No. 14721 INTHE SUPREMECOURTOFTHE

### STATEOFM3TANA 1979

STATEexrel., THE DlEHL CQMPANY, AbbntanaCorporation, Plaintiff, Relator andRespondent,

-vsTHECITYOFHELENA,KNTANAetal., Defendants, Respondents andAppellants.

AppedL fm: DistrictCourt of theFirstJdicialDistrict, HonorableW. W. Lessley, Judgepresiding. Counsel of Record: ForAppellants: Hull, Driscolland Sherlock, Helena, &bntana JmsDriscollargued, Helena, mntana C. W. Leaphart,Jr., argued, Helena, mntana For Respondent: GeneA. Picotteargued, Helena, mntana

Suhnitted: March 26, 1979

.- J Decided:

## ApR

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+-- Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is by the City of Helena and its City Commission (Helena) from a judgment against it entered January 12, 1979, in the District Court, First Judicial District,Lewis and Clark County. Because of the unusual circumstances presented, this Court onmotion expedited the oral argument and decision in the cause. The Diehl Company (Diehl)has been planning since 1971 for the development of a large shopping-center complex on land owned by the corporation just east of the City of Helena. In 1975,Diehl received approval from the Helena Zoning Commission for a designation of the parcel as a "B-2"

zone. 

### A B-2 zoneunder the Helena City ordinances allows for construction and operation of all types of businesses that would make up the contemplated shopping center. However, Diehl'splan calls for a huge planned-unit mall-type complex rather than separate stores. Helena City Ordinance 11-15-5 lists as a "conditionaluse" of a B-2 zone "planned-unit shopping center(s) in tracts of five or more acres. 

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# .I' In order to make such conditional use of a B-2 zone,a developer must apply for a "conditional-usepermit" following procedures outlined in the City ordinances. Diehl applied. Helena City Ordinance 11-15-2(B) provides: 

### "(B) A conditional use permit shall only be granted by the City Commission based upon (ifwarranted by the facts and circumstances) a statement of findings by the City Commission that: "1. The use conformsgenerally to the objectives of the Comprehensive Plan and the intent of the ordinance,and "2. Such useswill not adversely affect nearby properties or their occupants, and

### "3. Such uses meet the overalldensity, coverage,yard,height and all other regulations of the district inwhich they are located,and "4. 

### Public hearings have been held, after the required legalnotices have been given, and the public has been given a chance to be heard upon thematter." Before the request for a permit is ruled on by the City Commission, it is first reviewed by the Zoning Commission which makes a recommendation as to whether the permit should be issued. The Zoning Commission is an advisory body only and its recommendation has no binding effect on the City Commission. The duty of the City Commission in acting upon requests for conditional-use permits is found in Helena City Ordinance 11-15-3, which spells out the conditional-use permit procedure. Itprovides that after the proper procedures have been followed to bring the requestbefore the City Commission,then: "TheCity Commission shall,by resolution, approve,deny, or change the recommendation of the Zoning

### omm mission. If the City Commission denies or changes the Zoning Commission's recommendations,the reasons for such a change shallbe made part of the resolution." (Emphasisadded.) On July 24, 

### 1978,Diehl's request for a conditionaluse permit for a planned shopping center camebefore the regular meeting of the City Commission. A 

### reading of the transcript of the public hearing held in conjunctionwith that meeting indicates that a significantmajority of the members of the public present opposed the granting of the permit. One of the commissionersmoved that the permit be denied but the motion died for lack of a 

### second. Another commissioner then proposed the following resolution: "A 

### resolution establishing a one-year moratorium on the granting of all conditional-use permits forplanned-unit shopping centers outside the Central Business District in the City of Helena as defined in Section 15-5 of the City ZoningOrdinance on the basis of need for additional information and deliberation on transportation, provision of public services,the effect on residences and businesses in the City of Helena, and other aspects of the Comprehensive Plan of Helena and affecting the health, welfare, and public safety of the people of Helena." This resolutionpassed. Thereafter, Diehl commenced legal proceedings for a declaratory judgment that the moratorium was illegal and that the ordinancesproviding for conditional-use permits

were unconstitutionallyvague, and requesting a writ of mandamus to require the City Commissioners to rule on his application. On August 3, 1978,Diehl filed a petition for writ ofmandate in this Court. After reviewingwritten arguments with respect to the petition, we dismissed the same, refusing to assume original jurisdiction on October 2, 1978,because of apparent factualcontroversies. On October 26, 1978, Diehl filed in the District Court his complaint and petition for a declaratory judgment,writ of mandate, and order to show cause. After two disqualifications, the Hon. 

### W. W. Lessley was called in as presiding judge in the District Court. Thematter was submitted to him on affidavits and exhibits,and each party submittedproposed findingsof fact, conclusions of law, and briefs. On January 12, 1979, the District Court issued a declaratory judgment and peremptory writ of mandate, and writ of prohibition, and its adopted findingsof factand conclusions of law. The District Court ordered and decreed as follows: 1. Helena was required to issue the conditionaluse permit to Diehl forthwith and was prohibited fromdelaying or obstructing the course of any further necessary proceedings thatmay be legally prequisite to the creation of the shopping center. 2. 

### IfHelena refused to issue such conditional-usepermit, Diehl was granted the right to proceed with the shopping center in all lawfulways, without the necessity of obtaining -4-any conditional-use permit from the Commission. Helena was prohibited from any interference or obstruction of the activitiesof Diehl in creating said shopping center. 3. The District Court further implied in its conclusions that the conditional-use permit ordinances of Helena were unconstitutionalbut that the necessity for reaching the issue of the validity or constitutionalityof the ordinances

was not involved if Helena approved the issue of the conditional-use permit applied for by Diehl; otherwise, said ordinanceswere impliedly found to be unconstitutional. Helena filed post-trial motions in the court, which

were denied. Thereafter,Helena brought this appeal. Out of thewelter of issues and counter-issuesraised by the parties, twomain problems arise and control our decision here: 1. Whether the City Commissionmay adopt amoratorium against the issuance of conditional-use permits in the circumstances described here. 2. Whether the writ of mandate or declaratory judgment requiring the issuance by the City of the conditional-use permit was proper. On those issues,we concludeand hold as follows: 1. While a City may adopt a reasonable generalmoratorium in proper circumstances against the issuance of conditionaluse permits, if adopted as an urgencymatter, the procedure required by section 76-2-306 MCA (formerly section 11-2711, R.C.M. 1947),must be followed. 2. The discretion of the City Commission to approve, modify or deny the recommendation of the Zoning Commission

as to the issuance of a conditional-use permit cannotbe controlledby writ of mandate,prohibition, or by declaratory judgment

# . -5-3. A writ of mandate requiring the City Commission to act on Diehl's application for a conditional-use permit within a reasonable time isproper under the circumstances in this case. THEMORATORIUM: The first grant of statutory authority for zoning by municipalities occurred in this State in 1929. Chapter 136, Laws of 1929. Historically, the grant of the zoning authority isbroadly stated, as characterized in section 76-2-301 MCA (section 11-2701, R.C.M. 1947): "MunicipalZoningAuthorized. For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council 

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# . is hereby empowered to regulate 

### - and restrict 

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# . . the densityof population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." (Emphasisadded.) No specific statutory authority in Montana appears for the adoption ofmoratoriums with respect to zoning or the issuance of permits under zoning ordinances. The power to adoptmoratoriums, if it exists,must be found within the paste and cover of the broad statutory grant "to regulate and restrict" the use of land. Other courts have found such power in local governments where the purpose of the moratorium is to allow for a rational and reasonable growth. Golden v. Planning Board of Town of Ramapo (1972), 30 N.Y.2d 359, 285 N.E.2d 291; Smoke Rise, Inc. v. Washington Suburban Sanitary Commission (D.C. Md. 1975), 400 F.Supp. 1369. Moratoriums appear to be a development of the exercise of the police power in local government. Smoke Rise, Inc,., .3upra. - 

# - - A moratorium itself must be reasonable in length of time and scope. In Smoke Rise, Inc., it is said: 

### -- "While a police powered moratorium must be reasonably limited as to time, it is clear that the reasonableness of the duration of themoratoriummust be measured by the scope of the problem which is being addressed." 400 F.Supp. at 1386.A moratorium must also be limited in its purpose. It must promote the health, safety, morals or the general welfare of the community. Section 76-2-301MCA (formerly section 11-2701,R.C.M. 19471,and designed to meet the purposes of zoning as set forth in section 76-2-304 MCA

(formerly section 11-2703,R.C.M. 1947)

# . We perceive therefore in the statutes a legislative intent for a broad general grant of power to municipalities in their zoning regulations,and that implied in the power to restrict the use of land,as an exercise of police power, is the authority to adopt reasonablemoratoriums. The procedure for the adoption of suchmoratoriums, however, must be according to the statutes out of which the implied authority arises. In this case, unless an urgency existed, it was the duty of the City Commission, intending to adopt a moratorium, to follow the procedure set forth in section 76- 2-303MCA (formerly section 11-2704,R.C.M. 1947). That statute provides that the municipality, in adopting "regulations and restrictions"must first provide a public hearing with notice to parties in interest and citizens. That procedure was not followed in this case. The moratorium adopted here properly should have been enacted as an urgency measure under the procedures set forth in section 76-2-306 MCA (formerly 11-2711,R.C.M. 1947), relating to interim zoning ordinances. That statute limits such measures as to duration, and further, requires a public hearing with notice beforehand. Since this statutewas not followed by the City Commissi~n, the moratorium was invalid. It is only in following this statute that the City Commission could act on a moratoriumwithout first referring the matter to the Zoning Commission. See section 76-2-307MCA (formerly section 11-2706,R.C.M. 1947). -7-

### Not only did the City of Helena not follow a valid procedure in adopting themoratorium here, but it effected to adopt such amoratorium when itwas considering a specific application for a conditional-use permit presented by Diehl. At that time, the authority of the City Commission in acting upon the application of Diehl was circumscribed by Helena City Ordinance 11-15-3. Under that ordinance, the Commission

wasmandated to approve,deny or change the recommendation of the Zoning Commission by resolution,and if it denied or changed the recommendation, to state its reasons in the resolution. Helena had before it only one application for a conditional-use permit, that of Diehl. Therefore, the adoption of themoratorium in effect constituted a denial of the permit without stating its reasons. The obvious purpose of Helena Ordinance 11-15-3, is to provide a finaldecision with respect to any such application. The office of the statement of reasons for denial or change is the same as the office of findings of a court. Itprovides a reviewing authority, such as a District Court, with amethod of measuring whether the action of the City Commission is arbitrary or capricious. This Court had a similar situation in State ex rel. Spring

### v. Miller (1976), 169Mont. 242, 545 P.2d 660. In that case, Powell County had adopted a regulationwhich had the effect of preventing further subdivision in a Powell County area "foran interimperiod while further studies could be made." The regulationwas adopted pursuant to section 76-2-206 MCA 

### (formerlysection 16-4711, R.C.M. 

### 1947), but without complying with the notice and hearing requirements set forth in section 76-2-205 MCA 

### (formerly section 16-4705, R.C.M. 

### 1947). We held that temporary interim zoning regulations to be null and void for failure to follow the notice and hearing requirements before the adoption of the regulation. See also,Bryant Development Association v. Dagel (1975),166Mont. 252, 531 P.2d 1320. -8-In likemanner, we hold the moratorium adopted by Helena in this case to be void and of no effect. HELENA'S DUTY TO ACT: --- The District Court mandated that the conditionaluse permit be issued to Diehl forthwith. It added some prohibitions regarding further actions on the permit by Helena, but in essence, the mandamus, prohibition, and declaratory judgment of the District Court are all in the order of mandamus directing Helena to issue the permit without further ado. In this the District Court erred, because in any event, the City Commission of Helena has the discretion under its ordinances to take one of three actions on the permit application: approve,deny or change. There is no power in our courts to control the discretion of a municipal body or officer by mandamus. Barnes v. Town of Belgrade (1974),164Mont. 467, 470, 524 P.2d 1112, and cases cited therein. An abuse of discretion by such a body or officer can be reviewed in proper cases in a proceedings for writ of review or certiorari. For example, Bryant, supra. Here the City Commission never got around to exercising its discretion regarding the conditional-usepermit. Until that discretion is exercised, the right to act remains lodged in the City Commission, and no courtmay usurp the discretionary right of the City Commission to make one of the decisionsprovided by the ordinance on the Diehl application. We can however, compel the City Commission to act on the application, where a delay in the exercise of discretion appears to be arbitrary and capricious. Barnard v. McInerney

(1973),162Mont. 309, 316, 511 P.2d 330, 343, and cases cited therein. The City Commission can be compelled to perform an act it is legally bound to perform. Erie v. State Highway Commission (1969), 154Mont. 150, 153, 461 P.2d 207, 209. While the adoption of the moratorium and the processing of this appealmight be indications of the attitude -9-of the City Commissionwith respect to the Diehl application,

we cannot completely say on the record that if the City Commission exercises discretion, itwould not grant the conditional-usepermit, or that itwould deny or change the recommendation of the Zoning Commission without explaining its reasons. The record shows all of the requisite hearings have been held, the proceedings before the Zoning Commission

are concluded,and all that remains for final action on the Diehl application is the decision of the City Commission. Itmay be necessary for the Commission to have one additional hearing before taking final action,but it is certainly within our power to compel the City Commission to proceed with all reasonable dispatch to a decision on the Diehl application. Barnes, supra. Nothing we say here should be taken to indicate that we abrogate or relinquish in the slightest the role of judicial review and authority in matters such as the case under consideration. See the opinion and dissenting opinion in Lowe v. City of Missoula (1974), 165Mont. 38, 525 P.2d 551. OTHER ISSUES: There are other issues raised by the parties to this appealwhich we have no need under our holding to discuss. The District Court did not finally reach the question of constitutionality of Helena's zoning ordinancesnor the statutesrelating to zoning, as adopted or applied. It is not necessary to go into that issuehere. There is dispute among the parties as to whether the Helena Zoning Commission did in fact make a recommendation relating to the Diehl application. While Helena argues otherwise, it does appear the majority of the Zoning

### Commission recommended issuance of the conditional-use permit, and the City Commission treated the application as having Zoning Commission approval. No other issues require discussion. In sum, the decision of the District Court in this case is reversed. The City of Helena and its City Commissicn are ordered to proceed with all reasonable dispatch to make and enter a resolution pursuant to Helena City Ordinance 11-15- 3,

### approving, denying or changing the recommendation of approval by the Helena Zoning Commission of the Diehl conditional-use permit application;and further, if the same is denied or changed, said resolution shall state the reasons for such denial or change in accordancewith the ordinance. This Court would not look with favor upon the adoption of any further interim moratorium under section 76-2-306 

### MCA, insofar as the same might apply to the Diehl application. Each party shallpay its own costs and attorney fees. A copy of this opinion servedby the Clerk on counsel shall

serve the office of writ ofmandate insofar as themandatory provisions of this opinion are concerned. 

# / Justice 

### 1 We Concur:

/phief Justice-



### ........................... Justices

### Mr. Justice Daniel J. 

### Shea concurringwith the majority Opinion.

I concur in the decision of the majority that awrit of mandamus was not a proper remedy,but I

### would not confine the ruling to such holding. The record reveals that there

was absolutely no foundation formany of the crucial findings and conclusions reached by the District Court. The District Court adopted virtually in toto the proposed findings and conclusions presented by The Diehl Company, and they were totally without an evidentiary foundation. Indeed, when the smoke was cleared away, one cannot find evidence that therewas ever a flame. Because of the unusual circumstances surrounding the need for an immediate decision in this case, I

### have not yet prepared a detailed analysis of the evidence upon which the District Court acted. I

### will do so at a later time but I will not delay the opinion. 

# pdd-JA ice