DeVOE v. City of Missoula
2012 MT 72
| Mont. | 2012Background
- DeVoe applied in Feb 2005 for a large storage building on a vacant Rattlesnake lot; zoning §19.04.020 requires an accessory structure to a principal use on the same premises.
- June 2005 city letter explained the proposed building could not be an accessory to a single-family residence due to size and purpose; offered appeal to Board or relocation.
- July 2005 DeVoe reapplied for a similarly sized structure on a nearby single-family zoned lot; September 2005 permit issued and construction began.
- Neighbors complained that the building was not accessory to the rental, prompting September 2005 City letter and a stop-work order after a Board appeal.
- October 26, 2005 Board of Adjustment revoked the permit, finding the building not customarily incidental or accessory to the residence and intended for offsite use.
- November 2005 DeVoe filed a civil action; 2006 District Court dismissed Poten and Sponseller with attorney-fee awards to them; later proceedings upheld the Board decision and §19.04.020.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the District Court properly upheld the Board's revocation of the permit. | DeVoe argues §19.04.020 is vague and that the Board/City erred or deference was improper. | City/Board argues the building was not an accessory to a single-family residence and the Board acted within discretion. | No abuse of discretion; permit properly revoked and §19.04.020 not unconstitutionally vague. |
| Whether the District Court correctly awarded attorney fees to Poten and Sponseller and denied fees-for-fees on appeal. | DeVoe challenges the Foy exception as misapplied; fees-for-fees should be allowed or limited. | Poten/Sponseller rely on Foy and related authorities; district court acted within discretion to award fees, and denied fees-for-fees on appeal. | District Court properly awarded fees; denial of fees-for-fees affirmed; no abuse of discretion. |
Key Cases Cited
- Lake County First v. Polson City Council, 352 Mont. 489 (2009 MT 322) (abuse of discretion standard in zoning decisions)
- Shults v. Liberty Cove, Inc., 146 P.3d 710 (2006 MT 247) (de novo review for ordinance interpretation)
- Egdorf, 77 P.3d 517 (2003 MT 264) ( plenary constitutional review by the district court)
- ASUM v. City of Missoula, 862 P.2d 380 (1993) (presumption of constitutionality of ordinances)
- Foy v. Anderson, 580 P.2d 114 (1978) (narrow exception to attorney-fee shifting for frivolous actions)
- Terra West Townhomes, LLC v. Stu Henkel Realty, 996 P.2d 866 (2000 MT 43) (case-by-case equity-based application of Foy)
- Zier v. Lewis, 218 P.3d 465 (2009 MT 266) (affirming district court discretion on attorney-fee awards)
- Talcott Const., Inc. v. P & D Land Ent., 141 P.3d 1200 (2006 MT 188) (fees related to fee disputes; statutory context)
- Donnes v. Orlando, 720 P.2d 233 (1986 MT) (support for fees where equitable relief warranted)