*1 Stillman, JAMES A. STILLMAN and Plaintiffs Julia A. COUNTY, Appellants, Montana, FERGUS and acting joint Montana, Lewistown, both City-County Adjustment, Respondents. Defendants 85-174. No. Aug. 22,
Submitted
Briefs
1985.
March
Decided
Torger plaintiffs S. *2 Walsh, Falls, Smith, Thomas P. & Joseph Gilligan, P. Baillie Great Meissner, Lewistown, respondents. for defendants and Court., Opinion of the HUNT delivered District appeal
The Stillmans from an order damages Fer- complaint as to defendant Court for County’s County. granted pursuant The gus dismissal was 12(b)(6) for to state claim Rule motion to dismiss failure granted, court entered a final which relief can be and the 54(b). pursuant to Rule by appellants
The is whether the sole issue raised County’s for respondent motion to dismiss properly granted (cid:127) failure to state a claim. dismiss, District Court can consider a motion to complaint. allegations in the as as the
matters of record well A to dis- admitted. motion well-pleaded All are deemed beyond that a granted appears it doubt miss should not be unless entitling him relief. Willson plaintiff could no set of facts (Mont. 1981), Taylor St.Rep. in- Lewistown plan Fergus County and the zoning
The Adjustments an two entities. The Board volves City- The city grant zoning variances. notice, regarding certain duties County Planning Board has Adjustments. The advisory capacity to the Board serves an Director, em- Hughes, is an John Coordinator planning Board. in Lewis- appellant’s home Jerry Cloyd’s next to home is located Two “Residential town, in an area zoned Both homes are Montana. (R-2) plan. Cloyd applied to Family” Lewistown’s under him to build an addition to allow for a variance yard area. set-back extending the five foot side two feet into stationery to various Planning Hughes sent out notices on Appel- Cloyd’s application. informing them of residents Appellants inad- allege lants received this notice. these notices were equate, misleading, and incorrect. granted allege Appellants was the variance. Adjustments granted
Board and the Board of this variance and notice, granted proper legal hearing, it was without without a considering legal requirements of a without for allowance The District Court dismissed
County. The court ruled that no set circumstances could estab alleged lished render liable for the acts complaint. fact, order contained but in the tran script judge concluded has grant zoning Adjust exclusive variances and the Board agent ments is of Lewistown. advisory county
serves capacity. re sponsible including for the actions of the granting of the variance. two This conclusion is incorrect reasons.
First, able show that directly liable because of acts committed *3 itself, Planning employee, Hughes. its The notice by Hughes sent “requested to stated that a vari- Cloyd’s ance allow him to 2 extend his kitchen feet.” actual re- quest was for a variance to extend his kitchen 2 feet into the side yard set-back area for a total sent extension of 13 feet. This notice give liability Planning rise to of the Board under theory negligence, estoppel, reliance, a regardless of en- or of which tity actually granted the variance.
Second, agency even if claim is based the ory, may preclude liability county. this not no While there are subject, long Montana cases on this there is a line of California cases that, normally, which agency questions hold are of fact Skopp not summary judgment. should be on decided motion for Weaver (1976), 432, 19, 307; Cal.Rptr. 16 Cal.3d 128 Farr v. Bramblett (1955), 372, Cal.App.2d 281 P.2d 281 P.2d However, dealing entity, government when with a such as a county, always authority is principal delegate this not true. A cannot possess. County, it does Fergus not the Board, public and the Board of a is matter record. agency government So a claim of involving principal can be de a summary by establishing cided motion for the author- record, which, ity all citizens principal as matter of a principal If the author- charged knowing. with does have relationship, ity necessary a motion dismiss agency to establish an proper. However, authority may limited principal’s government awhile day day law, authority in by principal may go beyond its that may pre- words, relationship agency activities. while an other law, in by relationship may still exist fact. cluded such a bar, especially possible in the two entities the case at where This question, Adjustments, and the Board subject, zoning. Evi- closely with the same together work and deal public rec- groups’ is a matter of dence of the two close association provides Municipal that Zoning ord. The Ordinance grant Applica- variances. Coordinator, Zoning an em- tions for are directed to the variances Zoning Coordinator then consults Board. The impact fully departments with other evaluate appropri- variance, to its application with reference studies the publica- use, provides various notices ateness and effect on land individuals, specified reports his tion and to Adjustments, duties. and other similar process variance participation active
This support argument sufficient given oppor- Appellants should be is liable to County, through agents, the tunity its to show that granting Coordinator, participated in the actively proves non-exis- discovery If allegedly erroneous County may obtain relationship, then agency tence of an jury proof raise a appellants’ at trial fails to judgment. If relationship, then to the existence County may a directed verdict. obtain appellants can agree present
We situation cannot order of relief. entitling them to set facts County is against Fergus appellants’ reversed.
MR. HARRISON concurs. JUSTICE MORRISON, concurring: specially I concur in the result. presented issue to this Court con- question cerns the of agency. purpose opinion concurring stress that we question of whether either or the
Lewistown can be negligence held liable in tort of either agents exercising servants or while discharge discretion of their question official duties. That presented was not to the trial court nor is it before this Court. I assume that will be presented judgment.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE WEBER join special concurrence of MR. JUSTICE MORRISON.