Westside Neighborhood Betterment Committee v. City of Great Falls

No. 89-421
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
WESTSIDE NEIGHBORHOOD BETTERMENT COMMITTEE,
Plaintiff and Appellant,
-vs-
CITY OF GREAT FALLS, and THE SALVATION ARMY,
Defendants and Respondents.
APPEAL FROM: ~istrictCourt of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant (s):
Patrick F. Flaherty; Flaherty & Winner, Great Falls,
Montana
For Respondent (s):
David V. Gliko, City Attorney, Great Falls, Montana
Randall H. Gray; James, Gray & McCafferty, Great
Falls, Montana
Submitted on Briefs: Dec. 21, 1989
Decided: March 9, 1990
Filed: ,-.
I
Clerk
Justice John C. Sheehy delivered the Opinion of the Court.
Westside Neighborhood Betterment Committee appeals from a
judgment of the District Court, Eighth Judicial District, Cascade
County, upholding the issuance of a building permit to the
Salvation Army. We affirm the District Court.
The issues raised by appellant are:
1. Whether the building permit was issued in violation of
municipal codes, and is therefore void.
2. Whether the proposed building is in violation of 5 76-2-
304, MCA.
On October 5, 1988, the Great Falls Salvation Army applied for
and was issued a permit for the construction of a new warehouse.
Area land owner Edward Judge formally protested the issuance of the
permit and requested a review by the Great Falls Board of
Adjustment. The Board reviewed the matter, and allowed the permit
as issued.
The matter was then appealed to the Great Falls City
Commission, which denied the permit on December 20, 1988. Counsel
for the Salvation Army subsequently informed the Commission that
it had no legal basis to withdraw the permit, and asked for
reconsideration of the matter. At the Commissionlsnext meeting
on January 3, 1989, the decision was reversed and the permit
issuance approved.
On January 31, 1989, Westside Neighborhood Betterment
Committee (Westside) filed a petition for a writ of certiorari, and
a complaint seeking a declaratory judgment, injunction and
abatement of nuisance.
Testimony at hearings on the matter established the premises
were zoned "general commercial,^ permitting the proposed use of a
warehouse; that the storage of used clothing and other second-hand
items was not a violation of city ordinance; that sufficient
parking spaces existed to comply with city ordinances; and that the
proposed building conformed to other buildings in the area with
respect to aesthetic appearance, as well as conforming to all other
pertinent ordinances. The District Court found no violations of
state law or city ordinance by the City's issuance of the building
permit, and therefore denied plaintiff's petition for writ of
certiorari and petition for injunction and abatement of nuisance.
This appeal resulted.
Westside contends that the building permit was issued in
violation of Great Falls Municipal Code 17.81.010, which states
that general commercial sites must have one off-street parking spot
for each 200 square feet of gross floor space. All parties agreed
that the Salvation Army project required 114 parking spaces.
Westside's contention is based on the parking layout as of
the date of application, which showed 72 off-street spaces.
Because of this, Westside maintains that there was clearly an
inadequate number of spaces, and the permit should not have been
issued.
However, it was shown at the District Court hearing that the
Salvation Army had adequate room, upon a reworking of the parking
layout, for 118 spaces. Westside offered no credible evidence to
refute the finding that the parking scheme was in compliance with
the ordinance. The District Court correctly found no violation of
Great Falls Municipal Code 17.81.010 to exist.
Westside further contends that the proposed use of the
building to store "junku violates Great Falls Municipal Ordinance
17.33.010.
Ordinance 17.33.010 details prohibited uses of buildings in
general commercial districts. Subsection (4) proscribes the
vl[s]torage, baling, packing or treatment of scrap paper, iron,
bottles, rags or junk.'I
The District Court found that the intended use of the building
included the storage of such second-hand items as clothing and
athletic equipment, to be sold in their original state, presumably
for their original purpose. The city ordinance does not define
lljunk.l' Salvation Army cites several cases for the premise the
second-hand articles may be distinguished from 'tjunkll thatin
"second-hand articles, although used, still possess utility in
their present state for the purpose for which they are originally
intended while 'junk1possesses usefulness only through conversion
or reduction into component^." State v. Cohn (Conn. 1962), 188
A.2d 878, 882. Following that rationale, the District Court
concluded that the Salvation Army proposed to deal in used goods,
and not "junkw as Westside maintained. Again, the District Court
found no violation of municipal code.
Finally, Westside maintains that the District Court erred by
failing to find that the proposed building adversely impacts the
character of the neighborhood in violation of 5 76-2-304, MCA.
Section 76-2-304, MCA, speaks to the purposes of enacting
municipal zoning. It states that zoning regulations shall be made
with reasonable consideration to the character of a district,
suitability for particular use and with a view to conserving the
value of buildings and encouraging appropriate land use. This
statute refers only to the considerations necessary when adopting
a zoned district. It in no way limits or mandates what structures
may be erected or refurbished in the district after the zone has
been established.
The City Building Inspector found the project met all building
code requirements. The Zoning Technician confirmed that all city
ordinance requirements were met. Westside has failed to show any
violations of state statute.
Section 303(a) of the Uniform Building Code provides:
If the building official finds that the work described
in an application for a permit and the plans,
specifications and other data filed therewith conform to
the requirements of this code and other pertinent laws
and ordinances, and that the fees specified in Section
304 have been paid, he shall issue a permit therefor to
the applicant. (Emphasis added.)
In Bateson v. Geisse (9th Cir. 1988), 857 F. 2d 1300, the Ninth
Circuit Court of Appeals upheld judgment entered by Judge Battin
against the City of Billings, where a proposed development which
complied with all applicable zoning classifications was denied a
building permit. The court noted that the action was arbitrary and
unreasonable and violated the property owner's substantive due
process rights.
In Bateson, as here, all requirements were met. Once the City
made that determination, it properly issued the permit.
We affirm the holding of the District Court.
i-- i j L (1 ,&:/LA.
- ,
y
Justice
We Concur: