WHEELER v ARMSTRONG
Annotate this Case
Download PDF
No. 12192 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1972 JAMES E. WHEELER and EDITH WHEELER, P l a i n t i f f s and Appellants, RALPH ARMSTRONG, CLIFFORD PASHA, W L E SALES, e t a 1 , ATR . Defendants and Respondents. Appeal from: District Court of t h e Eighteenth J u d i c i a l District, Honorable M. James S o r t e , Judge p r e s i d i n g , Counsel of Record: For Appellants : Lyman H, Bennett, Jr, argued, Bozeman, Montana. For Respondents: Thomas A. Olson, County Attorney, argued, Bozeman, Montana. Submitted: Decided : Filed: JUN - 9 1Sh A p r i l 18, 1972 - J N 9 1% U Mr. J u s t i c e Wesley Castles delivered the Opinion of the Court. T h i s i s an appeal from an order of the d i s t r i c t court in Gallatin County, the Honorable M. James Sorte, presiding. Judge S o r t e ' s order of September 28, 1971 , reads : "Defendants moved t o dismiss the petition on f i l e herein upon the ground t h a t e s s e n t i a l l y the same matters and the same p a r t i e s now before the Court, were presented i n local cause No. 19205, Planning and Zoning Commission vs. James E . Wheeler and heard by Hon. Sid G . Stewart, presiding Judge, and t h a t the f i n a l judgment i n t h a t cause was binding on the Zoning Commission and on t h i s Court on the questions presented in the Plaint i f f s ' petition. "The matter was f u l l y argued by both counsel and the Court having taken judicial notice of local causes, No. 18954 and No. 19205, and being f u l l y advised as t o the law, "IT IS ORDERED t h a t Defendants' motion t o dismiss the p e t i t i o n on f i l e herein i s granted, and the r e l i e f sought i n the p e t i t i o n i s denied." I t i s from Judge S o r t e ' s order t h a t the Wheelers now appeal t o t h i s Court. Appellants here were p l a i n t i f f s below and will be referred t o hereafter as the Landowners. Respondents a r e members of the Zoning Board of Planning and Zoning D i s t r i c t No. One, Gallatin County and will be hereafter referred t o as the Zoning Board. Three of the named defendants a r e a l s o the county commissioners of Gal 1a t i n County. The Landowners owned some eight acres of land which l i e s d i r e c t l y west of Bozeman. In 1970, Landowners made some attempts t o Use t h e i r vacant land f o r a mobile home court which eventually would contain some forty-seven t r a i l e r s o r mobile homes. A t t h a t time, there were no r e s t r i c t i o n s on the use of the land. In the same year, 1970, other landowners i n the area, who had been trying t o establish a zoning d i s t r i c t since about the year 1966, f i l e d an action seeking a writ of mandamus t o force the county commissioners t o a c t on establishment of a zoning d i s t r i c t . On May 18, 1970, the p a r t i e s t o the man- damus action appeared before Judge Victor H. Fall and consented t o t h e findings of f a c t and conclusions of law and a judgment. Judge Fall found t h a t the county commissioners had appointed a planning and zoning commission and had created a valid planning and zoning d i s t r i c t . He found, however, t h a t no development pattern, required by the s t a t u t e , had been made and he directed such a pattern t o be adopted. On June 5, 1970, Landowner, James Wheeler was made a party and was enjoined from proceeding with the construction of the t r a i l e r court u n t i l a hearing could be had. Wheeler, through counsel, entered the case by motion t o quash the restraining order and t h e r e a f t e r Judge Fall l i f t e d the injunction. Wheeler, one of the Landowners, continued t o be a party t o the suit. On June 12, 1970, the Zoning Board adopted ordinances f o r the area i n question which defined a rural r e s i d e n t i a l zone and the existence of mobile home courts o r parks a "conditional use". A procedure was s e t f o r t h f o r obtaining permission t o build a "conditional use". N appeal was taken o by any party t o t h a t lawsuit. A t the time of the adoption of the foregoing ordinance on June 12, Landowners had moved three mobile homes onto t h e i r land and had provided Subsequently Landowners services f o r three more, making a t o t a l of s i x . continued t o move mobile homes onto the land. On November 2 , 1970, the county attorney f i l e d an action f o r injunction t o stop the construction of the mobile home court. This matter was t r i e d in the d i s t r i c t court on Jan- uary 15, 1971 , w i t h the Zoning Board, Landowners and neighboring l andowners a l l participants. The t r i a l court, Judge Sid Stewart then presiding, con- cluded t h a t Wheelers had established a nonconforming use f o r s i x t r a i l e r s . Wheelers were permanently enjoined from f u r t h e r violations of the ordinance and were ordered t o remove a l l b u t s i x t r a i l e r s . T h i s order was dated May 3 , 1971. Wheelers did not comply with the order t o remove a l l but s i x t r a i l e r s ; and, i n f a c t , continued t o move more t r a i l e r s on i n vi.olation of the order. The neighboring landowners then sought, on June 24, 1971, by motion t o enforce the judgment, t o force Wheelers t o comply. After t h i s attempt t o enforce the judgment, the Wheelers then, on June 30, 1971, f i l e d a p e t i t i o n f o r variance before the Zoning Board. On July 9, 1971, the Zoning Board denied the p e t i t i o n f o r variance on two grounds: ( a ) a l l of the matters raised have been presented t o the d i s t r i c t court and the d i s t r i c t court has made i t s decision; and ( b ) i t was the opinion of the Board t h a t the public i n t e r e s t would not be served by a granting of t h e variance a t this l a t e date. Meanwhile, on the same day, July 9, 1971, Judge Stewart held a hearing on the motion t o enforce t h e judgment mentioned above; and a t the conclusion, the court noted t h a t the previous judgment was c l e a r , t h a t the nonconforming use was 1imited t o s i x t r a i l e r s , and s a i d : "That i s the order of the Court. And i t will be carried out. And i f counsel d e s i r e s t o have the defendants c i t e d i n t o court f o r contempt well, they may do so. If they do, t h a t i s going t o be the ruling of the Court u n t i l i t i s changed and u n t i l proper procedures a r e brought f o r a change. Definitely, they a r e v i o l a t ing the Court Order when they have more than s i x t r a i l e r s on t h a t court. I f you wish, you may draw an order t o t h a t e f f e c t and have the s h e r i f f serve i t upon them. That may eliminate a contempt procedure. The Court would be willing t o go ahead w i t h t h a t . " Judge Stewart having indicated t h a t the next s t e p i n the proceeding would have t o be a contempt hearing, Intervenors on August 3, 1971 , f i l e d an action charging contempt. Judge Stewart was thereupon d i s q u a l i f i e d and the matter heard by the Honorable Bernard W. Thomas on September 1 , 1971. After hearing testimony, Judge Thomas gave the Wheelers u n t i l October 12, 1971 t o comply w i t h the judgment. The Wheelers s t i l l refused t o comply w i t h Judge Stewart's order and f a i l e d t o b r i n g t h e i r property i n t o compl iance by the dead1 ine of October 12, 1971. Thereafter, counsel f o r the Intervenors f i l e d an a f f i d a v i t s t a t i n g t h a t ten t r a i l e r houses remained on the property and on October 18, 1971, Judge Thomas found the Wheelers t o be in contempt and fined each of them Two hundred f i f t y d o l l a r s ($250.00) plus the sum of Twenty-five do1 l a r s ($25.00) each per day t h a t the Wheelers remained i n contempt of court. On October 21, 1971, the Wheelers indicated t o the Court t h a t they were i n compliance w i t h Judge Stewart's order and paid t o the c l e r k of the d i s t r i c t court the sum of $600 representing a contempt f i n e . Heretofore we have recited the f i l i n g , an June 30, of the p e t i tion f o r variance before the Zoning Board. Cause No. 19630. Variance appeal presently before the Court. A indicated above, on o r about June 30, 1971, the Wheelers submitted a s "Petition f o r Variance" t o the Zoning Board. Essentially the p e t i t i o n f o r variance s e t forth t h a t the Wheelers a f t e r learning t h a t i n the spring of 1970 there were no regulations prohibiting a mobile home court i n the area, converted t h e i r eight acres of land i n t o a mobile home court and received approval from the Gallatin County Health o f f i c e . Also, t h a t a non- conforming use f o r s i x t r a i l e r s had been established, t h a t the lands were and useless f o r any other purpose, /that the creation of the mobile home court was done i n reliance upon assurances of the county o f f i c i a l s t h a t the Wheelers had exhausted t h e i r resources and would s u f f e r hardship i f the zoning ordinance were " s t r i c t l y enforced" as against p e t i t i o n e r s . Also, i t was alleged there was no health or s a f e t y problem created and t h a t the value of nearby property would not be damaged by use of the e i g h t acres as a mobile home court. I t was alleged t h a t the immediate neighbors did not object t o the maintenance of the mobile home court. As indicated above the Zoning Board met and considered the p e t i t i o n , without pub1 i c hearing, and notice, and elected t o deny the p e t i t i o n upon the grounds t h e matter had been considered by the d i s t r i c t court and the d i s t r i c t court had made i t s decision. Further, the Board held t h a t t h e public i n t e r e s t would not be served by the granting of a variance a t such a l a t e time. W repeat some of the dates heretofore r e c i t e d . e variance was f i l e d June 30, 1971. The p e t i t i o n f o r The Zoning Board denied the petition on July 9, 1971. Judge S o r t e ' s order dismissing the petition was on September 28, 1971. Meanwhile, i n the other action concerned w i t h the attempt of the Zoning Board t o enforce Judge Stewart's judgment, the motion was f i l e d on June 24, 1971 (before the p e t i t i o n f o r variance). On July 9, 1971 , Judge Stewart ruled as heretofore quoted. The contempt action was f i l e d on August 3 , 1971. Judge Thomas gave Wheelers u n t i l October 12, 1971 t o comply, and on f a i l u r e , Judge Thomas fined them f o r contempt. This was paid on October 21 , 1971 . Thus we have Landowners Wheeler f a i l ing t o comply with court orders during the same time they a r e petitioning f o r variance f o r the very same a c t i v i t y they a r e i n contempt f o r . A d i f f e r e n t judge now, Judge Sorte, considers the appeal from the order denying a variance; b u t takes judicial notice of the other f i l e s i n t h a t court. Appellant Landowners s t a t e four issues f o r review; which we summarize as being whether the Landowners a r e e n t i t l e d t o a hearing on t h e i r petition f o r variance. Respondents do not squarely answer the contentions of appel l a n t s , but r a t h e r s e t up two reasons why the d i s t r i c t court was correct. These reasons a r e (1) the issues presented on the p e t i t i o n f o r variance a r e the same as decided i n local Cause No. 19250, involving the same p a r t i e s , and (2) t h a t the Zoning Board did not e r r since the issues and p a r t i e s a r e the same. The s i t u a t i o n here i s this: Landowners Wheeler were fighting on one f r o n t t o stop the application of the new zoning ordinances t o t h e i r property. They succeeded t o the extent of s i x mobile homes. While t h a t b a t t l e i s going on, Landowners Wheeler attempt t o conform t o the zoning ordinance by petitioning the Zoning Board f o r a variance. Meanwhile the Zoning Board b a t t l e s t o stop the Wheelers i n the court action. While t h a t b a t t l e rages, they summarily deny the p e t i t i o n f o r variance on the grounds t h a t the court has decided the matter and the public i n t e r e s t would not be served a t t h i s l a t e date. Respondents would have us apply the r u l e s of res adjudicata as stated i n Brannon v . Lewis & Clark Cty., 143 Mont. 200, 387 P.2d 706; Smith v. Baxter, 148 Mont. 291, 419 P.2d 752; and Smith v . County of Musselshell, 155 Mont. 376, 472 P.2d 878. The c r i t e r i a are: ( 1 ) Parties the same; ( 2 ) Subject matter of the action the same; (3) The issues must be the same and must r e l a t e t o the same subject matter; and (4) The capacities of other persons must be the same i n reference t o t h e subject matter and t o the issues between them. I t would appear, i f these c r i t e r i a have been met, t h a t Landowners Wheeler have had due process, have had t h e i r opportunity t o be heard on a l l matters. The respondents then go on t o argue t h a t even though a variance i s not the same as a defense and proof of a nonconforming use, t h a t the designation of the petition as a "variance" p e t i t i o n i s somehow i n bad faith. However, the f a c t t h a t Landowners Wheeler had f a i l e d t o e s t a b l i s h a nonconforming use t o a l l e i g h t acres they owned, does not d e t r a c t from t h e f a c t t h a t they were successful in establishing a nonconforming use t o s i x units. To then seek a variance f o r the balance does not s t r i k e t h i s Court as evidence of "bad f a i t h " . I t i s t r u e t h a t they were in contempt and paid f i n e s f o r contempt, b u t they have simply never had a hearing on t h e i r p e t i t i o n f o r variance. While the d i f f i c u l t i e s of convincing the Zoning Board under the f a c t s and circumstances here a r e readily apparent, a t the very l e a s t due process requires an opportunity t o be heard. I t is c l e a r t h a t under the c r i t e r i a heretofore s e t f o r t h , the same issue i s not present. n o t t h e same. A nonconforming use and a variance a r e simply Accordingly Judge Sorte's order appealed from i s s e t aside and the matter returned to the d i s t r i c t court f o r hearing on the petition f o r variance.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
