NO. 95-285 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

MARGUERITE BOLAND; THOMAS F. and RUTH CORBALLY; 

BRIAN BIRKENBUEL; HARRY and RUTH GARDNER; JEANNIE 

and WILLIAM JUPKA; MARY LAIRD; WINONA and HILMUTH 

KRUCKENBERG; MINNIE ISLER; EDWARD and SUZANNE MERLO; 

SUSAN BOLAND; RICHARD and DONNA OSWEILER; WILLIAM 

and CHARLENE KITTO; and BETTY McGAVIN, 

Plaintiffs and Appellants, 

v. 

CITY OF GREAT FALLS, MONTANA, 

Defendant and Respondent, 

and 

TOP GUN, INC., 

Intervener/Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joe Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Marcia Birkenbuel, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

David V. Gliko, City Attorney, 

Great Falls, Montana 

For Intervener/Defendant and Respondent: 

J. Kim Schulke, Linnel, Newhall & Martin, 

Great Falls, Montana V~' 

Submitted on Briefs: December 21, 1995 

?i! .. . ...*' 

rrr, 0 ,"il(l Decided: February 2, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

This is an appeal from an order issued by the Eighth Judicial 

District Court, Cascade County, granting defendants' motions for 

summary judgment. We affirm. 

The issue on appeal is whether the rezoning of a 12.9 acre 

area from 7, A" residence use to 1, CT! residence use constitutes 

illegal spot zoning. 

FACTS 

At issue in this case are four city blocks in the Central 

Avenue Addition to the City of Great Falls (the Property). The 

Property was previously owned by the Sisters of Providence (the 

Sisters) who for many years had operated the St. Thomas Orphanage 

on the Property. Several years ago the structures were torn down 

and the Property became vacant, being used only for a baseball 

diamond on the southwest corner. The baseball facility has since 

been removed. 

The Property is located in an area zoned as an "A" residence 

district for use by single family residences and other permitted 

uses. The Property, however, has never been used for single family 

residences. Adjacent to the Property is a park, the old east side 

fire station which is now a warehouse, and a water tower. There is 

also a church and a two-family dwelling unit in the adjacent area. 

In 1992, James Benson entered into an agreement with the 

Sisters to purchase the Property in order to construct a 

condominium development. Benson submitted an application to the 

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City-County Planning Board to change the zoning of the Property 

from "A" residence district, "A" area, to "C" residence district, 

"B" area, which would allow the condominium development. The Board 

held a hearing in February 1993. One written objection to the 

project was received within the tine allotted. A number of people 

living near the Property appeared at the hearing and objected to 

the zone change. One property owner filed a letter and also spoke 

in support of the project. The Board recommended to the City 

Commission that the zone change be granted upon twelve conditions. 

The City Commission set a hearing for April 6, 1993, to 

consider the adoption of Ordinance #2650. This ordinance would 

allow the rezoning based upon the conditions set by the Board. The 

public hearing was ultimately held on June 15, 1993. Ten people 

spoke in favor of the proposed zone change, while three people 

spoke in opposition. The Commission adopted the proposed ordinance 

subject to the completion of a zoning contract between Benson, the 

Sisters, and the City of Great Falls. Ultimately, the Commission 

approved the zoning contract and the condominium project. 

On June 30, 1993, twenty-three residents of the adjoining area 

brought a declaratory judgment action seeking a determination that 

the rezoning action constituted illegal spot zoning and requesting 

that the Property be restored to its previous zoning classification. Plaintiffs and defendants filed notions for summary 

judgment. On May 4, 1995, the District Court granted defendants' 

motions for summary judgment and from this plaintiffs appeal. 

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STANDARD OF REVIEW 

Under Rule 56(c), M.R.Civ.P., summary judgment is proper if 

the record discloses no genuine issues of material fact, and the 

moving party is entitled to judgment as a matter of law. Lutey 

Const. v. State (1993), 257 Mont. 387, 389, 851 P.2d 1037, 1038. 

The parties stipulated that no genuine issues of material fact 

exist in this case. The standard that this Court applies in 

reviewing a grant of summary judgment is the same as that initially 

utilized by the trial court under Rule 56, M.R.Civ.P. McCracken v. 

City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. 

Since we are reviewing a discretionary exercise of the City's 

legislative authority, we must decide whether the zoning ordinance 

in question bears a reasonable and not arbitrary relationship to a 

permissible state objective. Anderson Ins. v. City of Belgrade 

(1990), 246 Mont. 112, 119-20, 803 P.2d 648, 652-53 (citing Cutone 

v. Anaconda-Deer Lodge (1980), 187 Mont. 515, 524, 610 P.2d 691, 

696-97). 

DISCUSSION 

Does rezoning of a 12.9 acre area from "A" residence use to 

"C" residence use constitute illegal spot zoning? 

Local municipal governments in Montana are empowered to enact 

zoning ordinances restricting the use of property in their 

jurisdictional area. Section 76-2-301, MCA, states that: 

For the purpose of promoting health, safety, morals, or 

the general welfare of the community, the city or town 

council or other legislative body of cities and 

incorporated towns is hereby empowered to regulate and 

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restrict the height, number of stories, and size of 

buildings and other structures; the percentage of lot 

that may be occupied; the size of yards, courts, and 

other open spaces; the density of population; and the 

location and use of buildings, structures, and land for 

trade, industry, residence, or other purposes. 

A zoning ordinance enacted pursuant to this statute will be 

found to be a constitutional exercise of police power if it has a 

substantial bearing upon the public health, safety, morals or 

general welfare of the community. Anderson Ins., 803 P.2d at 650 

(citing Freeman v. Board of Adjustment (1934), 97 Mont. 342, 352, 

34 P.2d 534, 537). 

The plaintiffs presented two separate issues on appeal. Their 

initial issue addresses whether the new zoning use is significantly 

different from the previous use, which is the first element of the 

"spot zoning" test. Their second issue addresses the second two 

elements of the "spot zoning" test. We will address both issues in 

the context of the "spot zoning" test previously adopted by this 

Court. 

In Little v. Board of County Commissioners of Flathead County 

(1981), 193 Mont. 334, 631 P.2d 1282, we identified the following 

three factors that are generally present when illegal spot zoning 

occurs, which we restate as follows: 

1. The requested use is significantly different 

from the prevailing use in the area. 

2. The area in which the requested use is to apply 

is rather small, however, this factor is more concerned 

with the number of separate landowners benefited by the 

requested change than it is with the actual size of the 

area benefited. 

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3. The requested change is more in the nature of 

special legislation. In other words, it is designed to 

benefit only one or a few landowners at the expense of 

the surrounding landowners or the general public. 

Little, 631 P.2d at 1289. We noted that the three factors are not 

mutually exclusive and cautioned that any definition of spot zoning 

must be flexible enough to cover the constantly changing 

circumstances under which the test may be applied. Little, 631 

P.2d at 1289. 

The plaintiffs contend that the City of Great Falls engaged in 

illegal spot zoning by singling out one small piece of property for 

a use that is significantly different from the surrounding area. 

The plaintiffs argue that the prevailing use in the area has been 

those uses allowed by the "A" residence zone which does not allow 

for multiple dwelling structures like those proposed by the 

condominium developer. Plaintiffs contend that if there is no 

significant difference between the types of dwelling units allowed 

in "A" zones and those allowed in "C!" zones, there would be no need 

for designating distinct residence zones. Plaintiffs maintain 

there is a significant difference between a condominium development 

and a neighborhood of single family homes located on standard-sized 

city lots. 

The City's position is that the proposed "residential 

condominium" use is similar to the surrounding single family 

residential use and that the zoning contract entered into by the 

parties provides the necessary restrictions to insure compatibility. The City also notes that the "A" residence zone does 

6 
permit "townhouses" as a conditional use and argues that townhouses 

are not significantly different in nature, density, and appearance 

from condominiums. 

The proposed condominium project consists of single family 

attached units on the interior of the Property and single family 

detached units on the perimeter to act as a screen between the 

existing single family dwellings adjacent to the Property and the 

rezoned area. The City required the developer and the Sisters to 

enter into a zoning contract that included a number of restrictions 

in order to preserve the residential integrity of the Property. 

The requirement that the condominium units on the perimeter of the 

Property be single family detached units, along with the other 

restrictions required by the City, insure that the new development 

will be compatible with the surrounding area. 

It should also be noted that despite the designation as an 

"A" residence district, the Property was originally used as the 

site for an orphanage and has never been used for single family 

residences. The old eastside fire station, now used as a 

warehouse, a water tower, a church and a two-family dwelling unit, 

none of which are single family residences, are located in the area 

adjacent to the Property. 

While the maximum density level will be twenty-nine percent 

higher than if the Property were developed solely as single family 

detached residences, it is important to note that the "A" residence 

zone permits "townhouses" as a conditional use. In fact, the City 

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determined that V [tlhe exact project proposed for the Property 

could be built as a townhouse project by submitting an amended plat 

to cause lot lines to be located on the common walls of the 

attached single family dwelling units . . .'I Moreover, if 

townhouse units were built where the single family detached 

condominium units are proposed, the density level would be even 

higher than that contemplated by this zone change. 

We conclude that the proposed condominium project is 

essentially residential in nature and not significantly different 

from the prevailing use in the area. Therefore, the first prong of 

the Little test is not satisfied. 

Having made that determination, we now must determine whether 

it is necessary to proceed to the final two elements of the Little 

test. In explaining the test, we stated that "[iIf spot zoning is 

invalid, usually all three elements are present or, said another 

way, the three statements may merely be nuances of one another." 

Little, 631 P.Zd at 1289 (citing Hagman, Urban Planning and Land 

Development Control Law (1971) at 169). Since we held in Little 

that "usually" all three elements are required to establish illegal 

spot zoning, it is possible illegal spot zoning can occur in the 

absence of an element. We therefore find it necessary to examine 

the remaining elements of the test. Our review of the record 

reflects that the remaining elements of the Little test are not 

satisfied. 
The second and third elements of the Little test must be 

analyzed together. The number of separate landowners affected by 

the rezoning relates directly to whether or not the rezoning 

constitutes special legislation in favor of only one person. Since 

none of the surrounding landowners have been granted permission to 

build condominiums on their property, plaintiffs argue that 

rezoning the Property benefits only the condominium developer. We 

determine that the plaintiffs' viewpoint is too narrow in its 

scope. 

We agree with the plaintiffs that the primary focus of the 

second and third Little factors is not the benefit resulting from 

the development of the Property, but rather the benefit to 

landowners as a result of the rezoning. However, we disagree with 

plaintiffs' contention that only the condominium developer will 

benefit as a landowner from the zoning change. 

Our review of the record indicates that the orphanage was 

razed on or about March 1983. After the building was razed, the 

Property was placed for sale and for approximately seven years 

prior to the proposed development the Sisters had received no 

serious offers to purchase the land. The Property has deteriorated 

over the years to the extent that it now contains a variety of 

nuisances and eyesores, including broken glass, animal excrement, 

noxious weeds, unkept and dead vegetation, unfilled basements, and 

abandoned boilers. The City offered testimony that the zoning 

change would increase the value and salability of the surrounding 

9 
property by eliminating the existing blight resulting from the 

nonuse of the lots and by eliminating the uncertainty of the future 

use of the Property, thereby benefitting the surrounding 

neighborhood. We therefore agree with the District Court which 

found that the zoning change would benefit the adjacent property 

owners whose property values would tend to increase from the 

project development. Thus, rezoning the Property will directly 

benefit more landowners than merely the individual developer. We 

therefore conclude the zoning change is not in the nature of 

special legislation designed to benefit only one landowner. 

Having concluded that the zoning change does not constitute 

spot zoning, we must now determine whether Ordinance #2650 bears a 

reasonable relationship to the advancement of the public health, 

safety, morals or general welfare of the community. Section 

76-z-301, MCA; Anderson Ins., 803 P.2d at 652. 

The City recognized the community's need for adequate and 

affordable housing in its Mission and Goals Statement. As part of 

its comprehensive review of the zoning change request, the City 

Commission determined that rezoning the Property would address the 

community's housing shortage, as well as provide a positive 

economic benefit to the community as a whole. The economic benefit 

extends not only to the developer but also to the Sisters, the 

construction companies and local labor force, the potential 

condominium purchasers, and the local taxing authorities. While 

the rezoning ordinance applies to a four square block area, the 

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Commission examined a number of factors and determined that the 

rezoning benefits both directly and indirectly a significant number 

of landowners and has a substantial bearing on the general welfare 

of the community. Rezoning the Property to allow for the housing 

development is a reasonable exercise of the City's legislative 

authority. 

Furthermore, the Commission addressed the integrity of the 

surrounding area in attempting to meet its need for additional 

housing. The Commission determined that there were adequate public 

improvements, including transportation routes, water and sewer 

facilities, schools, and parks in the surrounding neighborhoods. 

The zoning contract regulates and restricts the development to 

prevent overcrowding, traffic and parking problems, and junk 

structure problems. After a full and complete review of the 

circumstances, the Commission determined that the rezoning 

ordinance encourages the most appropriate use of the land and 

should have a negligible effect on the balance of land uses in the 

area. 

We have stated that: 

The purpose of zoning is not to provide for the highest 

or best use of each particular lot or parcel of land 

within the zones or community, rather it is to benefit 

the communitygenerally by the sensible planning of land uses 

taking into consideration the peculiar suitabilities and 

most appropriate use of land throughout the community. 

Anderson Ins., 803 P.Zd at 651 (citing Cutone, 610 P.2d at 694). 

We conclude that the rezoning ordinance does not constitute 

illegal spot zoning and that the City acted in a reasonable manner 

11 
and within its statutory power when it rezoned the Property. We 

hold that the District Court did not err in granting defendants' 

motions for summary judgment, and therefore, affirm the District 

Court's order. 

a! 

Justice 

We concur: 

12 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority's conclusion and conclude that 

when the City of Great Falls rezoned a 12.9 acre area from "A" 

residence use to "C" residence use it engaged in classic spot 

zoning. 

The majority opinion correctly sets forth the law regarding 

spot zoning. However, I disagree with its application of that law 

to the facts in this case. 

For example, under the first criteria for spot zoning 

established in Little Y. Boardof County CommissionersofFlathead County (1981) , 193 

Mont. 334, 346, 631 P.2d 1282, 1289, the question is whether the 

proposed use is different than the prevailing use in the area. I 

conclude that the proposed condominium development was a 

significantly different use than the single-family residential use 

of the surrounding area. In an "A" residence district, only 

single-family dwellings are allowed. In a "C" residence district, 

apartment houses, multiple dwellings, and townhouses are allowed. 

Although, as the majority points out, townhouses are permitted as 

a conditional use in "A" residential districts, conditional uses 

are not automatically granted. Conditional uses are permitted only 

after submission of a detailed application, and after all the 

procedures pertaining to a zone change, including a public hearing, 

have been complied with. 

Single-family residential use is substantially different than 

multiple-unit housing. In an "A" residential district, homes, 

along with the property on which the homes are located, are 

13 
individually owned. Each individual property owner is responsible 

and accountable for the maintenance of his or her own property. 

Ownership in a condominium unit, on the other hand, provides title 

to the dwelling unit, but no personal ownership of the land on 

which the unit is located. A condominium owner owns only a 

percentage interest in the common elements which include the land 

on which his or her dwelling unit is located. Individual unit 

owners have no personal control over maintenance of the real 

property on which they reside. 

Furthermore, the population density of the area where this 

proposed condominium development is to be located will be 

twenty-nine percent higher than it would be if developed for 

single-family residential use. It logically follows that the 

traffic volume in the neighborhood can be expected to increase 

twenty-nine percent more following the development of the area for 

condominium use than it would following development of the area for 

single-family residential use. 

Anyone who has ever lived in both a single-family residential 

area and a condominium development, or driven through the two 

different types of neighborhoods, knows that the character of each 

is entirely different from the other. In short, there is nothing 

similar about a condominium development and a single-family 

residential neighborhood. If the two types of neighborhoods were 

as similar as the City of Great Falls now contends, and as the 

majority now holds, then there would be no reason for the City of 

Great Falls to restrict condominium developments to class "C" 

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residential areas, rather than simply allow any type of residential 

construction in a class "A" residential area. 

For these reasons, I conclude that the proposed use of the 

land in question was significantly different from the prevailing 

use in the area and I disagree with the majority's conclusion to 

the contrary. 

In Little, we set forth the second and third factors to be 

considered as follows: 

Second, the area in which the requested use is to apply 

is rather small. This test, however, is concerned more 

with the number of separate landowners benefited by the 

requested change than it is with the actual size of the 

area benefited. Third, the requested change is more in 

the nature of special legislation. In other words, it is 

designed to benefit only one or a few landowners at the 

expense of the surrounding landowners or the general 

public. 

Little, 193 Mont. at 346, 631 P.2d at 1289 (citations omitted; 

emphasis added). 

The second test, as pointed out, is concerned with the number 

of separate landowners benefited by the requested change. In this 

case, only one landowner is benefited by the change. That is the 

owner who intends to develop the property for multiple-unit 

residential construction, and who will presumably profit more by 

developing it for that purpose, rather than single-family 

residential use. 

For the same reason, the third Little factor is satisfied in this 

case. The developer of the condominium in the middle of a singlefamily residential neighborhood will profit by his development at 

15 
the expense of those surrounding landowners who purchased and moved 

into their homes based on the assumption that the residential 

character of the neighborhood would remain as it was because of the 

zoning restrictions that were then in place. 

In summary, I conclude that the proposed condominium 

development to which the appellants objected was significantly 

different from the prevailing use of their neighborhood, will 

benefit only the developer, and was in the nature of special 

interest legislation intended to benefit the developer at the 

expense of surrounding landowners and the public in general. 

For these reasons, I dissent from the majority opinion. I 

would reverse the order of the District Court which granted summary 

judgment to the respondent and remand to the District Court with 

instructions to enter summary judgment in favor of the appellants. 

Justice William E. Hunt, Sr., joins in the foregoing dissenting 

opinion. 

Justice 

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