*1 OLSON, and EDNA V. FRED A. OLSON Wife, Husband CITY COMMIS al., Respondents, et Plaintiffs v. HELENA, Montana, THE CITY OF SION OF al., et De Appellants. fendants No. 10928. September 13,

Submitted 1965. Decided October 1965. earing Reh denied November 1965. 407 P.2d 374.

Smith, Smith, Helena, (argued), & H. Smith J. Luxan Hel- (argued), Helena, appellants. ena, Miller for J. Smith respondents. Huppe (argued), Helena, for Charles Y. Opinion MR. delivered JUSTICE CASTLES the Court. appeal judgment judg- an from a which This is City No. 1663 of Helena held Ordinance the defendant ment null and void. respondents below are here and will be referred

Plaintiffs respondents. They property are residents and owners of Helena. appellants. They Defendants below are include members of Commission of the H. of Helena and F. Hnstad *2 Corporation. and Yera appellants O. Hustad and Hnstad The Hnstad, individually corporation prop- are likewise erty City owners of the of Helena. 29, 1964,

On City unanimously passed June the Commission approved, and respondents, over the of or- dinance, amendatory pre-existing zoning of ordinances of said city, reclassifying from “A” Class Residential District Class “C” Business or District, Commercial property certain within city by appellants said the amendatory Hustad. The designated ordinance 1663, Ordinance No. and is entitled as follows:

“ORDINANCE NO. 1663.

“An amending 11, Chapters 1, 3, 6, 7, 8, ordinance title 5, 9, 10, City 11 and 12 of Helena, of Code Montana re- classifying following described lots and blocks Lockey Addition Helena, of 1 Montana: Lots through 9 and 30 through portion Lots 48 in that of 21 Block lying south and Avenue, west of Boulder and Lots 1 through in Block all in Lockey City Helena, Addition to the of Montana, from class ‘A’residential district to Class ‘C’Business or Commercial District.”

Respondents brought this action under the Montana Uni- form Declaratory Judgments purpose Act for the of invalidat- ing the pleadings ordinance. complaint of consist joint plaintiffs answer. Both and defendants made dis- covery M.R.Civ.P., under 36, consisting Rule plaintiffs’ of Re- quest for Responses Admissions and defendants’ thereto, and Request defendants’ plaintiffs’ Responses Admissions and Upon completion thereto. discovery, of defendants moved for summary judgment under M.R.Civ.P., Rule 56. hearing At the of stipulated the motion it pre- counsel that the cause any material fact and that genuine no issue as

sented upon might disposed upon the defendants’ of merits same argument oral Following of the cause on motion. submission Summary briefs, the court made entered and written trial against Judgment defendants, of de- in favor No. 1663 null A written claring to be and void. judge. opinion was filed trial opinion excluding quoted follows mentioned is as No. 1663: ordinance law as only

“The is an of issue cause issue Helena, validity of Mon- Ordinance No. tana, passed adopted by finally City Helena, Montana, 29, 1964, by the on June favor- vote able of all members said said being ordinance entitled: applicable

“The law is found in 11-2704and to be Sections *3 Montana, Revised Codes of 1947. no “The Court finds merit in the contention of that ‘departure invalid it from the ordinance is because involves a general by general zoning the scheme established state law for However, appears it on the of the ordinance ordinances.’ face legal significance the City that the Commission attached to of than of area of all the that the owners less of fact proposed 11-2705 to under Section lots entitled However, protested. zoning change, had ratio is nowhere this It conclusion mentioned in the statute. is Court’s application provis- construction and of the City Commission’s palpably 11-2705 so erroneous as to of Section invali- ions predicated action thereon. The legislative its ordinance date is void.” judgment of appeal taken from the whole

This is is question whether the ordinance valid. is sole incorporated organized city under City Helena is an of “Commission-Manager provision Plan” for which in made body governing 33, R.C.M.1947. 11, Chapter Title having mem- five elected City Helena is a commission of the of Mayor. by a bers headed con- giving rise to this years prior the events

A number of Helena, acting powers troversy, pursuant Chap- (enacted delegated by Chapter Title R.C.M.1947 adopted comprehensive Laws, 1929), Session ter Montana subdividing zoning the areas within its territorial ordinances establishing jurisdiction original zoning use into districts and Among for the within classifications lands each district.

zoning by districts land use classifications established such original zoning following: ordinances are the “A” Resi- Class District; District; dential Class “C” Business or Commercial “D” and Class Commercial or Industrial District. ordi- Such zoning nances other established districts and land use classifi- cations none of which is material to this action. From time adoption to time original zoning since the of such ordinances,, has acted to zoning amend boundaries of the dis- originally by tricts amendatory established means of ordi- giving nances. Prior to the controversy events rise original zoning City Helena, ordinances of the as theretofore amended, had been codified Title 11 of the City Code Helena. litigation

This concerns the classification portions Lockey addition portions, Helena. The all by appellants Hustad, include 47 lots, some lying in two blocks, by on Avenue, bounded the NE Boulder on the east Avenue, on Montana alley, south an running east west between Montana Avenue and Dakota Avenue, on the- Avenue, west Dakota a short distance on by- the north Helena Avenue. The re-zoned portion, some 47 lots, is in one- *4 piece, is, it is all parcel one Street,, Davis which run east had and west between block 20 and block 21. had been closed Ordinance No. 1568 alley as had an in. block 21. those alley With street and (not closures contested.

390 ownership piece here), was re-zoned area one and one land. zoning 1663 adoption

Prior to the No. was Ordinance area classified such that north east of re-zoned were as “D”, Business, and In- either “C” or Class Commercial Class area and land south and west were dustrial. re-zoned was, fact, A The re-zoned area vacant lots. Class residential. immediately adjacent, A area to the balance the Class single multiple dwelling south and west units. was east, adjacent area is northwest, To north and the entire presently and commercial. used industrial ap- area, January, the owners of the re-zoned

Prior to Center,” pellants Hustad, enlarge their “Hustad a decided center, adjacent They shopping to the northwest. commercial in their in the re-zoned area. Included owned the lots included plan proposals. two One was the closure development were alley in Block Boulder portion a between east-west of Davis between Avenues, and the closure Street and Dakota zoning Avenues. The other was the re- and Dakota Montana permit of what commercial use we have called classification Munici proposals were area. Both referred the re-zoned Planning Planning Board, which Board recommended the pal January respondent City same. On accomplishing adopted proposal, first No. alley. of Davis Street and the This Ordinance closure that of not contested. No. 1568 is to commer- proposal, the reclassification to the second

As appellants opposition. met rezoning, Hustad Three or cial use appellants applications were Hustad. The made successive occasion, passed a each “Resolution of on reclassify question, lots in for fixed date Intention” public hearing. In each in- protests, a date written filed, hearing had; and, were on stance, written applications two Commission declined to first proposed reclassification. effectuate

391 min- “B,” application, Exhibit the third On the following: 1964 show the utes of June protestants Attorney ex- Vance, representing “Mr. John separate plained why present two he had his clients to advised protests. opinion, ways in are stated, Mr. Vance his there three protests may presented, area; 2nd— be of the entire 1st—20% adjacent thereof; of an area in rear of area 20% 3rd—20% adjacent oppose ap- If in next in front. rear then thereof plication fall must unless three fourths of Commissionover- opinion rule in Mr. At this there was a Vance. time short City Attorney discussion between Mr. Vance and Chilton on. interpretation Zoning Law. Luxan, Mr. H. J. Attor- ney representing Hustad, Mr. previous applications reviewed re-zoning giving why reasons failed; such had and stated he now felt the Commissionshould take favorable action only as the totalled of the total area. 18.51% “Mayor John Hearing W. Schroeder declared the on Re- classification on in Lots Blocks 20 21 in Lockey and Addi- closed, tion ‘A’ to problem from ‘C’ Zone taken under advisement. up

“Mayor brought Schroeder for consideration the re- Lockey of certain blocks and lots in the Addition. “The exercise of the discretion vested in them, only inasmuch and as total area within 18.51% perimeter protested had the reclassification of Lots 30-48, lying Block 21 South and and West Boulder Ave- nue, 1-19 in 20 Lockey and Lots Block Addition, from. Class ‘A’ Residential to Class ‘C’Business or Commercial Dis- trict, concluded that said petitioned reclassification as for and set forth Resolution Intention No. 6330 should be granted, following action was taken: presented following

“Commissioner Lewis motion, ‘I' separate protests move that the Commission overrule the of' e Olson, Olson, Zuelke, Fred A. Edna V. Earl C. Isabel H. Zuelk Baker, Jennye protestants- H. dated June which adjacent property immediately own in the rear of the area sought re-zoned, to be and within 150' therefrom.’ Seconded Mnnger following Aye Commissioner and carried vote, Mayor Sehroeder, Noe Ayes, to-wit: Commissioners Mnnger, Foley, Noes, Bozman and Total 5. none. Lewis. following presented “The and read. motion, presented following T “Commissioner Bozman passed approved. move that Ordinance No. first *6 Mnnger by the follow- Seconded Commissioner and carried ing vote, Mayor Sehroeder, Aye Ayes, and Noe to-wit: Com- Foley, Noes, 5. Mnnger, and Lewis. Total missioners Bozman none.” provides:

B:C.M.1947, 11-2704 section city legis- council, or other procedure. The or town “Method of provide municipality for the manner body of such shall lative regulations and and the boundaries such restrictions in which determined, established, enforced, districts shall of such supplemented, changed. amended, or time to time and from restriction, boundary However, regulation, or shall be- no such public hearing thereto, until a relation after come effective oppor- shall an parties in interest citizens have at which days (15) At least fifteen notice of the heard. tunity to be hearing published shall be in an place of such official time and general circulation, municipality.” in such paper of paper, or 11-2705,provides: R.C.M.1947,section restrictions, may and boundaries regulations, Such “Changes. amended, supplemented, changed, modi- time be to from time protest against case, however, of a such In fied, repealed. or per twenty (20%) or centum signed the owners (cid:127)change, proposed of the lots included such of the area more either immediately adjacent in the rear thereof of those (cid:127)change, or (150) therefrom, or fifty feet (cid:127)extending hundred one extending opposite thereof one hundred and directly those frontage opposite lots, from the street such feet fifty (150) except not become effective shall amendment such the members of (%) of all of three-fourths favorable vote municipality. legislative body of such city or or town council public hear- previous relative to provisions section or equally changes apply all ings shall and official notice amendments.” sur- area, re-zoned and the area

plotA both that to be “protest boundary” estab- prepared. A area rounding was denied, it applications was determined the first two lished. On pro- ownership basis, more square footage than that on a 20% appli- However, on to act. the third tested. The declined cation, their three owners had withdrawn protesting. only of the area that now were determined 18.51% unanimously. They then acted opinion quoted heretofore, it

From the trial court’s is seen it judge because, trial that the held ordinance invalid legal significance it, attached put “the the owners of less than of the area of all of the fact that proposed under section lots entitled protested.” zoning change, had The Court then declared city’s legislative palpably erroneous as invalidate the so action. previously quoted from the Exhibit “B” of

We note the Com- protestant’s “legal counsel mission minutes attached *7 protests significance” in each of three note to areas. We 20% R.C.M.1947, provides section 11-2705 that for a Commis- too % to a of over Here it was vote overrule sion 20%. unanimous. problem far, our recitation indicate no would existed.

So all, a unanimous Commission acted after full considera- After separate extending hearings opportun- full over three with tion But, unique, view, at in ity to heard. a or least our an un- interpretation R.C.M.1947, usual, pre- section 11-2705was attempt protesting shall to describe the area with We sented. statutory language of section 11-2705. are reference We City Commission, told, language that under that was the separate protesting areas exist: three

(1) area, the re-zoned (2) adjacent immediately thereof, those in the “rear” directly (3) “opposite” those thereof. distinguished

Just what direction “rear thereof” as from directly “opposite say. those thereof” to is difficult What we unusual, have termed at is least consideration “rear” “opposite” produced separate protest somehow groups, two opposite however, including but, the “rear” not “rear” — including “opposite.” point consideration, We out that this according to urged the minutes of the protestants. counsel owners, Baker,

Three Olson, property Zuelke and what is called the “rear” of the zoned area. This is to the south alley running across the east and west between Montana Ave- nue and Dakota Avenue. Of is designated what the “rear” these According three owners constitute to section 11- 58%. interpretation, under require this it would a Commis- % sion vote. The vote was unanimous. owners, Baker,

The same three Zuelke Olson, also were signators “opposite” from the owners. Combined protesting, they with others up then made prop- of the 25.42% erty separate “opposite” group. again, owner Thus under required. section vote was % The vote was unani- mous. itself, appellants

In the re-zoned area being Hustad the sole owners, protests; there no were respondent protesting owners that the insist re-zoned area could not be to calcu- used protest percentage. Also, respondent protestants late argue protest perimeter that to include in the areas of industrial and ownership already commercial in existence somehow is in- derogation law, particularly of the section 11-2705. attempt foregoing

All of the description protest- at a Court, suggest areas that this like the Commission, at- “legal significance” protests! But, taches really, question. begging What section 11-2705 is,- does under the protests, categorize circumstances of the locations *8 case, required vote. In commission only to indicate the unani- acted required was shown. vote% rec- requirement. The statutory mously and thus fulfilled affirmatively shows it. ord by the can in the recitation only significance we see deliberately, it is to the fact that

City Commission show effecting proposed zon- intentionally passed the ordinance authority It cannot ing change. legislative it had to do. This erroneous,” “palpably and we so hold. have been relying upon a respondent’s in brief that are reminded We premised here, argument vote, as we a cold unanimous have at- upon justifying However, as we have the end means. attempt point out, at full tempted to Commission’s respondent explanation urged consideration and unique interpreta- protestants what we have referred to as areas; opposite of attach- protest perimeter this is tion of It ing legal significance to than entire area. less full demonstrates consideration. foregoing reasons, judgment the district court

For the is reversed. T. and MR.

MR. CHIEF JUSTICE JAMES HARRISON concur. JOHN CONWAYHARRISON and DOYLE JUSTICES dissenting: ADAIR MR. JUSTICE

I dissent. Supreme before the Court on this I view the record now

As pronounced judgment I affirm and entered appeal would Sande, Judge C. B. favor of District cause, long-time in this all of whom are residents respondents adversely in of Helena who are property owners harmfully the defendant most affected Helena’s In foregoing respectfully I No. 1663. view of the majority opinion appeal. on this filed dissent