No. 12612 INTHE 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 JudicialDistrict, 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

## 22 1974 Filed: 

### JUi

### 22 lsj4

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.Plaintiffs appeal from a judgment of the district court upholding actiontaken, 

### by theMissoula 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 evidencebefore the City Council and took additionel evidence. Theproperty in question consists of 5.8 acres of land located on the southeast slope ofWater Works Hill in the city of Missoula, The original comprehensive zoningmap 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 familyhomes. The 5.8 acres in questionhave been owned by the Lowe family for approximately 40 years. Testimony indicated the property has certain topographical and other conditionswhich have a direct bearing on its development. One of themost important of these conditions is the fact the property is partially on a hillside, The zoningplan for the city of Missoula, adopted in 1968,apparentlymeant no change in the zoning of the 5.8 acres for theywere left out of the plan. InMarch 1973, certainproperty 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 Ccuncilvoted 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'sapproval of rezoning ordinanceNo. 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 canbe a showing of an abuse of discretionby the trial court the judgment should be sustained. We find therewas 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 shallbe made in accordancewith a comprehensiveplan and designed to lessen congestion in the streets;to secure safety from fire,panic and other dangers; to promote health and the generalwelfare; 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 shallbe 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 ofbuildings 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 11-2703into 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 zoningwas designed in accordancewith the comprehensiveplan. 2. Whether the new zoningwas designed to lessen congestion in the streets. 3. Whether the new zoningwill secure safety from fire, panic and other dangers. 4. Whether the new zoningwill promote health and general welfare.5. Whether the new zoningwill'provideadequate light and air. 6. Whether the new zoningwill prevent the overcrowding of land. 

### 7. Whether the new zoningwill avoid undue concentration of population. 

### 8. Whether the new zoningwill 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 zoningwas adopted with a view to conserving the value of buildings. 12. Whether thenew zoningwill encourage the most appropriate

use of land throughout suchmunicipality. 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 forthwe 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 zoningwould 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 adequatewater, safety and fire protections for the area. -4-Test4. 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 ifa sewer were available and the new apartment complex plans tobring a sewer line to the complex, into

an areawhere the homes are on septic tanks. Test 5. The record lacks any evidence showing the proposed rezoning isnecessary toprotect adequate light and air. Test 6. This test iswhether the proposed rezoning will prevent the overcrowding of the land. Testimony indicated the cityofficialsbelieved multiple dwelling complexes were permissible inthe area and the cityplanner indicated if the densitywas reasonable the subject sitewould accommodate the complex. In view of the fact plaintiffs agreed to abideby the density regulations, there can be no reason torezone here toprevent-landcrowding. Test 7. There was no evidence that the adoption of the rezoning would avoid an undue concentration of people inthe area. Test 8. The rezoning would inno way change orreduce the necessary public facilities, such as transportation, water, sewerage, schools, parks, etc. With respect tothe objection made that the building of an apartment complex, ashere 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 isputting the cartbefore the horse toargue thatbecause there

arenot enough facilities ina particular area it cannot grow. Test 9. This test raises the question of whether the rezoning gives reasonable consideration tothe character of the area. As of

now the 5.8 acre tract has nothing on itbut 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 arealsomany 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 suitabilityof 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 rezoningwas 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 errorwas made to rezone it into single residential homes. Evidencewas introduced in the form of the "Mayor's Advisory Council on Housing Report" which indicated a continual growth inMissoula 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 areamsan abuse of discretion. The city argues that under ~ontana'ssection 11-2703,R.C.M. 1947, it cannot be chargedwith 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 largelywithin 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 enactedwas appropriate and that the courts must hold that the action of the legislativebody (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 findwhether or not there has been an abuse of discretion. Freemanv. Board of Adjustment, 

### 97Mont. 342, 34 P.2d 

### 534. There is under Montana statutes and case lawa 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-judicialact in applying provisions of existing ordinance or law. In such application the exercise of sound discretion is limitedby the provisions of the statute, including such standards as are set forth therein. Lowv. Town of Madison, 135 Conn. 1, 60A.2d 774. Applying ~ontana'scase law to the problem of considering the exercising of sound discretion the case of Fulmer v. Board of Railroad ~omm'rs,

### 96Mont, 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 functionat all in suchmatters. Such a viewwould nullify the statutoryprovisions for a judicial review of the action of the board. The courts have a measure of judicial authority inmatters 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 actionupon a mistake of law? This Court has qualified the above ruleby the following language: '~ut questions of factmay 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 anunreasonable manner

# ** *.' [Billings Utility Co. v. Public Service Cam., 62Mont. 21, 203 

### P. 3661 "The functionof the court in these matters shouldnot be minimized. Without some supervision,efficiency would oftenbe sacrificed to expendiency, and administration would be lacking inuniformity and equity

## *

# *

# *. While this court cannot function for the board, it can require that it proceed in reasonableaccordwith statutory requirements and established principles of practice. IIState ex rel. Olsen 

### v. Public Service Comm., 131Mont. 272, 309 P. 2d 1035;C.M. & St.P.Ry.Co. 

### v. Board of R.R.Comm., 126Mont. 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 informationupon 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 iswithin 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, 97Mont. 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:

IIUnder the guise of protecting the public or advancing its interest, the state may not unduly interferewith private business or prohibit lawful occupations, or impose unreasonable or unnecessary restrictions upon them. Any law or regulationwich 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, 192N.E.2d 816. We noted in Lambros v. Missoula, 153Mont. 20, 26, 452 P.2d 398,where a variance in a zoning orderwas 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 inunnecessary hardship, owing to conditions unique to the property. The spirit of the ordinance must be observed,and substantial justice done. I1 The three criteriawere not found in the trial court's order therefore error of lawwas 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, inAmerican Universityv. Prentiss, 113 F.Supp.

### 389, 393, affd. 214 F.2d 282, 348 

### U.S. 898, 99Led 

### 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 subjectwas 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 hospitalwere erected, the value of their propertywould decrease anywhere from thirty-five to fiftypercent. Naturally such assertions are not evidence.

# * **

"It iswell 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 standardswhether it is tendered to a court or to an administrativebody.I I 

### Inview 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 OrdinanceNo. 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. 

### Iwould reverse,not

on the ground that the city council and the district court made a mistake of fact,but because the rezoning ordinance constitutes prohibited and discriminatory "spot zoning". Rezoning by a city council is a legislativeact. Bishop 

### v. Town ofHoughton, 69Wash.2d 786, 420 P.2d 368; 1Anderson,American Law of Zoning, 5 4.28. The courtswill not interfereunless the rezoning ordinance violat~s the enabling statutes or the Constitution. State 

### v. Stark, 100Mont. 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, 96Mont. 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, 

### 97Mont. 342, 34 P.2d 534 quoted in the majority opinion have no application to legislative acts of a city council inmy opinion. Here the ordinance rezoned one particular parcel of property out of several hundred acres on a hillside for restrictive zoning. Itwas not part of a comprehensiveplan 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" equallywith 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, 161Cal.App.2d-454, 327 P.2d 10;Caputo v. Board of Appeals of Somerville, 331Mass2 547, 120N.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 zoninghad been in effect for over fortyyears and was reviewed in 1965when the city adopted a comprehensive plan which excluded the hillside. The "spot zoning" of the Lowe tract in 1973

was arbitrary,discriminatoryand denied the owners due process and equal protection of the laws. It did not complywith 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.