110. 12825 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 75 

BRYANT DEVbLOPMENT ASSOCIATION, 

Plaintiff and Appellant, 

-vs - 

TED DAGEL et al., 

Defendants and Respondents, 

-vs - 

RECTOR ' S GARAGE INC. , 

Defendant and Third Party Plaintiff, 

-vs - 

BRYANT DEVELOPMENT ASSOCIATION et al., 

Third Party Defendant-Respondent. 

Appeal from: District Court of the First Judicial 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 : FEB 2 1 1975 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This case is before 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 Mill Road, Lewis and Clark County. Because of the 

inadequate size of the company's buildings and a reluctance to 

scatter unrestored automobiles and parts outside where they would be 

unsightly and susceptible to the elements, officers of respondent 

had for some time been interested in constructing a new building. 

In July 1973, the property adjoining the existing facilities, 1035 

Mill Road, was offered for sale. In reliance upon representations 

of appropriate county officials that no zoning or building restrictions existed nor were contemplated for the neighborhood before 

January 1974, the property was purchased for approximately $35,000. 

On September 10, 1973, negotiations were entered into with 

a building contractor for construction of a prefabricated, commercial 

steel building to be cut and manufactured in California and assembled 

at the job site by the contractor. Although the formal contract was 

not signed until September 17, 1973, the manufacturer was notified of 

the negotiations. 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 to officers of 

respondent, and without prior notice whatsoever, the Lewis and Clark 

County Commissioners met in an evening emergency session and purported 

to adopt Temporary Interim Zoning 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 the members of appellant association who 
reside in the neighborhood in which respondent is located with the 

very purpose of stopping respondent from completing the building 

project it had commenced. Officers of respondent were not made 

aware of these summary proceedings until the following week when 

an officer of the contractor was informed the building project had 

been prohibited. 

I I On October 4, 1973, counsel for respondent filed an Application for Variance or, in the alternative, Appeal from the Administrative Decision of the Lewis & Clark County ~omrnissioners" with the 

Lewis and Clark County Board of Adjustment to permit construction 

of an automobile restoration and storage facility at 1035 Mill Road. 

A recorded, evidentiary hearing was held on this application before 

the Board of Adjustment on December 10, 1973. Counsel for respondent 

presented testimony and a memorandum supporting the firm's contention that this zoning resolution was unconstitutional; that it had 

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 after referred to as appellant, also appeared, presented 

testimony in opposition to respondent's requests and later filed 

its legal memorandum. 

On February 2, 1974, the Board of Adjustment issued an order 

granting respondent the requested variance. By petition for a writ 

of certiorari, appellant asked the district court to review that 

decision, contending it was unwarranted by the facts. The district 

court granted appellant's petition and issued a writ of 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 for respondent further moved on 

April 8, 1974, that the stay order be dissolved or, alternatively, 

that appellant be required to post a $15,000 bond to cover damages 

which might accrue to Rector's Garage because of the stay order. 
By an order, dated July 1, 1974, the district court denied this 

latter moti on. 

In answer to appellant's petition 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 counterclaim and 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 counterclaim and crossclaim was 

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 counterclaim requested damages 

stemming from appellant's unlawful 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 of Adjustment 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 counterclaims were granted. The case now comes 

to this Court upon timely notices of appeal by Bryand Development 

Association and crossappeal by ~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, 116 Mont. 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 

petitioner will not 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 the board of 

adjustment, states in subsection (8) : 

11 Any person * * * aggrieved by any decision of 

the board of adjustment 9: 9: * may present to a 

court of record a petition, duly verified, setting 

forth that such decision is illegal, in whole 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, or may modify the decision brought up 

for review. I I 

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 to certiorari. A similar 

position has been enunciated in Arizona. See e.g., Lewis v. 

Board of Adjustmen~of City of Phoenix, 6 Ariz.App. 494, 433 P.2d 

811. To hold otherwise, as appellant would have us do, and deny 

respondent the use of this affirmative defense, would be a triumph 

oi form over substance. 

Appellant further contends that respondent is precluded from 

11 raising the issue because of respondent's status as an intervenor" 

in the main action. It argues that an 'intervenor cannot raise 

issues which the original parties, in this case the appellant and 

The Board of Adjustment, did not or could not, raise. However, 

it was appellant's own error which initially cast respondent in the 

role of "intervenor" when it named the Board of Adjustment as the 

defendant in its petition for a writ of certiorari. While under 

section 93-9004, R.C.M. 1947, the writ was 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 difficulities would have been avoided 
I1 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 it by way of an appeal from 

certiorari proceedings conducted by the district court in reviewing 

a variance granted by the board of adjustment of Great Falls. This 

Court passed upon the constitutional issue without even hesitating 

to question whether the appellant was precluded from raising such 

a challenge or whether 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, is unconstitutional on its face because 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, in any event, the statutes were 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 for notice and hearing "in the adoption or amendment of 

zoning regulations". Nothing in Chapter 47, nor in section 16-4711 

in particular, 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 in Chapter 273, Laws of 1971, would indicate a legislative 

intent that the two sections should be construed together. 

It is apparent the Lewis and Clark County Commissioners did 

not follow the procedure provided by section 16-4705. It thus 

follows that Temporary Interim Zoning Resolution No. 1973-33 is 

void for failure to follow the notice and hearing provisions set forth 

in section 16-4705, R.C.M. 1947. 
Thus, respondent Rector's Garage, Inc., is entitled to a 

judgment. Since the record before us does not indicate whether 

the area has been properly zoned since this action, we are unable 

to say that a judgment of nonconforming use is proper. Accordingly, 

we return the matter to the district court for entry of an order 

or judgment not inconsistent with what has been said in this Opinion. 

Costs are awarded respondent Rector's Garage, Inc. 

We Concur: 

Chief Justice