DOUG L. HAGFELDT and ANNETTE E. HAGFELDT, Plaintiffs and Appellants, v. CITY OF BOZEMAN, Montana, Defendant and Respondent.
No. 87-462
Supreme Court of Montana
Submitted Feb. 18, 1988. Decided April 25, 1988.
757 P.2d 753
Sarah M. Power, Gough, Shanahan, Johnson & Waterman, Helena, for defendant and respondent.
MR. JUSTICE GULBRANDSON delivered the Opinion of the Court.
This is an appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting the City of Bozeman‘s (City) motion for summary judgment on grounds it sufficiently complied with statutory mandate in this class action claim brought by a number of Bozeman landowners (Landowners). We affirm.
The only issue for consideration is whether the City legally complied with the requirements of
Both parties agree there is no question of fact and summary judgment is appropriate as a matter of law. This appeal is based on the contention that the District Court should have granted the Landowners’ motion for summary judgment rather than the City‘s.
In April of 1985, the City began construction on a water tank in Josephine Park in Bozeman, Montana. This park is located in an area known as Graf‘s First Subdivision, Second Filing. The surrounding neighborhood and the land on which the tank was constructed are zoned R-2, single family dwellings and other permitted and conditional uses.
The record indicates that a public hearing was held before the Bozeman City-County Planning Board to review the preliminary plat of Graf‘s First Subdivision, Second Filing, on February 10, 1983. At this hearing, the public was notified that the City planned to construct the water storage facility involved in this action.
Plaintiffs are a number of landowners who live close to the area where the water tank was constructed. Landowners claim the City constructed the tank in violation of zoning regulations and because
Whenever an agency proposes to use public land contrary to local zoning regulations, a public hearing, as defined below, shall be held.
(1) The local board of adjustments, as provided in this chapter, shall hold a hearing within 30 days of the date the agency gives notice to the board of its intent to develop land contrary to local zoning regulations.
(2) The board shall have no power to deny the proposed use but shall act only to allow a public forum for comment on the proposed use.
Of further importance is the definitional section for this statute,
As used in 76-2-402, the following definitions apply:
(1) Agency means a board, bureau, commission, department, an authority, or other entity of state or local government . . .
Landowners claim that under
The City attached affidavits to its memorandum in support of its motion for summary judgment showing it held a public meeting on June 24, 1985. It claims the meeting was sufficient to satisfy the statutory mandate and, nonetheless, it is exempt from any ordinance because of the legislative intent and history of
These claims raise interesting points that have not been addressed by this Court. Landowners rely on two cases. In Rich v. City of Englewood, (Colo.App.1982), 657 P.2d 961, the Colorado Court of Appeals affirmed an injunction prohibiting the construction of a water tank that did not comply with local footage setback requirements. That decision, however, specifically points out that an injunction is an appropriate remedy for violations of zoning ordinances. Rich, 657 P.2d at 962. Here, it is unclear what remedy the Landowners seek. There is no prayer for damages in the complaint and injunc-
The second case cited by Landowners, Hunke v. Foote (Idaho 1962), 373 P.2d 322, was a proceeding by residents for a writ of mandamus to force the city to remove an electrical substation that the city constructed in violation of its zoning ordinances. The Idaho Supreme Court applied a governmental-proprietary function distinction and denied the city an exemption from the zoning ordinance. The court stated [w]hen operating in its proprietary capacity a municipal corporation is subject to the same burdens, responsibilities and liabilities as a private corporation or individual acting in the same capacity. Hunke, 373 P.2d at 323. We find the rationale of these cases insufficient to decide the issue before us.
Much has been written concerning exemption of a governmental agency from zoning ordinances although the vast majority of legal prose has dealt with two opposing governmental agencies, one of which wishes to be exempt from the other‘s zoning requirements. See 2 Anderson, American Law of Zoning, Sections 12.02-12.04 (3d ed. 1986); Note, Governmental Immunity from Zoning, 22 B.C.L.Rev. 783 (1980-81); Note, Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869 (1971). A survey of the case law in existence unfurls four basic theories by which courts of this country have addressed this issue.
The general rule is that municipalities are granted exemption from zoning ordinances in modulating degrees depending on the theory of exemption of the jurisdiction. 82 Am.Jur.2d, Zoning and Planning Sections 149, 150, 152 and 153 (1976) indicates that municipalities are exempt: (1) by express language in the ordinance itself; (2) by immunity of the sovereign from suit; (3) by the distinction between the entity exercising a governmental or proprietary function; and (4) by the doctrine of eminent domain. In application of any of these tests, as the commentators have complained, problems are rampant.
The governmental-proprietary distinction test is most prevalent, but it is not without fault.
Governmental functions are those conferred or imposed upon the municipality as a local agency of limited and prescribed jurisdiction to be employed in administering the affairs of the state and
State ex rel. Gebhardt v. City Council of Helena (1936), 102 Mont. 27, 35-36, 55 P.2d 671, 675.
This distinction has been criticized as oversimplistic and illusory. The wisdom of the governmental-proprietary function test is subject to question. City of Temple Terrace v. Hillsborough Ass‘n for Retarded Citizens (Fla. 1975), 322 So.2d 571, 577, aff‘d (Fla. 1976), 332 So.2d 610; Township of Washington v. Village of Ridgewood (N.J. 1958), 141 A.2d 308. 2 Anderson, American Law of Zoning, Section 12.03, pp. 481-482 (1986) accurately shows the problem with the proprietary-governmental distinction, especially as it applies to the issue we are faced with here:
A municipality may carry out its governmental functions without regard to zoning restrictions, but it is subject to such restrictions when it is engaged in a proprietary function. The great difficulty lies in determining which functions are governmental, and which are proprietary. The distinction is of ancient vintage, but it is neither clear nor stable. What is regarded as governmental for one purpose . . . is not necessarily so regarded for a different purpose. And a proprietary function of a municipal government of 1955 may become a governmental function in 1965 ... A North Carolina court held that erection of a water tank is a governmental function which may be carried out without regard to local zoning regulations. The same result was reached by the Supreme Court of Kansas, with some aid from a state statute. The courts of Alabama, Florida, Illinois, Michigan and Pennsylvania have described the municipal water service as a proprietary function which must be carried out consistently with the municipal zoning regulations. See McKinney v. High Point (N.C. 1953), [237 N.C. 66,] 74 S.E.2d 440; Puhr v. Kansas City (Kan. 1935), [142 Kan. 704], 51 P.2d 911; Water Works Board v. Stephens, (Ala. 1955), [262 Ala. 203,] 78 So.2d 267; Treasure Island v. Decker (Fla. [App.] 1965), 174 So.2d 756; Baltis v. Westchester (Ill. 1954), [3 Ill.2d 388,] 121 N.E.2d 495; Taber v. Benton Harbor (Mich. 1937), [280 Mich. 522,] 274 N.W. 324; Wilkinsburg-Penn Joint Water Authority v. Churchill (Pa. 1965), [417 Pa. 93], 207 A.2d 905.
The City argues in this case that it is exempt from the zoning regulations under the theory of immunity pursuant to
The common law sovereign-immunity rule has been addressed a number of times by state courts only occasionally resulting in allowances of agencies’ uses in contravention of municipal zoning ordinances. City of Richmond v. Board of Supervisors (1958), 199 Va. 679, 101 S.E.2d 641; Aviation Services, Inc. v. Board of Adjustment (1956), 20 N.J. 275, 119 A.2d 761. Generally, however, this rule has been implemented where there are two separate governmental entities, one being superior to the other. The test has been widely criticized because it fails to recognize that municipalities are acting as agents of the state under state enabling acts and further does not provide a feasible means to determine which agent should prevail where there are overlapping and conflicting territorial jurisdictions. Note, Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. at 877.
Critiques such as these have prompted many courts over the last several years to question seriously the continued viability of the sovereign-immunity rule in today‘s highly urbanized society. The reasoning of the court in City of Temple Terrace, supra, 322 So.2d at 578-579, is most compelling.
The old tests were adopted at a time when state government was much smaller. The myriad of agencies now conducting the functions of the state have necessarily resulted in a diminution of centralized
Our burgeoning population and the rapidly diminishing available land make it all the more important that the use of land be intelligently controlled. This can only be done by a cooperative effort between interested parties who approach their differences with an open mind and with respect for the objectives of the other.
Generally, even where governmental immunity is found, it should not be exercised in a fashion that is unreasonable and arbitrarily overrides all important legitimate local interests. Blackstone, supra, 448 A.2d at 1239. There are in this case important, legitimate local interests that should be considered and to blindly adopt the immunity claimed by the City would be to entirely disregard these concerns.
Further, the language of City of Temple, supra, dealt largely with the question of two governmental entities and is extremely close to the test of eminent domain. The rationale for the eminent domain test is the presumption that the legislature‘s grant of such power conclusively establishes the governmental entity‘s superiority where its proposed land use runs counter to local zoning provisions. Blackstone, 448 A.2d at 1238, e.g., City of Kirkwood v. City of Sunset Hills (Mo.Ct.App. 1979), 589 S.W.2d 31; Mayor of Savannah v. Collins (1954), 211 Ga. 191, 84 S.E.2d 454. This test likewise disregards the important local concerns of development in a modern society and we choose not to adopt it here.
The Blackstone court noted that all of the traditional tests are flawed because they are overly simplistic and often lead to resolution of a multifaceted zoning-conflicts issue through the use of conclusive labels rather than through perceptive adjudication. Blackstone, 448 A.2d at 1238; citing Brownfield v. State (1980), 630 Ohio St.2d 282, 407 N.E.2d 1365, 1367-1368, overruled on other grounds, 28 Ohio St.3d 317, 503 N.E.2d 1025, 1028; Brown v. Kansas Forestry, Fish and Game Commission (1978), 2 Kan.App.2d 102, 576 P.2d 230, 232.
The more enlightened test, adopted in Blackstone and followed by a number of jurisdictions involves the so-called balancing-of-interest analysis developed by the New Jersey Supreme Court and the
Oronoco, supra, and Rutgers, supra, can be distinguished from the case at bar because both dealt with competing governmental entities. In Oronoco, the question was whether the city of Rochester was exempt from the zoning requirements of Oronoco in the development of a sanitary landfill to benefit the town of Rochester but located in the township of Oronoco. Rutgers involved competing governmental entities in the form of the state university which wished to alleviate a shortage of education facilities by expanding a 500-unit ceiling for student housing which was in violation of the local municipal zoning ordinance. In both cases, the courts allowed the exemption. The Rutgers court stated that in some cases the broader public interest is so important that immunity must be granted even though the local interests may be great. Rutgers, supra, 286 A.2d at 703. However, the court cautioned that immunity was not completely unleashed:
* * * Even where [immunity] is found to exist, it must not be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. * * * And, at the very least, even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage for any sufficient reason, the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible. (Emphasis added.)
The balancing-of-interests test, as the Blackstone court noted, has been followed in Florida, Hawaii, Kansas, Michigan, Minnesota, North Dakota, Ohio, Pennsylvania, and South Dakota. Citing cases,
As suggested in Rutgers, the legislative intent of the statute in question,
The City points to the affidavits attached to its motion for summary judgment showing that the board of adjustments did hold the hearing within thirty days of the date the board was given notice of the City‘s intent. Additionally, the City points out, and a reading of Subsection (2) shows, the board of adjustments has no power to deny the proposed use but rather is only required to provide a public forum for comment.
The City additionally argues that the legislative intent can be gleaned from the legislative history which shows that the bill which ultimately became
We do not conclude that the intent of the legislature is clear merely by the changing of the title of the bill. However, we do affirm the ruling of the District Court in this case. The District Court properly noted that a reading of
Whenever this Court determines legislative intent, we look first to the plain meaning of the words used in the statute. W.D. Construction, Inc. v. Bd. of County Comm. of Gallatin County (Mont. 1985), [218 Mont. 348,] 707 P.2d 1111, 1113, 42 St.Rep. 1638, 1641; Dorn v. Bd. of Trust. of Billings Sch. Dist. (1983), 203 Mont. 136, 144, 661 P.2d 426, 430. The issue presented is disposed of by the very terms of
We do not accept the caselaw cited by the Landowners because it turns on the antiquated and confusing proprietary-governmental function test. Further, we do not solely decide this case on the City‘s claim that it is immune from the ordinance merely because of its status as a governmental entity under
We note that the Landowners, to present the issue before the District Court regarding the City‘s action in this case, could have attempted to attain injunctive relief. See, Rich, supra, 657 P.2d at 962. The actions of the City, nonetheless, were not in violation of the law as it was required only to provide notice to the board of adjustments which provided the public hearing.
We affirm.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.
MR. JUSTICE SHEEHY, dissenting:
If the reader, having read the foregoing opinion, understands its reasoning, he or she may step to the head of the class. After giving judicial blessing to the balancing of interests tests of Oronoco and Rutgers, the opinion declines to apply them and then partly applies them; it chides the landowners for not seeking injunctive relief, and
It is a farce to uphold a statute that guarantees a public hearing on an issue, but which statute also provides that the hearing is purposeless, of no account, a mere exercise in hearings. Who needs the exercise?
Moreover, the statement of facts by the majority is not clear. The first notice to landowners that the city disregarded its own zoning regulations was when the city commenced building the water tank in April, 1985. It was not until June, 1985, that the city provided the public hearing required by
I dissent. I would reverse the summary judgment.