*1 DERRENGER, WILLIAM H. Aрpellant, v. Plaintiff BILLINGS, municipal OF CITY corp., Defendant Respondent. No. 84-297. Sept. 1984.
Submitted on Briefs
6, 1984.
Decided Dec.
See C.J.S. 220. § *2 and filed an MR. JUSTICE GULBRANDSON dissented opinion. Firm, and Billings, plaintiff F. for Jay Lansing,
Moses Law appellant. Tillotson, defendant and Billings, L.
James respondent. Opinion delivered the
MR. JUSTICE MORRISON Court. appeal summary judgment granted is an from
This a the Thirteenth City by the District Court of Billings of and District, County. We reverse Judicial of Yellowstone remand. declaratory complaint
William H. filed a for a Derrenger, 9, 1983, September City Billings of on judgment against interpret to construe and requesting the district court City of entered into with the written annexation summary judgment. Billings. Both filed a motion 12, Derrenger’s April 1984 dеnied judgment entered favor granted judgment motion and a City Billings. of by the dis- upon found that certain facts relied
Derrenger a motion to clearly trict erroneous and filed court were 22, On June judgment. conclusions and findings, amend the refused to 1984, findings amended its but the district court appeals bоth judgment. Derrenger amend its earlier judgments. parcel of land Derrenger purchased
In H. 1976 William tracts, Certifi- comprised three Billings in the area which
471 Survey 334, cates of No. 1566 No. At the No. and 1610. action, time part of this Tract 334 the City No. Residential-9600, Billings designated and a zone classifica- tiоn restricting use of the property single-family resi- dences. The remaining Agriculture two tracts were zoned Open Space County regulations. under Yellowstone zoning
In City 1978 the Billings expressed an interest annex- ing Certificates Survey No. On No. and 1610. Au- gust 28, 1978, the Salsburys, legal titleholders and sellers to Derrеnger, City and Billings entered a written into agreement entitled “Waiver of Right to Protest Annexation and Agreement Use,” which is the Non-conforming sub- ject appeal. of this The Agreement approved by Billings Council of signed the mayor. Tracts No. 27, No. 1610 were annexed on November 1978, and rezоned R-96 on December 1978. Derrenger proposed multi-family to build a resi- dential unit on his all property, portions of which were then *3 A zoned R-96. controversy as the arose to construction of the 1978 annexation and upon pro- its. effect posed multi-family Derrenger residentiаl use. filed a com- plaint September 9, 1983, for declaratory judgment, requesting judicial agree- construction of the annexation ment to permit multi-family development residential on his property. City Both the and Derrenger believed the lan- guage of their agreement supрortive was unambiguous and of their individual contentions and moved the district court 12, for summary judgment. judgment April In the entered 1984, judgment the trial court Derrenger’s summary denied granted and City. in favor judgment of Derrenger appeals presents and following issues:
1. Whether the interpreting district court erred in the lan- guage the agreement, Purposes”, only of to be “Residential a single-family in existing residential use conformance with zoning on the property.
2. failing give Whether the district court erred in effect to to the language paragraph of the in contained 1(d), interpretatiоn page 2, and construction in its pertinent agreement. language of limiting the effect court erred
3. Whether the district non-conforming uses which ex- those agreement. prior isted to or at the time of the language August annexation Pertinent pro- accepted agreеment describing uses, vides follows: premises,
“WHEREFORE, above on the basis of the City Billings agree and to into the Owners to be annexed upon any rights protest the follow- waive said annexation Billings ing conditions; consideration and the agrees thereof to said conditions: following simultaneously “1. with thе annexation That established, tracts be use as to the above City Billings: adopted, recognized by and “(a) buildings, thereof, tracts, and modification That the purposes, may buildings be used residential future parking, storing, growing purpose receiving, if and vegeta- produce, appliсable, processing, selling fruit, and products grain grain dried, bles, nuts, fresh which are and parts garden thereof, otherwise, flow- or lawn and items and nursery ornaments, ers, trees, seeds, stock, shrubs, lawn and specialty gift items, and retail lawn furniture and items holiday decorative Christmas and other treеs and ornament items, items; and all related
“(b) upon buildings these tracts and structures That the destroyed repaired, may enlarged, modified, if and be part, be, rebuilt; if build- in ings need additional whole or may upon at the dis- tract be built this and structures to ac- of the tract cretion of the or futurе owners Owners added.) above-specified (Emphasis uses;” commodate *4 accompanying 29, of March the order a memorandum agreement subject 1983, the that the trial court found clear on its face and said: agreement to the the Court
“. . . A of the leads review legаl, agreement in that it does Conclusion that the constitute contract zoning, ambiguous. and that it is not It speaks itself, but from a consideration of the terms it contains, speaks it message different than that contended by plaintiff.”
The district court then interpreted language and imposеd a limitation on the terms follows: apparent
“It is the agreement recognition by is a parties that, execution, at the time of its there were several uses being made premises which were non-con- forming. The merely document was an agreement recognize and to allow the continuation of these al- ready-established uses provide and to specific description of what those uses were.
U
“At into, the time was entered and at all thereto, times prior only residential being use made or See, made of premises single-family was а residence. affidavit, Salsbury Exhibit ‘A’ to Document No. 11. There- fore, since the only a recognition of the then uses, and no non-conforming multi-family effect, residential use was residential use which one, allows is a conforming Single-family to-wit: dwellings.”
If
ambiguous,
then
judg
proper
ment is not
question
and thе
of intention should be
Schell v. Peters
submitted
jury.
(1966),
to the
147 Mont.
410 P.2d
155. The
simplest
issue reduced to
terms is
whether
purposes”
“residential
is so clear on its face as to
preclude multi-family
purposes.
residential
We think not.
Supreme
Court of Ohio had occasion to make a simi-
lar interpretation
in Hunt v. Held
(1914),
“[3] ‘residence,’ it, words? The word equivalent as we view is *5 to ‘business.’ ‘residential’ and was in сontradistinction used building place If and no business is used abode only purposes on, carried it would used for residence be occupied by family of families. or a number whether one say describe a Counsel that were intended to words type building. The ‘residence’ has We not. wоrd think occupancy the use mode of to which the reference to or may put. building be If had been intended that build- ing family only, for the one words indicat- was to be use of ing used, as is fre- intention have been such an would private quently single done, residence,’ ‘a such as ‘a ” single dwelling rеsidence,’ ‘a house.’ authority case, Ohio we could hold Under multi-family. clearly that allows for How “residential use” carefully reviewing case, ever, we in this are after the record controversy genuine over that there factual convinced is a by subject language. рarties what use of the intended confusing. agreement At The on use is one ques- point, that the three tracts recites R-9600, for sin- tion zoned a residential classification were gle-family. only The fact, zoned. trial one tract so court be- reasoned that since the single-family аnd ex- lieved all three tracts were limited isting non-conforming zoning uses, limitations and since surely by changed contract, the itemized could then not be only Perhaps contemplated existing uses. uses have must again, question about what But is a fact is true. there parties may to assure ad- The have intended intended. agreeing to annexation. ditional future uses in return They may fully on limitations con- not have understood the Surely, they zoning. to receive tract must have intended protesting These some consideration for not questions annexation. trier fact. must be resolved agreement un- court also have found the trial must examining going outside clear After intent and on its face. by referencing an affida- instrument four corners parties when vit, the court said: “The intent is controlling.” entered into is Intent to when the is looked may concluded propеrly clear its face. court have the intent but issue issue one of fact cannot be decided on judgment.
We, therefore, vacate the remand for trial. judgment and MR. CHIEF MR. JUSTICES JUSTICE HASWELL and HARRISON and SHEA concur. GULBRANDSON,
MR. JUSTICE dissenting: *6 I respectfully dissent.
The in question to Right was titled “Waiver of Agreement Conforming on Non Protest Annexation and Use,” and in fоllowing contained the addition to language, opinion: that set forth in the majority “WHEREAS, the immediately surrounding area the above-described tracts and the tracts themselves are zoned R6900, a zoning classification; residential
“WHEREAS, historically the above described tracts have currently and are being agricultural use; used an being the use the “WHEREAS, now made above-de- of scribed a use; tracts is
“WHEREAS, City annexing the Billings of is desirous of stated; said tracts on the conditions and “WHEREAS, the of to willing Owners said tracts are any rights protest waive to of said annexation condition obtаining a (Emphasis more certain use classification.” land added.) 28-3-201, MCA,
Section provides as follows: “A interpretation contract must receive such an as will make it lawful, operative, definite, reasonable, capable and being of carried into effect if it can be done without violat- added.) ing the of parties. (Emphasis intention in parcel Survey land of No. of contained Certificate City Billings having located within the of and been zoned long agreement, R-9600 before the date of the but le- bearing a non-residential use could not City agreеment whereby gaily subject be the an multi-family use vari- agree would to a residential grant view, my would constitute con- agreement, ance. Such an in tract zoning. Planning, Am.Jur.2d, Zoning
In 82 Section aversion is zoning” explained: to “contract is municipality, is a zoning power delegated
“When to аway contemplated bargain will municipality A any part private to contract power any of that landowner. or by made to zone rezone for zoning authorities denounced and is private illegal benefit landowner zoning’ as an vires bar- by courts ‘contract ultra gаining It reasoned that zon- away police power. solely ing be permissions governed restrictions and must interest, by to an individ- public and not the benefit added.) ual applicant.” (Emphasis zoning of status and recognizes itself Survey No. 334. The in land described Certificate specific Billings рolice parcel power had over away for the benefit of bargain power and could not such private landowner. majority
It is I believe the be for that reason that they may intended error when state: “The have agreeing to an- assure additional future uses return *7 view, my future residential nexation.” such an additional zoning. illegal use would constitute contract they I be in error when state: majority also believe the “Surely, some consider- they have intended to receive must must protesting questions These ation for not annexation. cleаrly re- plaintiff The trier fact.” be resolved the agreement, to the prior ceived he had not had something specifically:
(a) commer- non-conforming the a written that agreement residential, family parcel single on zoned cial uses specified within expanded сould continue and fact be limits;
(b) same a written that these agreement uses granted remaining would be two tracts after the annexation;
(c) a have agreement plaintiff written that the would a dis- period years, continuance of use three than the rather year period. normal one Judge recognized interpreting
District Luedke that the agreement plaintiff the requested by the would render agreement illegal by stating in his memorandum:
“However, the overriding message which the terms of the agreement contains, together, when all terms are considerеd then-existing non-conforming that the uses were to be protected. totality agreement support does such position of plaintiff use of language, that ‘residen- uses,’ tial authorizes the establishment new or different did, If problem uses. there would be a respect with to the of the defense as to contract zoning.” Judge
District Luedke interpreted agreement as refer- ring to non-conforming uses which existed at time agreement executed, interpretation which could make the required by lawful as 28- section 3-201, MCA.
Finally, opinion the majority suggests that court the trial went outside the when the trial court stated: parties “The intent when the is entered into is controlling.”
That statement actually made in the sec- trial court’s granting ond memorandum its later order explaining plaintiff’s motion to amend state findings to other parcels two agricultural open space were fact zoned denying plaintiff’s the date of the agreement, motion to amend the judgment. pertinent portion of the trial memo- court’s second
randum explaining that order as follows:
“Regardless of the zoning property actual on the date agreement, to the operаted under assumption the tracts zoned were *8 following this clear. The R-9600. The makes agreement: 1 of the appears Page statement “ ‘WHEREAS, surrounding immediately the area Eire zoned the tracts themselves above-described tracts and R-9600, zoning classification a residential [.]’ wеre parties that reading
“A reveals listed in the the uses assumption that under the operating ones. agreement were at that time parties is clear —the purpose tenor being made of the uses then attempting were to insure that following annexation property would continue mistakenly believed City. parties fact judgment change parcels were zoned R-9600 doe when the Court. The intent controlling.” into was entered judge.
I of the trial judgment would affirm the