THE GREENS AT FORT MISSOULA, LLC, Pеtitioner and Appellant, v. CITY OF MISSOULA, Respondent, and SAVE THE FORT, INC. Intervenor.
No. 94-395.
SUPREME COURT OF MONTANA
Decided June 19, 1995.
Heard April 7, 1995. Submitted April 18, 1995.
271 Mont. 398 | 897 P.2d 1078 | 52 St. Rep. 501
For Respondent: Jim Nugent, Missoula City Attorney, Missoula; Mark S. Connell, Connell, Beers & Alterowitz, Missoula.
This case is before us on grant of summary judgment to City of Missoula and Save the Fort, Inc. by the Fourth Judicial District Court, Missoula County. We affirm.
We consider the following issue:
Did the District Court err in granting summary judgment to the City of Missoula and Save the Fort based upon the court‘s ruling that a City-wide referendum concerning Ordinancе No. 2877 was an appropriate function of the power of referendum?
This action involves an 82.31 acre tract of land known as Fort Missoula located in Missoula County. Fort Missoula U.S. Military Reservation was established in 1877 and has served many purposes of historical significance over the years. In 1966, the federal government conveyed this property to the State Board of Education for the use and benefit of the University of Montana. In 1990, the University conveyed the property title to the University of Montana Foundation, a non-profit corporation which acts as agent or trustee for the University by coordinating all fund raising for that institution. The Foundation then sold the property to the Green‘s predecessor in interest, Divot Development, for $450,000.
Divot began action to have the bulk of the property annexed to the City and to have the City then zone it. On December 13, 1993, the City annexed the property. At that point the tract became an unzoned part of the City.
Divot had requested zoning of the tract, asking that the property be rezoned as P-I (Open Space District) [with a Planned Unit Development (PUD) overlay]. The County had originally zoned the trаct as CP-I (County Zone.) On December 20, 1993, the Missoula City Council enacted Ordinance No. 2877, which called for residential housing as well as carefully designed protection for historical buildings and open areas on the property. Following passage of this ordinance, a group of Missoula County and City residents formed under the name “Save the Fort” and circulated a petition in the City with thе final outcome projected to be a referendum which would repeal the ordinance. On January 17, 1994, the petition was filed with the Missoula County Elections Office.
The Greens filed a declaratory judgment action against respondent City of Missoula, seeking to have the court refuse the referendum process for this issue.
The Greens commenced this action against the City of Missoula and Save the Fort was allowed to intervene permissively.
Did the District Court err in granting summary judgment to the City of Missoula and Save the Fort based upon the court‘s ruling that a City-wide referendum concerning Ordinance No. 2877 was an appropriate function of the power of referendum?
The Greens argue that Ordinance No. 2877 rezoned the property in question and, therefore, the action was administrative and not legislative. According to the Greens, administrative and quasi-judicial actions by a governmental body are not subject to referendum, only legislative actions can spawn referendum. Further, the Greens argue that our holding in City of Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178, controls and makes the repeal of Ordinance No. 2877 unconstitutional because not all of the electors who participated in the referendum are affected by the ordinance. The Greens contend that the District Court gave a new expansive reading of the referendum statute in opposition to the prevailing case law in Montana.
The City argues that the District Court should be affirmed because Montаna‘s statutes and Constitution encourage public participation in municipal government affairs and decisions. The City contends that the facts of this case make it unique when compared to past Montana cases considering the right of referendum. Also, the City states that the property in question has never been zoned by the City. According to the City, both zoning and rezoning are legislative acts which permit referendum.
Save the Fort argues that the Montana Constitution permits referendum on any enactment by the legislature except an act of appropriation.
The District Court determined that the act of zoning the newly annexed City property was legislative in nature and, therefore, subject to referendum by the electorate. The District Court found that
Whether Ordinance No. 2877 was a zoning ordinance, as the Court concludes, or a rezoning makes no substantive difference. In substance the questioned ordinance was the original zoning classification of this land by the City, and it was a legislative act. ... Here, the City Council has made a new land use policy, in absenсe of an established municipal land use policy, for a sizeable parcel of previously undeveloped property on the edge of the urban area. The ordinance in question signifies both a new zoning policy as to this land and a fundamental change from pre-existing county zoning and guidelines for development of this area. ... The Court does not agree that subjecting original zoning classification ordinances or amendatory rezoning ordinances to referendum powers will lead to significant delays and undue burdens on development. Minor zoning decisions which do not excite broad public interest in a city will be unlikely to generate the degree of controversy necessary to place the issue before the voters. The very fact that this is the first known case of this nature, despite Montana‘s long history of municipal zoning, is itself indicative that it would not frequently arise. (Emphasis added.)
The 1972 Constitution included a provision that made the people‘s right to a referendum applicable to the actions of local governments.
Right of initiative and referendum. (1) The powers of initiative and referendum are reserved to the electors of each local government. Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government, except those set out in subsection (2), may be proposed or amended and prior resolutions аnd ordinances may be repealed in the manner provided in
7-5-132 through7-5-137 .(2) The powers of initiative shall not extend to the following:
(a) the annual budget;
(b) bond processings, except for ordinances authorizing bonds;
(c) the establishment and collection of charges pledged for the payment of principal and interest on bonds; or
(d) the levy of special assessments pledged for the payment of principal and interest on bonds. (Emphasis added.)
The legislature did not provide within the statutе any differences in procedure to be used with public involvement in zoning as opposed to rezoning ordinances. Both acts are within the “legislative jurisdiction and power of the local governing body” and are, therefore, subject to the referendum power of the people.
The Greens argue that we must follow the precedent of Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, which stated that there is a “sound” distinction between zoning and rezoning. Lowe, 165 Mont. at 44, 525 P.2d at 554. We first point out that the 1977 statute which we are interpreting in this case did not differentiate between zoning and rezoning for referendum purposes. In addition, in Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67, we expressly departed from the holding in Lowe:
A review of authorities reveals no elemental distinction between the act of “zoning” and the act of “rezoning.” A rezoning ordinance, like a zoning ordinance, is a legislative enactment, and is entitled to the presumption of validity and reasonablenеss. [Citations omitted.]
[W]e depart here from the distinction expressed in Lowe between the acts of zoning and rezoning ...
Schanz, 182 Mont. at 335, 597 P.2d at 71. In order to eliminate any confusion, we conclude it is necessary to overrule the contradictory language in Lowe. We expressly overrule the following language:
There is under Montana statutes and case law a sound distinction 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.
Also, the Greens argue that the repeal of Ordinance No. 2877 is unconstitutional under the holding of this Court in City of Shelby v. Sandholm (1984), 208 Mont. 77, 676 P.2d 178. However, the Sandholm case can be distinguished from the case before us.
Sandholm dealt with a vote by all of the electorate in the city of Shelby with regard to one special improvement district which constituted only part of the city. Spеcial Improvement Districts (SID‘s) are defined statutorily as improvements that “will be of special benefit to the property within the boundaries of any district created pursuant to the provisions of this part.” (Emphasis added.)
Perhaps an example would best exemplify the distinction found between the unique facts of this case and the facts of the Sandholm holding. In Sandholm, we held that an entire city could not vote on the рropriety of one SID because the entire city was not physically and financially affected by that SID:
But here the special improvement district encompasses less than all of the real property in the City, and there are qualified voters in the City who could vote on the referendum but who are not physically or financially affected by the special improvement district. Clearly, the property owners who will be benefited by the improvement, as well as assessed for the costs of the project, should control whether the project succeeds or fails.
Section 7-12-4110, MCA , provides the protest procedure for those affected by the special improvement district, but the protest here was insufficient because it did not represent 50 percеnt or more of the property within the district, and the trial court so found.
Sandholm, 208 Mont. at 80, 676 P.2d at 179. We are unable to say in the present case that only part of the City electorate would be affected by what transpires on this tract of land. The land in question here has historical and social significance for the entire City. The public has used this property for many years for various community-wide functions. Wеre the land to become used for the multitude of private residential housing units that are planned, the entire community could be affected by the added pressures—financial, social, and environmental. Thus, the community as a whole is affected by what happens to this property, despite not every member of the community abutting the property in question.
In recognition of this, the District Court stated in its Opinion:
The Court does not accept the myopic view of the developer that this action should be viewed as a single quasi-judicial zoning decision affecting one landowner‘s private property. The proposed construction of housing for several hundred people in what has historically been publicly accessible open spacе on the edge of the City affects prospective development residents, public services and schools, the city housing market, nearby residents and facilities, city traffic and development patterns. The number of landowners whose property is being zoned is not material to the issue at hand.
...
It is the proposed zoning‘s potential effect upon the City that distinguishes the presеnt case from Sandholm. The entire community of Shelby was not affected by the storm sewers in one SID. The SID created in Sandholm had no significance or importance to anyone other than the landowners who would be required to pay for the proposed storm sewers.
As a result, we held in Sandholm as follows:
We agree, under the facts of this case, that the City‘s action creating a special improvement district, was not ... subject to referendum. (Emphasis added.)
Sandholm, 208 Mont. at 79, 676 P.2d at 179. While the foregoing conclusion is appropriate as to Sandholm, we further cоnclude that it cannot be applied to the facts of this case. Under the facts of this case, we need do nothing beyond interpreting
The distinction between administrative/quasi-judicial acts and those that are legislative need not concern us under the facts of this case. As quoted above, Schanz determined that a rezoning ordinance, like a zoning ordinance, is a legislative enactment and that there is no distinction between the act of zoning and the act of rezoning.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.
JUSTICE NELSON specially concurs.
I concur in the result of our opinion but not in our rationale. Basically, we affirm the District Court because we conclude that the ordinance at issue here is a zoning ordinance and that zoning and rezoning are indistinct, both being legislative enactments subject to the right of referendum.
While I do not disagree with those conclusions as far as they go, our opinion, by default, perpetuates the long-articulated notion relied upon by the District Court and discussed in other cases in Montana that acts of the legislative body which are characterized as “legislative” are subject to referendum, while “administrative” or “quasi-judicial” acts of that body are not. See, for example, Carlson v. City of Helena (1909), 39 Mont. 82, 102 P. 39; Allen v. City of Butte (1918), 55 Mont. 205, 175 P. 595; City of Billings v. Nore (1966), 148 Mont. 96, 417 P.2d 458; Chouteau County v. Grossman (1977), 172 Mont. 373, 563 P.2d 1125; Dieruf v. City of Bozeman (1977), 173 Mont. 447, 568 P.2d 127; Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551; Little v. Board of County Commissioners (1981), 193 Mont. 334, 631 P.2d 1282; Schanz v. City of Billings (1979), 182 Mont. 328, 597 P.2d 67. It is with that proposition that I disagree.
Rather than perpetuate a fiction that is without constitutional validity, I would simply hold that
It is axiomatic that the Constitution is the supreme law of the state, Associated Press v. Bd. of Public Educ. (1991), 246 Mont. 386, 391, 804 P.2d 376, 379, and that constitutional provisions are conclusive upon the legislature and prevent the enactment of any law which
To determine the meaning of a constitutional provision we employ the same rules of construction employed to construe statutes. The intent of the framers of a constitutional provision is controlling. The intent should be determined from the plain meaning of the words used. If that is possible we apply no other means of interpretation. (Citations omitted.) Great Falls Tribune v. Public Schools (1992), 255 Mont. 125, 128-29, 841 P.2d 502, 504. We are to simply “ascertain the meaning of the Constitution as written, neither to add to nor to subtract from, nеither to delete nor to distort.” Rankin v. Love (1951), 125 Mont. 184, 188, 232 P.2d 998, 1000.
In
Section 5. Referendum. (1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. ... (Emphasis added.)
As that language of thе Constitution clearly provides, the people of Montana reserved unto themselves the power to approve or to reject by referendum any act of the legislature—not simply “legislative” acts, but any acts, including “administrative” acts and “quasi-judicial” acts. Moreover, at
While
In our interpretations of
No legislative act versus administrative or quasi judicial act distinction appears in the language of the Constitution, and it is improper and in violation of our well established rules of construction to read such a provision into that document.
JUSTICES GRAY and LEAPHART join in the foregoing special concurrence.
JUSTICE TRIEWEILER specially concurring.
I concur with the majority opinion based on the oft-stated principle that “it is elementary that courts should avoid constitutional questions if an issue can be resolved otherwise.” Common Cause v. Statutory Committee (1994), 263 Mont. 324, 329, 868 P.2d 604, 607 (citing Wolfe v. Montana Dept. of Labor and Industry (1992), 255 Mont. 336, 339, 843 P.2d 338, 340).
I do not, by concurring in the majority opinion, mean to infer that I necessarily disagree with anything said in the concurring opinion of Justice James C. Nelson.