                                            NO.     82-172

                   I N THE SUPREME C O U R T OF THE STATE OF MONTANA

                                                1983




ALBERT C .   BAILEY,

                                    Plaintiff          and A p p e l l a n t ,

           VS.


M O N T A N A DEPARTMENT OF HEALTH
A N D ENVIRONMENTAL SCIENCES,
e t al.,

                                    Defendants and Respondents.




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 ,
                    I n and f o r t h e County o f M i s s o u l a
                    Honorable Douglas Harkin, Judge p r e s i d i n g .

Counsel of       Record:

         For Appellant:

             Datsopoulos,         MacDonald & L i n d , M i s s o u l a ,             Montana
             R i c h a r d A . Reep, M i s s o u l a , Montana

         For Respondents:

             R o b e r t L . D e s c h a m p s , 111, C o u n t y A t t o r n e y ,    Missoula,
              Montana
             Michael S c h e s t e d t , Deputy County A t t o r n e y ,               Missoula,
              Montana
             F r a n k C r o w l e y , H e l e n a , Montana




                                             S u b m i t t e d on b r i e f s :   February 24,      1983

                                                                 Decided:         June 2, 1 9 8 3

Filed:       JUNZ 1983



                                                   Clerk
     Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
     Plaintiff Albert     Bailey,   appeals     a     Missoula   County
District Court order denying his application for a writ of
mandamus.   The trial court ruled that Bailey had not proved
he had been given a "blanket approval" to build a trailer
park in 1 9 6 8 or in any later years, that he had not exhausted
his administrative remedies, and finally, that in any event
the five-year statute of limitations (section 2 7 - 2 - 2 1 5      MCA)
had run on his right to bring a mandamus action.
     In his appeal Bailey claims that the court was not bound
by the statute of limitations in a mandamus action because
mandamus is based on equitable considerations; that the court
abused its discretion by refusing to apply the doctrine of
equitable estoppel against the county and state; that the
county took his property without due process of law and
denied him equal protection of the law (this issue is raised
for the first time on appeal); and finally that the court
abused   its discretion because      Bailey     had    proved    he was
entitled to the writ by showing that he was given "blanket
approval" in 1 9 6 8 to build a trailer park according to the
plans he had then submitted.     We affirm.
     Substantial evidence supports the finding that "blanket
approval" was not granted in 1 9 6 8 or during any later years
to build the entire trailer park contemplated by Bailey.            The
trial court further held, and we agree, that Bailey had not
exhausted his administrative remedies:          he did not proceed
through the administrative hierarchy after he was notified
that his plans would not be approved.       We need not reach the
statute of limitations issue, nor the constitutional issues
raised for the first time on appeal.
     In 1 9 6 8 , with the intention of building a trailer park,
Bailey   purchased   two parcels    of   land   in Lolo, Montana.
Before Bailey's hank would finance the purchase of the land,
Bailey was required to receive assurances from county health
officials (acting also as agents of the state) that the plan
was suitable for a trailer park.             The main controversy in
this suit is whether a "blanket approval" for the 1968 plans
and all future development was obtained, or whether Bailey
was merely assured that his plans were feasible and had
conceptual merit.        The trial court found in favor of the
county and state on this issue.
      Later, in 1968 Bailey drafted a master plan for his
proposed development then covering 11 acres.                  It included
provisions for 96 trailer spaces.            He submitted his plan to
the County Health Department and they allegedly assisted him
in directing the construction of utility and sewage lines.
Bailey then began construction on the trailer park, and in
September of 1968, he completed construction of 29 spaces and
obtained a license to operate the trailer park.
      After completion of this first phase of the trailer
park, Bailey    filed two more           applications for permits to
expand the trailer park.           The first, in 1971, was granted
after some difficulties, and Bailey added another 30 trailer
spaces.     The second application for an expansion permit, in
1972, was denied.        After this denial of the second request
for   an    expansion     permit    Bailey    made     no    more   formal
applications    to      expand     his    trailer     park   but    talked
intermittently with state and county officials between 1972
and 1975.
      During    these     discussions      with      state   and    county
officials, Bailey was repeatedly told he must submit new
plans to demonstrate that any expansion project complied with
current health laws and regulations.                At one point Bailey
tried to rely on the 1968 plans already submitted, only to
find that the health officials had lost the plans.                      Bailey
spent three days in government files looking for the plans
and finally found them.        He did not, however, ever submit any
plans that the health officials considered sufficient to
determine if a permit           should be       granted   for the second
proposed expansion of the trailer park.                   Furthermore, in
1973, and     especially       in   1974, Bailey        was   unequivocally
informed that the 1968 plans on file could not be used as a
basis for his application for a second expansion permit.
Bailey    took no action to appeal these decisions through
administrative channels.
        In the fall of 1979, Bailey filed a pro - application
                                                se
for a writ of mandamus and asked the trial court to issue a
peremptory    writ     compelling       the    health     departments      and
officials to issue a permit for the expansion of his trailer
park.     After an evidentiary hearing, the trial court held
that Bailey did not prove that the health officials in 1968
had approved not only his present plans but his future plans
not yet formulated.       The court further held that Bailey had
failed to exhaust his administrative remedies by failing to
appeal      the      administrative           decisions       through      the
administrative hierarchy, and finally, that the statute of
limitations had run on Bailey's claim.
        Bailey could not hope to prevail unless he proved that
the county health officials granted him "blanket approval" of
his entire project when he presented his plans in 1968.
Absent     such     evidence    Bailey    would     remain      subject    to
submitting        additional    plans     and     obtaining      additional
approvals.        The trial court found that the county health
officials did not give "blanket approval" in 1968.                 Not only
does substantial evidence support this finding, Bailey has
not specifically challenged this finding as an                              issue on
appeal.
     Nor       does     the     record        support      Bailey's         repeated
contentions that he received blanket approval in 1968 for all
present and future plans for trailer park expansion.                          Bailey
concedes that he was required to apply for an expansion
permit    at    each    stage of        the    construction.           He    further
concedes that at least by 1974 the state had denied his
requests for expansion permits based on the information it
then had to evaluate.           If the health departments had granted
blanket approval in 1968 for all future expansions, Bailey's
later     applications        for    expansions          were   idle    gestures.
Because Bailey continued to apply for permits for each phase
of   construction, he           clearly      recognized his own duty              to
present the necessary information to the health departments
and the concomitant duties of the health departments to
evaluate the material presented.               The health departments were
required to make informed decisions on each phase, as to
whether Bailey's proposed construction complied with health
laws.          Bailey's       application          for    additional         permits
demonstrates his knowledge that the health departments must
approve all his plans.           The health departments were unable to
do   this      when    Bailey       failed    to     provide     the    necessary
information.
     We further affirm the trial court on the ground that
Bailey did not exhaust his administrative remedies once he
knew that the health officials refused to grant the permits
absent his submission of, and their approval of, his updated
plans.      In 1973 and again in 1974, Bailey was unequivocally
informed     that      the    permits     could     not    issue   without       the
resubmission of his plans showing compliance with updated
health regulations.             Bailey    refused to submit additional
plans and failed to take action within the agency hierarchy
to contest the decisions.   Bailey could not sit on his rights
and refuse to appeal within the administrative framework,
and, six years later commence an action in District Court for
the relief that an agency could have provided had Bailey set
the gears in motion.
     The order of the District Court is affirmed.




We concur:



Chief Justice
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