No. 88-519 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

WEND1 SCHENDEL and DALE W. 

SCHENDEL, 

Plaintiffs and Appellants, 

-vsBOARD OF ADJUSTMENT OF THE CITY OF 

BOZEMAN, MONTANA, and CITY OF BOZEMAN, 

MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen, Billings, Montana 

For Respondent: 

Lineberger & Harris; Peter S. Lineberger, Bozeman, 

Montana 

Submitted on Briefs: March 9, 1989 

Decided: May 4, 1989 
Mr. Justice John Conway Harrison d.elivered the 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. 

This matter 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-ng more 

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 the winter months. 

In 1985 an unsigned complaint was 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 

for writ of certiorari and was then returned to the Board for 

a full hearing. A transcript was taken at this second Board 

hearing held on December 1, 1986, which indicates a number of 

people appeared in support of the Schendels' continuation of 

their homesite operation. There were 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 they were 

awakened and kept awake from 2:00 a.m. and 3:00 a.m., 

particularly in the spring and fall of the year and that they 

had discussed this with the Schendels. The Schendels 

testified at the hearing that they did not realize there was 

much objection to the waterfowl and the resulting noise. The 

Schendels further testified that some of their operations 

were in conjunction with the Federal and State government in 

raising rare waterfowl. 

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 

"ducks unlimited" and the noise, combined with the unsanitary 

conditions of the waterfowl made an intolerable situation for 

some of the neighbors. 

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 

their property was 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 relief by certiorari 

under Title 27, Chapter 25, MCA, and under the zoninq 

regulation, Section 18.66.080, of the Rozeman Municipal 

Zoning Code which provides: 

Any person or persons . . . aggrieved by 

any decision of the Board of Adjustment, 

or any taxpayer, or any officer, 

department, board or bureau of the 

municipality, may present to the court of 

record a petition, duly verified, 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 thirty days 

after the filing of the decision in the 

office of the Roard. 

The Schendels allege that the District Court had before 

it not only their request for writ of certiorari relief, but 

also an appeal as to whether the Board's decision was legal 

and that the District Court erred in deciding this case on 

only the first point. 

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 Schendels which 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 facts which state as 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 summer months. 

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 on December 1, 

1986. 

4. At the time of the hearing, the board 

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 that raising 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 

two years, or until the property 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 also provides: 

J. The keeping of animals and fowl for 

family food production and the keeping of 

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-six fowl 

(chickens, pheasants, pigeons, etc. ) , or 

six larger fowl (ducks, geese, turkeys, 

etc. ) . 

It is the Schendels' position that the Board recognized 

t-he use 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, is not persuasive. 

This Court must consider whether the District Court, on 

certiorari, properly considered this matter under § 76-2-327, 

MCA, which provides 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 

district and 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 such municipality. 

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 suburban neighborhood 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 review by this Court of the District 

Court's decision. 

As to the review by the District Court, Montana law 

provides the procedures for a writ 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 the parties. 

Under the provisions of S 76-2-327, MCA, and Section 

18.66.080, Bozeman Municipal Zoning Code, numerous cases have 

set forth Montana law with respect to the full standard of 

review by a district court. See, Lambros v. Board of 

Adjustment of City of Missoula (1969), 153 Mont. 20, 452 P.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 of discretion was 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 

of discretion must be shown before the district court may set 

aside a board's decision. See, e.g., Wheeler v. Armstrong 

(1975), 166 Mont. 363, 533 P.2d 964; Rygg v. Kalispell Board 

of Adjustment (1976), 169 Mont. 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 of waterfowl 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 acted 
within its jurisdiction and that its action was not illegal. 

The Distri.ct Court upheld the Board's decision and we find no 

abuse of discretion by the District Court. 

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 jurisdiction and 

decision to purely factual zoning matters. The Schende1.s 

fail to address or support the argument that the Board lacked 

jurisdiction to review the decision of the building official. 

While agricultural uses are permitted. under Section 

18.12.020, subparagraph B, Bozeman Municipal Zoning Code, 

subparagraph J of that same code section provides: 

Permitted uses 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-e section. 

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 will not be 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 

justice done. 

The Board has the authority to hear appeals from the 

decisions of municipal administrative officers, 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 conditions as will 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, subparagraph D(4), Rozeman 

Municipal Zoning Code. 

We find the Board lawfully set forth limitations on the 

number of waterfowl a-llowed on the Schendels' property and 
set a time limit for resolution of the matter in accordance 

with the specific statutory and ordinance mandates. 

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 

should be construed in a manner that will 

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 . . . (Citations omitted.) 

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

v. Department of Revenue (1985\, 211 Mont. 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 of waterfowl and 
we affirm the decision of the District Court that t-he Board 

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 concurs as follows: 

I concur in the result reached by the majority 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"ore have reached the 

same conclusion but for different reasons. 

Under the Eozeman Municipal Zoning Code, Section 

18.04.020!b), agricultural use is defined as follows: 

Agricultural means the tilling of soil, the raising 

of crops, horticulture and gardening, dairying or 

animal husbandry, including customary uses 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 for wil-d waterfowl constituted an agricultural use. In apparent contradiction, the 

Board Later concluded that the caring for wild waterfowl was 

similar to the keeping of fowl for family food production, 

and granted a variance under subsection J 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 definition of agricultural use 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. I would conclude that the raising of 

wild waterfowl is simil-ar to such things as fur farms and 

animal hospitals and that it could be classed as a "similar 
use" as mentioned 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) the variance must 

not be contrary to the public interest; (2) a literal enforcement of the zoning ordinance must result in unnecessary 

hardship owing to conditions unique 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 conditions have been met in the present case. I would 

therefore affirm the decision of the Eoard to 1-imit the 

number of wild waterfowl on the Schendels property, concluding that it was an appropriate variance on the above described agricultural use theory. I agree with the majority 

that substantial iu-stice was achieved by the decision of the 

Roard.