In Montana, prohibiting specific building materials is matter for building codes, not zoning ordinance

by Hannah Dankbar

City of Helena v Svee
(Montana Supreme Court, November 25, 2014)

In January 2009 the Helena, Montana City Commission amended its zoning ordinance to create a wildland-urban interface district (WUI district). The district overlays the City’s other zoning districts.  The WUI district, in part, provides:

A. Structures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher in accordance with ANSI/UL 790 or ASTM E 108 or any equivalent test.

B. Existing roofs that undergo renovation, alteration, or repairs that involve more than ten percent (10%) of the square footage of the affected roof plane must meet the requirements of this chapter. If the renovation, alteration, or repair involves more than fifty percent (50%) of the square footage of the area of the entire roof, then the entire roof must comply with the requirements of this chapter.

The Svees received notice that their homeowners insurance would be canceled because of the condition of their roof. Due to personal financial limits, the Svees repaired the part of the roof in most need of improvement. The project of replacing old wooden shingles with new ones began on August 12, 2011. On August 15, 2011 a city building official issued a stop work notice for the project, but the project was completed by the time the Svees received the notice. On September 8, 2011 the City filed criminal complaints against the Svees for re-roofing without a permit, these charges were later dismissed. On November 7, 2011 the City initiated a civil suit against the Svees in addition to the criminal charges. On December 6, 2011 the City filed a six-count complaint for failure to obtain a building permit; violation of the International Residential Code by failing to obtain a building permit; violation of the International Residential Code by installing new roof covering over an existing roof covering; violation of the International Residential code by using excess applications of roof covering; violation of Helena City Code by using illegal roofing materials; and creating a public nuisance. The Svees challenged the limitations the WUI district places on roofing materials, but not the creation of the WUI district itself.

Both parties moved for a summary judgement, and the City dropped all of the complaints except for the complaint citing a violation of the WUI Ordinance. The Svees claimed that the Ordinance was invalid on statutory and constitutional grounds. The District Court did not address the constitutional claim, but declared, “the Svees’ claims seeking a declaration that the City had no legal authority to adopt or enforce Helena City Code § 11-41-2 . . . are GRANTED.”  The City filed an appeal and the Svees filed a cross-appeal challenging the dismissal of their constitutional argument and the denial of attorney fees.

The first issue discussed was whether the District Court was wrong to judge § 11-41-2 as an impermissible building code, rather than a zoning ordinance. The Montana Legislature authorized cities and counties to adopt only building codes that had been created by the Department of Labor and Industry . Zoning ordinances are left to cities and counties. The District Court ruled that, “the creation of the WUI zoning district was nothing more than the adoption of  a building regulation under the guise of a zoning ordinance.” However, the Svees did not challenge the zoning district as a whole; they only challenged one section. District Court only overturned one section (§ 11-42-2). This Court found that this section of the WUI ordinance oversteps the bounds of zoning ordinances by defining which building materials can be used.

The third issue is whether the District Court erred in denying and dismissing the Svees’ constitutional arguments. The District Court ignored these claims because, the summary judgment,  “resolve[d] the case in the Svees’ favor on non-constitutional grounds.” Montana Supreme Court “has repeatedly recognized that courts should avoid constitutional issues whenever possible.” The Court agreed with the District Court on this issue.


**Didn’t include concurring opinion.

Under Pontiac (MI) zoning, proposed use is a permitted outpatient clinic, not a crisis center

by Victoria Heldt

Common Ground v. City of Pontiac, Pontiac Planning Commission, Pontiac City Council
(Michigan Court of Appeals, May 3, 2012)

Common Ground owns a piece of land in the City of Pontiac on which it wanted to develop administrative offices and provide mental health services.  Catering to children, youth, and families in crisis, the services provided would include psychiatric screening, referrals, and outpatient counseling.  The land in question is zoned C-2, Central Business District.  This zoning classification allows for, among other things, “physical culture and health services.”  Property zoned C-2 also allows for any uses that are permitted in C-1 zones, which includes “medical clinics (outpatient only) and offices of doctors…and similar or allied professionals.”

Common Ground’s application was presented to the Pontiac Planning Commission at four separate meetings throughout 2008.  Provided with the application were reports from Madhu Oberoi (the city’s planning administrator) and David Breneau (City Planner) that stated the intended mental health center was a permitted use under the C-2 zoning district.  The planning commission also received complaints about the proposal on the grounds that it was not consistent with plans for the redevelopment of downtown Pontiac.  Pontiac’s Downtown Development Authority (DDA) opposed the proposal because it believed downtown Pontiac was “oversaturated…with mental health care facilities.”

Subsequently, the planning commission held a closed meeting with an outside attorney.  It received a legal opinion stating Common Ground’s proposed facility was considered a “crisis center” that was not a permitted use under C-2 zoning.  In September 2008, the commission voted against the proposal without articulating in the minutes of the meeting an explanation for the vote or the findings of the commission.  About a week later Oberoi, who was not a member of the planning commission, wrote a letter detailing the reasons for the plan’s denial.  Among the reasons was that Common Ground’s proposed use was not a stated use within C-1 or C-2 districts and that the development would not be compatible with the surrounding neighborhood.  Common Ground appealed the decision to the city council, which affirmed the denial.

The circuit court ruled that the planning commission’s decision was procedurally defective since it did not articulate its reasons for denial as required by statute.  It also determined that the proposed site was within the “permitted principle uses” of C-2 districts, so the commission should not have denied the application on that basis.  It noted the proposed facility was clearly an outpatient clinic and constituted a “physical culture and health services” facility regardless of the fact that the commission labeled it a “crisis center.”  It remanded the case to the planning commission for reevaluation.

On remand, the planning commission acknowledged that Common Ground’s proposed use was permitted under the zoning district.  It found, however, that any facility where patients stay longer than 18 hours, are admitted against their will, or restrained is contrary to the goal of district C-2 zoning development as it does not attract “heavy pedestrian activity” or enhance the “economic welfare” of the area.  It further found that an ambulance bay is not a permitted accessory to clinics in C-2 districts.  It conditionally approved Common Grounds proposal so long as its exterior was modified to comply with the design guidelines in the area and it did not contain any residential quarters or detention areas.  It further prohibited any patients from being brought to the clinic restrained, against their will, or in an ambulance vehicle.    Common Ground appealed the commission’s restrictions, arguing the circuit court already declared the facility was a permitted use and that the restrictions the commission identified lie outside the governing scope of the Zoning Ordinance.  It claimed the few instances of restraint and the use of ambulances are ancillary to the principal use.  The Pontiac City Council again ruled in favor of the planning commission and affirmed the conditions placed on Common Ground’s development.

Common Ground brought the matter back to circuit court.  It objected to the exterior design stipulation because the ruling did not identify how to comply with the current building design standards and because it claimed the DDA Design Committee did not have the authority to dictate such matters.  Common Ground challenged the conditions regarding patient detention and ambulance transportation on the grounds that the relevant Zoning Ordinance only pertained to “physical characteristics of the building exterior and site” and not to activities and use of the site.  This time around, the trial court determined that an ambulance bay should be permitted because it was included in the application from the start and therefore falls within the permitted use.  It also stated Common Ground should be allowed to have a detention center for similar reasons, but maintained the prohibition of residential quarters.

On appeal, the City argued the circuit court erred when it determined Common Ground’s proposal was a permitted use.  The Court disagreed.  It noted that the zoning district clearly allows “medical clinics (outpatient only) and offices of doctors…and similar or allied professionals” and “health services.”  The City failed to show that a “crisis center” is anything other than a form of outpatient mental health clinic.  Furthermore, the Court ruled that the circuit court did not err when it found the planning commission’s ruling procedurally defective.  The zoning ordinance clearly states that the commission is required to articulate its reasoning and findings when making a decision regarding a permit.  The City’s last argument was that the conditions regarding the detention center and the ambulance bay do not comply with the district’s zoning goals because it does not attract pedestrians and enhance the economic welfare of the area.  In support of this argument, it asserted the city’s police powers authorized the commission to place conditions upon the site plan.  The Court noted that no other legal authority was cited and the argument was insufficient.  It affirmed the circuit court’s ruling.

Wisconsin town’s non-metallic mining ordinance is not zoning

by Victoria Heldt

Zwiefelhofer, et al., v. Town of Cooks Valley
(Supreme Court of Wisconsin, February 8, 2012)

The plaintiffs in this case (Zweifelhofer, Schindler, Sarauer, and La Gesse) are all residents of Cooks Valley.  In 2008, the Town adopted a Nonmetallic Mining Ordinance that prohibited nonmetallic mining unless a permit was obtained from the Town Board.  The plaintiffs, who have all engaged in nonmetallic mining in the past, sought to have the Ordinance declared invalid in the event that they want to engage in nonmetallic mining in the future.  Their argument claimed the Ordinance was invalid because it did not have the approval of the County Board.  In the Town of Cooks Valley, zoning ordinances must gain approval of the Board.  The Town claims that the ordinance is not a zoning ordinance, but rather an exercise of its police power.  Consequently, they argue that the ordinance does not require approval of the Board.  The Court had to discern whether the Ordinance constituted a zoning ordinance or an exercise of the Town’s police power.

The Ordinance begins with a preamble stating that the intent of the statute is to “promote the health, safety, prosperity, aesthetics, and the general welfare of the people and communities.”  Specifically, it attempts to regulate land mining so as to protect the population from disease and pestilence and to further the conservation of land and water use.  It describes nonmetallic mining as commercial land and mining pits and all activities associated with it.  The Ordinance allows for nonmetallic mining only if a permit is obtained from the Town Board.  The Town may place a number of restrictions on any nonmetallic mining permit that it issues.  The Ordinance does not apply to previously existing mines, but does apply to the expansion of any existent mines.

The Court conceded that the line between a zoning ordinance and a building code enacted pursuant to a Town’s police power is fine and that the two are similar in nature.  Wis. Stat. §62.23 (7) governs zoning and, within the statute, the grant of zoning power overlaps with police power.  Zoning is a subset of the police power.   In addition, both powers serve the same general purpose of promoting the health, safety, and welfare of the community.  In its analysis, the Court compared the characteristics of the Ordinance to those of typical zoning ordinances to determine whether the Ordinance in question is a zoning or non-zoning ordinance.  It identified and focused on six main criteria.

First, the Court recognized that zoning ordinances typically divide property into separate zones or districts.  The Ordinance in question does not.  It applies universally to all land within the Town.  Second, zoning ordinances usually allow explicitly stated uses and prohibit those not stated.  The Town’s nonmetallic ordinance does not permit anything as of right or automatically prohibit anything since a permit could be obtained to engage in nonmetallic mining.  Third, a zoning ordinance typically regulates where an activity takes place, not the activity itself.  This Ordinance is comparable to a license in that it regulates an entire activity and not the location of the activity.

The fourth criterion that the Court focused on was a zoning ordinance’s tendency to comprehensively address all possible uses of a specified area of land.  The Wisconsin Attorney General was quoted as saying “The more comprehensive the ordinance, the more likely it will be characterized by a court as a zoning ordinance.”  The Town’s ordinance applies to only one activity – nonmetallic mining.  The plaintiffs argued that, since the Ordinance comprehensively regulates nonmetallic mining, it should be considered comprehensive.  The Court clarified that the term “comprehensive” should not be interpreted as “thoroughly” regulating a single activity for the purpose of zoning ordinances.  It is intended to mean all-inclusive.  The plaintiffs and some friend-of-the court briefs attempted to argue that the Ordinance is a zoning ordinance because it “pervasively” regulates the use of land.  They look to a previous case in which the Attorney General stated “when an ordinance constitutes a pervasive regulation of, and in many instances a prohibition on the use of, land, [it must be concluded] that such an ordinance is a zoning ordinance which requires county board approval.”  The Court in this case deemed the phrase “pervasive regulation” as over-inclusive in application.  It noted that the phrase does not create an effective bright-line rule to guide the Court.

The fifth criterion was that zoning ordinances operate by fixed rules that allow many land uses to proceed without discretionary decisions by administrative officials (i.e., permitted uses).  The Ordinance in question, conversely, operates only on a case-by-case basis and does not allow any non-metallic mining operation to proceed without administrative action.  The plaintiffs urge that the Ordinance must be a zoning ordinance because it allows for “conditional use” permits, which have historically been associated with zoning ordinances.  The Court said that that logic placed too much emphasis on the terminology of the Ordinance.  Licenses required under non-zoning police powers could also be considered similar to conditional use permits.  Just because the language of the Ordinance includes the phrase “conditional use permit” does not mean it is a zoning ordinance.

The sixth and final criterion addressed a zoning ordinance’s tendency to exempt pre-existing activities from the new regulation.  In this way, the Ordinance in question is similar to zoning ordinances because it does not apply to pre-existing nonmetallic mines.  The Court noted that the differences between the characteristics of the Town’s nonmetallic mining ordinance and those of typical zoning ordinances exceeded the similarities.

The Court finally looked to the general purpose of zoning ordinances in comparison to the general purpose of the Town’s nonmetallic mining ordinance.  The Court acknowledged that, in a broad sense, the Ordinance has the same purpose as that of zoning ordinances (to promote the welfare of the community as a whole); however, this broad definition of purpose is not helpful in an analysis of whether an ordinance is zoning or non-zoning.  It looked instead to the more specific purpose of zoning ordinances to “separate incompatible land uses.”  The Ordinance does not share that purpose in that it does not explicitly separate different land uses or declare any land uses incompatible with others.

After looking to the Ordinance’s specific characteristics and its general purpose, the Court concluded that the Town’s non-metallic mining ordinance is not a zoning ordinance, but rather a general welfare ordinance enacted pursuant to the Town’s police powers.  Consequently, it did not require the Board’s approval and is therefore valid as enacted.  The Court reversed the lower court’s decision.





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