### No. 12119 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

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### STATE OF MONTANA, ex re1.

# ,JOSEPHGUTKOSKI

# , Relator and Respondent,

DONMe

### LANGUOR,JR., et. al., Defendant~~and Appellants.
Appeal from: District Court of the Eighteenth

### Judicial District, HonorableW. W. Lessley,Judgepresiding. Counsel of Record: ForAppellant: Berg, ~'Connell, Angel andAndriolo,Bozeman, Montana. Ben E. Berg argued, Bozeman,Montana. Holter and Heath,Bozeman,Montana. For Respondent: McKinleyAnderson argued, Bozeman,Montana.

Submitted: May 16, 1972

### Mr. Chief JusticeHarrison delivered the Opinion of the Court. This is an appeal by the city commissioners of Bozeman, Montana, and other Bozeman city officials from a judgment granting
a writ of prohibition on behalf of relator Joseph Gutkoski,a landowner in the city of Bozeman, arresting a zone change of certainproperty and awarding relator counsel fees. The land involved is the east half of lots 8B and 8C of the Homesites Addition to the city of Bozeman. The two parcels of land are owned by Wayne Edsall. Gutkoski owns lot 8A in the same addition, which borders the Edsallproperty on the south. Edsall first purchased lot 8C and built his familyhome on the west half. He used the remaining 150 feet forhis construction business. In 1967, Edsall purchased the east 150 feet of lot 8B fromRichard Munger to expand his constructionbusiness. This
was the ownership of the land at the time itwas annexed by the city. At that time the property was zoned as residential. Adjacent to this land on the east and north is a large trailer court which is zoned as motor business. The events leading to the issuance of the writ of prohibition began in November 1970, when Edsall requested the Bozeman City-County Planning Board to rezone the east half of lots 8B and 8C to motor business from residential classification, Theboard denied his request and the city commission followed the recommendation of the planning board. 

### In early 1971, Edsall again approached the city commissionwith the same request. At this time the matter
was referred to the City Board ofAdjustment. Thisboard held a hearing at which time the landowners in the area of the proposed
zone changewere allowed to present their protests. The Bcard of Adjustment recommended to the city commission that the land be rezoned to the "MB" 

### (motor business) classification. Upon theadvice of the cityattorney, the citycommission passed a resolution of its intent to follow the Board of Adjustment's recommendation and gave notice of a public hearing on the question of rezoning, The citycommission after the hearing adopted the
zone change rezoning the easthalf of lots 8B and 8C toa motor business zone. Suit toprohibit the enforcement of the change by Gutkoski was commenced on 

### May 

### 5, 1971, and the district court issued an alternativewritof prohibition on May 13, 1971. After
a hearing, the district court declared that the action of the
I' citycommission was spot zoning" and gave judgment infavor of Gutkoski, granting a writ of prohibition. There are two issues presented by this appeal. We shall deal firstwith the question of whether the rezoning by the city
II commission was infact spot zoning" as found by the district court. There aremany definitions for the term "spot zoning", but the most general 

### is as defined inThomas v. Town of Bedford, 

### 11 N.Y.2d 428, 230 N.Y.S.2d 684,688: 

# "*

# * 9; spot zoning

# * 7k

# * isthe 'process of singling out a small parcel of land for a use classification totally different from the surrounding area, for the benefit of the owner of such property and to the detriment of other owners. 'I' In a review of the factswe do not find the Bozeman city commission was guilty of "spot zoning". The two lots afterrezoningwere not totally different from the rest of the area. To the north and east of these two pieces of land was a large trailer been court, which had/in existence for some time prior torezoning action by the citycommission. It is apparent that the commission was doing nothing more than extending a preexisting zone classification to include a larger area, which we conclude isnot "spot zoning'.'.The case Law in this area of the law supports this conclusion. The Supreme Court of Kansas ina suitwhere a city rezoned residential property to a use other than residential upheld that city's action as not being "spot zoning", where the facts showed that the property on three side of the rezoned property
was devoted to uses other than residential. Arkenberg v. City of Topeka, 197 Kan. 731, 421 P.2d 213. The Supreme Court of Washington inMcNaughton v. Boeing, 

### 68 Wash.2d 

### 659, 

### 414 P.2d 778, 780, reached the same conclusion declaring:

I I

We find it difficult toenvision the rezoning from residence tobusiness of a undeveloped tract of 

### 23 acres contiguous to a business zone as constituting 'spot zoning'. It merely extended an existingbusiness zone. II Based on this reasoning, we find that the rezoning of the two tracts of land by the citycommission of Bozeman was an exterlsion of the motor business zone and not "spot zoning". The remaining issue raised by appellants iswhether or not it was proper for the district court to issue a 

### writof prohibition in this cause. In view of our ruling that the district court was inerror inholding the rezoning tobe "spot zoning", which willrequire a reversal of the judgment, there would appear tobe no necessity todiscuss the propriety of the district court's procedure. The judgment tovacate and annul isrevers the sa and the district coulrt isdirected I qnd &-smiss the actiod.

### We Concur: