No, 13192 

IN THE SUPKEME COURT OF THE STATE OF MONTANA 

1975 

STATE ex rel., JOE R. THELEN and 

G. BARBARA THELEN, husband and wife, 

Relators, 

CITY OF MISSOUTA, through its City Council, 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Relators : 

Julio K. Morales argued, Missoula, Montana 

Fred C. Root and Victor F. Val-genti, Missoula, Montana 

Victor F. Valgenti argued, Missoula, Montana 

ttor .Amicus Curiae: 

Thomas Mahan argued, Helena, Montana 

Submitted : October 29, 1975 

fJEC - 8 !$)", Decided : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an original proceeding brought by property owners 

of the city of Missoula praying that an alternative writ of prohibition issue directing the city of Missoula to restrain from further 

interference in the sale of their residence and in the establishment of a home for the developmentally disabled in a one-family 

residential zone. 

Relators are residents of the city of Missoula and owners 

under a contract for deed of a residence in that city. The property 

is located in a zone classified by the city as R-I, one-family 

residential district. The zoning classification, as set forth in 

section 32.93 of the code of the city of Missoula, allows uses 

I I of the premises as follows: Any use permitted in RR-I". Such 

uses are set out in section 32-9.8 of the code of the city of 

Misscula as: 

(a) One-family dwelling. 

(b) Parks and Playgrounds. 

The applicable definition of "family" is contained in 

section 32-2 of the code of the city of Missoula, and provides: 

11 One or more persons related by blood, adoption, 

or marriage, exclusive of household servants, living 

and cooking together as a single housekeeping unit, 

or not more than two persons though not related by 

blood, adoption or marriage, living and cooking together 

as a single housekeeping unit shall be deemed to constitute a family. I I 

Relators desire to sell their residence and received an 

offer from the Missoula Developmentally Disabled Community Homes 

Council, a nonprofit organization, which intends to use the home 

for not more than 8 developmentally disabled persons. Because the 

property was located in an R-I area, the matter was taken before 

the Missoula city council to see what action it would take in view 

of the fact that the Montana legislature in 1974 amended Title 11, 
Cities and Towns, Chapter 27, Building Regulations-Zoning Commission 

sections providing for community residential facilities. Sections 

11-2702.1 and 11-2702.2, R.C.M. 1947, now exempt homes for the 

developmentally disabled from the provisions of local zoning ordinances. They provide: 

"11-2702.1. Community residential facility--defined. I Community residential facility' means (1) a group, 

foster, or other home specifically provided as a place 

of residence for developmentally disabled or handicapped 

persons who do not require nursing care, or (2) a 

district youth guidance home established pursuant to 

section 10-1103, or (3) a halfway house operated in accordance with regulations of the department of health 

and environmental sciences for the rehabilitation of 

alcoholics or drug dependent persons. 11 

"11-2702.2. Foster, boarding homes, community residential 

facilities considered residential. A foster or boarding 

home operated under the provision of sections 10-520 

through 10-523, or community residential facility serving 

eight (8) or fewer persons, is considered a residential 

use of property for purposes of zoning if the home provides 

care on a twenty-four (24) hour a day basis. 

11 The homes are a permitted use in all residential zones, 

including, but not limited to, residential zones for 

single-family dwellings. Nothing in this paragraph shall 

be construed to prohibit a city or county from requiring 

a conditional use permit in order to maintain a home 

pursuant to the provisions of this paragraph; provided such 

home is licensed by the department of health and environmental sciences and the department of social and rehabilitation services. Any safety or sanitary regulation of the 

department or any other agency of the state or political 

subdivision thereof which is not applicable to residential 

occupancies in general may not be applied to a community 

residential facility serving eight (8) or fewer persons. 11 

Hearings were held before a special committee of the city 

council and the council. Both proponents and opponents for allowing 

the sale to the nonprofit group were represented. The final action 

by the city council directed the city attorney to file an action 

testing the amendments to the state zoning law exempting homes for 

the developmentally disabled. The consensus of the city council was 

that while it did not oppose laudable objectives of the legislation, 

the purpose of the law suit was to challenge the state's taking over 

city zoning; zoning under the law theretofore had been a locally 

controlled function that should be left at the local level. 
Thereafter the city of Missoula filed an action against 

relators entitled City of Missoula vs. Joe R. Thelen and 

Barbara G. Thelen, his wife, and Susan K. Browder, seeking 

an order to permanently enjoin and prohibit relators, their 

successors and assigns, from residence use of said premises by 

more than one family. In addition, the city filed a lis pendens 

notice preventing the consummation of the sale by relators, as well 

as preventing the future use of the home as a group home for the 

developmentally disabled. 

Three issues are pertinent in this proceeding: 

1. Are relators entitled to have this Court assume 

original jurisdiction in this cause? 

2. Are relators exempt from the city zoning power, 

classification and definition of a one-family residence district? 

3. Are sections 11-2702.2, 71-2001, 71-2004, 71-2401 

through 71-2414, and 80-2607 through 80-2610, R.C.M. 1947, relating 

to establishment, operation and appropriation for group home facilities constitutional within the purview of the United States Constitution and the 1972 Montana Constitution? 

For the purposes of this opinion we will combine the 

first two issues. Relators argue that recourse to the district 

court and subsequent appellate channels will not afford them adequate relief in that the final disposition of the issue presented 

by their petition affects the validity of the buy-sell agreement 

entered into between relators and the Missoula Developmentally 

Disabled Community Homes Council; that the city has repeatedly 

stated it intended to bring the issue to this Court to establish 

judicial precedent; and that reaching a supreme court decision 

through appellate channels will unreasonably delay the sale of 

the residence, the construction of a new residence planned by 

relators with proceeds of the sale,and the eventual use of the 

residence as a group residence within the statutes of this state. 
Respondent city argues that relators are attempting to 

short circuit the district court process and this Court is asked 

to act in a vacuum, alleging that relators who now claim urgency, 

have made no effort to bring the matter to trial in the district 

court and have thereby denied this Court a factual determination 

that could be properly disposed of by this Court on appeal. 

Respondent cites and relies on this court's holding in State ex rel. 

Kober & Kyriss v. District Court, 147 Mont. 116, 117, 410 P.2d 945, 

where this Court held: 

It In view of the provisions of the Montana Rules of 

Appellate Civil Procedure for the expeditious handling 

of appeals we are not inclined to issue writs of 

supervisory control as a method of short cut appeal, except under the most extenuating circumstances which we need 

not attempt to catalog. In this cause no such circumstances appear. It 

Looking to the quoted language, we ask what, if any, are 

the extenuating circumstances here that would warrant intervention 

of this Court at this time? First, relators, with their buy-sell 

agreement, are unable to sell their property due to the law suit 

filed by respondent city and the lis pendens notice. Second, a 

zoning regulation of respondent city that has been neutralized by 

an act of the legislature. Third, the provisions of Article XII, 

Section 3(3), 1972 Montana Constitution which provides: 

"The legislature shall provide such economic 

assistance and social and rehabilitative services as may be necessary for those inhabitants 

who, by reason of age, infirmities, or misfortune 

may have need for the aid of society. I I 

We find such extenuating circumstances warrant this Court's 

intervention in this cause. 

While we recognize respondent city's arguments as to the 

desirability of maintaining local government control of zoning 

regulations in its city, there is no question that the power of 

the legislature over the city in this matter is supreme. The legislature can give the cities of this state the power to regulate 

through zoning commissions, and the legislature can take it away. 
~es~ondent's remedy lies not in this Court, but in the legislature. 

This Court in State v. Holmes, 100 Mont. 256, 274, 47 P.2d 624, 

said: 

11* * * The powers granted to a municipal corporation 

are of two classes. he first including those which 

are legislative, public or governmental, and import 

sovereignty; the second are those which are proprietary 

or quasi private, conferred, for the private advantage 

of the inhabitants and of the City itself as a legal 

person. ' [Citing cases] * * * 

"As to the first class of powers of a city enumerated 

above, the power of the legislature is supreme except 

as limited by express constitutional prohibitions * *." 

This Court in State ex rel. Griffin v. City of Butte, 

151 Mont. 546, 548, 445 P.2d 739, quoting from Leischner v. Knight, 

(City of ~illings), 135 Mont. 109, 112, 337 P.2d 359, said: 

"'1t is well-settled law in this state that cities 

have only those powers granted them by statute or which 

are necessarily implied as adjuncts to powers granted 

by statute. This court has repeatedly stated that "unless 

a power is vested in the municipality by express law 

[or by necessary implication therefrom], the presumption 

is against the exercise by the city of any such power. I I 

State ex rel. Great Falls Housing Authority V. City of 

Great Falls, 110 Mont. 318, 328, 100 P.2d 915, 921."' 

In the instant case, while respondent city may well have 

acted within the power granted it by the legislature in adopting 

t I its one-family" criteria for zoning, that power was modified by 

later legislative language and respondent city should have revised 

its zoning regulations to meet the legislative requirements. 

That the legislature has power to modify or withdraw various 

powers given a municipality has long been recognized in Montana. 

This Court noted in Stephens v. City of Great Falls, 119 Mont. 368, 

"There is no principle of law better established than 

that a city has no power, except such as is conferred 

upon it by legislative grant, either directly or by 

necessary implication. [Citations] Resting as it does 

upon legislative grants the legislative branch of the 

government may, at its pleasure, modify or withdraw the t power so granted. It may, if it chooses, repeal any 

charter, or any law under which municipalities may be 

created, and destroy any munici a1 corporation at its 

will and pleasure. [Citation]. PI 
~ontana's legislature having determined that the constitutional rights of the developmentally disabled to live and develop 

within our community structure as a family unit, rather than that 

they be segregated in isolated institutions, is paramount to the 

zoning regulations of any city it becomes our duty to recognize and 

implement such legislative action. 

Respondent city argues that a recent opinion of the 

United States Supreme Court, Village of Belle Terre v. Boraas, 

416 U.S. 1, 94 S.Ct. 1536, 39 L ed 2d 797, 804, affirms the constitutionality of an ordinance defining T'family" which is for all 

practical purposes identical to the provisions of section 32-2 

of the Missoula city code defining "family". 

We do not so view it. Village of Belle Terre is an entirely 

different factual situation and is unrelated to state legislation 

that is focused on the carrying out of new constitutional mandates. 

There, the city of Belle Terre had an ordinance similar to iss sou la's 

restricting land use to one-family dwellings and prohibiting the 

occupancy of a dwelling by more than two unrelated persons as a 

"family". Plaintiffs in that case, the owners of a house, were 

charged with violating the ordinance due to the fact that three of 

six college students rented the house. Plaintiffs argued that the 

ordinance violated equal protection rights and rights of association, 

travel and privacy. The district court upheld the constitutionality 

of the ordinance, the circuit court reversed, and the United States 

Supreme Court in an opinion authored by 14r. Justice Douglas, reversed 

the circuit court. 

Elr. Justice Douglas gave as the Court's reasons for finding the 

ordinance constitutional the fact that the ordinance (a) was not 

aimed at transients and thus did not violate any right of interstate 

travel, (b) involved no procedural disparity inflicted on some but 

not on others, (c) involved no fundamental constitutional right, 

such as the right of association and privacy, and (d) was reasonable 
and bore a rational relationship to a permissible state objective, 

thus not violative of equal protection. Viewing our fact situation 

in the instant case, we find the Village of Belle Terre case inapplicable particularly in the criteria of the opinion set forth 

under (c) . 

Here, the Montana legislature adopted a new policy as applied 

to the developmentally disabled in an effort to implement a new 

constitutional mandate, and in so doing it was furthering a permissible state objective. Mr. Justice Douglas noted in Village of 

Belle Terre that every line drawn by a legislature leaves something 

out that might well have been included, but notes, however, that 

that exercise of discretion is a legislative, not a judicial, function. 

Justice Douglas then quotes the language of Mr. Justice Holmes in 

his dissenting opinion in Louisville Gas Co. v. Coleman, 277 U.S. 

11 I When a legislative distinction is determined, as no 

one doubts that it may be, between night and day, 

childhood and maturity, or any other extremes, a point has 

to be fixed or a line has to be drawn, or gradually 

picked out by successive decisions, to mark where the 

change takes place. Looked at by itself without regard 

to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little 

more to one side or the other. But when it is seen that 

a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision 

of the legislature must be accepted unless we can say that 

it is very wide of any reasonable mark."' 

Under the facts of the instant case, we uphold the legislative acts providing for community residential facilities for 

developmentally disabled in all residential zones, including, but 

not limited to, residential zones for one-family dwellings. 

Let the writ issue. Attorney fees are set in the amount 
Justices.