No. 14520 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

ROBERT S. FOSTER, Petitionerand Respondent,

CITY COMMISSIONOF AND FOR THE CITY OF BOZEMAN, et al., Respondents and Appellants.

Appeal from: District Court of the Eighteenth Judicial District, HonorableW. 

### W. Lessley, Judgepresiding. Counsel of Record: ForAppellants: Berg,Morgan, Coil and Stokes,Bozeman,Montana Ben E. Berg argued,Bozeman,Montana For Respondent: JosephW. Sabol argued, Bozeman,Montana

-- -- -- - Submitted: September 13, 1979 Decided:

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# - 1g80Mr. Justice Daniel J. Sheadelivered 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 fortyacres of land be changed from an agricultural-suburban zoning classification (whichpermits 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 alternativewrit of mandate from the DistrictCourt. The alternativewrit ordered that Foster either be granted a rehearing or that the City Commission show causewhy ithad not complied with the court order. The City Commission chose to show cause. After an evidentiaryhearing, the District Court issued a writ of mandate ordering the City Commission to grant a rehearing on themerits and to complywith the procedural requirements of

an adjudicatory proceeding. In applying for awrit of mandamus Foster acknowledged that awrit of review (certiorari)is normally the appropriate and adequate remedyby which to test the legality of theproceedings before the City Commission. He alleged,however, that in this case a writ of review is not adequate because the City Commissionhad 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, therewas 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 themerits together with the procedural safeguards he contendswere 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 theMay 10 decisional meeting of the City Commission, the citymanager circulated a secretmemorandum 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 thematter contained in the secretmemo before the City Commissionmade its decision at the May 10meeting. Accompanying this central contention is his claim that the City Commission failed to keep a verbatim record of its May 3 and May 10meetings 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 hewas deprived of due process of law. -3-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 secretmemo circulated by the citymanager. 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 DistrictCourt held an evidentiary hearing on his complaint and then issued a writ of mandamus directing the City Commission to hold a rehearing on themerits. Findings of fact and conclusions of law were entered, and a supporting memorandumwas filedby the DistrictCourt. The District Court ordered the City Commission to immediatelyhold 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 issuewritten findings in supportof its decision based on the testimony and documentary evidence introduced at thehearing. 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 enterwritten 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 proceedingswere adjudicative rather that legislative. In reaching the issue of the so-called secretmemo, the District Court ruled that absentwritten findings, it could not be determined whether the City Commission had in factrelied on the memoranda circulatedby the city manager. Thisbeing so, the District Court concluded that the only remedy was to order a rehearing on the merits coupledwith theprocedural safeguards set forth. Boiled down to the essentials, the City Commission contends thatwhen acting on the forty acre rezoning application itwas 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 activitieswhich 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 essentialpremise, the City argues that since it is not requiredby statute to grant rehearings fromdenials of rezoning applications, the decision as to whether itwill do

so is discretionary. Because awrit of mandamus will not issue to control a discretionary act, the City thus argues thatmandamus could not properly issue to compel it to grant

a rehearing on themerits to Foster. Although other issues exist,we believe that the underlying issue iswhether the proceedings involved here are such that standards in relation to quasi-judicial proceedings should be imposed. For reasonswhich wewill fully explain,we determine that the writ of mandamus was not a proper remedy in this

case and that itwas,moreover, enteredwithout 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 involvedhere. -5-The forty acres involved is outside the Bozeman city limitsbut within the jurisdictionof the City Commission and the City-County Planning Board and the Zoning Commission. In October 1977, Foster initially filed an applicationwith the Bozeman City Commission to rezone his land from agricultural-suburbanto 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 recommendationwas that the master plan would be revised in the near future and therefore any present zoning changeswould be precipitous. On or aboutDecember 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 requestpending 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, Fosterwent to the City commission and asked itwhen the changes in the master plan could be expected. Having no answer for Foster, the City 

### omm mission decided that ithad better consider Foster's rezoning request on themerits without regard to a future change in themaster 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 -6-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 changebut the Zoning Board recommended in favor of the zoning change. On May 3, 1978,the City Commissionheld 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 fullyparticipated in the hearing. One of the opponents of the rezoning applicationwas Joel Shouse, amember 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 'BlueRibbons Draft Final Repore', had already been publicly released and was available to the general public upon request, Shouse testified in detail concerning his fears thatwater pollution would result if a rezone were granted. He was particularly concerned about the nitrate pollutionwhichwould 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 onMay 3,but decided rather that itwould render its decision on May 10, the next regular weekly -7-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 Commissionmembers by the citymanager. 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 applicationwas one of i several items on the agenda. In the agenda, the citymanager recommended to the City Commission that itdeny Foster's rezoning application and he set forthhis response. Also appended to the agendawas a letter from Joel Shouse and the report of the Blue Ribbons Planning Organization. Shouse had referred to this report during his testimony at theMay 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 supporthis testimony that ground water pollution would occur if the City Commission granted the rezoning application. Specifically,hewanted 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 citymanager had circulated to the City Commissionmembers, that itwas calculated to defeat his rezoning application,and thathe

was given no opportunity to meet or rebut this evidence. For this reason,he claims hewas denied due process of law. The record,however, does not supporthis contention that he

was caught flat-footed at theMay 10meeting of the City Commission. Rather, it supports a conclusion that Foster's attorneywas offered a copyby 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 sometimebefore 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 accompanyingwater report. The testimony of the citymanager stands unrefuted. The citymanager, furthermore, testified that at the May 10meeting,he briefly spoke to the City Commission an6 recommended that itdeny 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 citymanager that the rezoning applicationbe denied. The record does not indicate that Foster or his attorney were at liberty to participate at theMay 10meeting. Nonetheless, neither Foster nor his attorney did anything to object to the use of the memorandum or to the statements of the citymanager. There is also not the slightest evidence that Shouse's letter or the water study reportwere reported to by the City Commission during the May 10meeting. At least three witnesses, including one commissionmember, testified at the District Court hearing that Shouse's letter and water report were not discussedby the City Commissionduring 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. -9-We note that Foster's attorney had a court reporter present to record the May 10proceedings held in relation to the rezoning application. This factwas 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 Commissionwas 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 situationwhere 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 nonethelesshad amandatory 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 isdifficult for us to see how he could claim in District Court that reviewwas inadequate because the city had not recorded the proceedings, but where he actuallyhad his own record of the proceedings. Nor is there any existing statutory or case law in this statewhich 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 itmade. Rather, the only time -10-findings became an issue is when Fosterpetitioned the City Commission for a rehearing and claimed as one of the grounds for a rehearing that the City Commissionhad precluded him from seeking judicial review because ithad notmade 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 10meetings of the City Commission. Itappears that he was gambling on a favorable decision,but in the event itwas 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, itwas onlywhen 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 itsproceedings and should have entered findings in support of its decision. Nor arewe impressedby 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 thewater pollution problems inherent in allowing residential development of the property involved. He was extensively examined by Foster's attorney. Itwas in response to these questions that Shouse sent a letter and the accompanying Blue Ribbons Report with appropriate references to the areawhere Foster's land is located. Shouse testified that he sent this letter and Blue Ribbons Report to clarify his testimony at theMay 3hearing. This Blue Ribbons Reportwas not a secret document. Ithad already been released to the public and Foster or his attorney had access to it if they sodesired. 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 -11-information later. Under these circumstances,we can hardly conclude that Foster and his attorneywere caught flatfooted at theMay 10 City Commissionmeeting. 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 iswhether itwas appropriate for the District Court here to issue awrit of mandamus, in essence directing the City Commission to undertake certain procedures which ithad 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, therewas 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 itsproceedings in an adjudicative manner so as to give an applicant full procedural dueprocess 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. Itwas 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 enterwritten findings of fact in support of its decision. Furthermore, it appears from the record in -12-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 Commissionwould, on May 10,hear from the city manager with respect to his recommendations and thathis recommendationswere based at least in part on the letter fromJoel Shouse and the accompanying Blue Ribbons Report. Itwas 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 thepowers of aDistrict Court to issue awrit 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 reasonwhy we shouldbe impelled to engage in a legal discussion as to whether the City Commission should be bound by adjudicatory hearing procedureswhen undertaking and considering an application for rezoning. We note, furthermore, that the legislaturehas 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. Althoughwe recognize potential procedural problems in questions involving rezoning applications,wewill not, under the state of this record, determinewhether adjudicatory-typehearing safeguards are required in a rezoning application. -13-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