board of commissioners tocomply with thenotice and hearing requirements set forth in section 16-4705, R.C.M. 1947. In Bryant Development Association v. Dagel, Mont

# . , 531P.2d 1320,1324, 32 St.Rep. 213, this Court recognized the direct applicability of section 16-4705 tocounty 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 fornotice and hearing in the adoption or amendment of zoning regulations."' Respondents recognize that Bryant 

### is dispositive and controlling of this issue, but urge thereconsideration 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 sufficientlyurgent towarrant an emergency resolution, that the due process requirements need not be followed until a permanent ordinance isunder consideration. Metro Realty v. County of ElDorado, 222 C.A.2d 508, 35 Ca1,Rptr. 480; McCurley v. City of ElReno, 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 tobe thebetter 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 PlattingAct, 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 tonotice and the opportunitytobe heard. The district court erredwhen it denied appellant's petition for a writof mandamus. This particular temporary interim zoning regulation isnull and void for the failure to observe the proper procedures upon its enactment.The cause 

### is remanded to the district court with directions togrant attorney fees.



### ustice

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/ We Concur: 

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