110. 12825 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

BRYANT DEVbLOPMENT ASSOCIATION, Plaintiff and Appellant, -vs

# - TED DAGEL etal., Defendants and Respondents, 

### -vs

# - RECTOR

## 'S GARAGE INC.

## , Defendant and Third Party Plaintiff, -vs

# - BRYANT DEVELOPMENT ASSOCIATION etal., Third Party Defendant-Respondent.

Appeal from: District Court of theFirstJudicial District, Honorable Peter G. Meloy, ~udge presiding. Counsel of Record: For Appellant: Smith and Harper, Helena, Montana Charles Smith, 

### I11 argued, Helena, Montana For Respondents: Towe, Neely and Ball, Billings, Montana William L. Madden, 

### Jr. argued, Billings, Montana

submitted: January 16, 1975 Decided :

### FEB2

### 1

### 1975

### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This case isbefore the Court on the appeal of Bryant Development Association and the crossappeal of ~ector's Garage, Inc., from

an order of the district court, Lewis and Clark County, which sustained a decision of the Lewis and Clark County Board of Adjustment granting ~ector's Garage, Inc., a variance from an emergency residential zoning resolution. Since 1969 ~ector's Garage, Inc., hereinafter referred to as respondent, has owned and operated an antique auto storage and repair shop at 1055 MillRoad, Lewis and Clark County. Because of the inadequate size of the company's buildings and a reluctance to scatterunrestored automobiles and parts outsidewhere they would be unsightly and susceptible to the elements, officers of respondent had for some time been interested inconstructing a new building. In July 1973, the property adjoining the existingfacilities, 1035 MillRoad, was offered for sale. In relianceupon representations of appropriate county officials that no zoning orbuilding restrictions existed nor were contemplated for theneighborhood before January 1974, the propertywas purchased for approximately $35,000. On September 10, 1973, negotiations were entered intowith a building contractor forconstruction of a prefabricated, commercial steelbuilding tobe cut and manufactured inCalifornia and assembled atthejob siteby the contractor. Although the formal contractwas not signed until September 

### 17, 1973, the manufacturer was notified of thenegotiations. On September 14, 1973, a purchase order in the amount of $55,500 was confirmed by the manufacturer, earnest money paid and work begun. However, on September 13, 1973, unbeknown toofficers of respondent, and without prior noticewhatsoever, the Lewis and Clark County Commissioners met inan evening emergency session and purported to adopt Temporary InterimZoning Resolution No. 1973-33 restricting further development of the area in question to "CR-Z", residential single family dwelling units. This meeting was convened upon the

ex parte petition of some of themembers of appellant associationwhoreside intheneighborhood inwhich respondent 

### is located with the very purpose of stopping respondent from completing thebuilding project it had commenced. Officers of respondent were not made

aware of these summary proceedings until the followingweek when

an officer of the contractorwas informed thebuilding project had been prohibited.

II On October 4, 1973, counsel forrespondent filed an Application forVariance or, inthe alternative, Appeal from the AdministrativeDecision of the Lewis & Clark County ~omrnissioners" with the Lewis and Clark County Board of Adjustment to permit construction of an automobile restoration and storage facilityat 1035MillRoad. A recorded, evidentiary hearingwas held on this applicationbefore theBoard of Adjustment on December 10, 1973. Counsel forrespondent presented testimony and a memorandum supporting the firm's contention that this zoning resolution was unconstitutional; that ithad established and was entitled to a nonconforming use exception to the zoning; and, that in the event the zoning was found to apply to it, a variance should be granted. The Bryant Development Association, herein afterreferred toas appellant, also appeared, presented testimony inopposition torespondent's requests and later filed 

### its legal memorandum. On February 2, 1974, the Board of Adjustment issued an order granting respondent therequested variance. By petition for a 

### writ of certiorari, appellant asked the district court toreview that decision, contending itwas unwarranted by the facts. The district court granted appellant's petition and issued a 

### writof certiorari to the Lewis and Clark County Board of Adjustment. On March 25, 1974, the district court ordered that the ~oard's order granting the variance be stayed. Respondent thereupon moved, and was permitted to intervene in the review proceedings. Counsel forrespondent furthermoved on April 

### 8, 1974, that the stayorder be dissolved or, alternatively, that appellantbe required topost a $15,000 bond tocover damages which might accrue toRector's Garage because of the stay order.

### By an order, dated July 

### 1, 

### 1974, the district court denied this latter motion. In answer to appellant'spetition for a writ of certiorari, respondent denied that the decision of the Lewis and Clark County Board of Adjustment was not based upon substantial evidence. 

### It further alleged as a first counterclaimand crossclaim that the that the ~oard's order was defective in its failure to grant Rector's Garage, Inc. a nonconforming use exception to the zoning resolution, ins~eaci of a variance. k 

### second counterclaimand crossclaimwas also 

### interposed claiming, alternatively, that the ~oard's order should be reversed because of its failure to quash the zoning resolution as unconstitutional. 

### A third counterclaimrequested damages stemming from appellant'sunlawful and improper actions in instigating the emergency zoning resolution. By a final order, dated July 17, 1974, the district court afkirmed the decision of the Lewis and Clark County Board ofAdjustment granting respondent the requested variance. Although the court further denied appellant's motion to strike or dismiss respondent's first counterclzim requesting a nonconforming use exception to the zoning, its order did not determine whether or not Rector's Garage, Inc. was entitled to such relief. Appellant's motions to strike or dismiss the second and third counterclaimswere granted. The casenow comes to this Court upon timely notices of appeal by Bryand Development Association and crossappealby ~ector's Garage, Inc. Although appellant argues the only issue is the variance granted and urges that the writ of certiorari does not permit inquiry beyond that, the controlling issue on this appeal is the validity of L'emporary Interim Zoning Resolution No. 1973-33. We recognize that ordinarily the scope of 

### review on a writ of certiorari is limited to whether an inferior tribunal, exercising judicial functions,has exceeded its jurisdiction. Section 93-9002, 

### R.C.M. 1947;State ex rel. Mercer v. Woods, 116Mont. 533, 

### 538, L35 

### P.2d 197. We also recognize:"The authorities are generally to the effect that, upon review of a decision of a zoning board, the petitionerwillnot be heard upon the question of the validity of the zoning ordinance, or of the act of the legislature under which the ordinance was enacted." 58 Am Jur,Zoning 

### 5 232. See e.g., Austin v. Older, 278 Mich. 518, 270 N.W. 771. However, Montana's statute, section 16-4706, R.C.M. 1947, which provides for the powers and procedures of theboard of adjustment, states in subsection (8):

11

Any person

# *** aggrievedby any decision of theboard of adjustment 9: 9:

# * may present to a court of record a petition, duly verified, setting forth that such decision is illegal, inwhole or in part, specifying the grounds of the illegality. k 9~ 9:" (Emphasis supplied) Further, subsection (11) of section 16-4706, states: ";k 9~The court may reverse or affirm, wholly or partly, ormay modify the decisionbrought up forreview. II We hold that these words in section 16-4706, R.C.M. 1947, give the district courts a much broader scope of review than the general Montana statutes pertaining tocertiorari. A similar position has been enunciated inArizona. See e.g., Lewis v. Board of Adjustmen~of City of Phoenix, 6Ariz.App. 494, 433 P.2d 811. To hold otherwise, asappellant would have us do, and deny respondent theuse of this affirmative defense, would be a triumph oiform over substance. Appellant further contends that respondent is precluded from

11 raising the issuebecause of respondent's status as an intervenor" in the main action. It argues that an 'intervenor cannot raise issueswhich the original parties, in this case the appellant and The Board of Adjustment, did not or could not, raise. However, itwas appellant's own errorwhich initiallycast respondent in the role of "intervenor" when itnamed theBoard of Adjustment as the defendant in itspetition for a writ of certiorari. While under section 93-9004, R.C.M. 1947, the writwas properly directed to the Board of Adjustment, section 93-8801, R.C.M. 1947, states that the adverse party may be known as the defendant. In this case, certain conceptual and procedural difficulitieswould have been avoidedI1 if respondent ~ector's Garage Znc., the adverse party" had been properly designated as "defendant1'. In Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534, this Court reviewed a constitutional challenge to the validity of a zoning statute and ordinance brought to itby way of an appeal from certiorari proceedings conducted by the districtcourt inreviewing

a variance granted by theboard of adjustment of Great Falls. This Court passed upon the constitutional issuewithout even hesitating to question whether the appellant was precluded from raising such

a challenge orwhether the issue could be determined by it in a certiorari proceeding. Proceeding to the merits, respondent argues that section 16-4711, R.C.M. 1947, 

### isunconstitutional on itsfacebecause it provides that an emergency zoning resolution may be enacted without giving owners whose property may be affected prior notice of the proceedings. We do not here consider the constitutional 5ssue since, inany event, the statuteswere not followed. In viewing Chapter 47, Title 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, providing fornotice and hearing "in the adoption or amendment of zoning regulations". Nothing in Chapter 47, nor in section 16-4711 inparticular, detracts from this view. In fact, when section 16-4711 was enacted the immediately preceding section of that bill

was an amendment of section 16-4705. The close proximity of those two sections inChapter 273, Laws of 1971, would indicate a legislative intent that the two sections should be construed together. It isapparent the Lewis and Clark County Commissioners did not follow the procedure provided by section 16-4705. It thus follows that Temporary InterimZoning Resolution No. 1973-33 is void for failure to follow thenotice and hearing provisions set forth in section 16-4705, R.C.M. 1947.Thus, respondent Rector's Garage, Inc., 

### is entitled toa judgment. Since the record before us does not indicatewhether the area has been properly zoned since this action, we areunable to say that ajudgment of nonconforming use 

### isproper. Accordingly,

we return the matter to the districtcourt for entry of an order

orjudgment not inconsistentwith what has been said in this Opinion. Costs areawarded respondent Rector's Garage, Inc.

We Concur:

Chief Justice