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 

Honorable Arnold 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 2 6 2522 

Montana 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court . 

Defendant appeals from summary judgment in the District 

Court of Butte-Silver Bow in which Butte-Silver Bow Ordinance 

No. 53 was found to be (1) invalid because it was enacted in 

violation of Montana laws governing zoning, and (2) unconstitutionally exclusive because it restricted mobile homes and 

mobile home parks to an impermissibly small percentage of 

the area zoned. We vacate the summary judgment and remand 

to the District Court for further proceedings. 

The following issues are presented to this Court for 

review: 

(1) Did the District Court err in concluding that 

Ordinance No. 53 was not enacted in accordance with Montana 

law governing planning and zoning? 

(2) Did the District Court err in holding 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 entire jurisdictional area of that Planning 

Board and was accepted by both the city government and the 

county government within a few months. 

In May of 1977, the City of Butte and the County of 

Silver Bow consolidated into a single political entity known 

as "Butte-Silver Bow," the jurisdictional area of which was 

all of Silver Bow County except Walkerville. 
In August 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. Ordinance No. 53 

covered the entire jurisdictional area of the old CityCounty Planning Board, but no more. At the time it was 

enacted, the new government of Butte-Silver Bow had no 

planning board and no comprehensive plan for its total 

jurisdictional area. 

Ordinance No. 53 zones an area of 44,134.3 acres comprising 

the City of Butte and land within four-and-one-half miles 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. The minimum 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 

(4,440 considering displacement and 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 request was denied, but 

the Martzes 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 installing 
the Martz mobile home. The next day, a Building and Code 

Enforcement officer informed the Martzes that they would 

have to remove 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 

District Court 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 in accordance with Montana law governing planning 

and zoning; and 

(3) Ordinance No. 53 was unconstitutional because of 

its exclusionary effect upon 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, 

in pertinent part: 

"The planning board shall prepare and propose 

a master plan for the jurisdictional area. . ." 

and 

"Such [municipal zoning] regulations shall 

be made in accordance with a comprehensive 

plan . . ." 

The District Court concluded that these statutes require 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 entity may enact zoning 
regulations. 

The District Court also relied upon this Court's decision 

in Allen v. Flathead County (1979), Mont. , 601 

P.2d 399, 36 St.Rep. 1839, wherein we held certain zoning 

regulations in Flathead County to be 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 district within Flathead 

County and adopted regulations pursuant to a 1974 zoning 

plan for that smaller district. We held as follows: 

". . . [Tlhe clear and unambiguous language of 

section 76-2-201, MCA, requires that a county 

adopt a comprehensive development plan for an 

entire jurisdictional area. Only after the 

adoption of such a plan may a county adopt 

zoning regulations." Allen v. Flathead 

County, Mont. , 601 P.2d at 402, 36 

St.Rep. at 1842. 

The District Court concluded that Allen, like the above 

statutes, required a comprehensive master plan for all of 

Butte-Silver Bow before valid zoning regulations could be 

enacted. 

Section 76-2-201, MCA, requires "a - comprehensive 

development -- plan for jurisdictional areas pursuant - to chapter 

1" before county commissioners are authorized to enact - 

zoning regulations. Chapter 1 (Part 5 - Jurisdictional 

Area) is quite clear that the jurisdictional areas contemplated 

are those of the planning boards, not the governing entities. 

In Allen, supra, Mont. at , 601 P.2d at 400, 36 

St.Rep. at 1840, the parties stipulated that the jurisdictional 

area -- of the planning board was all of Flathead County (except 

Columbia Falls). The MCA sections on planning and zoning 

(Title 76, 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, some months after 

the effective date of Ordinance No. 53, the Council of 

Commissioners created a Butte-Silver Bow Planning Board. 

But at the time Ordinance No. 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 that plan. Under 

the circumstances, that is sufficient. 

Plaintiffs do not argue that the comprehensive plan 

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-half miles beyond the 

Butte city limits conflicts with section 76-2-310(2), MCA, 

limiting extension of municipal zoning to three miles 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 areas 
within the consolidated area. That is, nevertheless, preferable 

to mandating a period of inactivity from the time of consolidation to the time the new government can create a planning 

board and that board can develop a comprehensive plan for 

the jurisdictional area of the consolidated government. 

It is true, as this Court noted in Allen, supra, that, 

when a master plan is in the works, a county government may 

adopt interim zoning as an emergency measure, which zoning 

cannot continue effective for more than two years. Section 

76-2-206, MCA. But, in this 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 to population densities and 

land use became available through the 1980 United States 

Census. We cannot say that the circumstances here supported 

interim zoning. 

We find that Butte-Silver Bow Ordinance No. 53 was 

enacted in accordance with Montana law. 

11. 

The second issue raised by appellants is whether the 

District Court erred in concluding that Ordinance No. 53 had 

an unconstitutionally exclusionary effect upon mobile homes 

and mobile home parks. The ~istrict Court relied upon 

defendants' answers to interrogatories, which stated that 

(1) only .9% of the total area zoned was vacant land zoned 

R-4 (mobile homes and mobile home parks permitted) and only 

4.2% was zoned R-4s (mobile homes permitted -- one acre 

minimum lot size); and (2) by 1990, 2,550 new dwelling units 

would be required (4,440, considering replacement) to 

satisfy the shortage of satisfactory on-site conventional 

housing. 
The District Court concluded that a municipality must 

insure that a fair share of housing is within the reach of 

persons of low and moderate incomes; where a zoning ordinance 

limits mobile home parks to less than 1% of the land zoned, 

the zoning is tantamount to an exclusionary ban on mobile 

home parks and is unconstitutional; and pointed out that a 

zoning ordinance which permits mobile homes on lots having a 

large minimum size may be exclusionary. With regard to this 

zoning ordinance, the District Court further concluded in 

part : 

"The minimum lot size in an R-4s zone, as shown 

in Finding of Fact No. VI, is exclusionary since 

mobile homes are permitted on smaller lots only 

in R-4 zones which comprise 2.2% of the total 

land area zoned as set out in Finding of Fact 

No. X. [9% of vacant R-4 zoned land.] 

"The practical effect of allowing mobile homes 

in R-4s zones where the minimum lot size is one 

acre is to exclude low and moderate income 

families desiring to live in mobile homes from 

locating them in the Butte-Silver Bow area. It 

is especially so since mobile homes provide the 

only available, decent and suitable form of low 

cost housing. 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 

facto exclusionary and unconstitutional because 

it has the practical effect of banning additional mobile 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;k for Mobile Homes, --- Inc. v. New 

Britain Township, 408 A.2d 1160 (Pa. 1979)." 

Defendants concede that it would be an improper exclusionary 

device to prohibit mobile homes or to confine 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 not meet the Uniform Building Codes 

(UBC) standards. Of particular significance is the contention 

of defendants that mobile homes which meet UBC standards are 
- not excluded from R-1, R-2 or R-3 zones. Defendants point 

out that under the ordinance, if mobile homes meet UBC 

requirements, they can be located in any residential zone. 

Defendants further argue that mobile homes which fall below 

UBC standards may pose a real and substantial threat to 

health and welfare. 

From the definitions contained in Ordinance No. 53, we 

are not able to determine if a mobile home meeting UBC 

standards could be classed as a "modular dwelling" or a 

"residence," as contended by defendants. The record fails 

to show if a mobile home can be made to conform to UBC 

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 to an interrogatory established that 

there is a distinct difference between the UBC and the HUD 

standards: 

"In addressing the issue relating specifically 

to the quality of individual housing units in 

Butte-Silver Bow, the Council of Commissioners 

adopted the Uniform Building Codes as a minimum 

community standard for housing development. 

Mobile Homes, however, are constructed under 

an entirely different set of 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 to conform 

to UBC standards without unreasonable expense, and if such 

conformity renders a mobile home acceptable in all residential 

zones, there is no basis to claim an exclusion. However, if 

UBC standards are not attainable by most mobile homes, as 

suggested by counsel in the course of oral arguments, then 

'~11 mobile homes manufactured after June 15, 1976, 

must conform to HUD 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 issue of 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 judgment proceeding, the formal 

issues presented 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 the movant 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 Court has held that summary judgment is appropriate when 

the movant shows a complete absence of genuine issues of 

material fact and 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 fact which 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 exclude mobile 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 accordance with Montana law; 

and with instructions to the District Court to conduct such 
further proceedings as the District Court finds to be necessary 

in order to determine 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: