STATE EX REL BARKER v STEVENSVILL

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No. 12351 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN 1974 STATE O M N A A ex r e l . DENZIL J. BARKER F OTN, and BETTY J E A N BARKER, P e t i t i o n e r s and A p p e l l a n t s , - -vs T W O STEVENSVILLE, e t a l . , O N F ROBERT B Respondents, - -vs . BROWN and FRANCES M. BROWN, e t a l . , P l a i n t i f f s and Respondents, and T W O STEVENSVILLE , ON F -vs P l a i n t i f f and I n t e r v e n o r and Respondent, - DENZIL J. BARKER and BETTY J E A N BARKER, e t a l . , Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable J a c k L. Green, Judge p r e s i d i n g . Counsel of Record: For Appellants : C h r i s t i a n , McCurdy, Ingraham and Wold, Polson, Montana Keith W. McCurdy argued, Polson, Montana For Respondents : Murray and H o l t , Missoula, Montana Harold L. Holt argued, Missoula, Montana L a r r y Persson, Hamilton, Montana Robert B. Brown, S t e v e n s v i l l e , Montana Submitted: Filed : JUL. - 2 1974 Decided : A p r i l 24, 1974 Jub - 2 1 m Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment denying an application for issuance of a writ of mandate. This is a unique case. theless It is in some respects moot, never- we feel justice requires a study of the matter and the granting of such relief as may be warranted. In July 1971, Denzil and Betty Jean Barker purchased two lots within the city limits of the Town of Stevensville, Montana. Denzil Barker was disabled and confined to a wheelchair. of his limited income and disability, Barker Because signed a contract to purchase what is commonly called a "double-wide" mobile home. Purchase was made through one Kratofil, a dealer in Hamilton, Montana. After completing arrangements for the purchase, Barkers left Montana on July 17, 1971 for California to sell their home there and move their belongings to Montana. Just prior to leaving they arranged to have one Siphers, the real estate agent who sold them the lots, to secure a building permit for them in their absence. Siphers agreed to so as a favor and acted gratuitously. Siphers appeared at the Stevensville town council meeting on July 19, 1971 to request the issuance of a building permit. He presented the council with a color brochure, a lot layout plan, and a floor plan. The council felt it needed more information and appointed Robert GJeber, the Stevensville police chief, to go to Hamilton, view the mobile home and report back to the counsil. tlayor Summers also volunteered to view the home. reported back to the council. Neither one Mayor Summers did view the home in Hamilton. At this point there is a conflict in the testimony. Mayor Summers said he thought the council had authorized him to issue the permit if, in his opinion, the Darker home was similar to a home previously allowed in the town. The council members however deny such authorization and testified they expected Mayor Summers to report back to them with his information. I n any e v e n t , a f t e r viewing t h e home, Summers r e t u r n e d t o S t e v e n s v i l l e and t o l d Raymond Meadows, t h e town o f f i c i a l who i s s u e s b u i l d i n g p e r m i t s , t o i s s u e one t o t h e Barkers. Meadows s t a r t e d t o f i l l o u t t h e permit b u t lacked i n f o r m a t i o n a s t o t h e number of rooms, b a t h s , e t c . and s o d i d n o t complete i t . He t e s t i f i e d t h a t had he had t h a t i n f o r m a t i o n he would have i s s u e d i t a t t h a t time. F u r t h e r Meadows, a s town b u i l d i n g i n s p e c t o r , caused t h e town's w a t e r main and sewer t o b e tapped t o a c c e p t t h e c o n n e c t i o n s from t h e Barker home. He t e s t i f i e d t h a t w a t e r and sewer t a p s a r e made a s a p a r t of t h e normal c o u r s e of e v e n t s a f t e r a b u i l d i n g permit h a s been i s s u e d ; t h a t t h e town c o u n c i l ' s a u t h o r i z a t i o n of b u i l d i n g p e r m i t s was normally communicated t o him by t h e mayor and t h i s had been t h e p r a c t i c e a s long a s he had been i n o f f i c e . L a t e r on t h e same day Summers had t o l d Pleadows t o i s s u e t h e p e r m i t , he encountered S i p h e r s on t h e s t r e e t and t o l d him t h e permit would i s s u e . S i p h e r s proceeded t o Pleadowst o f f i c e t o g e t t h e permit b u t he t o o lacked t h e i n f o r m a t i o n r e g a r d i n g t h e number of rooms, b a t h s , e t c . , so t h e permit d i d n o t i s s u e a t t h a t t i m e , 1 O August 7, 1971, a t about 1 a . m., n S i p h e r s t h a t t h e permit had been g r a n t e d . Summers a g a i n t o l d S i p h e r s , a c t i n g upon t h a t i n f o r m a t i o n , c a l l e d K r a t o f i l i n Hamilton and t o l d him t h e permit had been i s s u e d and t h e home could b e moved onto t h e Barker l o t s . O August 8 S i p h e r s w r o t e t o t h e Barkers informing them t h e permit n had been i s s u e d . However, t h e c o u n c i l , Mayor Summers i n c l u d e d , went i n t o s e s s i o n on t h e evening of August 7 , 1971 and t e n t a t i v e l y rejected the application. That d e c i s i o n was communicated t o S i p h e r s by Summers o r a l l y on t h e 8 t h , a f t e r S i p h e r s had w r i t t e n t o Barkers. K r a t o f i l , unaware of t h e r e j e c t i o n , moved one-half of t h e home o n t o t h e Barker l o t s on t h e 9 t h , b u t due t o h i g h winds w a s u n a b l e t o move t h e second h a l f t h a t day. L a t e r t h a t same day Summers c a l l e d K r a t o f i l and t o l d him t h a t no permit had i s s u e d . Being a t a l o s s , K r a t o f i l c o n s u l t e d c o u n s e l and moved t h e second h a l f of t h e mobile home a few days l a t e r . O August 14, 1971, t h e n town c o u n c i l met i n formal s e s s i o n and r e j e c t e d t h e a p p l i c a t i o n . O August 1 7 , 3 a r k e r s r e t u r n e d from C a l i f o r n i a and e a r l y on t h e n 18th f i r s t l e a r n e d of t h e i r t r o u b l e s . They immediately g a t h e r e d Lheir p l a n s , n e i g h b o r s ' a f f i d a v i t s i n s u p p o r t , and affidavits of a b u i l d i n g c o n t r a c t o r and an a r c h i t e c t and p r e s e n t e d them t o t h e 5 t e v e n s v i l l e Planning Commission. A t t h a t time t h e Planning Commission was i n t h e p r o c e s s of formation and a w a i t i n g a p p r o v a l 2rom t h e county commissioners, hence i t had no l e g a l s t a t u s and \+,as a d v i s o r y only. approval. The Planning Commission d i d , however, recommend This d e c i s i o n , a l o n g w i t h t h e p l a n s and a f f i d a v i t s , was r e s u b m i t t e d t o t h e town c o u n c i l . S h o r t l y a f t e r Barkers r e t u r n e d from C a l i f o r n i a two of t h e i r n e i g h b o r s i n s t i t u t e d s u i t a g a i n s t t h e Rarlcers seeking an i n j u n t i o n to compel them t o remove t h e housing u n i t . The Town of Stevens- v i l l e i n t e r v e n e d , a p p e a r i n g a g a i n s t t h e B a r k e r s , and c i t e d town o r d i n a n c e s which c a l l e d f o r p o s s i b l e j a i l s e n t e n c e s . O October n 2 9 , 1 9 7 1 , Barkers sought a w r i t of mandate t ? compel i s s u a n c e of t h e b u i l d i n g permit. O October 30, 1 9 7 1 , t h e town c o u n c i l s e n t a n l e t t e r t o t h e Barkers o r d e r i n g them t o remove t h e home. (The h0rr.e was removed i n May 1 9 7 2 ) . The two c a u s e s were c o n s o l i d a t e d f o r t r i a l b e f o r e t h e d i s t r i c t c o u r t , s i t t i n g withouc a j u r y . Judgment was e n t e r e d i n f a v o r of t h e Town of S t e v e n s v i l l e and a g a i n s t t h e Sarkers. They a p p e a l . During o r a l argument b e f o r e t h i s C o u r t , c o u n s e l informed t h e Court Lhe mobile home had been r e p o s s e s s e d b u t t h a t E a r k e r s s t i l l dwn t h e l o t s . O r d i n a r i l y t h i s would r e n d e r t h e a p p e a l moot, b u t we. f i n d o t h e r m a t t e r s j-n t h i s c a s e which we f e e l should be commented upon. W w i l l n o t d i s c u s s t h e i s s u e s r a i s e d by t h e Barkers. e W e fi-lid t h e i s s u e rai-sed by t h e r e c o r d , b r i e f s , and argument i s whether the conduct of t h e town c o u n c i l and t h e mayor of S t e v e n s v i l l e was s u fundamentally u n f a i r t o t h e Barkers a s t o r e q u i r e r e v e r s a l . W e hold t h a t i t was. The town c o u n c i l on t h e b a s i s of t h e a c t s o f t h e mayor and c l e r k should have been estopped from a s s e r t i n g t h e Barker home would have to be removed from t h e Town of S t e v e n s v i l l e because no b u i l d i n g permit had been i s s u e d t h e r e f o r e p u t t i n g t h e Barkers i n v i o l a t i o n o f town o r d i n a n c e s . - 4 - y,~/e e aware o f ar A he , p e a t weight of a u t h o r i t y h o l d i n g t h a t x u n i c i p a l c o r p o r a t i o n i s n o t bound by a c t s o r s t a t e m e n t s of i t s dgents o r o f f i c e r s made i n e x c e s s of t h e i r a u t h o r i t y , even where -3 s h i r d p a r t y has r e l i e d t h e r e o n t o h i s d e t r i m e n t . See: Anno. 6 .LK2d 960; 3 McQuillin Municipal C o r p o r a t i o n s , 3rd Ed., 5 12.126a. Various r a t i o n a l e s have been advanced f o r such a r u l e b u t t h e most soundly reasoned i s t h a t t o bind t h e c o r p o r a t i o n t o a c t s and s u t e m e n t s of i t s a g e n t s o r o f f i c e r s would have t h e e f f e c t of ilidking c i t y o r d i n a n c e s and r e g u l a t i o n s a n u l l i t y e v e r y time a luunicipal a g e n t o r o f f i c e r l e d a t h i r d p a r t y t o a c t i n c o n t r a v e n t i o n of such ordinance r e g u l a t i o n . 6 ALR2d 960, 94. T h i s r u l e c o u l d be extremely h a r s h i n i t s a p p l i c a t i o n . It i s t o s n i t i g a t e t h i s h a r s h n e s s t h a t some s t a t e s have f a s h i o n e d a qualification t o t h i s general rule. The I l l i n o i s r u l e a s s t a t e d i n C i t i e s S e r v i c e O i l Co. v. C i t y of Des P l a i n e s , 21 I11.2d 157, 171 605, 608, i s : N.E.2d "The g e n e r a l r u l e i s q u a l i f i e d , however, t o e n a b l e a p a r t y t o invoke t h e d o c t r i n e where h i s a c t i o n was induced by t h e conduct of municipal o f f i c e r s , and where i n t h e absence of such r e l i e f he would s u f f e r a s u b s t a n t i a l l o s s and m u n i c i p a l i t y would be p e r m i t t e d t o s t u l t i f y i t s e l f by r e t r a c t i n g what i t s a g e n t s had done. 1 1 A p p l i c a t i o n of t h i s q u a l i f i c a t i o n h a s been used s p a r i n g l y . People ex r e 1 Amer. N a t ' l Bank and T r u s t Co. of Chicago v. Smith, 110 I l l . k p p . 2 d 354, 249 N.E.2d 1-29 IIl.App.2d 75, 262 N.E.2d 232; C i t y of Rockford v. S a l l e e , 485. Nonetheless i t i s a v a i l a b l e f o r t h o s e e x c e p t i o n a l c a s e s where i t s u s e i s j u s t i f i e d . Emerald Home B u i l d e r s , Inc. v. Kolton, 11 I l l . A p p . 3 r d 888, 298 N.E.2d 2 Municipal Corporation Law, Antieau (1973 Ed.), 275. 5 16A..05, criticizes t h e g e n e r a l r u l e , s a y i n g : he p r e v a i l i n g r u l e i s u n j u s t and should be repudiated or a t l e a s t qualified." I n 2 Nunicipal Corporation Law, Antieau (1973 Ed.), S16A.06, a t e s t i s suggested f o r c i r c u m s t a n c e s i n which t h e d o c t r i n e should II It i s suggested t h a t t h e r e should be no g e n e r a l r u l e t h a t e s t o p p e l i s n o t t o be a p p l i e d i n p o l i c e power s i t u a t i o n s . Rather c o u r t s should be encouraged t o weigh i n e v e r y c a s e t h e g r a v i t y of t h e i n j u s t i c e t o t h e c i t i z e n if the doctrine is not applied against the injury to the common weal if the doctrine is applied in that case. Where any danger to the public is slight and. a citizen has made a good faith and substantial change in position in reasonable reliance upon the conduct or representations of municipal officials and agents, several courts have estopped the local government from exercising their 'police power' in a way inconsistent with their prior representations ar actions. II We agree with this approach. In cases of this kind there should be a balancing of the municipal corporation's unwarranted assumption of risk of liability for acts or statements of its agents or employees made in excess of their authority against the harm done to good faith, innocent and unknowledgeable third parties who act in reliance upon those representations. It follows that each case will necessarily have to be judged upon its own unique factual situation. We do not suggest that a municipal corporation will not be able to enforce valid city ordinances when its agents have acted in excess of their authority. However, by the same token, we are not willing to permit the municipal corporation to deny the validity of its agents' actions in all cases. To do so lends itself too readily to situations in which equity and justice would be denied. Applying what has been said heretofore to the instant case, we find that a town official, the mayor, represented to ~arkers' agent that a building permit had issued, when in fact it had not, thereby resulting in a course of action by the Barkers and their agent leading to a substantial loss. We have a situation where application for a building permit was made to the t o ~ m council. The t o ~ m council felt that more information was necessary in order for it to reach a decision. To that end one man was appointed by the council and another volunteered to obtain that information. to~m council. Neither man ever reported back to the Yet at a subsequent meeting, the application was rejected for lack of that information. comport with elemental fairness. Such a procedure does not 'de now have t h e ~ r o b l e r nof g r a n t i n g a p p r o p r i a t e r e l i e f . h u u s i n g u n i t i s gone and cannot be put back. i3 'the W w i l l n o t go s o f a r e t o g i v e t h e Barkers c a r t e blanche t o move any housing u n i t of Chcir c h o i c e o n t o t h e i r l o t s , w i t h o u t meeting t h e terms of t h e i l ~ p l i c a b l e rdinances. o W do hold however, t h a t upon proper a p p l i e ddcion t h e y a r e e n t i t l e d t o a f a i r review, and i f d e n i e d , a w r i t t e n 2 x p l a n a t i o n o f t h e r e a s o n s w i t h i n a r e a s o n a b l e time. Costs i n t h e s e c o n s o l i d a t e d c a s e s s h a l l be t a x e d i n t h e d i s t r i c t c o u r t i n f a v o r of t h e Barkers and a g a i n s t t h e Town of ~ r e v e n s v i l l e ,i n c l u d i n g a n a t t o r n e y f e e hereby f i x e d a t t h e sum ui $750.00. W Concur : e fl \ . i , -J-,4:-rld-jSui-2$ ( b ------4 we----- : ----- ,i. Chief J u s t i c e ................................. Justices. * m . \ N r Justice Gene B. Daly specially concurring: l. I concur with the majority that to prevent unnecessarily harsh results to the common weal in selected cases, where the facts permit, an equitable exception to the rule can be applied. However, once committed to this rationale the Court must proceed to do equity. Here the majority has given the Barkers the right to a fair review upon proper application. fore the municipal authorities, in I assume this would be be- which case this result could have been obtained without the aid of this Court. These people asked for the right to proceed to assemble and occupy a two-wide preconstructed home on their property, not carte blanche authority to move any house onto the property. The housing unit is gone by repossession, but nowhere in the record is it indicated it cannot or will not be replaced. Therefore, the appellants have gained nothing unless equity A/% gives them the relief prayed for. ------------ ------Justice h.fr. J ~L ~ ~ c~Frank 1. Yaswell specially concurring -in Justice e - : ~ a i y ' s specially concurring opinion< I concur i n the foregoing specially concurring opinion of 3r. Justice Dafy. Justice.

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