No. 14721 

IN THE SUPREME COURT OF THE STATE OF M3TANA 

1979 

STATE ex rel., THE DlEHL CQMPANY, 

A bbntana Corporation, 

Plaintiff, Relator and Respondent, 

-vsTHE CITY OF HELENA, KNTANA et al., 

Defendants, Respondents and Appellants. 

AppedL fm: District Court of the First Jdicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hull, Driscoll and Sherlock, Helena, &bntana 

Jms Driscoll argued, Helena, mntana 

C. W. Leaphart, Jr., argued, Helena, mntana 

For Respondent: 

Gene A. Picotte argued, Helena, mntana 

Suhnitted: March 26, 1979 . - J 

Decided : 

ApR 1' +-- 

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 on motion 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 zone under the Helena City ordinances allows 

for construction and operation of all types of businesses 

that would make up the contemplated shopping center. However, 

Diehl's plan calls for a huge planned-unit mall-type complex 

rather than separate stores. Helena City Ordinance 11-15-5 

lists as a "conditional use" of a B-2 zone "planned-unit 

shopping center(s) in tracts of five or more acres. . . I' In 

order to make such conditional use of a B-2 zone, a developer 

must apply for a "conditional-use permit" 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 (if warranted by 

the facts and circumstances) a statement of findings 

by the City Commission that: 

"1. The use conforms generally to the objectives 

of the Comprehensive Plan and the intent of the 

ordinance, and 

"2. Such uses will not adversely affect nearby 

properties or their occupants, and 
"3. Such uses meet the overall density, 

coverage, yard, height and all other 

regulations of the district in which 

they are located, and 

"4. Public hearings have been held, after 

the required legal notices have been given, 

and the public has been given a chance to 

be heard upon the matter." 

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. 

It provides that after the proper procedures have been followed 

to bring the request before the City Commission, then: 

"The City 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 shall be made part of 

the resolution." (Emphasis added.) 

On July 24, 1978, Diehl's request for a conditionaluse permit for a planned shopping center came before the 

regular meeting of the City Commission. A reading of the 

transcript of the public hearing held in conjunction with that 

meeting indicates that a significant majority of the members 

of the public present opposed the granting of the permit. 

One of the commissioners moved 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 

for planned-unit shopping centers outside the 

Central Business District in the City of Helena 

as defined in Section 15-5 of the City Zoning 
Ordinance 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 resolution passed. 

Thereafter, Diehl commenced legal proceedings for a 

declaratory judgment that the moratorium was illegal and 

that the ordinances providing for conditional-use permits 

were unconstitutionally vague, 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 of mandate in this Court. After reviewing written 

arguments with respect to the petition, we dismissed the 

same, refusing to assume original jurisdiction on October 2, 

1978, because of apparent factual controversies. 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. The matter was submitted to him on affidavits 

and exhibits, and each party submitted proposed findings of 

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 

findings of fact and 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 from delaying 

or obstructing the course of any further necessary proceedings 

that may be legally prequisite to the creation of the shopping 

center. 

2. If Helena refused to issue such conditional-use permit, 

Diehl was granted the right to proceed with the shopping 

center in all lawful ways, without the necessity of obtaining 

-4- 
any conditional-use permit from the Commission. Helena was 

prohibited from any interference or obstruction of the 

activities of Diehl in creating said shopping center. 

3. The District Court further implied in its conclusions 

that the conditional-use permit ordinances of Helena were 

unconstitutional but that the necessity for reaching the 

issue of the validity or constitutionality of the ordinances 

was not involved if Helena approved the issue of the conditional-use permit applied for by Diehl; otherwise, said 

ordinances were impliedly found to be unconstitutional. 

Helena filed post-trial motions in the court, which 

were denied. Thereafter, Helena brought this appeal. 

Out of the welter of issues and counter-issues raised 

by the parties, two main problems arise and control our 

decision here: 

1. Whether the City Commission may adopt a moratorium 

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 conclude and hold as follows: 

1. While a City may adopt a reasonable general moratorium 

in proper circumstances against the issuance of conditionaluse permits, if adopted as an urgency matter, 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 cannot be 

controlled by 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 is proper under the circumstances 

in this case. 

THE MORATORIUM: 

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 

is broadly stated, as characterized in section 76-2-301 MCA 

(section 11-2701, R.C.M. 1947) : 

"Municipal Zoning Authorized. For the 

purpose of promoting health, safety, morals, 

or the general welfare of the community, 

the city or town council . . . is hereby 

empowered to regulate - and restrict . . . the densityof population; and the 

location and use of buildings, structures, 

and land for trade, industry, residence, 

or other purposes." (Emphasis added.) 

No specific statutory authority in Montana appears for 

the adoption of moratoriums with respect to zoning or the 

issuance of permits under zoning ordinances. The power to 

adopt moratoriums, 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 

the moratorium must 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 76-2-301 MCA (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 reasonable moratoriums. The 

procedure for the adoption of such moratoriums, 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- 

2-303 MCA (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 statute was 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 moratorium without first referring the matter 

to the Zoning Commission. See section 76-2-307 MCA (formerly 

section 11-2706, R.C.M. 1947). 

-7- 
Not only did the City of Helena not follow a valid 

procedure in adopting the moratorium here, but it effected 

to adopt such a moratorium when it was 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 

was mandated 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 the moratorium 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 final decision 

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. It provides a reviewing 

authority, such as a District Court, with a method 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), 169 Mont. 242, 545 P.2d 660. In 

that case, Powell County had adopted a regulation which had 

the effect of preventing further subdivision in a Powell 

County area "for an interim period while further studies 

could be made." The regulation was adopted pursuant to 

section 76-2-206 MCA (formerly section 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), 166 Mont. 252, 531 P.2d 1320. 

-8- 
In like manner, 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), 164 Mont. 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-use permit. 

Until that discretion is exercised, the right to act remains 

lodged in the City Commission, and no court may usurp the 

discretionary right of the City Commission to make one of 

the decisions provided 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), 162 Mont. 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), 154 Mont. 150, 153, 461 P.2d 

207, 209. While the adoption of the moratorium and the 

processing of this appeal might be indications of the attitude 

-9- 
of the City Commission with respect to the Diehl application, 

we cannot completely say on the record that if the City 

Commission exercises discretion, it would not grant the 

conditional-use permit, or that it would 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. 

It may 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), 165 Mont. 38, 525 P.2d 551. 

OTHER ISSUES: 

There are other issues raised by the parties to this 

appeal which we have no need under our holding to discuss. 

The District Court did not finally reach the question of 

constitutionality of Helena's zoning ordinances nor the 

statutes relating to zoning, as adopted or applied. It is 

not necessary to go into that issue here. 

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 accordance with 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 shall pay its own costs and attorney fees. A 

copy of this opinion served by the Clerk on counsel shall 

serve the office of writ of mandate insofar as the mandatory 

provisions of this opinion are concerned. 

/ Justice 1 

We Concur: 

/phief Justice- 

........................... Justices 
Mr. Justice Daniel J. Shea concurring with the majority 

Opinion. 

I concur in the decision of the majority that a writ 

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 for many 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 

there was 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