STATE EX REL GUTKOWSKI v LANGHOR

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No. 12119 IN THE SUPREME COURT OF THE STATE OF MONTANA 1972 - - --- STATE OF MONTANA, ex re1 , JOSEPH GUTKOSKI, . Relator and Respondent, DON M e LANGUOR, JR., et. al., Defendant~~and Appellants. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W Lessley, Judge presiding. . Counsel of Record: For Appellant: Angel and Andriolo, Bozeman, Berg, ~'Connell, Montana. . Ben E Berg argued, Bozeman, Montana. Holter and Heath, Bozeman, Montana. For Respondent: McKinley Anderson argued, Bozeman, Montana. Submitted: May 16, 1972 Mr. Chief Justice Harrison delivered the Opinion of the Court. This is an appeal by the city commissioners of Bozeman, Montana, and other Bozeman city officials from a judgment granting a writ of prohibition on behalf of relator Joseph Gutkoski, a landowner in the city of Bozeman, arresting a zone change of certain property and awarding relator counsel fees. The land involved is the east half of lots 8B and 8C of the Homesites Addition to the city of Bozeman. of land are owned by Wayne Edsall. The two parcels Gutkoski owns lot 8A in the same addition, which borders the Edsall property on the south. Edsall first purchased lot 8C and built his family home on the west half. He used the remaining 150 feet for his construction business. In 1967, Edsall purchased the east 150 feet of lot 8B from Richard Munger to expand his construction business. This was the ownership of the land at the time it was annexed by the city. At that time the property was zoned as residential. Adjacent to this land on the east and north is a large trailer court which is zoned as motor business. The events leading to the issuance of the writ of prohibition began in November 1970, when Edsall requested the Bozeman City-County Planning Board to rezone the east half of lots 8B and 8C to motor business from residential classification, The board denied his request and the city commission followed the recommendation of the planning board. In early 1971, Edsall again approached the city commission with the same request. At this time the matter was referred to the City Board of Adjustment. This board held a hearing at which time the landowners in the area of the proposed zone change were allowed to present their protests. The Bcard of Adjustment recommended to the city commission that the land be rezoned to the "MB" (motor business) classification. Upon the a d v i c e of t h e c i t y a t t o r n e y , t h e c i t y commission passed a r e s o l u t i o n of i t s i n t e n t t o follow t h e Board of Adjustment's recommendation and gave n o t i c e of a p u b l i c h e a r i n g on t h e question of rezoning, The c i t y commission a f t e r t h e h e a r i n g adopted t h e zone change rezoning t h e e a s t h a l f of l o t s 8B and 8C t o a motor b u s i n e s s zone. S u i t t o p r o h i b i t t h e enforcement of t h e change by Gutkoski was commenced on May 5 , 1971, and t h e d i s t r i c t c o u r t i s s u e d an a l t e r n a t i v e w r i t of p r o h i b i t i o n on May 13, 1971. After a h e a r i n g , t h e d i s t r i c t c o u r t d e c l a r e d t h a t t h e a c t i o n of t h e c i t y commission was I' s p o t zoning" and gave judgment i n f a v o r of Gutkoski, g r a n t i n g a w r i t of p r o h i b i t i o n . There a r e two i s s u e s presented by t h i s appeal. W shall e d e a l f i r s t w i t h t h e q u e s t i o n of whether t h e rezoning by t h e c i t y commission was i n f a c t II s p o t zoning" a s found by t h e d i s t r i c t court. There a r e many d e f i n i t i o n s f o r t h e term "spot zoning", b u t t h e most g e n e r a l i s a s d e f i n e d i n Thomas v. Town of Bedford, 11 N.Y.2d 428, 230 N.Y.S.2d 684,688: "* * 9; s p o t zoning * 7k * i s t h e ' p r o c e s s of s i n g l i n g o u t a small p a r c e l of land f o r a use c l a s s i f i c a t i o n t o t a l l y d i f f e r e n t from t h e surrounding a r e a , f o r t h e b e n e f i t of t h e owner of such p r o p e r t y and t o t h e d e t r i ment of o t h e r owners. ' I ' I n a review of t h e f a c t s we do n o t f i n d t h e Bozeman c i t y commission was g u i l t y of "spot zoning". The two l o t s a f t e r r e - zoning were n o t t o t a l l y d i f f e r e n t from t h e r e s t o f t h e area. To t h e n o r t h and e a s t of t h e s e two pieces of land was a l a r g e t r a i l e r been c o u r t , which h a d / i n e x i s t e n c e f o r some time p r i o r t o rezoning a c t i o n by t h e c i t y commission. It i s apparent t h a t t h e commission was doing n o t h i n g more than extending a p r e e x i s t i n g zone c l a s s i f i c a t i o n t o i n c l u d e a l a r g e r a r e a , which we conclude i s n o t "spot zoning'.'. The c a s e Law i n t h i s a r e a o f t h e l a w s u p p o r t s t h i s conclusion. The Supreme Court of Kansas i n a s u i t where a c i t y r e - zoned r e s i d e n t i a l p r o p e r t y t o a use o t h e r t h a n r e s i d e n t i a l upheld t h a t c i t y ' s a c t i o n a s n o t being "spot zoning", where t h e f a c t s showed t h a t t h e p r o p e r t y on t h r e e s i d e of t h e rezoned p r o p e r t y was devoted t o u s e s o t h e r t h a n r e s i d e n t i a l . o f Topeka, 197 Kan. 731, 421 P.2d 213. Arkenberg v. C i t y The Supreme Court of Washington i n McNaughton v . Boeing, 68 Wash.2d 659, 414 P.2d 778, 780, reached t h e same c o n c l u s i o n d e c l a r i n g : II W f i n d i t d i f f i c u l t t o envision the rezoning e from r e s i d e n c e t o b u s i n e s s of a undeveloped t r a c t of 23 a c r e s contiguous t o a b u s i n e s s zone a s cons t i t u t i n g 'spot zoning'. I t merely extended an e x i s t i n g b u s i n e s s zone. I I Based on t h i s r e a s o n i n g , we f i n d t h a t t h e r e z o n i n g of t h e two t r a c t s of land by t h e c i t y commission of Bozeman was an ex- terlsion of t h e motor b u s i n e s s zone and n o t "spot zoning". The remaining i s s u e r a i s e d by a p p e l l a n t s i s whether o r n o t i t w a s proper f o r t h e d i s t r i c t c o u r t t o i s s u e a w r i t of p r o h i b i - t i o n i n t h i s cause. I n view of our r u l i n g t h a t t h e d i s t r i c t c o u r t was i n e r r o r i n h o l d i n g t h e r e z o n i n g t o be "spot zoning", which w i l l r e q u i r e a r e v e r s a l of t h e judgment, t h e r e would appear t o be no n e c e s s i t y t o d i s c u s s t h e p r o p r i e t y of t h e d i s t r i c t c o u r t ' s procedure. The judgment i s r e v e r s and t h e d i s t r i c t coulrt i s d i r e c t e d I t o v a c a t e and annul t h e s a qnd &-smiss t h e a c t i o d . W e Concur:

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