No. 88-519

INTHE SUPREME COURT OF THE STATE OFMONTANA
1989

WEND1 SCHENDEL and DALE W. SCHENDEL, Plaintiffsand Appellants,-vsBOARD OFADJUSTMENT OF THE CITY OF BOZEMAN, MONTANA, and CITY OF BOZEMAN, MONTANA, Defendantsand Respondents.

APPEAL FROM: DistrictCourtof the EighteenthJudicial District, Inand for the Countyof Gallatin, The HonorableThomas Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
RichardJ. Carstensen, Billings, Montana
For Respondent: Lineberger & Harris; Peter S. Lineberger, Bozeman, Montana

Submittedon Briefs: March9, 1989
Decided: May 4, 1989Mr. Justice John Conway Harrison d.eliveredthe Opinion of the Court.

This appeal arises from the July 18, 1988 decision of the District Court of the Eighteenth Judicial District, Gallatin County, Montana, and that court's September 1.9,1988 order refusing to reconsider and amend its order upholding the decision of the Roard of Adjustments of the City of Bozeman (Board)

# . We affirm. Thismatter appeared in the District Court on a writ of certiorari and was returned to the Board for a full hearing

on December 1, 1986. The case was ultimatelv submitted to t-he District Court upon stipulated facts, exhibits and issues, and on July 1.8, 1988, the District Court found in favor of the Roard. Upon the court's denial of appellants' request for "reconsideration" they appeal to this Court. In 1977, appellants Wendi and Dale Schendel [Schendels) purchased 3.7 acres in an R-S zone adjacent to the Cit.y of Bozeman. Shortly after the Schendels built their home they began to collect and care for various types of waterfowl.. They initially began raising only a Few birds and by 1986 gradually built up the bird population to 350 or more, especially during the summer months. While acquiri-ngmore and more waterfowl the Schendels spent over $35,000 in pens, ponds and fences to accommodate and control. the various birds. The Schendels testified that they have arranged the qround level basement of their house to accommodate many of the ducks and geese during thewintermonths. In 1985 an unsigned complaintwas received by the Board concerning the waterfowl in the Schendels' area. A hearing

was held before the Board 

### as a result of the determination a~d subsequent order of the Rozeman building official that

### the Schendels' use of their property violated the Bozeman Municipal Zoning Code. This first hearing before the Board

was held May 5, 1986. As a result of the May 5, 1986 hearing, the matter went to the District Court on a petition forwrit of certiorariandwas then returned to the Board for

a fullhearing. A transcriptwas taken at this second Board hearingheld on December 1, 1986,

### which indicatesanumber of people appeared in support of 

### the Schendels' continuation of 

### their homesite operation. Therewere also a number of other people who appeared objecting to the noises caused by the numerous ducks and geese heard throughout the major portion of the year. Some of the neighbors testified that theywere awakened and kept awake from 2:00 a.m. and 3:00 a.m., particularly in the spring and fallof the year and that they had discussed this with the Schendels. The Schendels testified at the hearing that they did not realize therewas much objection to thewaterfowl and the resultingnoise. The Schendels further testified that some of their operations

were in conjunction with the Federal and State government in raising rarewaterfowl. As noted, the Schendels originally began their operation with very few ducks and geese but, when the population increased to over several hundred, it became "ducksunlimited"and the noise,combinedwith the unsanitary conditionsof thewaterfowlmade an intolerable situation for

someof theneighbors. After the Board's December 1, 

### 1986 full hearing, it granted a variance which required the Schendels limit the 

### number of birds on their property to 

### only 40 resident birds, and 200 transient hirds 

### during the nesting period. The terms

### of the variance were made effective for two years or unt.il theirpropertywas sold,which ever first occurred. Following the first hearing on May 5, 1986, 

### the Schendels filed a petition for a writ of certiorari in the District Court. The petition requested reliefby certiorari under Title 27, 

### Chapter 25, 

### MCA, and under the zoninq regulation, Section 18.66.080, 

### of the Rozeman Municipal Zoning Codewhich

### provides: Any person or persons

# . .. aggrieved 

### by any decision of the Board ofAdjustment, or any taxpayer, or any officer, department, board or bureau of the municipality,may present to the court of record apetition,dulyverified, setting forth that such decision is illegal in whole or in part specifying the grounds of illegality. Such petition shall be presented to the court within thirtydays after the filing of the decision in the officeof the Roard.
The Schendelsallege that the DistrictCourthad before it not only their request forwrit of certiorari relief,but also an appeal as to whether the Board's decisionwas legal and that the District Court erred in deciding this case on only the firstpoint. The principal issue before the District Court and before this Court is whether the Board of Adjustment of the City of Rozeman acted outside its jurisdiction in granting a variance to the Schendelswhich imposed limits on the number of waterfowl the Schendels could raise; and. whether the District Court properly approve the action of the Board. The District Court received the writ of certiorari on stipulated factswhich stateas follows: 1. 

### Wendi Schendel and Dale W. 

### Schende!., plaintiffs, are the owners of

### the following described property in Gallatin County,Montana:
Lot 7 in Sourdough Ridge No. 2 

### Subdivision according to the official plat thereof, on file and of record in Book 1 

### of Plats,Page 30, Office of the Clerk and Recorder in such county.
2. 

### Wendi and Dale Schendel have raised water fowl and endangered birds on those premises since 1978. These activities progressively increased on the premises until about 1986. The Schendels

### ' property has carried, at times, as many as 350 water fowl; and the Schendels'

[sic] plan to indefinitely continue to have as many as 300 water fowl on the premises during the summermonths.
3. 

### Pursuant to a notice by the defendant, Board of Adjustment of the City of Bozeman, a copy of which is attached as Exhibit "A", plaintiffs appeared before such board onDecember 1, 1986.
4. 

### At the time of the hearing, theboard received testimony and affidavits in support of the Schendels' water fowl production, as well as testimony and affidavits in opposition of [sic] the granting of variance to Wendi and Dale Schendel.

# . . . 5. 

### At the hearing on December 1, 

### 1986, the Board acknowledged thatraising water fowl was an agricultural use as per the adopted definition listed under Section 18.04.030, accepted by the Board.
6. 

### Following testimony in the 

### hearing, the board made a decision allowing the Schendels a variance for the raising of water fowl 

### on the 

### following conditions:

### The water fowl population on your property will not exceed 40 

### permanent birds, and 200 

### transient birds; the variance shall be for twoyears,or until theproperty is sold, whichever is first.

# .. 7. 

### Plaintiff's [sic]property is located in zone R-S-2, 

### that zoning allows by Section 18.1.?.020 

### a permitted use by any party of their property if it is for "agricultural purposes". 18.04.030 

### defines agricultural use as: Agriculture means the tilling of soil, the raising of crops, horticulture and gardening, dairying or animal husbandry, including uses customary [sic] incidental thereto, but not including any agricultural industry or business such as fruit, plants, fur farms, animal hospitals, commercial feed. lots, or similar use. 

# . . Section 18.1.2.020 

### alsoprovides:

J. 

### The keeping of animals and fowl for family foodproduction and thekeepingof horses for private use, together with their dependant young as hereinafter set forth per two and one-half acres: one h.orse,or one cow, or two sheep, or two goats, or ten rabbits,or t.hirty-sixfowl

(chickens, pheasants, pigeons, etc.)

### , or six larger fowl (ducks,geese, turkeys, etc.)

# . It 

### is the Schendels' position that theBoard recognized t-heuse of their property was for agricultural purposes,yet the Board's decision illegally restricted the number of waterfowl they could keep on their property. The Schendels cite a number of out-of-st.ate cases pertaining to

### agricultural land.use, but in view of the Board's findings and the fact that the District Court uphe1.d the Board in finding the Schendels' property was being used for aqricultural purposes, we hold that the Schendels' argument and case law,while creative, isnotpersuasive. This Courtmust consider whether the DistrictCourt,on certiorari,properly considered this matter under § 

### 76-2-327, MCA,

### whichprovides that a 

### district court may hold a hearing, 

### take further evidence on the matter, "reverse or affirm, whol!~or partly, or may modify the decision brought up 

### for review." 

### Section 76-2-304(2), MCA, sets forth the fundamental purposes of zoning: (2) 

### Such [zoning] regulations shall be made with reasonable consfderation,among other things, to the character of the districtand its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout suchmunicipality.
The above quoted sections from the Bozeman Municipal Zoning Code and Montana Code Annotated are of import to this case when considering the suitability of the presence of some 300 waterfowl in a 

### suburbanneighborhood adjacent to the City of Bozeman

# . There are two levels of judicial review to be considered here: a review by the District Court of the Board's decision, and a reviewby this Court of the District Court's decision. As to the review by the District Court, Montana law provides theprocedures for awrit of certiorari. in Title 27, 

### Chapter 25,

### MCA. Section 27-25-303,MCA, states:The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.
Under these provisions, the District Court's function

was to determine whether the Board's action was legal and whether the Board acted within its jurisdiction. It is in this light that the case was presented to the District Court by theparties. Under the provisions of S 76-2-327, MCA, and Section 18.66.080, BozemanMunicipal ZoningCode,numerous caseshave set forth Montana law with respect to the full standard of review by a district court. See, Lambros 

### v. Board of Adjustment ofCity ofMissoula (1969),153 Mont. 20, 452P.2d 398, where this Court held that upon review of the district court's decision on a variance question before a board of adjustment, the only question for this Court was whether an abuse ofdiscretionwas committed by the district court. See also,Whistler v. Burlington Northern (Mont. 1987), 741 P.2d 422, 44 St.Rep. 1415. This Court has established the principle that an abuse ofdiscretionmust be shownbefore the district courtmay set aside a board's decision. See, e.g., Wheeler v. Armstrong

(1975), 166 Mont. 363, 533 P.2d 964;Rygg v. Kalispell Board ofAdjustment (1976),169Mont. 93,544 P.2d 1328;and Cutone

v. Anaconda-Deer Lodge 11980), 187 Mont. 515, 610 P.?d 691. The Schendels have asked this Court to hold that the Roard abused its discretion in issuing the order limiting the number ofwaterfowl they can raise on their property. It is not the function 

### of this Court to examine the wisdom of the Foarcl's decision if it. is esteblished that the Board actedwithin its jurisdiction and that its action was not illegal. The Distri.ctCourtupheld the Board's decisionandwe find no abuse ofdiscretionby the DistrictCourt. As 

### to the jurisdiction of this matter, we note the Schendels sought a review and reversal of the Board's decision regarding their land use. However, the Board acted

on the administrative appeal and limited its jurisdictionand decision to purely factual zoning matters. The Schende1.s fail to address or support the argument that the Board lacked jurisdictionto review the decision of the building official. While agricultural uses are permitted. under Section 18.12.020, subparagraph B, Bozeman Municipal Zoning Code, subparagraphJ of that same code sectionprovides: Permitteduses in the R-S district are as fol!.ows :

J. The keeping of animals and fowl. for family food production

# . . . :one horse, or one cow, or two sheep, or two goats, or ten rabbits, or thirty-six fowl

(chickens, pheasants, pigeons, etc.)

## , or six large fowl (ducks, geese, turkeys, etc.1.
The ruling by the Board appears liberal in view of the "six large fowl (ducks,geese, turkeys, etc.) " language contained

as a limitation factor in the cod-esection. An integral part of the Bozeman Municipal Zoning Code is Chapter 18.66, entitled Board of Adjustment. Section 18.66.030 defines the powers and duties of the Board and

A. The Board shall set its operating rules in accordance with MCA 

### 5 76-2-323, 1981, and shall have the 

### foil-owing powers.

### 1. 

### To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto.
2. 

### To authorize upon appeal in specific cases such variance from the terms of this title as willnotbe contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions will result in unnecessary hardship, and so that the spirit of this title shall.be observed and substantial justicedone.

The Board has the authority to hear appeals from the decisions of municipal administrativeofficers,which is the fact situation here. Section 18.66.060 

### of the Bozeman Municipal Zoning Code sets forth the criteria the Board must use when considering appeals. In approving applications of appeal, the Board designates such lawful conditions as will secure substantial protection for the public health, safety and general welfare. That section also provides that the Board's findings and its decision will not be inconsistent with the intent and purpose of the Code. Similarly, the lawful conditions stated in any approval may include time periods and "[alny other conditionsaswill make possible the development of the City in an orderly and efficient manner and in conformity with the intent and purpose set forth in this chapter." Section 18.66.060, 

### subparagraphD(4), 

### Rozeman Municipal ZoningCode. We find the Board lawfully set forth limitations on the number of waterfowl a-llowedon the Schendels' property andset a time limit for resolution 

### of the matter in accordance with the specific statutory and ordinancemandates. This Court has repeatedly held that statutes and ordinances will not be read so narrowly as to restrict the plain meaning of the whole law. See, Montana Automobile Association v. Greeley (Mont. 1981), 632 P.2d 300, 306, 38 St.Rep. 1174, 1180, where this Court stated: If possible, subsections of a statute shouldbe construed in amanner thatwill give effect to them all. 

# ..This Court must reconcile conflicting statutory provisions and make them operative in accordance with the legislative intent, insofar as it is possible to do so



# ... (Citationsomitted.)
This Court has established the rule of statutory construction that a statute derives its meaning from the entire body of words taken together. See, Crist v. Segna

(Mont. 1981), 622P.2d 1028, 38 St-Rep.1.50;Darby Spar,Ltd.

v. Departmentof Revenue (1985\,211Mont. 376, ?05 P.?d 1-11; and FJyse v. District Court (1981), 195 Mont. 435, 636 P.2d 865. The Schendels

### ' operation of a large noncommercial, waterfowl production facility presented the Board with an unusual situation. Clearly,under § 18.66.060 of the Rozeman Municipal Zoning Code, the Board rendered its decision by balancing the interests of the Schendels against the interests of upholding the zoning ordinance as a whole. In view of these facts,the District Court found the Board acted within its jurisdiction and that its decision was not illegal. We hold that the Roard of Adjustment had jurisdiction to place the restrictions as to the number ofwaterfowl andwe affirm the decision of the District Court that t-heBoard acted within its jurisdiction and in accordance with Montana law. The decision of the District Court is affirmed.

We concu 

# u

### Mr. dustice Fred J. Weber specially concursas follows:

I concur in the result reached by themajority that the Board of Adjustment has the power to reasonably restrict the number of waterfowl on plaintiffs' property. However, I do not agree that the Board's analysis of plaintiffs' use of property was correct. I would there-r"orehave reached the same conclusion but for differentreasons. Under the Eozeman Municipal Zoning Code, Section 18.04.020!b), agricultural use is defined as follows:
Agriculturalmeans the tilling of soil,the raising 

### of crops, horticulture and gardening, dairying or animal husbandry, including customaryuses incidental t.hereto,but not including any agriculturalindustry or business such as fruit, plants, fur farms, animal hospital-s 

### , commercial feed lots, or simi!.ar use. The Board concluded that the carinq forwil-dwaterfowl constituted an agriculturaluse. In apparent contradiction,the Board Later concluded that the caring for wild waterfowlwas similar to the keeping of fowl for family food production, and granted avariance under subsectionJ of the Zoning Code. While 1 disagree with the use of subsection J, 

### I would approve the Board's conclusion for the following reasons: The definitionof agriculturaluse under the Zoning Code emphasizes that it does 

### - not include agricultural industry or business such as fruit, plants, fur farms, animal

### hospital.^, commercial feed lots, or similar use. The drafters recognized that these types of agricultural industry or business use might be thought of as being agricultural use but concluded that such use did not qualify as agricultural use under this Zoning Code. 

### Iwould conclude that the raising of wild waterfowl is simil-arto such things as fur farms and animal hospitals and that it could be classed as a "similaruse" asmentioned at the end of the agricultural use definition. This would of course mean that a variance would 

### he required before the Schende1.s would be allowed to proceed with such a business. The function of a variance is to grant relief to a property owner against strict compliance with the general law. See 101 C.J.S. Zoning, S 269. Montana case law has established that the following conclitions be present before the granting of a variance is proper: (1) thevariance must not be contrary to the public interest; (2) a literal enforcement of the zoning ordinancemust result in unnecessary hardship owing to conditionsunique to the property; and (3) the spirit 

### of the ordinance must be observed and substantial. justice done. Cutone v. Anaconda Deer Lodge (1980), 18' Mont. 51.5, 521, 610 P.2d 691, 695. 1 would conclude that these conditionshave been met in the present case. Iwould therefore affirm the decision of the Eoard to 1-imit the number of wild waterfowl on the Schendelsproperty, concluding that it was an appropriate variance on the above described agricultural use theory. I agree with the majority that substantial iu-sticewas achieved by the decision of the Roard.