No. 12612 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

THOMAS PAUL LOWE, MARTHA L. ONISHUK 

and FREDERICK J. LOWE, 

Plaintiffs and Appellants, 

CITY OF MISSOITLA, a Municipal Corporation, 

Defendant and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault, Judge presiding. 

Counsel of Record: 

For Appellants : 

Garlington, Lohn & Robinson, Missoula, Montana 

William Evan Jones argued, Missoula, Montana 

For Respondents : 

Jack K. Morton argued, Missoula, Montana 

Victor Valgenti and Fred C. Root, Missoula, Montana 

Submitted: May 21, 1974 

Decided: JUL 2 2 1974 

Filed: JUi 2 2 lsj4 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiffs appeal from a judgment of the district court 

upholding action taken, by the Missoula City Council adopting a 

rezoning ordinance changing a "B-~esidential ~istrict" to "RR-1 

Restricted One Family Residential ~istrict". In arriving at 

its judgment the district court considered evidence before the 

City Council and took additionel evidence. 

The property in question consists of 5.8 acres of land 

located on the southeast slope of Water Works Hill in the city of 

Missoula, The original comprehensive zoning map for the city of 

Missoula was adopted on March 4, 1968, and this particular 5.8 

acres lies just outside the zoned area. It had been traditionally 

I@ 11 zoned B residential. Across the road, and within the comprehensive zoned area, the area is zoned for single family homes. The 

5.8 acres in question have been owned by the Lowe family for 

approximately 40 years. 

Testimony indicated the property has certain topographical 

and other conditions which have a direct bearing on its development. 

One of the most important of these conditions is the fact the 

property is partially on a hillside, The zoning plan for the city 

of Missoula, adopted in 1968, apparently meant no change in the 

zoning of the 5.8 acres for they were left out of the plan. 

In March 1973, certain property owners submitted to the city 

of Missoula, through its zoning commission, a petition to rezone 

the Lowe land from "B-1" to "RR-I", restricted one family residential. 

The zoning commission recommended the petition be granted, and on 

March 19, 1973 the City Ccuncil voted to adopt the petition. 

The owners of the 5.8 acres desire to build an apartment 

complex on the tract and at the time they appeared before the 

district court they voluntarily agreed that the rigid controls imposed by the city zoning classification "R-IV" might be imposed 

on the acreage. The district court upheld the City Council. 
Two issues are raised on appeal: 

1. Did the district court abuse its discretion in upholding 

the City ~ouncil's approval of rezoning ordinance No. 1549 of 

March 19, 1973? 

2. Did the evidence before the district court support a 

court order upholding rezoning ordinance No. 1549? 

Both sides agree that unless there can be a showing of an 

abuse of discretion by the trial court the judgment should be 

sustained. We find there was such a mistake of fact that it 

amounted to an abuse of discretion on the part of the trial court 

requiring reversal. 

We are guided by the provisions of section 11-2703, R.C.M. 

1947: 

"such regulations shall be made in accordance with 

a comprehensive plan and designed to lessen congestion 

in the streets; to secure safety from fire, panic and 

other dangers; to promote health and the general welfare; 

to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other 

public requirements. Such regulations shall be made 

with reasonable consideration,among other things, to 

the character of the district and its peculiar suitability 

for particular uses, and with a view to conserving the 

value of buildings and encouraging the most appropriate 

use of land throughout such municipality. 11 

This section is a part of Chapter 27, Title 11, of the Montana 

Codes of 1947, wherein the legislature provided the steps a city 

council must follow in its regulation of land. Counsel for the 

land owners subdivides section 11-2703 into 12 tests and then 

suggests that the testimony before the City Council and the district 

court fails to meet these tests, which are: 

1. Whether the new zoning was designed in accordance with 

the comprehensive plan. 

2. Whether the new zoning was designed to lessen congestion 

in the streets. 

3. Whether the new zoning will secure safety from fire, 

panic and other dangers. 

4. Whether the new zoning will promote health and general 

welfare. 
5. Whether the new zoning will'provide adequate light and 

air. 

6. Whether the new zoning will prevent the overcrowding of 

land. 

7. Whether the new zoning will avoid undue concentration of 

population. 

8. Whether the new zoning will facilitate the adequate provision of transportation, water, sewerage, schools, parks and 

other public requirements. 

9. Whether the new zoning gives reasonable consideration to 

the character of the district, 

10. Whether the new zoning gives consideration to peculiar 

suitability of the property for particular uses, 

11. Whether the new zoning was adopted with a view to conserving the value of buildings. 

12. Whether the new zoning will encourage the most appropriate 

use of land throughout such municipality. 

In summarizing the evidence introduced at the City Council 

and in the district court we note the record is so lacking in fact 

information that the action on the part of the City Council and 

the district court could be said to have been based on mistakes 

of fact, thereby constituting an abuse of discretion. 

Taking the evidence introduced and weighing its merit under 

the tests above set forth we find that: 

Test 1. Fails because the land is outside the area of the 

comprehensive plan, so could not be included. 

Test 2, The testimony in regard to traffic clearly fails to 

indicate that the new zoning would lessen congestion or that the 

proposed complex would cause a mass dumping of traffic into the 

area, 

Test 3. The evidence indicates the proposed rezoning is not 

necessary to protect adequate water, safety and fire protections for 

the area. 

-4- 
Test 4. It cannot be argued that the proposed rezoning would 

promote the health and welfare of the area. The health and welfare 

of the area would be promoted if a sewer were available and the new 

apartment complex plans to bring a sewer line to the complex, into 

an area where the homes are on septic tanks. 

Test 5. The record lacks any evidence showing the proposed 

rezoning is necessary to protect adequate light and air. 

Test 6. This test is whether the proposed rezoning will 

prevent the overcrowding of the land. Testimony indicated the 

city officials believed multiple dwelling complexes were permissible 

in the area and the city planner indicated if the density was 

reasonable the subject site would accommodate the complex. In view 

of the fact plaintiffs agreed to abide by the density regulations, 

there can be no reason to rezone here to prevent-land crowding. 

Test 7. There was no evidence that the adoption of the 

rezoning would avoid an undue concentration of people in the area. 

Test 8. The rezoning would in no way change or reduce the 

necessary public facilities, such as transportation, water, sewerage, 

schools, parks, etc. With respect to the objection made that 

the building of an apartment complex, as here proposed, would 

overtax the area's public facilities, we can only comment that 

progress and growth cannot be stopped by the lack of facilities. 

It is putting the cart before the horse to argue that because there 

are not enough facilities in a particular area it cannot grow. 

Test 9. This test raises the question of whether the rezoning 

gives reasonable consideration to the character of the area. As of 

now the 5.8 acre tract has nothing on it but grass. The statute 

requires only that rezoning give consideration to the district, not 

the area. While there are single family residences in the district 

there are also many vacant areas plus areas that are zone "B 

residence". There was no showing that rezoning was necessary to 

protect the character of the district. 
Test 10. Whether the rezoning gives consideration to peculiar 

suitability of the property for particular uses. The record indicates two architects, plus one of plaintiffs--a land planner by 

profession--testified the 5.8 acre tract was suitable for an apartment complex, 

Test 11. This test is whether the rezoning was adopted 

with a view to conserving the value of buildings. This is not 

applicable, nor need it be considered, due to the fact the land has 

no buildings. Further there is no testimony indicating that the 

single residence homes in the area would be damaged by the apartment 

complex, 

Test 12. Will the new zoning encourage the most appropriate 

use of land throughout such municipality? This raises a policy 

question of whether the community needs an apartment complex at this 

particular site. If there is a need then error was made to rezone 

it into single residential homes. Evidence was introduced in the 

form of the "Mayor's Advisory Council on Housing Report" which 

indicated a continual growth in Missoula and a need to replace 

substandard units. The area in question is only a two minute drive 

and an eight minute walk from the heart of the central business 

district of Missoula. Viewing all of the testimony, we find that 

rezoning the areams an abuse of discretion. 

The city argues that under ~ontana's section 11-2703, R.C.M. 

1947, it cannot be charged with an abuse of discretion if the 

record indicates the City Council and the district court had before 

them reasonable evidence or testimony upon which they could find 

that one or more of the purposes of the enabling statute had been 

accomplished, Further, that the matter was largely within the 

council's legislative authority and there is a presumption that 

it had investigated and found the conditions to be such that the 

legislation which it enacted was appropriate and that the courts 

must hold that the action of the legislative body (the City Council) 

is valid. 
While neither the trial court nor this Court can substitute its 

discretion for that of the City Council, the judiciary does have 

the power to find whether or not there has been an abuse of discretion. Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534. 

There is under Montana statutes and case law a sound distinction 

11 between zoning" and the act of "rezoning" or granting or refusing a 

variance. The former constitutes a legislative act while the latter 

is more of an administrative or quasi-judicial act in applying provisions of existing ordinance or law. In such application the 

exercise of sound discretion is limited by the provisions of 

the statute, including such standards as are set forth therein. 

Low v. Town of Madison, 135 Conn. 1, 60 A. 2d 774. 

Applying ~ontana's case law to the problem of considering the 

exercising of sound discretion the case of Fulmer v. Board of 

Railroad ~omm'rs, 96 Mont, 22, 39, 28 P.2d 849, discusses the 

problem thoroughly. While Fulmer involves the Railroad Commission's 

findings in a rate case what is said there is applicable to the 

actions of a city council: 

"It must not be understood that the courts have no 

function at all in such matters. Such a view would 

nullify the statutory provisions for a judicial 

review of the action of the board. The courts have 

a measure of judicial authority in matters such as 

the one under consideration. The law specifically 

authorizes such review of the acts of the board. 

The review, however, has been held by this court to 

include only the following questions: (1) Did the 

Board act beyond the power which it could constitutionally exercise? (2) Did the Board act beyond its 

statutory power? and (3) Did the Board base its 

action upon a mistake of law? This Court has qualified 

the above rule by the following language: '~ut questions 

of fact may be involved in the determination of questions of 

law, so that an order, regular on its face, may be set 

aside * * * if the Commission acted so arbitrarily and 

unjustly * * * or without evidence to support it; or if 

the authority therein involved has been executed in 

such an unreasonable manner * * *.' [Billings Utility Co. 

v. Public Service Cam., 62 Mont. 21, 203 P. 3661 

"The function of the court in these matters should not 

be minimized. Without some supervision, efficiency 

would often be sacrificed to expendiency, and administration would be lacking in uniformity and equity * * *. 

While this court cannot function for the board, it can 

require that it proceed in reasonable accord with statutory 

requirements and established principles of practice. II 
State ex rel. Olsen v. Public Service Comm., 131 Mont. 272, 309 P. 

2d 1035; C.M. & St.P.Ry.Co. v. Board of R.R.Comm., 126 Mont. 568, 

255 P.2d 346; Langen v. Grazing Dist., 125 Mont. 302, 234 P.2d 467. 

This Court not only has authority to review the record 

made before the City Council plus the new testimony, but also has 

the responsibility to provide supervision in accord with established 

principles of practice. Where the information upon which the 

City Council and the district court acted is so lacking in fact 

and foundation, as heretofore noted, it is clearly a mistake of 

fact and constitutes an abuse of discretion. It is within the power 

of this Court to correct this mistake of fact by judicial review of 

the entire record. 

This Court in Freeman v. Board of Adjustment, 97 Mont. 342, 

355, 34 P.2d 534, restricted zoning where it imposed unjust limitations on property and deprived the owner of his property rights. 

The Court held: 

I I Under the guise of protecting the public or advancing 

its interest, the state may not unduly interfere with 

private business or prohibit lawful occupations, or 

impose unreasonable or unnecessary restrictions upon 

them. Any law or regulation wich imposes unjust limitations upon the full use and enjoyment of property, or 

destroys propert): value or use, deprives the owner of 

property rights. 

City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660; Garner 

v. City of Carmi, 28 I11.2d 560, 192 N.E.2d 816. 

We noted in Lambros v. Missoula, 153 Mont. 20, 26, 452 P.2d 

398, where a variance in a zoning order was requested: 

11 Under Freeman a petition for variance must meet three 

criteria. variance must not be contrary to public 

interest. A literal enforcement of the zoning ordinance 

must result in unnecessary hardship, owing to conditions 

unique to the property. The spirit of the ordinance must 

be observed, and substantial justice done. I1 

The three criteria were not found in the trial court's order 

therefore error of law was committed. 

Considering the volatility of problems that arise under 

zoning ordinances and laws regulating the use of land, we note 

with approval the language of the federal district court of the 

District of Columbia, in American University v. Prentiss, 113 F.Supp. 
389, 393, affd. 214 F.2d 282, 348 U.S. 898, 99 Led 705, 75 S.Ct. 

217, wherein the court held: 

"* * *Although possible impairment of property values 

seemed to be the main argument, very little actual 

evidence on the subject was produced. The testimony 

consisted chiefly of emotional outbursts on the part 

of-individual homeo-mers, to the general effect that 

they had been informed by real estate experts that if 

the hospital were erected, the value of their property would 

decrease anywhere from thirty-five to fifty percent. Naturally such assertions are not evidence. * * * 

"It is well established that administrative agencies are 

not required to apply the rules of law governing admissibility of evidence. These rules are binding only 

6n:judicial ttibunals. Nevertheless, the probative 

weight of evidence is the same irrespective of where 

the evidence is introduced, and must be tested by the 

same standards whether it is tendered to a court or to 

an administrative body. I I 

In view of the mistake of facts submitted to the City Council 

and upon which the district court based its decision, we find such 

was an abuse of discretion necessitating reversal. 

Judgment is reversed and the City Council is directed to 

set aside Ordinance No. 1549. 

n 

We Concur: 

............................... Justices. 
Mr. Justice Frank I. Haswell, specially concurring: 

I concur in the result reached by the majority, but I cannot 

endorse their statement of the applicable law. I would reverse, not 

on the ground that the city council and the district court made a 

mistake of fact, but because the rezoning ordinance constitutes prohibi ted and discriminatory "spot zoning". 

Rezoning by a city council is a legislative act. Bishop v. Town 

of Houghton, 69 Wash.2d 786, 420 P.2d 368; 1 Anderson, American Law 

of Zoning, 5 4.28. The courts will not interfere unless the rezoning 

ordinance violat~s the enabling statutes or the Constitution. State v. 

Stark, 100 Mont. 365, 52 P.2d 890; Leischner v. City of Billings, 

135 Mont. 109, 337 P.2d 359. The majority opinion here, while giving 

lip service to the enabling statute, has misapplied the applicable 

standards of review, grounding the opinion on standards of review 

of orders of administrative boards under special statutes. The 

standards of review of orders of the Public Service Commission in 

Fulmer v. Board of R.R. Commissioners, 96 Mont. 22, 28 P.2d 849 and 

the standards of review of variances granted by Boards of Adjustments 

in Lambros v. Missoula, 153 Mont. 20, 452 P.2d 398 and Freeman v. 

Board of Adjustment, 97 Mont. 342, 34 P.2d 534 quoted in the majority 

opinion have no application to legislative acts of a city council 

in my opinion. 

Here the ordinance rezoned one particular parcel of property 

out of several hundred acres on a hillside for restrictive zoning. 

It was not part of a comprehensive plan for the district, but was 

simply a response to a petition by some of the neighbors. The 

rezoning of a small parcel of land to the disadvantage of the owner 

constitutes prohibited "spot zoning" equally with singling out an 

isolated t act for zoning advantageous to the owner. Wolpe v. %f 

Poretsky, 8 App.D.C. 67, 154 F.2d 330; Kissinger v. City of Los 8 

Angeles, 161 Cal.App.2d-454, 327 P.2d 10; Caputo v. Board of Appeals 

of Somerville, 331 Mass2 547, 120 N.E.2d 753. 
Here the rezoning ordinance burdened the Lowe tract far more 

heavily than several hundred other acres on the hillside. No 

consideration was given to rezoning the entire hillside. The 

previous zoning had been in effect for over forty years and was 

reviewed in 1965 when the city adopted a comprehensive plan which 

excluded the hillside. The "spot zoning" of the Lowe tract in 1973 

was arbitrary, discriminatory and denied the owners due process 

and equal protection of the laws. It did not comply with the 

statute permitting zoning "for the purpose of promoting health, 

safety, morals, or the general welfare of the community" or district. Section 11-2701, R.C.M. 1947. 

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Justice.