Opinion
No. 13019.
Submitted November 6, 1975.
Decided February 4, 1976.
Appeal from District Court of Powell County. Third Judicial District. Hon. Robert Boyd, Judge presiding.
Poore, McKenzie, Roth, Robischon Robinson, P.C., Butte, Urban L. Roth, argued, Butte, David J. Wing argued, Butte, for plaintiffs and petitioners.
James H. Goetz, argued, Bozeman, James Masar, appeared, Deer Lodge, for defendants and respondents.
Appellant James B. Spring of the firm Christian, Spring, Sielbach Associates, filed an action on June 27, 1974, against the Clerk and Recorder and Commissioners of Powell County, seeking to compel by writ of mandamus the acceptance and recordation of a "certificate of survey". Hearing was had in late July 1974 and judgment for respondents was entered in the district court, Powell County in October 1974.
Several days before this action arose, the Powell County Board of Commissioners met at special session to pass a resolution termed a "Temporary Interim Zoning Regulation" pursuant to section 16-4711, R.C.M. 1947, which provides:
"Interim zoning map or regulation. If a county is conducting, or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a master plan or zoning regulations or an amendment, extension, or addition to either pursuant to this chapter, the board of county commissioners in order to promote the public health, safety, morals, and general welfare may adopt as an emergency measure a temporary interim zoning map or temporary interim zoning regulation, the purpose of which shall be to classify and regulate uses and related matters as constitutes the emergency. Such interim resolution shall be limited to one (1) year from the date it becomes effective. The board of county commissioners may extend such interim resolution for one (1) year, but not more than one (1) such extension may be made."
The regulation stated that a master plan was or would be under consideration within a reasonable time to cover all private land in the North Powell Soil Conservation District in the Big Blackfoot drainage area of Powell County.
Prior to the passage of that regulation, Spring contacted Bonnie J. Miller, the Powell County clerk and recorder, to inquire whether a certificate of survey regarding this area would be accepted for recordation. Spring was advised the certificate would be recorded if it properly complied with Montana law. Spring then directed his employees to survey the land in question and on June 27, 1974, presented the resulting certificate of survey for recordation, along with the statutory recording fee. By that date, the interim regulation had been passed and the clerk and recorder sought advice as to its effect. She was informed by letter of the Powell County attorney that:
"* * * the intent of the resolution was to prevent further subdivision in the North Powell Soil Conservation area * * * for an interim period while further studies could be made. While the filing of a Certificate of Survey does not necessarily imply an intent to subdivide, it is my opinion that no other purpose is served by such filing and in order to implement and execute the purpose and intent of the resolution it is my recommendation that you not accept any Certificates of Survey which may be tendered to you for recording or filing until the expiration of the 90 day moratorium which may be extended."
Guided by this opinion, the clerk and recorder rejected both the certificate and the recording fee when Spring tendered them for filing.
The parties do not dispute that the certificate of survey complied in all technical respects with the requirements of Montana law, or that the notice provisions of section 16-4705, R.C.M. 1947, were not followed by the board of county commissioners in adopting the regulation. It is further admitted the document involved here is a "certificate of survey" within the meaning of section 11-3861, R.C.M. 1947, and not a "subdivision plat" as defined by that statute. For the purposes of this appeal we accept the county attorney's advice that this certificate of survey has no other purpose.
Spring challenges the validity of the temporary interim zoning resolution for a variety of reasons. But for purposes of this appeal, we need only discuss the undisputed failure of the county board of commissioners to comply with the notice and hearing requirements set forth in section 16-4705, R.C.M. 1947. In Bryant Development Association v. Dagel, Mont., 531 P.2d 1320, 1324, this Court recognized the direct applicability of section 16-4705 to county action authorized by section 16-4711:
"In viewing Chapter 47, Title 16, R.C.M. 1947, as a whole, it is clear that section 16-4711, providing for the enactment of emergency zoning regulations, is governed by the provisions of section 16-4705, providing for notice and hearing "in the adoption or amendment of zoning regulations.'"
Respondents recognize that Bryant is dispositive and controlling of this issue, but urge the reconsideration and reversal of the Bryant rule. In support respondents cited several cases from other jurisdictions. These cases hold, in the interest of preserving the status quo under circumstances sufficiently urgent to warrant an emergency resolution, that the due process requirements need not be followed until a permanent ordinance is under consideration. Metro Realty v. County of El Dorado, 222 Cal.App.2d 508, 35 Cal.Rptr. 480; McCurley v. City of El Reno, 138 Okla. 92, 280 P. 467.
We recognize the underlying policy which engendered the rule as announced by such cases as Metro Realty and McCurley. But the law of Montana has been clearly and recently set forth in Bryant. We believe it to be the better rule, and the rule supported by the majority of authorities. City of Miami Beach v. State, Fla.App., 108 So.2d 614, cert. den., Fla., 111 So.2d 437; Lancaster Development, Ltd. v. Village of River Forest, 84 Ill. App.2d 395, 228 N.E.2d 526, 30 A.L.R.3d 1190; Krajenke Buick Sales v. Kopkowski, 322 Mich. 250, 33 N.W.2d 781; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63.
In Montana, the salutary statutory scheme comprised of the Montana Subdivision and Platting Act, sections 11-3859 et seq., R.C.M. 1947, and such provisions as section 16-4711, R.C.M. 1947, must be tempered by the fundamental right to notice and the opportunity to be heard. The district court erred when it denied appellant's petition for a writ of mandamus. This particular temporary interim zoning regulation is null and void for the failure to observe the proper procedures upon its enactment.
The cause is remanded to the district court with directions to grant attorney fees.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES HASWELL, CASTLES and DALY concur.