No, 13192 INTHE 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: JulioK. 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 cityof Missoula praying that an alternativewritof prohibition issue directing the cityof Missoula torestrain from further interference in the saleof their residence and in the establishment of a home for the developmentally disabled in a one-family residential zone. Relators areresidents of the cityof Missoula and owners under a contract for deed of a residence in that city. The property 

### is located in a zone classifiedby the cityas R-I, one-family residential district. The zoning classification, as set forth in section 32.93 of the code of the cityof Missoula, allows uses

II 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 cityof Misscula as: (a) One-family dwelling. (b) Parks and Playgrounds. The applicable definition of "family" iscontained in section 32-2 of the code of thecityof Missoula, and provides:

11One ormore persons relatedby blood, adoption, ormarriage, exclusive of household servants, living and cooking together as a singlehousekeeping unit, ornot more than two persons though not related by blood, adoption ormarriage, living and cooking together as a singlehousekeeping unit shallbe deemed to constitute a family. II Relators desire to selltheir residence and received an offer from the Missoula Developmentally Disabled Community Homes Council, a nonprofit organization, which intends touse the home fornot more than 8 developmentally disabled persons. Because the property was located in an R-I area, the matter was taken before the Missoula citycouncil to seewhat action itwould 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. ICommunity residential facility' means (1) a group, foster, or other home specificallyprovided as a place of residence for developmentally disabled orhandicapped 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 facilitiesconsidered residential. A foster orboarding home operated under the provision of sections 10-520 through 10-523, or community residential facility serving eight 

### (8) or fewer persons, isconsidered 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 allresidential zones, including, but not limited to, residential zones for single-family dwellings. Nothing inthis paragraph shall be construed toprohibit a cityor county from requiring a conditional use permit inorder tomaintain a home pursuant tothe 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 sanitaryregulation of the department or any other agency of the state or political subdivision thereof which 

### isnot applicable toresidential occupancies ingeneral 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 tothenonprofit group were represented. The final action by the citycouncil directed the cityattorney to filean action testing the amendments tothe statezoning law exempting homes for the developmentally disabled. The consensus of the citycouncil was that while it did not oppose laudable objectives of the legislation, the purpose of the law suitwas tochallenge the state's taking over city zoning; zoning under the law theretofore had been a locally controlled function that should be left atthe local level.

### Thereafter the city ofMissoula filed an action against relators entitled City ofMissoula 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 residenceuse of said premises by

more than one family. In addition, the city filed a lis pendens notice preventing the consummation of the saleby relators, aswell

as preventing the futureuse 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 1972Montana Constitution? For the purposes of this opinion wewill combine the first two issues. Relators argue that recourse to the district court and subsequent appellate channelswill 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 intobetween 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 channelswill unreasonablydelay the sale of the residence,the construction of a new residenceplanned by relatorswith 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 relatorswho now claimurgency, 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, 147Mont. 116, 117, 

### 410 P.2d 945, where this Court held:

It

### Inview of the provisions of the Montana Rules of Appellate Civil Procedure for the expeditious handling of appealswe are not inclined to issuewrits of supervisory control as a method of short cut appeal, except under the most extenuating circumstanceswhichwe need not attempt to catalog. In this causeno such circumstances appear.It 

### Looking to the quoted language,we askwhat, if any, are the extenuating circumstanceshere that would warrant intervention of this Court at 

### this time? First, relators,with their buy-sell agreement, areunable 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), 1972Montana Constitutionwhich provides: "The legislature shallprovide such economic assistance and social and rehabilitative services as may be necessary for those inhabitants who,by reason of age, infirmities,ormisfortune may have need for the aid of society.II 

### We find such extenuating circumstanceswarrant 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, 100Mont. 256, 274, 47 P.2d 624, said:

11* 

# ** The powers granted to a municipal corporation are of two classes. 

## he first including thosewhich 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 constitutionalprohibitions

# * 

# *." This Court in State ex rel. Griffin v. City of Butte, 151Mont. 546, 548, 445 P.2d 739,quoting from Leischnerv. Knight, (City of ~illings),135 Mont. 109, 112, 337 P.2d 359, said: "'1t iswell-settled law in this state that cities have only those powers granted them by statute orwhich 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

[orby necessary implication therefrom], the presumption is against the exercise by the city of any such power.II 

### 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 actedwithin the power granted it by the legislature in adopting

tI 

### 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 legislaturehas power to modify or withdrawvarious powers given a municipality has long been recognized in Montana. This Court noted in Stephens v. City of Great Falls, 119Mont. 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 governmentmay, at its pleasure, modify orwithdraw the t 

### power so granted. It may, if it chooses,repeal any charter,or any lawunder which municipalitiesmay 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 structureas 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 torecognize and implement such legislative action. Respondent cityargues 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 tothe provisions of section 32-2 of theMissoula citycode defining "family". We do not so view it. Village of Belle Terre 

### is an entirely different factual situation and 

### isunrelated to state legislation that 

### is focused on the carrying out of new constitutional mandates. There, the cityof Belle Terre had an ordinance similar to

### iss sou la's restricting land use toone-family dwellings and prohibiting the occupancy of a dwelling by more than two unrelated persons as a "family". Plaintiffs inthat case, the owners of a house, were charged with violating the ordinance due to the fact that three of sixcollege 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 attransients 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 reasonableand bore a rationalrelationship toa permissible stateobjective, 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 asapplied to the developmentally disabled in an effort toimplement a new constitutional mandate, and in so doing it was furthering a permissible stateobjective. Mr. Justice Douglas noted inVillage of Belle Terre that every linedrawn 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. JusticeHolmes in his dissenting opinion inLouisville Gas Co. v. Coleman, 

### 277 U.S.

11IWhen a legislative distinction 

### is determined, asno one doubts that it may be, between night and day, childhood and maturity, or any other extremes, 

### a point has tobe fixed or a linehas tobe drawn, or gradually picked out by successive decisions, tomark where the change takes place. Looked atby itself without regard to thenecessity behind it the line or point seems arbitrary. It might as

### wellornearly aswellbe 

### a little more to one side or the other. But when it 

### is seen that a lineor point there must be, and that there 

### isno mathematical or logicalway of fixing it precisely, the decision of the legislaturemust be accepted unless 

### we can say that it 

### is verywide of any reasonable mark."' Under the facts of the instant case, we uphold the legislative acts providing forcommunity residential facilities for developmentally disabled in allresidential zones, including, but not limited to, residential zones for one-family dwellings. Let thewritissue. Attorney fees are set in the amount

### Justices.