No. 80-244 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

TOM D. LITTLE et al., 

Plaintiff and Respondent, 

THE BOARD OF COUNTY COMMISSIONERS 

OF FLATHEAD COUNTY, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead. 

Honorable Robert N. Holter, Judge presiding. 

M. 

Counsel of Record: 

For Appellants: 

Ted Lympus, County Attorney, Kalispell, Montana 

Jonathan B. Smith, Deputy County Attorney, argued, 

Kalispell, Montana 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

Daniel D. Johns argued, Kalispell, Montana 

Eileen Shore, Pub. Ser. Comm'n, Helena, Montana 

For Respondent: 

Narbert Donahue, City Attorney, argued, Kalispell, Montana 

Keller and Gilmer, Kalispell, Montana 

Robert S. Keller argued, Kalispell, Montana 

Murray, Kaufman, Vidal and Gordon, Kalispell, Montana 

Filed: 

--- ~p -~ 

Submitted: January 14, 1981 

Decided: JUL 21 198f 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Flathead County Commissioners, the defendants, appeal 

from a Flathead County District Court order enjoining them 

from proceeding further with their resolution of intent to 

zone Cameron Tract (a 59-acre tract) for commercial use so 

that a shopping center could be built on the land. The 

developers, Developers Diversified, Ltd., defendants by 

their own intervention, appeal from that part of the District 

Court order which stopped the defendant City of Kalispell 

from issuing a building permit which would allow the construction 

to begin. Plaintiffs are landowners adjacent to the Cameron 

Tract who oppose the plans to construct the shopping center. 

They started this litigation by asking the trial court to 

enjoin the County from rezoning the land from residential to 

commercial and to enjoin the City of Kalispell from issuing 

a building permit to the Developers. 

In granting the injunction, the trial court ruled that 

the county commissioners had violated the law in several 

ways. First, it held that the commissioners adopted an 

illegal resolution (Resolution 291) by which they could zone 

land only if 50 percent of the landowners in an area petitioned 

to have their land given a certain zoning classification. 

The court held that this resolution was "the most flagrant 

invitation to spot zoning that one could come across." As 

applied to this case, the court held that illegal spot 

zoning would result if the commissioners zoned the land as 

commercial, because that would fly in the face of the 

master plan's recommendation that the Cameron Tract be 

zoned as medium-density residential. Second, the court 

ruled that the comprehensive plan (the master plan) must be 

followed, and that commercial use of the Cameron Tract could 
be effectuated only by amending the master plan with the 

approval of both the City of Kalispell and Flathead County. 

Third, the court ruled that the City of Kalispell could not 

issue a building permit to the Developers because the zoning 

would not be in compliance with the law. The court did not 

give any reasons for prohibiting the issuance of the building 

permit, but we assume that the decision was based on the 

conclusion that a building permit for a commercial use could not 

be issued where the master plan recommended a residential use. 

The County raises three issues but fails to address the 

rulings of the trial court. First, without discussing the 

legality of the action taken by the county commissioners, 

the County argues that the commissioners were engaged in the 

legislative process and that until a final decision had been 

reached (either granting or denying the zoning request) the 

trial court had no right to intervene by granting injunctive 

relief to the plaintiffs. The County argues that the plaintiffs 

were not irreparably harmed by the commissioners' threatened 

action and therefore there was no reason to invoke the 

exception that a court may intervene with the legislative 

process where irreparable harm will result. Second, the 

County argues that the trial court erred in ruling that the 

County should have followed the comprehensive plan (master 

plan). (The County does not suggest, however, what status 

this plan should have, other than arguing that the plan is 

merely a guide in zoning decisions.) Third, the County 

argues that in holding that the county commissioners did not 

adhere to and give proper consideration to the comprehensive 

plan (master plan), the trial court improperly substituted 

its judgment for that of the county commissioners. 
The Developers, though technically not appealing the 

ruling enjoining the county commissioners from proceeding 

with their zoning request, do argue that the trial court had 

no right to enjoin the commissioners from that activity. The 

Developers, however, primarily attack the ruling which 

enjoined the City of Kalispell from issuing a building 

permit to the Developers. 

On the building permit issue, the Developers first 

challenge the right of the plaintiffs to contest the issuance 

of the building permit. They contend the plaintiffs did 

not show they would be irreparably harmed by the issuance of 

the permit, and therefore the question should be solely a 

matter between the Developers and the City. Second, the 

Developers argue that even if the plaintiffs have the right 

to challenge the issuance of the permit, the issuance of the 

permit could not be refused on the ground that the proposed 

use would not be in accordance with the comprehensive plan 

(master plan). This second argument assumes that unzoned land 

can be used for any purpose not specifically prohibited. 

The City's position on appeal is contrary to its position 

at trial. Plaintiffs named the City as a defendant because 

the City has jurisdiction over the issuance of building 

permits. Although the City did not challenge the plaintiffs' 

standing to contest the issuance of the permit, the City 

nonetheless argued that it had a duty to continue processing 

the building permit application because Cameron Tract was 

unzoned and therefore not in violation of any zoning laws. 

Before the trial court decided the case, however, the City 

switched positions and claimed that it could refuse to 

process the building permit application once it determined 

that the use proposed by the Developers violated the use 

specified in the comprehensive plan (master plan), even 
though the land was unzoned. The City takes that same 

position before this Court. 

For reasons which we will explain later, we affirm the 

trial court's decision. We will first set out the factual 

background of this lawsuit together with the intermeshing 

legal background of planning and zoning. 

BACKGROUND OF THE LAWSUIT 

The land involved, Cameron Tract, is on the north end 

of the City of Kalispell and is surrounded on three sides by 

the boundaries of the City. The City has never annexed the 

tract, and, as we shall later explain, the City cannot 

legally do so, nor has this land ever been zoned. In 

1974, the City of Kalispell adopted a master plan for this 

area, which recommends that this tract be zoned mediumdensity residential. In 1978, a joint City of KalispellFlathead County Master Plan was adopted for this same area, 

and it also recommends that the land be zoned medium-density 

residential. In fact, the 1978 master plan simply adopts 

the 1974 master plan. 

The City has proceeded to zone most of the City of 

Kalispell pursuant to its own 1974 master plan. The land 

surrounding Cameron Tract has been zoned residential. 

In December 1975, Flathead County adopted a detailed 

set of zoning regulations that applied to that part of the 

County in the Kalispell-City County Planning Board jurisdictional 

area. That action by the County prevents the City of Kalispell 

from promulgating and enforcing its own zoning ordinances 

anywhere outside the city limits. (See, section 76-2-310(1), 

MCA.) If the County had not done this, the City would have 

had certain limited rights to promulgate and enforce its own 

zoning ordinances outside its actual city boundaries (section 
76-2-311, MCA). The important point here Is that the City 

has applied its zoning ordinances to all city property, but 

Flathead County has not applied its zoning ordinances to all 

county property. 

In 1978, Flathead County adopted a comprehensive development plan for the entire county, and this included the 1974 

master plan adopted by the City to cover the area which it 

had a right to plan. (The parties have not stated whether 

this 1978 comprehensive development plan is a "master plan" 

or some other planning device.) In any event, in adopting 

this comprehensive plan in 1978 by Resolution 291, the 

commissioners also adopted in the same resolution an official 

policy of zoning property only upon specific petition of the 

owners who wanted a particular zoning classification. This 

policy has had a dual effect. First, the majority of the 

County property in the area remains unzoned. Second, even 

where it - is zoned within the Kalispell-City County Planning 

Board jurisdictional area, the zoning is very haphazard and 

extremely selective. The trial court best characterized the 

inevitable result of such a policy by stating that Resolution 

291 "is the most flagrant invitation to spot zoning that one 

could come across . . ." 

For these reasons, Cameron Tract, although within the 

Kalispell-City County Planning Board jurisdictional area, 

and designated as residential by the 1974 master plan, has 

not been zoned and therefore remains in a twilight zone. The 

Developers stepped into this twilight zone with their plans 

for a regional enclosed shopping center. Recognizing the 

policy of the county commissioners inherent in ~esolution 

291, the Developers acquired a sufficient interest in Cameron 

Tract , and petitioned the county cornrnissioners to zone the 

land as commercial. 

-6- 
Because Cameron Tract is unzoned, the Developers 

assumed that there were no use restrictions preventing the 

construction of a shopping center on the land. But they 

were faced with the obstacle of getting water and sewage 

services for the shopping center. That problem indirectly 

raised the problem of zoning. Although Cameron Tract is 

within the County, the county commissioners adopted a 

policy requiring that city water and sewage services be used 

if they are "reasonably available." So, the Developers 

first had to determine if these services were "reasonably 

available." 

City water and sewer lines ran under Cameron Tract. 

The Developers asked the City for hook-ups to its water and 

sewer lines, but City ordinances and state statutes stood 

in the way. The ordinances make City services available 

only after annexation of the property into the City. The 

ordinances also state that any annexation and zoning classification 

within the City must be consistent with the City-County 

Comprehensive Plan (the master plan). This plan recommended 

that Cameron Tract be classified as medium-density residential. 

This meant that before a shopping center could be built on 

Cameron Tract, the master plan would first have to be amended. 

The Developers asked for an amendment to accomodate the 

shopping center, but on October 1, 1979, the City-County 

Planning Board, voted five to three to keep the plan as it 

was. As a result, the Developers could not get water and 

sewer services from the City. This meant that the Developers 

could apply to the County to provide the water and sewage 

services. The county commissioners cooperated and granted 

the Developers an on-site water and sewage disposal permit. 
The Developers have always proceeded on the assumption 

that they could build the shopping center--or anything 

else--on Cameron Tract because it was unzoned. Nonetheless, 

they petitioned the county commissioners to either amend the 

master plan to permit a commercial classification or to zone 

Cameron Tract as commercial. The Developers also submitted 

their building plans and applied to the City for a building 

permit for the proposed shopping center. By statute, the City 

is given certain extraterritorial jurisdiction to process 

building permits and enforce building code regulations. 

See, section 50-60-106, MCA. 

The mandatory procedure for the creation of zoning 

districts or promulgation of applicable zoning regulations, 

is set out in section 76-2-205, P4CA, and it includes public 

notice and a hearing. Notice was given and a hearing was 

held. City of Kalispell officials appeared and recommended 

against the zoning application because the master plan for 

the area designated the land as residential rather than 

commercial. 

On December 7, 1979, three days after the public hearing, 

the county commissioners adopted a resolution of intent to 

zone Camerbn Tract as commercial. In doing so, however, they 

failed to take a mandatory step. Before a zoning district 

can be created, section 76-2-204, MCA, requires that "the 

board of county commissioners shall require the county 

planning board and the city-county planning board to recommend 

boundaries and appropriate regulations for the various 

zoning districts." In addition, the statute requires the 

county and the city-county planning board to make written 

reports of their recommendaticnsto the board of county 

commissioners, but also provides that such recommendations are 
"advisory only." 

The commissioners neither demanded, requested, nor 

received written recommendations from the City-County planning 

board before they adopted the resolution of intent. Without 

these recommendations, the county commissioners had no right 

to proceed with its resolution of intent to zone Cameron 

Tract as commercial. The applicable statutes clearly mandate 

that the planning board's recommendations be considered before 

the commissioners can proceed with a resolution of intent. 

Section 76-2-205 (3) states: 

"After the public hearinq, the board of county 

commissioners shall review the proposals of - 

the planning board and shall make such revisions 

or amendments as it may deem proper." (Emphasis 

added. 1 

This step in subsection (3) must be taken before the commissioners can proceed to subsection (4) which gives the 

commissioners the power to adopt the resolution of intent. 

Although the plaintiffs did not rely at trial on the 

County's failure to involve the planning board, it is 

nonetheless clear on the face of the record that the 

Commissioners' action was invalid. 

Once a resolution of intent to zone is passed, sections 

76-2-205(5) and (6), MCA, also prescribe mandatory steps 

to be taken before a zoning district can be created or 

regulations promulgated. Subsection (5) provides for the 

method of giving public notice and sets out the contents of 

such notice. The commissioners complied with this subsection. 

There is also a 30-day period in which the proposed action 

can be protested, and, at the end of that period, the commissioners 

can either create the zoning district and promulgate applicable 

regulations, or they can decide against the resolution. 
However, only those within the proposed zoning area 

can contest the proposed action. Section 76-2-205(6), MCA. 

If 40 percent of the landowners within the affected area 

protest, the resolution cannot be adopted and the commissioners 

cannot again take action on another zoning resolution for 

that area for at least one year. Because the Developers owned 

the entire tract on which the commercial zoning was requested, 

no one could protest. The plaintiffs, all of whom own land 

adjacent to Cameron Tract, had no statutory basis to contest 

the commissioners' proposed action to zone Cameron Tract as 

commercial. 

The plaintiffs were also faced with another immediate 

official decision affecting Cameron Tract. While the county 

commissioners were processing the Developers' zoning request, 

the Developers had also applied to the City of Kalispell for 

a building permit, and the issuance of this permit was 

imminent, although not legal, as we shall later explain. 

The building code requires that the appropriate officials 

determine if the building site (Cameron Tract here) is in 

compliance with "applicable laws . . ." and "other pertinent 

-- laws and ordinances . . ." (Kalispell City Ordinance, 

Uniform Building Code, § 303(a).) Because Cameron Tract was 

unzoned, city officials had assumed there were no use restrictions, 

thus they were in the later stages of processing the building 

permit application apd checkin9 for technical compliance~~with 

the building codes. 

In anticipation of receiving the building permit, the 

Developers moved heavy machinery onto Cameron Tract to grade 

the land in preparation for the start of construction. 

There is some evidence that the Developers had also started 

groundbheaking. 
This was the situation when the plaintiffs filed a 

lawsuit asking the District Court to enjoin the commissioners 

from zoning Cameron Tract as commercial, and asking the 

court to enjoin the City of Kalispell from issuing the 

building permit. Additional plaintiffs later joined the 

lawsuit and asked for the same relief against the County and 

the City. 

The plaintiffs obtained first a temporary restraining 

order, later a temporary injunction, and, after a hearing on 

the merits, a final order and injunction stopping the county 

commissioners from zoning Cameron Tract as commercial, and 

stopping the City of Kalispell from issuing the building 

permit to the developers. 

THE QUESTION OF WHETHER THE TRIAL COURT PROPERLY INTERFERRED 

WITH A CONTINUING LEGISLATIVE PROCESS 

In preventing the county commissioners from adopting 

their resolution of intent, the County claims that the trial 

court violated the long-standing rule that a court will wait 

for the completion of the legislative process before acting 

to enjoin enforcement of the legislation. Although the 

County recognizes an exception to this rule--that a court 

may enjoin enforcement of the proposed legislation where 

the threatened harm will be irreparable and where there is 

no adequate remedy--the County argues that this exception does 

not apply here. We have no quarrel with this abstract 

statement of the law, but it has no application here. The 

plaintiffs were challenging not only the result that the 

commissioners intended--they were also contesting the procedures 

used in reaching that result. 

The County fails to acknowledge the Catch-22 bind in 

which the plaintiffs had been placed. The plaintiffs were 

faced not only with the obvious attempt by the county commissioners 
to zone Cameron Tract as commercial. They were also faced 

with an imminent decision by the City to issue a building 

permit to the Developers. If the plaintiffs had waited any 

longer, they would have taken the chance that the building 

permit would be issued, and that construction would begin. 

The Developers would then undoubtedly have argued that it 

would be inequitable to deny them the right to build a 

shopping center after they had already in the beginning 

stages of construction, spent so much money. These were the 

realities when the plaintiffs filed their lawsuits. 

This situation was a sufficient basis for the trial 

court to grant a restraining order preserving the status 

quo. 

The County dignifies form over substance by arguing 

that the county commissioners were engaged in the legislative 

process when acting on the Developers' request to zone 

Cameron Tract as commercial. The commissioners were not 

involved in adopting a general policy of zoning for the 

area. Rather, they were involved in selecting a specific 

tract of land for a special zoning consideration for a 

particular owner. This activity is more of a quasi-judicial 

decision-making process than a legislative-zoning process. 

The commissioners have no power to engage in such a process. 

See, South of Sunnyside, Etc., v. Bd. of Commissioners, Etc (1977), 280 

Or. 3, 569 P.2d 1063. The quasi-judicial power under the 

zoning laws applicable to counties is reserved to the County 

Board of Adjustment (sections 76-2-221 through 76-2-228, 

not 

MCA). However, even the Board of Adjustment could/have granted 

the relief required here. The Board of Adjustment can act 

only in relation to zoning regulations already in effect for 

an area, but here the area had not yet been zoned. 
The failure of the county commissioners to implement 

the comprehensive plan (master plan) by creating zoning 

districts and promulgating applicable zoning regulations, 

brings us to the issue of spot zoning. Neither the County 

nor the Developers have discussed this issue in their briefs, 

even though the trial court specifically held that the policy 

inherent in Resolution 291 leads to the worst kind of spot 

zoning. 

THE SPOT ZONING ISSUE 

By any definition, this case involves spot zoning of 

the worst kind. The commissioners were about to zone 

as commercial a 59-acre tract of land solely to accommodate 

the Developers, who wanted to build a regional shopping 

center. The land is surrounded on three sides by City of 

Kalispell boundaries, and this entire area is, by the trial 

court's findings, 99 percent residential. Further, the 

comprehensive plan in effect for this area recommends that 

the land involved be used for residential purposes. Zoning 

as was about to take place here is the very opposite of 

planned zoning. 

In a memorandum accompanying its findings and conclusions, 

the trial court aptly characterized the effect of the county 

commissioners' policy: 

"This case arose because of the policy of 

the County Commissioners of Flathead County 

not zoning a tract of land until the owners 

of that tract petitioned the Commissioners 

to do so. (Resolution 291) . . . The type 

of zoning here has been condemned as piecemeal zoning and should be struck down . . . the action of the County Commissioners (or 

should we say inaction) is the most flagrant 

invitation to spot zoning that one could come 

across. Without regard to any effort put into 

the comprehensive plan, the commissioners simply 

refused to consider any zoning except upon 

application." 
Due to the failure of the County and the Developers to 

address this issue, we can only assume that they concede 

this to constitute spot zoning, but that somehow should 

be overlooked. 

There is no single, comprehensive definition of spot 

zoning applicable to all fact situations. Generally, however, 

three factors enter into determining whether spot zoning 

exists in any given instance. First, in spot zoning, the 

requested use is significantly different from the prevailing 

use in the area. Second, the area in which the requested use 

is to apply is rather small. This test, however, is concerned 

more with the number of separate landowners benefited by 

the requested change than it is with the actual size of the 

area benefited. Third, the requested change is more in the 

nature of special legislation. In other words, it is designed 

to benefit only one or a few landowners at the expense of the 

surrounding landowners om the general public. See, Williams, 1 

American Land Planning Law,at 563; Hagman, Urban Planning 

-- and Land Development Control Law - (1971), at 169; Rhyne, The 

Law of Local Government Operations (1980), at 760-761. -- - 

In explaining the third test, Hagman gives this qualification: 

"The list is not meant to suggest that the 

three tests are mutually exclusive. If spot 

zoning is invalid, usually all three elements 

are present or, said another way, the three 

statements may merely be nuances of one another." 

Hagman at 169. 

This qualification must be heeded because any definition of 

spot zoning must be flexible enough to cover the constantly 

changing circumstances under which the test may be applied. 

For example, in Rodgers v. Village of Tarrytown (1951), 

302 N.Y. 115, 96 N.E.2d 731, the New York Court of Appeals, 

in holding that the practices involved constituted spot 
zoning, stated that 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. But in Thomas v. Town of Bedford (1961), 

222 N.Y.S.2d 1021, afftd. (1962), 11 N.Y.2d 428, 230 N.Y.S.2d 

684, 184 N.E.2d 285, the argument was that the practices 

involved did not constitute spot zoning because the tract of 

land involved was not small--it was 123 acres. The court 

then held that the reference in Rodgers to "a small parcel 

of land" was inappropriate. Rather, it is really a question 

of preferential treatment for one or two persons as against 

the general public, regardless of the size of the tract 

involved. 

Undoubtedly, the county commissioners were engaged in 

spot zoning here. First, the requested use of Cameron Tract 

for the commercial development of a regional shopping center 

is significantly different from the prevailing residential 

use in the surrounding area. The land is surrounded on three 

sides by the City boundaries, and this entire area is, by 

the trial court's findings, almost 99 percent residential. 

Further, the master plan in effect for this area recommends 

that the land be used for residential purposes. Zoning such 

as was about to take place here is the very opposite of 

planned zoning. 

Under the third test for spot zoning, Hagman, supra, 

states that the inquiry should involve whether the requested 

use "is -- in accord with -- a comprehensive plan." (Emphasis 

added.) Although the cases cannot be harmonized completely 

because of the differences in statutes, zoning has been held 

invalid as spot zoning when it is not in accordance with a 
comprehensive plan. See, for example, Hines v. PinchbackHalloran Volkswagen, Inc. (Ky. 1974), 513 S.W.2d 492; Fasano 

v. Bd. of County Commrs. (1973), 264 Or. 574, 507 P.2d 23; 

Jablon v. Town Planning & Zoning Comm'n. (1969), 157 Conn. 

434, 254 A.2d 914. We cannot ignore this test when our 

zoning statutes place great weight on the comprehensive plan 

as a guide in zoning. For example, section 76-2-203, supra, 

specifically states that zoning shall be conducted "in 

accordance with a comprehensive development plan." Applied 

here, a commercial regional shopping center can hardly be 

said to fit into a medium-density residential area recommended 

by the master plan. 

The second test concerns the size of the area for the 

requested use. Although most often the size of the area is 

rather small, that is not always the case, as demonstrated 

by Rodgers v. Village of Tarrytown, supra. An important 

inquiry under this test is how many separate landowners will 

benefit from the zone classification. See, Spot Zoning and 

the Comprehensive Plan (Spring 1959), 10 Syracuse L.Rev. 

303, at 306. Also, as we have already noted, size may not 

be the vital factor if the real issue is a question of 

preferential treatment for one or a few persons as against 

the general public. Thomas v. Town of Bedford, supra. 

Here, the area is not small (59 acres), but it does involve . 

the owners of Cameron Tract receiving preferential treatment 

so that they can build a shopping center in an area designated 

for residential use in the master plan. 

The objective of the requested zone classification was 

clearly to give a special advantage to the Developers. By 

promulgating Resolution 291, the county commissioners announced 

to the general public that they were in the business of 
granting special zoning classifications to owners if at 

least 50 percent of them in an area asked for a particular 

classification. The Developers, who owned all of Cameron 

Tract, seized on this resolution, to secure special yaini&ages 

for themselves, but it was to the detriment of the plaintiffs 

who did not want a regional shopping area in the midst of 

their residential area. 

Based on these factors, we hold that the county 

commissioners were engaged in a pernicious system of spot 

zoniny devoid of any redeeming qualities. 

THE ROLE OF THE COMPREHENSIVE PLAN (MASTER PLAN) IN THE 

CREATION OF ZONING DISTRICTS 

The question inevitably arises as to how closely the 

comprehensive plan must be followed. The trial court ruled 

that the county commissioners failed to follow the comprehensive 

plan (master plan) and that the zoning of Cameron Tract 

could not take place without first amending this plan. There 

remains the question of how closely the plan must be followed 

when creating zoning districts and promulgating zoning 

regulations. 

The County argues that the comprehensive plan (master 

plan) is advisory only, and that the governing body having 

the authority to zone under the plan, is free to give it 

whatever weight it wants. In support of its argument, the 

County has marshalled the statutes which set out the role of 

the planning boards both before and after adoption of the 

comprehensive plan (master plan). Because the planning 

boards serve in an advisory capacity to the local governing 

bodies, the County assumes that the comprehensive plan 

(master plan) has that same advisory status. his logic 

is not supported by the statutes. 
The City, on the other hand, argues that although the 

comprehensive plan need not be religiously followed in every 

detail, substantial compliance is required. The City 

suggests that to zone Cameron Tract for commercial use 

would first require an amendment to the comprehensive plan, 

approved by the governing bodies of the City and County. It 

appears that the plaintiffs argue that there must be at 

least substantial compliance with the comprehensive plan 

(master plan) also. 

The statutory scheme contemplates that once a "master 

plan" is adopted by a governing body, any later references 

in the statutes to the terms "comprehensive plan" or "comprehensive development plan" are synonymous to the term 

"master plan. " In Title 76, Ch. 1 (Planning Boards) , a 

definitional statute, section 76-1-103(4), MCA, explains the 

terms : 

"'Master plan' means a comprehensive development 

plan or any of its parts such as a plan of land 

use and zoning, of thoroughfares, of sanitation, 

of recreation, and of other related matters." 

Applied here, the "master plan" adopted by the county commissioners, is within the meaning of section 76-1-103(4), a 

"comprehensive development plan." 

The question then becomes one of how closely the 

governing body must follow the "comprehensive development 

plan" (master plan) when creating zoning districts and when 

promulgating zoning regulations. Section 76-1-605, MCA, 

particularly deals with how an adopted master plan shall be 

used in making zoning decisions: 

"After adoption -- of the master plan, the city 

council, the board of county commissioners, 

or other governing body within the territorial 

jurisdiction of the board -- shall be - guided by 

-- and give consideration to the general policy 

and pattern of development set out in the 
master plan in the . . . (4) adoption of zoning 

ordinances 7 

or, resolutions." (~mphasisadded.) 

This statute unequivocally tells local governing bodies 

that once a master plan is adopted, it must be used for 

their guidance in zoning. Further the zoning statutes 

9. 

covering county zoning, Title 76, Ch. 2, sections 76-x-101 

through 76-2-112, MCA, undeniably lead to the conclusion that 

the master plan is of paramount importance. In fact, the 

unmistakable message of these statutes is that if no comprehensive 

plan (master plan) has been adopted (section 76-2-201, MCA), 

and if no jurisdictional area has been created after the 

adoption of the master plan (section 76-2-202, MCA), the 

counties are without authority to zone except on an interim 

basis. 

The objective under these statutes is that there be the 

final adoption of a master plan, and then that the master 

plan be followed once it has been adopted. The planning and 

organization statutes (sections 76-1-101 through 76-2-112, 

MCA) set out a step-by-step basis by which a master plan is 

to be derived. The term "comprehensive development plan" 

contained in section 76-2-201, refers back to these organization 

and planning statutes. As we have already mentioned, without 

a master plan in effect and without a jurisdictional area 

carved out after the adoption of the master plan, the counties 

have no authority to institute permanent zoning classifications. 

Rather, their only authority to zone is on a temporary 

interim emergency basis as set out in section 76-2-206, MCA. 

Even the temporary emergency zoning statute seems 

designed to encourage the adoption of a master plan, for it 

sets out only two conditions under which emergency zoning 

can be adopted, and further states that temporary emergency 

zoning can be adopted for no more than a two-year period. 
Section 76-2-206(1) states that temporary emergency zoning 

may be used only when the governing body has not yet completed 

the planning stages of a comprehensive plan (Title 76, Ch. 1) 

or when the governing body has not yet implemented the 

zoning regulations after a zoning district has been established. 

Subsection (2) of this statute strictly limits to two years 

the time within which the temporary emergency zoning may 

remain in effect. 

Without regard to how closely the comprehensive plan 

(master plan) must be followed, these statutes leave no 

doubt that great reliance is placed on the comprehensive 

plan (master plan) as a guide in zoning. 

Because a master plan was in existence and the county 

commissioners had carved out a jurisdictional area, the 

county commissioners had the authority to permanently zone 

the area which includes Cameron Tract. Section 76-2-202, 

MCA, states in part that "the board of county commissioners 

may by resolution establish zoning districts and zoning 

regulations for all or part of the jurisdictional area." 

But the commissioners did nothing after this point. Rather, 

they had adopted the policy (Resolution 291) of not zoning 

at all unless the property owners in the area involved asked 

for a particular zoning classification. That policy surfaced 

in this case when the commissioners were about to accommodate 

the wishes of the Developers by zoning Cameron Tract (59 acres) 

for commercial use, although the master plan recommended 

that the area be zoned for medium-density residential use. 

The county zoning statutes (sections 76-2-201 through 

76-2-228, MCA) rely heavily on the master plan and on the 

role of the planning board in providing maximum input to the 

county commissioners on the question of planning and zoning. 
Before the county commissioners can create a zoning district 

or promulgate zoning regulations for the district, section 

76-2-204, MCA, requires the county commissioners to direct 

the planning board to "recommend boundaries and appropriate 

regulations for the various zoning districts." Tl3s statute furtbr 

requires the planning board to make "written reports of 

their recommendations to the board of county commissioners. 

. . ." Even though the statute also provides that the planning 

board's recommendations "shall be advisory only," this is 

because the final zoning authority is given to the county 

commissioners rather than to the planning boards. The 

intent of these statutes is to require maximum input from 

the planning boards to the county commissioners before the 

commissioners reach a zoning decision. This is simply a 

recognition that the planning board is in continuing and 

closer touch with the comprehensive plan (master plan) than 

are the county commissioners. 

The master plan would have little meaning unless the 

planning board had a significant and continuing role in the 

processes which finally lead to a decision by the county 

commissioners. The significance of the planning board's 

role can be better understood in light of the statutory 

criteria that must be followed in all zoning decisions. 

Section 76-2-203, MCA, sets out the general objectives of 

county zoning, and the criteria that must be considered. 

Virtually the same language is contained in the city zoning 

statute, section 76-2-304, MCA, which we interpreted in Lowe 

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

The first phrase of section 76-2-203 sets the tone for 

all that comes after it. It states that "the zoning 

regulations shall --- be made in accordance with 2 comprehensive 
development plan . . ." (Emphasis added.) We assume here 

that the term "zoning regulations" is also meant to cover 

the term "zoning districts." We cannot ignore the mandatory 

language ("shall") of this statute. 

We again emphasize that the continuing role of the 

planning board in the zoning process is set out in the 

statute (section 76-2-205, MCA) providing that mandatory 

steps be taken in the creation of zoning districts and in 

the promulgation of zoning regulations. After public notice 

has been given and public hearing held pursuant to subsections 

(1) and (2), subsection (3) requires that "after the public 

county 

hearing, the board of/commissioners shall review the proposals 

of the planning board and shall make such revisions or 

amendments as it may deem proper." The commissioners must 

do this before they can take the next step provided in 

subsection (4), that of adopting a resolution of intent to 

create a zoning district or to promulgate zoning regulations. 

This statutory scheme requires the county commissioners to 

obtain maximum input from the planning board, even though 

the final decision is left to the governing body--the county 

commissioners. 

The vital role given the planning boards by these 

statutes cannot be undercut by giving the governing body the 

freedom to ignore the product of these boards--the master 

plan. We hold that the governmental unit, when zoning, must 

substantially adhere to the master plan. 

ADHERENCE TO THE MASTER PLAN WHEN ZONING 

To require strict compliance with the master plan would 

result in a master plan so unworkable that it would have to 

be constantly changed to comply with the realities. The 
master plan is, after all, a plan. On the other hand, to 

require no compliance at all would defeat the whole idea of 

planning. Why have a plan if the local governmental units 

are free to ignore it at any time? The statutes are clear 

enough to send the message that in reaching zoning decisions, 

the local governmental unit should at least substantially 

comply with the comprehensive plan (or master plan). This 

standard is flexible enough so that the master plan would 

not have to be undergoing constant change. Yet, this standard 

is sufficiently definite so that those charged with adhering 

to it will know when there is an acceptable deviation, 

and when there is an unacceptable deviation from the master 

plan. 

As we have explained, the statutes require a reading 

that the legislature intended the master plan to have substance. 

If a master plan must be in existence before the county 

commissioners can permanently zone, and if the right to 

adopt emergency interim zoning is limited to two years, it 

makes little sense to then permit the local governing body 

to ignore the master plan once it has been created. If the 

master plan is important enough to be a condition precedent 

to permanent zoning, it is also important enough to be followed 

once it is in existence. For these reasons, we hold that 

only substantial compliance is mandated by the statutes. 

We are aware that changes in the master plan may well 

be dictated by changed circumstances occurring after the 

adoption of the plan. If this is so, the correct procedure 

is to amend the master plan rather than to erode the master 

plan by simply refusing to adhere to its guidelines. If the 

local governing bodies cannot cooperate to this end, the 
only alternative is to ask the legislature to change the 

statutes governing planning and zoning. 

THE DEVELOPERS' APPEAL--THE BUILDING PERMIT 

As mentioned, the Developers, although disagreeing with 

the trial court's decision enjoining the county commissioners 

from zoning Cameron Tract for commercial use, concentrate 

on the argument that the court had no right to enjoin the 

City of Kalispell from issuing the building permit. They 

argue that the plaintiffs had no standing to challenge the 

issuance of the building permit, and further, assuming that 

the plaintiffs had such standing, they argue that the laws 

governing issuance of building permits do not stand in the 

way of obtaining a permit to build on land that has not been 

zoned. In effect, the Developers contend they have a right 

to a building permit, and therefore to build, regardless of 

any decision enjoining the county commissioners from zoning 

the land as commercial. 

As set out in detail before, the situation facing the 

trial court was that if an injunction was not issued against 

the City of Kalispell enjoining it from issuing the building 

permit pending resolution of the lawsuit, construction might 

have started despite the filing of the lawsuit. So, even if 

the trial court later ruled that the county commissioners 

had no right to zone Cameron Tract as commercial, the Developers 

would nonetheless ask the trial court to dismiss the plaintiffs' 

lawsuit because the Developers had already spent large sums 

of money in the preliminary stages of construction. We 

have no doubt, therefore, that the trial court was correct 

in enjoining the issuance of the building permit until all 

the legal questions were resolved. Stopping the City of 

Kalispell from issuing the building permit until all legal 

issues were decided was the only way of preserving the 

status quo. 
Based on these factors, the Developers are in no 

position to avail themselves of a technical argument that 

the plaintiffs did not prove special damage to them if the 

building permit were to issue and construction to begin. 

Further, plaintiffs presented evidence that demonstrates 

they would be more adversely affected by the regional shopping 

center than would the general public. Although there were 

other factors involved, we are convinced that the increased 

traffic alone was sufficient to show that plaintiffs, as 

adjacent owners, would be injured in a manner that the 

general public would not. 

According to the Developers' own studies, the shopping 

mall would attract 13,000 cars per day. These studies also 

showed, and the trial court found, that the side streets 

near the shopping center, which presently bear 3,000 cars 

per day, would have to bear 13,000 cars per day if the 

shopping center were built. The studies were completed by 

the State Department of Highways and Stahly Engineering, at 

the specific request of the Developers. The Developers now 

attack these studies, saying that they are mere speculation. 

The studies were probative on the question of whether the 

Developers would proceed with building a shopping center 

and they should be equally probative and available to the 

plaintiffs to show that their neighborhoods would be adversely 

affected by the increased traffic flow. 

We hold, therefore, that the plaintiffs had standing to 

challenge the issuance of the building permit. Not only was 

the damage to them different from that of the general public-- 

an increase of 10,000 cars per day over their neighborhood 

streets--but enjoining the City from issuing the building 

permit was also necessary for the trial court to assume its 
equitable power of granting complete relief. It would not 

have been fair to the plaintiffs had the trial court ruled 

that the County could not zone Cameron Tract for commercial 

use, and to hold that the Developers had the right to start 

construction upon obtaining the building permit from the 

City. 

RELATIONSHIP OF MASTER PLAN TO DUTY OF CITY IN PROCESSING 

BUILDING PERMIT APPLICATION 

The Developers further argue that even assuming the 

plaintiffs had standing to challenge the issuance of the 

building permit, the City of Kalispell was nonetheless 

required to issue the building permit once it found the 

building plans to be in order. This argument is based on a 

distinction the Developers believe exists between zoning 

laws and the master plan. The Developers concede that the 

City could refuse to process a building permit if the proposed 

use was. in violation of a zoning law, but the Developers 

argue that the City had no right to refuse to process a 

building permit solely because the proposed use would not be 

in compliance with the master plan. The Developers argue 

that because the land was unzoned, therefore permitting any 

use not specifically prohibited, the City had the duty to 

issue the building permit. 

We first note that this argument cannot prevail because 

we have already held that the District Court had the right 

to grant complete relief by preserving the status quo until 

all issues were decided. Accordingly, the court had the 

right to order the City to stop processing the building 

permit application. But beyond this we also hold that the 

trial court was correct by holding in essence that the city 

officials could refuse to process a building permit application 
where the proposed use is not in compliance with the master 

plan for the area involved. 

We have already noted in this opinion that the statutory 

scheme for planning and zoning sets up a continuing process 

until finally all property within the County has been zoned. 

We have ruled that the zoning must be in substantial compliance 

with the master plan. The problem existing here on the 

building permit question is that the City was confronted 

with a twilight zone created by the county commissioners'refusal 

to zone unless the property owners involved make a special 

request (Resolution 291). It was this failure to zone which 

placed the city officials in a dilemma when the Developers 

applied for a building permit. 

City officials knew they could refuse to process a 

building permit application if the proposed use was in 

violation of zoning law, but they did not know what to do 

where the proposed use was only in violation of the recornrnendations of the master plan. They proceeded, erroneously, we 

now hold, on the basis that if the land was unzoned they had 

a duty to process the building permit application. 

In summary, we hold that the county commissioners used 

illegal zoning procedures and that injunctive relief was 

proper; that the county commissioners, had they zoned 

Cameron Tract as commercial, in addition to statutory 

violations, would have committed a most flagrant act of 

illegal spot zoning; that when zoning decisions are made 

(either creating zoning districts or promulgating applicable 

zoning regulations for the districts) they must be made 

in substantial compliance with the comprehensive plan (master 

plan); that the plaintiffs had standing to challenge the 

issuance of the building permit; that in any event, the 
trial court had the right to stop the issuance of the 

building permit in order to preserve the status quo; and 

finally, that city officials have the right to refuse processing 

of a building permit application because the proposed use is 

in violation of the use recommended in the comprehensive 

plan (master plan). 

The judgment granting injunctive relief is affirmed. 

We Concur: 

~h?ef Justice 

Justices