State Ex Rel. Hilands Golf Club v. City of Billings , 198 Mont. 475 ( 1982 )

No. 81-367
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE ex re1 HILANDS GOLF CLUB,
a non-profit Corporation,
Relator and Respondent,
THE CITY OF BILLINGS, MONTANA a
municipal corporation, et al.,
Appellants and Respondents.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellants:
Peterson Law Offices, Billings, Montana
Kenneth D. Peterson argued, Billings, Montana
For Respondent:
Berger, Sinclair & Nelson, Billings, Montana
Arnold Berger argued, Billings, Montana
Submitted: January 13, 1982
Decided: June 24, 1982
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The City of Billings appeals a Yellowstone County
District Court judgment which declared that the Hilands Golf
Club is statutorily exempted from the City's attempts to
annex it.
The City has raised three arguments. It claims first
that the statutory exemption for golf courses does not apply
to annexations commenced under the Planned Community Development
Act. Second, it claims that the Golf Club was not entitled
to protest the City's proposed annexation because it is not
a "resident freeholder" who is entitled to object under the
Act, and because the Golf Club filed no written protest with
the City, as the Act requires. Third, the City claims that
mandamus was an improper remedy in this case because the Act
provides for judicial review.
We hold that the statutory exemption for golf courses
does not apply to annexations commenced under the Planned
Community Development Act, that corporations are "resident
freeholders" as that term is defined by the Act, that the
City received written notice of the Golf Club's protest to
the annexation, and that mandamus was a premature remedy in
this case. We also hold as a matter of law that the City
cannot annex the Golf Club under the Planned Community
Development Act unless the Golf Club consents to the annexation.
We affirm and modify the District Court's judgment and dismiss
the case.
The Hilands Golf Club owns a 45 acre, nine-hole golf
course which was completely surrounded by open country and
farmlands when it was established in 1923, but which is now
completely surrounded by the City of Billings. The City
first attempted to annex the Golf Club in 1972, under section
7-2-4501, et seq., MCA, a procedure for the annexation of
wholly surrounded land. It was unsuccessful, however,
because section 7-2-4503(2), MCA, provides that golf courses
are exempt from annexation under that procedure. he City's
next attempts at annexing the Golf Club over the next few
years were terminated for a variety of reasons which need
not be explained here.
After the City passed a December 1980 Resolution of
Intention to Annex the Golf Club, the Golf Club petitioned
the Yellowstone County District Court to issue a writ of
mandamus commanding the City to terminate its annexation
attempt because the Golf Club was still exempt from annexation
under section 7-2-4503(2), MCA. The District Court issued
this writ in early January 1981, but gave no reasons for its
command to terminate the annexation procedure. Despite the
issuance of that writ, the City nonetheless passed an ordinance
which would make the Golf Club's annexation effective on
March 26, 1981. After an April 24, 1981 nonjury trial, the
District Court adopted verbatim the Golf Club's proposed
findings and conclusions, and held that the City was without
jurisdiction to annex the Golf Club under section 7-2-
4503(2), MCA. (In City of Billings v. Public Service Comrn'n.
(19811, - Mont . - 631 P.2d 1295, 38 St.Rep. 1162; Jensen
,
v. Jensen (1981), - !Int
!o . -, 631 P.2d 700, 38 St.Rep. 1109;
Beck v. Beck (1981), - Mont. - 631 P.2d 282; 38 St.Rep.
,
1054; Tomaskie v. Tomaskie (1981), - Mont . -, 625 P.2d 536,
38 St.Rep. 416, we have disapproved the practice of verbatim
adopting a party's proposed findings and conclusions.)
The City appeals that decision, claiming that it has
proceeded under the Planned Community Development Act (section
7-2-4701, et seq., MCA), which provides no exemptions for
golf courses.
After this Court's decision in Missoula Rural Fire
District v. City of Missoula (1975), 168 Mont. 70, 540 P.2d
958, holding that the Planned Community Development Act
superseded the other forms of annexation where a conflict
existed, the 1979 Montana Legislature recodified the confusing
maze of eight statutory annexation procedures into six
separate "Parts" (Title 7, Ch. 2, Parts 42-47) and amended
the Planned Community Development Act to provide that each
of these eight methods of annexation is a separate and
distinct procedure. Section 7-2-4204(2), IKA, states:
"The governing body of the municipality to which
territory is proposed to be annexed may in its
discretion select one of the annexation procedures
in parts 42 through 47 that is appropriate to the
circumstances of the particular annexation. The
The statutory exemption for golf courses pertains only
to the situation in which a city attempts to follow the
procedure for annexing wholly surrounded land (sections 7-2-
4501, et seq., MCA). It is important to note that under that
procedure the legislature provided no right to object to the
annexation, but gave protection to certain landowners by
providing that
"Land shall not be annexed ---
under this part
whenever the land is used:
" (1) for agricultural, mining, smelting, refining,
transportation, or any industrial or manufacturing
purpose; or
"(2) for the purpose of maintaining or operating
a - -or country club, an athletic field or aircraft
golf
landing field, a cemetery, or a place of public or
private outdoor entertainment or any purpose incident
thereto." (Emphasis added.) Section 7-2-4503, MCA.
In this case, however, the City chose to attempt annexation
by the method set forth in the Planned Community Development
Act, thereby avoiding the golf club exemption contained in
section 7-2-4503, MCA. The Planned Community Development Act
provides no exemption for golf courses, but i& does provide that
a majority of residents who oppose annexation may file written
protests and thereby prevent annexation. Under this method
of annexation the City is required to:
"1. file a resolution of intention to annex,
describing the hearing date to be set not
less than 30 and not more than 60 days
following adoption of the resolution
(section 7-2-4707, MCA)
"2. publish the notice for four successive
weeks in a newspaper or in five other
public places (section 7-2-4708, MCA)
"3. hold a hearing on the question of
annexation (section 7-2-4709, K A )
"4. receive written protests from resident
freeholders in the area proposed to be
annexed for 20 days after the hearing
(section 7-2-4710, MCA)
"5. stop annexation proceedings for one year
if a majority of resident freeholders
protest in writing (section 7-2-4710, MCA)."
The record shows that neither party proceeded exactly
in conformity with these rules. Instead of directly filing
a written protest with the City, the Golf Club served the
City with a copy of its petition for a writ of mandamus.
Counsel for the City admitted during argument of this case
that the City was aware of the Golf Club's protest before it
passed its Resolution of Intention to Annex the Golf Club,
and that the Golf Club's petition for a writ of mandamus was
received within 20 days after the public hearing and was
sufficient to constitute written notice of the Golf Club's
protest. As such, it is clear that the sufficiency of the
Golf Club's notice is no longer in dispute, and we don't
need to address this issue further.
In seeking to avoid application of the protest provision
in section 7-2-4710, MCA, the City contends that the legislature
did not intend for corporate landowners to be considered
"resident freeholders" with the right to object to annexations
commenced under the Planned Community Development Act. The
Act provides that "resident freeholder" means "a person who
maintains his residence on real property. . . ." Section
7-2-4704(3), MCA. The City argues that because this definition
does not specifically include or make reference to corporate
landowners, the Golf Club should be considered a "non-resident
freeholder" who has no absolute right to terminate the
City's annexation attempt, and instead, must convince the
City to terminate it. We find this argument meritless. If
the legislature had intended to exclude corporate landowners
from the definition of "resident freeholders" and afford
them fewer rights than other landowners, it should have
stated that intention more explicitly. A corporation which
owns real property is a "resident freeholder" as that term
is defined in the Act.
The City argues that annexation under the Planned
Community Development Act is the proper way to proceed in
this case because the City can provide - the services the
all
Golf Club may need. The City argues that the Golf Club
presently pays no taxes to the City, but receives the benefits
of police patrol, fire protection, and road services in the
areas surrounding the Golf Club. The City admits that
annexing the Golf Club would ease the burden on the City's
taxpayers.
The Planned Community Development Act was enacted in
response to the situation where
". . . in many cities city government is annexing
and adding to cities not to the benefit of those
being annexed, but to the benefit of the city,
merely to derive a greater tax base." (Emphasis
added. )-section 7-2-47022
=, (
~)
Under this Act, a City which desires to extend services to a
non-annexed area must hold a public hearing and explain what
services will be provided and how they will be financed.
The resident freeholders in the area to be annexed may vote
on any proposed capital improvements for the area. --
If a
negative - -is cast by more than 50% of the resident
vote - - - - - - -
freeholders, - - - - - annexed.
the area may not be section 7-2-4733, P I A
eC.
Here, the City received a 100% negative vote (because there
was only one resident freeholder who protested), and therefore
was prohibited for one year from attempting to annex the
golf course. At the end of this one year period, the City
may again attempt to obtain the consent of the majority of
resident freeholders. Section 7-2-4710 (2), MCA.
We also hold that the petition for a writ of mandamus
in this action was premature. Under the Planned Community
Development Act, there are extensive procedures for judicial
review. Within 30 days following passage of the annexation
ordinance, a majority of the resident freeholders (or the
owners of more than 75% in assessed valuation of real property)
may petition the court for review to determine if the statutory
procedures were followed by the City. Therefore, the petition
for a writ of mandamus should not have been filed until
after the Golf Club's written protest to the City was wrongfully
ignored. Because neither party to this action followed the
statutory procedures, each party will bear its own costs and
attorney fees.
As modified, the judgment is affirmed.
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