No. 79-113 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

MONTANA WILDLIFE FEDERATION and 

GALLATIN WILDLIFE FEDERATION, 

1/,/ 

Plaintiffs and Appellants, 

and 

MICHAEL AND SUSAN COPELAND, 

Intervenors, 

GEORGE SAGER, JOHN BUTTLEMAN, JOY NASH, 

COUNTY COMMISSIONERS OF GALLATIN COUNTY, 

et al., 

Defendants and Respondents. 

Appeal from: ~istrict Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Goetz and Madden, Bozeman, Montana 

James Goetz argued, Bozeman, Montana 

For Respondents: 

Donald E.White, County Attorney, Bozeman, Montana 

Gregory Todd argued, Deputy County Attorney, Bozeman, 

Montana 

For Intervenors: 

Landoe, Brown, Planalp, Kommers and Lineberger, 

Bozeman, Montana 

James Kommers argued, Bozeman, Montana 

For Amicus Curiae: 

Roy H. Andes, Helena, Montana 

Filed: 1 6 1980 

Submitted: September 10, 1980 

Decided : 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Montana Wildlife Federation and Gallatin Wildlife 

Association appeal from a judgment of the District Court, 

Eighteenth Judicial District, Gallatin County, upholding the 

actions of the Board of County Commissioners of Gallatin 

County in establishing two planning and zoning districts, 

and in permitting a zoning amendment with respect to one of 

those districts. Respondents Sager, Buttleman, Nash, White, 

and Babb constitute the planning and zoning commissions for 

each of the districts. The intervenors, Michael D. Copeland 

and Susan B. Copeland are the owners of one of the parcels 

of land involved. 

The major question presented by this appeal is whether 

the Board of County Commissioners may adopt a planning and 

zoning district under Part 1, Chapter 2, Title 76, MCA 

(section 76-2-101 through -112, MCA) before a comprehensive 

development plan for the jurisdictional area has been adopted, 

and without considering the criteria and guidelines for 

zoning regulations set forth in section 76-2-203, MCA. We 

hold in this case that such an adopted planning and zoning 

district is valid. 

Montana Wildlife Federation and Gallatin Wildlife 

Association are nonprofit Montana corporations concerned 

essentially with environmental protection, preservation of 

wildlife and wildlife habitat, and the protection of general 

aesthetic values in land planning. Other public interest 

organizations appeared before us as amici curiae, they 

being: Bozeman Environmental Information Center, MadisonGallatin Alliance, Montana Environmental Information Center, 

Coalition for Canyon Preservation, Bitterroot Citizens for 

Sensible Growth and Grandview Homeowners Association. 

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In late 1978, a group of freeholders, owning parcels of 

land extended generally along the west foothills of the 

Bridger Mountain range, north of the City of Bozeman in 

Gallatin County, initiated meetings to propose a general 

planning and zoning district in that area for the approval 

of the Gallatin County commissioners. They hired a planner 

to work up a master plan, and an attorney to do the preliminary legal work. Because additional subdivision 

activity was imminent in the area, the citizens circulated a 

petition calling for an interim subdivision moratorium until 

the whole area could be brought into a general planning and 

zoning district. The citizens decided against the moratorium, 

but agreed that the planning effort should go forward. 

In the meantime, Michael D. and Susan B. Copeland, 

owners of 120 acres within the area proposed for general 

planning, filed a petition with the Board of County Commissioners for the creation of a separate planning and 

zoning district for their own lands. Michael Copeland 

testified that his petition was filed with the express 

purpose of escaping the application of the proposed large 

zoning district. Another separate petition for such a 

planning and zoning district was filed by Arnold and Rhoda 

Craig, who owned 80 acres in the general area. 

The separate petitions of Copelands and ~raigs sought 

the establishment of separate planning and zoning districts, 

each coextensive with the boundaries of the parcels of the 

owners, under section 76-2-101, MCA. There is no question 

that no comprehensive plan was prepared for either the 

Copeland or the Craig lands prior to their petitions nor 

while they were being considered by the Gallatin County 

Commissioners; and likewise, no question that the Gallatin 

County subdivision staffs prepared written reports to the 

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commissioners which were adverse to the adoption of the 

planning and zoning districts. 

On March 2, 1979, the County Commissioners adopted a 

planning and zoning district for the Copeland parcel which 

became Sypes Canyon'Planning and Zoning District No. 1. On 

March 22, 1979, the County Commissioners adopted a planning 

and zoning district for the Craig property which became 

Sypes Canyon Planning and Zoning District No. 2. 

Subsequently, the Planning and Zoning Commission for 

these districts adopted a development pattern for each 

district under section 76-2-104, MCA, consisting of a "Sypes 

Canyon Zoning Ordinance and Zoning Map", one adopted for 

each district. 

In May 1979, the Copelands petitioned the Planning and 

Zoning Commission of their district to amend their initial 

zoning district so as to provide a greater density of lots 

on a portion of their lands. The amendment or zoning request 

was granted on May 22, 1979 by the Planning and Zoning Commission, again over the negative recommendation of the 

Gallatin County Subdivision staff. 

The Federation and the Association filed their complaint 

on June 13, 1979, challenging the creation and implementation 

of Sypes Canyon Planning and Zoning Districts Nos. 1 and 2 

(Copeland and Craig). While the action was pending, Copelands 

filed an application for approval by the Gallatin County 

Commissioners of a subdivision plat, which application was 

set for hearing on July 5, 1979. The scheduled subdivision 

hearing was preliminarily enjoined by the presiding district 

judge. Meanwhile, the Copelands intervened in the pending 

action and filed a counterclaim against the plaintiffs for 

damages. The counterclaim was ultimately dismissed by the 

District Court after trial. The intervenors filed a crossappeal on the dismissal of the counterclaim, which appeal 

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was dismissed by agreement of counsel. The trial of all the 

issues except the counterclaim was held before Judge W. W. 

Lessley on August 15 and 28, 1979. On September 15, 1979, 

the District Court issued its findings of fact and conclusions of law and based on these, entered a judgment from 

which this appeal arises. 

The issues we address in this case are these: 

(1) The defendants contend that under section 76-2- 

110, MCA, the Federation and the Association should have 

appealed from the decisions of the Board of County Commissioners within 30 days, and since they did not do so, the 

commissioners argue that the District Court was without 

jurisdiction to hear the plaintiffs' appeals. 

(2) The defendants further contend that under section 

27-19-104, MCA, in actions where public interest groups seek 

injunctive relief, they are required by that statute, if 

there is an injury to a property or civil right of an 

individual member of the Association, distinguishable from of the 

an inj~r~/~ublic generally, to set forth in the complaint 

the names and addresses of the injured members and a statement 

of the injury. The Federation and the Association contend 

that section 27-19-104, MCA,is unconstitutional because it 

denies them equal access to the courts and impairs their 

right to freedom of association. 

(3) The Federation and the Association contend that 

the Planning and Zoning Districts established in this case 

are invalid as contrary to the public interest in orderly 

planning and zoning, and because they are not based on a 

comprehensive plan, nor on reasonably adequate planning 

information, and because the districts constitute spot 

zoning. 

(4) The Federation and the Association further contend 

that the "rezoning" of Sypes Planning and Zoning District 
No. 1 (Copeland) is invalid because the commission failed to 

follow the statutory requirements enumerated in Lowe v. City 

of Missoula (1974), 165 Mont. 38, 525 P.2d 551. 

The county commissioners adopted a Planning and Zoning 

District for the Copeland parcel on March 2, 1979, and for 

the Craig property on March 22, 1979. The Federation and 

Association filed their complaint on June 13, 1979. It is 

on this basis that the county commissioners contend that 

under section 76-2-110, MCA, the action should have been 

filed within 30 days. Since plaintiffs did not do so, the 

commissioners argue that the District Court was without 

jurisdiction to hear what were in effect appeals from the 

actions of the County Commissioners in adopting the Planning 

and Zoning Districts. 

The Federation and Association did not appeal from the 

rulings of the county commissioners in a direct sense. 

Their action is for declaratory judgment, filed June 13, 

1979. The county filed a motion to dismiss on June 28, 1979 

without specifying as a ground for dismissing the complaint 

the appeals limitations statute. The Copelands intervened 

in the action on July 16, 1979, and the answer to their complaint 

did not set out as an affirmative defense the appeal limitations statute. The subsequent answer of the county 

officers did not raise as an affirmative defense the provisions of section 76-2-110, MCA. The court, on July 30, 

1979, set down the cause "for total hearing" on August 15, 

1979. On the latter date, defendants filed a written motion 

to dismiss the appeal on the ground that the time limitation 

of section 76-2-110, MCA, had not been complied with. The 

District Court denied the motion apparently on the ground 

that it was untimely raised. The District Court was correct. 
The proper method of raising the question of a timely appeal 

is by an affirmative defense pleaded in an answer to the 

complaint. Rule 8(c), M.R.Civ.P. Since the issue was not 

properly raised below, we will not consider it here. 

The county commissioners also contend that under section 

27-19-104, MCA, it was the duty of the plaintiffs, as public 

interest groups, to allege in their complaint an injury to 

the property or to a civil right of the individual members 

of the association, distinguishable from an injury to the 

public generally, and to set forth in the complaint the 

names and addresses of the injured members and a statement 

of the injury, in order to obtain injunctive relief. The 

District Court found that the Federation and the Association 

did in fact have standing to file the complaint for injunctive relief, without supplying the names and addresses 

and a statement of the respective injuries of the members of 

the Association. 

The District Court was correct in so holding. The 

plaintiffs allege in their complaint "for purposes of the 

present action, plaintiffs allege injury in fact which is 

similar to injuries suffered by other members of the public 

generally." The plaintiffs therefore brought themselves 

within the standing-to-sue statute, section 27-19-104, MCA, 

which provides as follows: 

"Whenever an action for injunctive relief 

is initiated by a citizen's group or other 

public interest association and it appears 

by the complaint that there is an injury to 

a property or civil right of individual 

members of the association, which injury 

is distinguishable from an injury to the 

public generally, the names and addresses , of injured members and a statement of the 

injuries shall be provided in the complaint. 

An injunction may not be granted unless such 

information is provided in the complaint." 
The plaintiffs allege in their complaint essentially 

that their alleged injury was coextensive with the injury of 

the public generally. No damages for individual injuries 

are sought in the complaint. The organizations therefore 

had standing to sue under the statute. Since the District 

Court allowed the Federation and Association to prosecute 

their action for injunction, there is no necessity to reach 

the constitutional question whether section 27-19-104, MCA, 

denies the plaintiffs in this case equal access to the 

courts or impairs their right to freedom of association. 

We turn now to the contention of the Federation and the 

Association that the county commissioners acted unlawfully 

in adopting the Sypes Canyon Planning and Zoning Districts. 

Chapter 2, Title 76, MCA, contains the statutes that 

relate to planning and zoning. Chapter 2 is divided into 

three parts. Part 1 (sections 76-2-101 through -112, MCA) 

relates to the establishment of county planning and zoning 

commissions. It is under Part 1 that the county commissioners 

acted in this case. Part 2 (sections 76-2-201 through -228, 

MCA) relates to county zoning. This part applies only to 

those cases where the governing body has adopted a comprehensive development plan for the jurisdictional areas 

involved. Part 3 (sections 76-2-301 through -328, MCA) 

relates to municipal zoning, with which we are not here 

concerned. 

When we examine Part 1, Chapter 2, Title 76, MCA, in 

greater detail, we find that section 76-2-101, MCA,provides 

that "whenever the public interest or convenience may require" 

upon petition of 60 percent of the freeholders affected 

thereby, the Board of County Commissioners is authorized and 

empowered to create a planning and zoning district and to 

appoint a commission consisting of five members. No such 

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district may be created in an area which has been zoned by 

an incorporated city. 

Under section 76-2-102, MCA, the planning and zoning 

commission, though appointed by the Board of County Commissioners, is designated by statute to consist of the three 

county commissioners, the county surveyor, and the county 

assessor. Under section 76-2-103, MCA, this planning and 

zoning commission has such powers as are appropriate to 

enable it to fulfill its functions, to promote county 

planning, and to carry out the purposes of Part 1, Chapter 

2, Title 76, MCA. 

Once the planning and zoning commission in a planning 

and zoning district is established, it then becomes the duty 

of the planning and zoning commission to adopt a development 

pattern for the physical and economic development of the 

planning and zoning district under section 76-2-104, MCA. A 

pertinent part of section 76-2-104 provides: 

" (2) Such development pattern, with accompanying 

maps, plats, charts and descriptive matter, shall 

show the planning and zoning commission's recommendations for the development of the districts, within 

some of which it shall be lawful and within other of 

which it shall be unlawful to erect, construct, alter, 

or maintain certain buildings or to carry on certain 

trades, industries, or callings or within which 

the height and bulk of future buildings and the 

area of the yards, courts, and other open spaces 

and the future uses of the land or buildings shall 

be limited and future building setback lines 

shall be established." 

Section 76-2-106, MCA, provides for the adoption by the 

Planning and Zoning Commission of the development district 

or any change therein after public notice and hearing. 

In the case before us, the statutory procedures set 

forth in Part 1, Chapter 2, Title 76, FICA, as we have set 

them out above, were followed by the Board of County Commissioners, and subsequently by the Planning and Zoning 
Commission in each district. In each, there was a petition 

by 60 percent (actually 100 percent) of the freeholders; 

the action of the Board of County Commissioners creating 

the Planning and Zoning District based on each petition; 

the appointment of the Planning and Zoning Commission; 

the adoption of development pattern by the Planning and 

Zoning Commission; and in the case of the Copeland District, 

an amendment in May 1979 of their Planning and Zoning 

District amending the initial zoning ordinance so as to 

provide a greater density of lots on a portion of their 

lands. 

The Federation and Association argue that the Sypes 

Districts are invalid because they are not based on a 

comprehensive plan. They contend that we must read into 

Part 1, Chapter 2, Title 76, MCA, the provisions taken from 

Part 2 of that Chapter (section 76-2-203, MCA), which set 

out the criteria and guidelines for zoning regulations where 

county zoning under Part 2 is concerned. A prerequisite to 

zoning under section 76-2-203 is that zoning regulations 

shall "be made in accordance with a comprehensive development plan". Allen v. Flathead Cty. (1979), Mont . I 

601 P.2d 399, 36 St.Rep. 1839. Otherwise, the Federation and 

the Association contend, the establishment here of the 

districts and the adoption of the development patterns are 

not based on rational criteria and are defective on constitutional grounds because the zoning decisions are either 

inconsistent with governing statutory standards or are 

clearly arbitrary and unreasonable, having no substantial 

relation to the public health, safety, morals or general 

welfare. They point to the reports of the Gallatin County 

Subdivision staff which indicate among other things, that in 

the Sypes Districts, there was little or no information by 

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which to determine traffic needs or water availability when 

the Districts were created and that essentially, these could 

come only from a comprehensive plan. The Federation and 

Association are equally insistent that we should turn aside 

the adoption of the Planning and Zoning Districts here 

because there was no evidence before the Board of County 

Commissioners or realistic finding by the District Court 

that the "public interest and convenience" required the 

establishment of the Districts. 

The evidence in this case is that no comprehensive plan 

has been adopted which would affect the jurisdictional areas 

in which the Sypes Canyon Planning and Zoning Districts were 

established. We need only point out that while the adoption 

of a comprehensive plan is a prequisite to action under Part 

2, Chapter 2, Title 76, MCA, there is no statutory requirement for such a comprehensive development plan when the 

county commissioners act under Part 1, Chapter 2, Title 76, 

MCA . 

In City of Missoula v. Missoula County (1961), 139 

Mont. 256, 362 P.2d 539, this Court found the statutes which 

are the forerunners of Part 1, Chapter 2, Title 76, MCA, 

valid as against an attack that the statutes constituted 

an unlawful delegation of legislative power. In the decision, 

this Court found that the statute validly delegated administrative authority and that its provisions were sufficiently 

clear, definite and certain to enable the agency to know its 

rights and obligations, speaking particularly of the forerunner of section 76-2-104, MCA. 

In Doull v. Wohlschlager (1963), 141 Mont. 354, 377 

P.2d 758, this Court, in construing the same sections, the 

forerunners of Part 1, Chapter 2, Title 76, MCA, determined 

that a county-wide comprehensive plan was not necessary 

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prior to the adoption of a county planning and zoning 

district, and further, that in making and adopting a 

development district, it was not necessary that there be 

created a county-wide development pattern. 

Realizing the effect of the decision in Doull, the 

plaintiffs contend that the statutes which now comprise Part 

2, Chapter 2, Title 76, MCA, did not come into effect until 

1963, whereas those statutes comprising Part 1 of that 

chapter had been in effect since 1953, and were the statutes 

in effect at the time of the -- Doull decision. Therefore, 

contend the plaintiffs, the Montana court did not consider 

whether it should construe Part 1 and Part 2 of Chapter 2, 

Title 76, MCA, -- in pari materia; and that this Court, to 

avoid unconstitutional implications relating to lack of due 

process, should consider the provisions of Part 2 as -- in pari 

materia with Part 1, and require that the criteria and 

guidelines found in section 76-2-203, MCA (contained in Part 

2) should be the guidelines to be followed by the Board of 

County Commissioners and by the Planning and Zoning Commission when they act under Part 1. 

In City of Missoula v. Missoula County, supra, this 

Court determined that there were sufficient guidelines in 

section 76-2-104, MCA, to sustain the constitutional validity 

of the statute. We said: 

"We shall not quote the entire act, but with 

respect to the procedure, the law provides 

definite outlines and limitations. The 

zoning district may come into being only 

upon petition of sixty percent of the freeholders in the area. The adoption of the 

development district must be by a majority 

of the Commission, after definitely prescribed 

public notice and public hearing. The resolution 

must refer to maps, charts, and descriptive 

matters. In other words, quite adequate procedural matters are contained in the act itself . . . 139 Mont. at 260, 261, 362 P.2d at 541. 
When the county commissioners adopt a Planning and 

Zoning District under section 76-2-101, MCA, so as to 

establish the boundaries of the District, they take but the 

first step. If they were to do nothing further, their 

action would be useless. The establishment of the boundaries 

is but preliminary to the adoption of the development pattern 

under section 76-2-104, MCA. It is at the adoption stage of 

the development pattern that guidelines are established 

under the statutes for the administrative functions of the 

County Planning and Zoning Commission, with provisions for 

notice and public participation included. 

The provisions of section 76-2-101, t4CA, authorizing 

the establishment of boundaries of a Planning and Zoning 

District, must be read in conjunction with the provisions of 

section 76-2-104, MCA, providing for the adoption of a 

development pattern. When read together, we must conclude, 

as this Court previously concluded in City of Missoula v. 

Missoula County, supra, that these statutes are in fact 

constitutional and that such constitutionality extends to 

the acts of the county commission in establishing the 

boundaries of the Planning and Zoning Districts in this 

case. 

We must be conscious of the result if we should hold 

the procedures under section 76-2-101, MCA, unconstitutional 

for lack of statutory guidelines. It would then become 

impossible for a landowner, unless he could find an exemption

to change the agricultural use of his land or to subdivide 

and convey tracts from his land where the county, for 

whatever reason, had not adopted a comprehensive development 

plan for the jurisdictional area involved. The legislature 

must have contemplated the establishment of Planning and 

Zoning Districts that occurred here in the absence of the 

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adoption of a comprehensive development plan. Plaintiffs 

and amici argue that the legislature, by expanding the 

potential jurisdiction of the county commissioners under 

Chapter 273, Laws of 1971, so as to become possibly 

coextensive with the boundaries of the entire county 

thereby expressed a legislative mandate that the guidelines 

of section 76-2-203, MCA, be imposed on the determination of 

jurisdictional areas under section 76-2-101, MCA. Section 

76-2-101, and its following statutes have been in effect 

essentially since 1953, without further amendment of the 

legislature, and the subsequent parts of the Planning and 

Zoning Statutes have been added to Part 1, rather than 

enacted in lieu of Part 1. We must therefore deem that 

the legislative intent is that Part 1 is to have its own 

meaning and effect. Fletcher v. Paige (1950), 124 Mont. 

114, 119, 220 P.2d 484, 486. 

The Federation and Association contend just as strongly that under section 76-1-101, MCA, a Planning and Zoning 

District may be created only when the "public interest or 

convenience" may require and that there was no evidence 

before the county commissioners, nor before the District 

Court, to justify a finding by either the county commissioners or the Court, that the Planning and Zoning Districts 

should be created. 

The District Court found that the public interest and 

convenience of the statute was met in that "by the creation 

of the zoning district, the Copelands substituted the 

County Commissioners for themselves as the individuals 

to have the ultimate control over the development of the 

real property in the zoning district. By that substitution 

the residents of Gallatin County are assured adequate hearings 

prior to planning and development in the zoning district and 

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legitimate access to their own elected officials who 

ultimately controlled the development within the zoning 

district." This finding of the District Court the plaintiffs 

attack as bogus and transparent because Montana's subdivision laws provide ultimate control in the county 

commissioners when the subdivision plats are filed for 

approval under section 76-3-601, MCA. We do not negate this 

conclusion of the District Court as to the public interest 

being thereby served. It is plain that section 76-2-104, 

MCA, when read in conjunction with section 76-2-101, MCA, 

does involve a transfer to the Planning and Zoning Commission by the landowner of full authority as to what uses 

shall be made of the lands in the district, what kinds of 

buildings shall be allowed, and what future uses of the 

lands shall be limited. This is the stage at which the 

public interest in orderly development is protected, and it 

is a stage in which the public may participate at a hearing 

after due notice. Section 76-2-106, MCA. 

Another argument of the Federation and Association 

against the validity of the Planning and Zoning Districts 

is that the Board of County Commissioners gave little or no 

consideration to wildlife or wildlife habitat existing on 

the parcels which became the Sypes Canyon Districts. Their 

contentions about wildlife were strong enough that the 

District Court regarded them as "reindeer games" and found 

occasion to quote the first sixteen bars of "Rudolph the 

Red-Nosed Reindeer" in its opinion supporting its findings 

in this case. 

The case of In Re the Red-Nosed Rudolph has not 

attained a noticeable level of acceptance as legal precedent. We point out, however, that the plaintiffs have 

not been foreclosed from considerations of wildlife in this 
matter. When subdivision plats relating to the Sypes 

Canyon Planning and Zoning Districts are presented for 

approval, at that point the criteria for local government 

review set forth in section 76-3-608, MCA, come into play. 

Those criteria include, among other things, a determination 

of the effects on wildlife and wildlife habitat. 

In essence, what we are saying respecting the contentions of the plaintiffs is that when dealing with the 

police power to protect the public safety and welfare, it 

is for the legislature to decide what regulations are needed. 

McCallin v. Walsh (1978), 64 A.D.2d 46, 407 N.Y.S.2d 852. 

For due process purposes, governmental action does not have 

to be the only alternative or even the best alternative for 

the procedures to be reasonable and constitutional. Bell v. 

Wolfish (1979), 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447. 

The Federation and Association next contend that in the 

adoption of the Sypes Districts, the county and the landowners have illegally circumvented the Montana Subdivision 

and Platting Act. 

This contention comes about because in adopting the 

development patterns for the Copeland lands, the county 

commissioners first developed a density of 28 lots for the 

parcel, and later amended the zoning regulations so as to 

permit the same number, 28 lots, but permitted these lots to 

be platted in one-acre tracts. This had the effect of 

increasing the density of lots by lowering the acreage for 

which a lot could be subdivided. The ~ederation and Association maintain that since the greater density was established in the development pattern, this necessarily fixed 

the density that will be considered by the county commissioners when the subdivision plats are presented for approval. 

The county commissioners in testifying before the District 

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Court admitted that the density would probably remain 

unchanged when they considered the subdivision plats. We 

note that the Copelands have filed a subdivision plat 

which has been approved during the pendency of this 

litigation. 

Again we point out that many of the considerations for 

which the Federation and Association are contending here as 

to criteria to be considered in approving Planning and 

Zoning Districts are available to those organizations at 

the time the subdivision plats are presented for approval. 

Unless a subdivision is entitled to summary review (section 

76-3-505, MCA) or other exemption, it must be examined by 

the governing body under section 76-3-604, MCA, to determine 

whether it conforms to the local master plan, if one has 

been adopted, and to the criteria of the subdivision chapter 

as set out in section 76-3-608, MCA. The governing body 

must make written findings of fact which weigh among other 

things, expressed public opinion, the effects on natural 

environment, the effects on wildlife and wildlife habitat, 

and the effect on public health and safety. At the time of 

review of the proposed subdivision plat, under section 76-3- 

608, MCA, the effect of the proposed density of lots on 

wildlife and wildlife habitat is an issue to be decided by 

the local governing bodies if submitted at the hearing 

required by section 76-3-605, MCA. The issue of density 

therefore has not been foreclosed, because it is open for 

consideration by the Commission in reviewing the proposed 

subdivision plat for the "effects on wildlife and wildlife 

habitat." Section 76-3-608(g), MCA. 

The next contention of the Federation and Association 

is that in establishing the Planning and Zoning Districts 

here the county engaged in "spot zoning." In State ex 

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rel. Gutkowski v. Langhor (1972), 160 Mont. 351, 502 P.2d 

1144, we defined "spot zoning" as follows: 

". . . spot zoning . . . is the 'process of 

singling out a small parcel of land for a 

use classification totally different from 

that of the surrounding area, for the benefit 

of the owner of such property and to the 

detriment of other owners.'" 160 Mont. at 

353, 502 P.2d at 1145. 

The facts on which the spot zoning argument is made 

do not seem to be in dispute. There is Grandview Heights 

Subdivision south of Sypes Canyon District No. 2 where the 

parcels average 3.8 acres; the Craigs' property is between 

the Copeland property and Grandview Heights, but the Craigs 

have abandoned their subdivision plans and have sold in 2 

twenty-acre and 4 ten-acre parcels; Wheatland Hills subdivision is approximately one mile away and does not 

border the Sypes Districts; all the land east of the Sypes 

Districts is in public ownership and not subdivided; north 

of the Sypes District is a 60 acre unit, though platted in 

smaller units; south of the Sypes Districts the land is 

platted in 3 five-acre parcels and 1 two-acre parcel; no 

areas other than the two Sypes Districts are zoned in the 

immediate vicinity. 

On these facts, the Federation and the Association 

contend that the allowance of the Sypes Districts amounts to 

spot zoning. They contend that the zoning districts and the 

density requirements adopted therein differ sharply from 

the surrounding area and that this was pointed out by 

the Gallatin County Subdivision staff to the county 

commissioners. Again the argument is made that such 

zoning as occurred in the Sypes Canyon Planning and 

Zoning Districts should be done only after the adoption of 

a comprehensive plan. 

In accepting the legality of procedures under Part 

1, Chapter 2, itl lo 76, MCA, as we have stated we 
are bound to accept the consequences that reasonably flow 

therefrom. One of the consequences is that parcels of 40 

acres or more are entitled to be designated as planning 

and zoning districts under section 76-2-101, MCA, without 

being considered "spot zoning". A statute will not be 

interpreted to defeat its evident object or purpose; the 

objects sought to be achieved by the legislation are prime 

consideration in interpreting statutes. Doull v. 

Wohlschlager, supra. 

We have found no case, nor have the parties led us to 

one, which has held that the adoption of a planning and 

zoning district within an otherwise unplanned area constitutes spot zoning. 

The final contention of the Federation and the Association is that the County Planning and Zoning Commission acted 

illegally in rezoning Sypes Canyon Planning and Zoning 

District No. 1. As we have indicated, the effect of the 

rezoning was to increase the density allowable on a portion 

of that district. 

Lowe v. City of Missoula, supra, is advanced by the 

plaintiffs as supporting their contention. In Lowe, this 

Court reversed the District Court and set aside the city 

action in granting a zone change from residential to 

restricted one-family residential status. Our reversal was 

based on the failure of the city council to follow the 

criteria set forth in the municipal zoning section, section 

76-2-304, MCA. 

The logic expressed by the plaintiffs in support of 

their claim of illegality of the rezoning is that Lowe 

decided that municipal rezoning must include a consideration 

of the criteria set forth in section 76-2-304, MCA; that 

with.respect to county zoning, the criteria set forth in 

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section 76-2-203, MCA, virtually identical to section 76-2- 

304, MCA, must be considered when county rezoning is undertaken; therefore, plaintiffs contend that either criteria 

must be considered mandated when district rezoning occurs 

under Part 1, Chapter 2, Title 76, MCA. 

We are foreclosed from mandating the criteria from 

other parts of the Planning and Zoning Statutes to apply 

to Part 1, Chapter 2, Title 76, MCA, for the reason that 

section 76-2-106, MCA, provides not only for the original 

adoption of the Planning and Zoning Development District, 

but that "any change therein may be in whole or in part" 

adopted by the affirmative vote of the majority of the 

Planning and Zoning Commission. Accordingly, the Planning 

and Zoning Commission, in amending or changing the Planning 

and Zoning District, need only refer to the criteria set 

forth in section 76-2-104, that is, the guidelines applying 

to the original establishment of the development pattern. 

Under the latter section, the Planning and Zoning commission 

has full power to determine "the area of the yards, courts, 

and other open spaces and the future uses of the land. . ." 

Section 76-2-104(2), MCA. We are not at liberty to set the 

exercise of that discretion of the Planning and zoning 

Commission aside. A judgment of the District Court upholding the discretion of zoning officials will not be set 

aside unless clearly erroneous. Rule 52(a), M.R.Civ.P.; 

Melton v. City of Durant (Okla. 1974), 521 P.2d 1372. 

In their brief filed with this Court, amici curiae 

have set forth other grounds attacking the constitutionality 

of Part 1, Chapter 2, Title 76, MCA. We have respectfully 

declined to discuss the extended or enlarged issues on 

constitutionality presented by amici. Since amici curiae 

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are not parties and cannot assume the functions of parties, 

nor create, extend or enlarge issues, we have considered the 

briefFof amici only insofar as as they coincide with the 

issues raised by the parties to the action. See Long v. 

Odell (1962), 60 Wash.2d 151, 372 P.2d 548; City of Phoenix 

v. Phoenix Civic Aud. & Con. Cent. Ass'n. (1965), 99 Ariz. 

270, 408 P.2d 818, reh-den. 412 P.2d 43. 

The District Court held in essence that the county 

commissioners and the Planning and Zoning Commission had 

acted lawfully in establishing the Sypes Canyon Planning and 

Zoning District Nos. 1 and 2, and the amendment to Sypes 

Canyon Planning and Zoning District No. 1, and so refused 

injunctive and declarative relief to the plaintiffs. We 

find that the rulings of the District Court in this regard 

are correct. In view of our holding, we deny the pending 

motion of the Federation and Association for an injunction 

pendente lite against further subdivision of the districts. 

The judgment of the District Court is affirmed. 

Justice 

We Concur: 

Chief Justice