No. 14520 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

ROBERT S. FOSTER, 

Petitioner and Respondent, 

CITY COMMISSION OF AND FOR THE 

CITY OF BOZEMAN, et al., 

Respondents and Appellants. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Berg, Morgan, Coil and Stokes, Bozeman, Montana 

Ben E. Berg argued, Bozeman, Montana 

For Respondent: 

Joseph W. Sabol argued, Bozeman, Montana 

-- -- -- - 

Submitted: September 13, 1979 

Decided : AU G 8 - 1g80 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The Bozeman City Commission appeals from an order of 

the Gallatin County District Court which granted a writ of 

mandamus to Robert S. Foster and directed the Bozeman City 

Commission to hold a rehearing on Foster's request for a 

master plan zone change, to keep a full record of the 

rehearing, and to issue written findings in support of its 

decision. 

The central controversy arises from a denial on May 10, 

1978, by the City Commission of Foster's request that his 

forty acres of land be changed from an agricultural-suburban 

zoning classification (which permits subdivisions of no less 

than ten acres) to a single family residential zoning 

classification. Upon receipt of this adverse decision, 

Foster, through his attorney, demanded a rehearing of his 

rezoning request and alleged that the City Commission had 

engaged in several procedural irregularities with reference 

to its previous hearings. On May 24, 1978 the City Commission 

denied Foster's demand for a rehearing on the merits, and on 

May 25, 1978, Foster obtained an alternative writ of mandate 

from the District Court. The alternative writ ordered that 

Foster either be granted a rehearing or that the City Commission show cause why it had not complied with the court 

order. The City Commission chose to show cause. After an 

evidentiary hearing, the District Court issued a writ of 

mandate ordering the City Commission to grant a rehearing on 

the merits and to comply with the procedural requirements of 

an adjudicatory proceeding. 

In applying for a writ of mandamus Foster acknowledged 

that a writ of review (certiorari) is normally the appropriate 

and adequate remedy by which to test the legality of the 
proceedings before the City Commission. He alleged, however, that in this case a writ of review is not adequate 

because the City Commission had failed to keep a verbatim 

record of its proceedings had in relation to the Foster 

rezoning application and had failed to enter findings of 

fact in support of its decision. Thus Foster contended, 

there was essentially nothing for the District Court to 

review, and that the only adequate remedy would be a writ 

commanding the City Commission to hold another hearing on 

the merits together with the procedural safeguards he contends were denied him at the initial hearings. 

In applying for a writ of mandamus, Foster framed his 

complaint in seven counts, but the central contention is 

that after the May 3 hearing and before the May 10 decisional 

meeting of the City Commission, the city manager circulated 

a secret memorandum to the Commission members which was 

calculated to and did deprive Foster of his rights to a fair 

hearing on his rezoning application. He contends that he 

did not have a chance to respond to or rebut the matter 

contained in the secret memo before the City Commission made 

its decision at the May 10 meeting. 

Accompanying this central contention is his claim that 

the City Commission failed to keep a verbatim record of its 

May 3 and May 10 meetings in relation to the rezoning 

application, and that the City Commission had failed to 

enter written findings in support of its decision denying 

the rezoning application. Essentially, Foster argues that 

the failure to keep a hearing record and to enter findings, 

effectively deprived him of the right to seek judicial 

review of the City Commission's decision denying his rezoning 

application. He therefore claims that he was deprived of 

due process of law. 

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Based on his underlying contention that the City 

Commission had a duty to keep a full hearing record and to 

enter written findings, it is impossible to determine whether 

the City did in fact rely on the secret memo circulated by 

the city manager. Because the City Commission denied Foster's 

request for a rehearing, he argues that the only remedy to 

cure the due process violations is for a court to order the 

City Commission to rehear the case on the merits. 

The District Court held an evidentiary hearing on his 

complaint and then issued a writ of mandamus directing the 

City Commission to hold a rehearing on the merits. Findings 

of fact and conclusions of law were entered, and a supporting 

memorandum was filed by the District Court. The District 

Court ordered the City Commission to immediately hold a 

rehearing on the merits of Foster's rezoning application, to 

keep a verbatim hearing record of all evidence introduced, 

both oral and documentary, and to issue written findings in 

support of its decision based on the testimony and documentary 

evidence introduced at the hearing. The City Commission 

appeals from this order. 

The District Court ruled that the proceedings involved 

were adjudicative in nature rather than legislative, and for 

this reason, that the City Commission must keep a verbatim 

record and enter written findings in support of its decision. 

The statutory framework was not considered at all. Rather, 

the District Court concluded that under the rationale of 

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

the proceedings were adjudicative rather that legislative. 

In reaching the issue of the so-called secret memo, the 

District Court ruled that absent written findings, it could 

not be determined whether the City Commission had in fact 
relied on the memoranda circulated by the city manager. 

This being so, the District Court concluded that the only 

remedy was to order a rehearing on the merits coupled with 

the procedural safeguards set forth. 

Boiled down to the essentials, the City Commission 

contends that when acting on the forty acre rezoning application 

it was acting in a legislative capacity rather than in an 

adjudicative or quasi-judicial capacity. Thus it contends 

that the District Court had no right to impose procedures on 

its activities which are applicable to quasi-judicial functions, 

such as keeping a verbatim record of the proceedings and 

making findings of fact in support of its decision. From 

this essential premise, the City argues that since it is not 

required by statute to grant rehearings from denials of 

rezoning applications, the decision as to whether it will do 

so is discretionary. Because a writ of mandamus will not 

issue to control a discretionary act, the City thus argues 

that mandamus could not properly issue to compel it to grant 

a rehearing on the merits to Foster. Although other issues 

exist, we believe that the underlying issue is whether the 

proceedings involved here are such that standards in relation 

to quasi-judicial proceedings should be imposed. 

For reasons which we will fully explain, we determine 

that the writ of mandamus was not a proper remedy in this 

case and that it was, moreover, entered without proper consideration of the actual state of the procedural record and 

of Foster's action or inaction in creating that record. The 

facts do not permit us to extricate him from the situation 

which he helped to create. Before commencing our analysis, 

however, we first set forth the factual background leading 

to the dispute involved here. 

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The forty acres involved is outside the Bozeman city 

limits but within the jurisdiction of the City Commission 

and the City-County Planning Board and the Zoning Commission. 

In October 1977, Foster initially filed an application with 

the Bozeman City Commission to rezone his land from agricultural-suburban to single family residential. The City 

Commission initially referred this request to the CityCounty Planning Board and the Zoning Board. Each of these 

Boards held hearings and each recommended that the petition 

for rezoning be denied. The primary reason given for the 

denial recommendation was that the master plan would be 

revised in the near future and therefore any present zoning 

changes would be precipitous. 

On or about December 20, 1977, the City Commission 

conducted a public hearing on Foster's request for a rezone. 

No members of the public appeared in support of or in 

opposition to the requested zone change. The City Commission denied Foster's rezoning request pending initial 

consideration and recommendations by the City-County Planning 

Board. It appears that all concerned believed that a master 

plan change would be forthcoming. 

On March 8, 1978, Foster went to the City commission 

and asked it when the changes in the master plan could be 

expected. Having no answer for Foster, the City omm mission 

decided that it had better consider Foster's rezoning 

request on the merits without regard to a future change in 

the master plan. As preliminary steps, the City Commission 

referred the latter to the City-County Planning Board and to 

the Zoning Commission, and asked each body to consider 

Foster's rezoning application on the merits and to forward 

their recommendations to the City Commission. Each of the 

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Boards held hearings and each forwarded its recommendations 

to the City Commission, but with different conclusions. The 

City-county Planning Board recommended against the zoning 

change but the Zoning Board recommended in favor of the 

zoning change. 

On May 3, 1978, the City Commission held its hearing on 

the requested zoning change. The record before us together 

with admissions from Foster's attorney in response to 

questions from the bench during the hearing of this appeal, 

supports the conclusion that a court reporter, at the request 

of Foster's attorney, reported the May 3 hearing in relation 

to Foster's rezoning application. Foster and his attorney 

fully participated in the hearing. 

One of the opponents of the rezoning application was 

Joel Shouse, a member of the City-County Planning Board, and 

also one of the members of a committee which drafted a report 

concerning the water supply and water table in the Gallatin 

Valley. The report, entitled 'Blue Ribbons Draft Final 

Repore', had already been publicly released and was available 

to the general public upon request, Shouse testified in 

detail concerning his fears that water pollution would 

result if a rezone were granted. He was particularly concerned about the nitrate pollution which would appear in the 

ground water if the property was rezoned for residential 

use. During his testimony, Shouse frequently referred to 

the Blue Ribbons Report. Neither Foster nor his attorney 

objected to Shouse's testimony. Foster's attorney questioned 

Shouse extensively concerning his conclusions that the 

rezoning should not be granted. 

The City Commission did not vote on the Foster rezoning 

application on May 3, but decided rather that it would 

render its decision on May 10, the next regular weekly 

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meeting of the Commission. The allegation that the City 

Commission later considered evidence not presented at this 

May 3 hearing, arose in relation to an agenda of the May 10 

meeting circulated on May 9 to the City Commission members 

by the city manager. 

It is the custom of the city manager to prepare an 

agenda and circulate it to each commission member before the 

weekly meeting. The Foster rezoning application was one of 

i 

several items on the agenda. In the agenda, the city manager 

recommended to the City Commission that it deny Foster's 

rezoning application and he set forth his response. Also 

appended to the agenda was a letter from Joel Shouse and the 

report of the Blue Ribbons Planning Organization. Shouse 

had referred to this report during his testimony at the May 

3 hearing. Shouse testified at the District Court hearing 

on the order to show cause, that he had submitted this 

letter and report to the City Commission to clarify and 

support his testimony that ground water pollution would occur 

if the City Commission granted the rezoning application. 

Specifically, he wanted to clarify certain testimony given 

in response to questions from Foster's attorney. 

Foster claims that the agenda and attached letter and 

report, comprised a secret memo which the city manager had 

circulated to the City Commission members, that it was 

calculated to defeat his rezoning application, and that he 

was given no opportunity to meet or rebut this evidence. 

For this reason, he claims he was denied due process of law. 

The record, however, does not support his contention that he 

was caught flat-footed at the May 10 meeting of the City 

Commission. Rather, it supports a conclusion that Foster's 

attorney was offered a copy by the city manager before the 

meeting started, but that Foster's attorney specifically 

declined. 
The city manager testified at the District Court 

hearing concerning the agenda he had prepared for the May 10 

meeting of the City Commission. This agenda, of course, 

included his own recommendation with supporting reasons, 

that the City Commission deny the rezoning application. He 

unequivocally testified that sometime before the May 10 

meeting began, he offered to supply a copy of the agenda to 

Foster's attorney but that Foster's attorney refused this 

offer. He was not specifically asked whether he also 

offered a copy of the Shouse letter and accompanying water 

report. The testimony of the city manager stands unrefuted. 

The city manager, furthermore, testified that at the 

May 10 meeting, he briefly spoke to the City Commission an6 

recommended that it deny the rezoning application. It is 

clear that Foster and the attorney knew or should have known 

that the City Commission would receive the recommendations 

of the city manager that the rezoning application be denied. 

The record does not indicate that Foster or his attorney 

were at liberty to participate at the May 10 meeting. 

Nonetheless, neither Foster nor his attorney did anything to 

object to the use of the memorandum or to the statements of 

the city manager. 

There is also not the slightest evidence that Shouse's 

letter or the water study report were reported to by the 

City Commission during the May 10 meeting. At least three 

witnesses, including one commission member, testified at the 

District Court hearing that Shouse's letter and water report 

were not discussed by the City Commission during the meeting. 

There was no contrary testimony. At this public meeting the 

Commissioners discussed the Foster rezoning application for 

at least a period of fifteen minutes, and then by a divided 

vote, decided to deny the rezoning. 

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We note that Foster's attorney had a court reporter 

present to record the May 10 proceedings held in relation 

to the rezoning application. This fact was brought forth 

during the District Court hearing on the order to show 

cause, and in response to questions of Foster's attorney 

during the argument of this appeal. Under these circumstances, Foster was in no position to argue that the City 

Commission was obligated to but failed to provide him with a 

record of the proceedings. A record existed, but Foster's 

attorney chose not to have it transcribed. The City Commission cannot be held responsible for this. 

We thus have a situation where neither Foster nor his 

attorney ever requested the City Commission to keep a 

verbatim record of its proceedings in relation to the rezoning application. There is neither existing statutory law 

nor Montana case law requiring this procedure, and it is 

difficult for us to determine that the City Commission 

nonetheless had a mandatory duty to keep such a record. The 

fact that Foster did have a record if he chose to use it, 

obviates any prejudice occurring because of an absence of a 

record. It is difficult for us to see how he could claim in 

District Court that review was inadequate because the city 

had not recorded the proceedings, but where he actually had 

his own record of the proceedings. 

Nor is there any existing statutory or case law in this 

state which requires a City Commission when hearing a 

rezoning application, to enter findings in support of its 

decision. If there is such a duty, it is only the duty that 

the District Court had been asked to create by its decision, 

and that this Court has been asked to ratify. Foster did 

not ask the City Commission to enter findings of fact in 

support of whatever decision it made. Rather, the only time 

-10- 
findings became an issue is when Foster petitioned the City 

Commission for a rehearing and claimed as one of the grounds 

for a rehearing that the City Commission had precluded him 

from seeking judicial review because it had not made findings 

in support of its decision. 

Thus, as to both a record of the proceedings, and 

requested findings, Foster and his attorney remained silent 

during the May 3 and May 10 meetings of the City Commission. 

It appears that he was gambling on a favorable decision, but 

in the event it was adverse, was carrying his due process 

argument as an ace in the hole to spring on the City Commission in favor of a rehearing on the merits. Thus, it was 

only when Foster appeared before the City Commission on May 

17 and demanded a rehearing that the City Commission learned 

for the first time that Foster was contending it should have 

kept a record of its proceedings and should have entered 

findings in support of its decision. 

Nor are we impressed by Foster's contention that the 

City Commission surreptitiously relied on beyond the record 

evidence in reaching its decision. At the May 3 hearing 

Joel Shouse testified in detail concerning his feelings 

about the water pollution problems inherent in allowing 

residential development of the property involved. He was 

extensively examined by Foster's attorney. It was in response 

to these questions that Shouse sent a letter and the 

accompanying Blue Ribbons Report with appropriate references 

to the area where Foster's land is located. Shouse testified 

that he sent this letter and Blue Ribbons Report to clarify 

his testimony at the May 3 hearing. This Blue Ribbons 

Report was not a secret document. It had already been 

released to the public and Foster or his attorney had access 

to it if they so desired. Furthermore, the city Manager 

testified at the District Court show cause hearing that he 

had offered the City Commission agenda to Foster's attorney, 

but that he had declined, stating that he would look at the 

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information later. Under these circumstances, we can hardly 

conclude that Foster and his attorney were caught flatfooted at the May 10 City Commission meeting. Furthermore, 

there is no indication that the City Commission relied on 

the Shouse letter or Blue Ribbons Report in reaching its 

decision. 

As we previously stated, the underlying and controlling 

issue is whether it was appropriate for the District Court 

here to issue a writ of mandamus, in essence directing the 

City Commission to undertake certain procedures which it had 

not had a duty to perform, prior to that time. 

Before the District Court decision, there was no requirement under law that the City Commission in support of a 

decision granting or denying a rezoning request, enter 

written findings of fact. Before the District Court decision, 

there was no requirement under law that the City Commission 

was required to keep a verbatim record of the proceedings. 

Before the District Court decision, there was no requirement 

under law that the City Commission conduct its proceedings 

in an adjudicative manner so as to give an applicant full 

procedural due process rights. If there was no antecedent 

duty of the City Commission to perform these functions, we 

fail to see how the District Court, could, by a writ of 

mandamus, order the City Commission to do so. 

Nor are the equities on the side of Foster in relation 

to the procedural problems created. It was not until the 

City Commission turned down Foster's rezoning application 

that he first raised the issues of the failure of the City 

Commission to keep a verbatim record and the failure of the 

City Commission to enter written findings of fact in support 

of its decision. Furthermore, it appears from the record in 

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the District Court and the admissions made before this Court 

that Foster's attorney actually had a court reporter present 

for the purpose of recording the City Commission proceedings 

in relation to Foster's rezoning application. And, of 

course, it appears that Foster's attorney knew or should 

have known that the City Commission would, on May 10, hear 

from the city manager with respect to his recommendations 

and that his recommendations were based at least in part on 

the letter from Joel Shouse and the accompanying Blue Ribbons 

Report. It was only after Foster had banked on a favorable 

decision from the City Commission and was turned down on his 

rezoning application that he first raised all of the procedural 

due process questions. This, we believe, is not sufficient 

to invoke the powers of a District Court to issue a writ of 

mandamus against a City Commission for not following law 

that prior to the District Court order had no existence at 

all in this state. 

Based on the record before us, we see no reason why we 

should be impelled to engage in a legal discussion as to 

whether the City Commission should be bound by adjudicatory 

hearing procedures when undertaking and considering an 

application for rezoning. We note, furthermore, that the 

legislature has not seen fit to impose adjudicatory hearing 

procedures in cases of this nature, although it has done so 

in cases which involve proceedings before a local board of 

adjustment. See sections 76-2-221 through 76-2-228, MCA; 

and see also, sections 76-2-321 through 76-2-328, MCA. 

Although we recognize potential procedural problems in 

questions involving rezoning applications, we will not, 

under the state of this record, determine whether 

adjudicatory-type hearing safeguards are required in a 

rezoning application. 

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It was clearly improper to use a writ of mandamus to 

impose, in effect, retroactive rules governing the proceedings of the City Commission. The judgment of the 

District Court is reversed. 

We Concur: 

Chief Justice