                                 No. 12192

           I N THE SUPREME C U T O THE STATE O M N A A
                            OR F              F OTN

                                    1972



JAMES E. WHEELER and EDITH WHEELER,

                           P l a i n t i f f s and Appellants,



RALPH ARMSTRONG, CLIFFORD PASHA,
W L E SALES, e t a 1 ,
 ATR                   .
                           Defendants and Respondents.



Appeal from:     District Court of t h e Eighteenth J u d i c i a l District,
                 Honorable M. James S o r t e , Judge p r e s i d i n g ,

Counsel of Record:

         For Appellants :

              Lyman H, Bennett, Jr, argued, Bozeman, Montana.

         For Respondents:

              Thomas A. Olson, County Attorney, argued, Bozeman,
               Montana.



                                              Submitted:         A p r i l 18, 1972

                                               Decided :     J N 9 1%
                                                              U      -
Filed:     JUN - 9 1Sh
Mr. J u s t i c e Wesley Castles delivered the Opinion of the Court.
            T h i s i s an appeal from an order of the d i s t r i c t court in Gallatin
County, the Honorable M. James Sorte, presiding.                  Judge S o r t e ' s order of
September 28, 1971 , reads :
            "Defendants moved t o dismiss the petition on f i l e here-
            in upon the ground t h a t e s s e n t i a l l y the same matters
            and the same p a r t i e s now before the Court, were pre-
            sented i n local cause No. 19205, Planning and Zoning
            Commission vs. James E . Wheeler and heard by Hon. Sid
            G . Stewart, presiding Judge, and t h a t the f i n a l judgment
            i n t h a t cause was binding on the Zoning Commission and
            on t h i s Court on the questions presented in the Plain-
            t i f f s ' petition.
            "The matter was f u l l y argued by both counsel and the
            Court having taken judicial notice of local causes,
            No. 18954 and No. 19205, and being f u l l y advised as t o
            the law,
            "IT IS ORDERED t h a t Defendants' motion t o dismiss the
            p e t i t i o n on f i l e herein i s granted, and the r e l i e f
            sought i n the p e t i t i o n i s denied."
            I t i s from Judge S o r t e ' s order t h a t the Wheelers now appeal t o t h i s
Court.
           Appellants here were p l a i n t i f f s below and will be referred t o
hereafter as the Landowners.            Respondents a r e members of the Zoning Board of
Planning and Zoning D i s t r i c t No. One, Gallatin County and will be hereafter
referred t o as the Zoning Board.            Three of the named defendants a r e a l s o the
county commissioners of Gal 1a t i n County.
           The Landowners owned some eight acres of land which l i e s d i r e c t l y
west of Bozeman.        In 1970, Landowners made some attempts t o Use t h e i r vacant
land f o r a mobile home court which eventually would contain some forty-seven
t r a i l e r s o r mobile homes.   A t t h a t time, there were no r e s t r i c t i o n s on the
use of the land.
            In the same year, 1970, other landowners i n the area, who had been
trying t o establish a zoning d i s t r i c t since about the year 1966, f i l e d an
action seeking a writ of mandamus t o force the county commissioners t o a c t on
establishment of a zoning d i s t r i c t .      On May 18, 1970, the p a r t i e s t o the man-
damus action appeared before Judge Victor H. Fall and consented t o t h e find-
ings of f a c t and conclusions of law and a judgment.                Judge Fall found t h a t
the county commissioners had appointed a planning and zoning commission
and had created a valid planning and zoning d i s t r i c t .           He found, however,
t h a t no development pattern, required by the s t a t u t e , had been made and he
directed such a pattern t o be adopted.
            On June 5, 1970, Landowner, James Wheeler was made a party and
was enjoined from proceeding with the construction of the t r a i l e r court
u n t i l a hearing could be had.        Wheeler, through counsel, entered the case
by motion t o quash the restraining order and t h e r e a f t e r Judge Fall l i f t e d
the injunction.       Wheeler, one of the Landowners, continued t o be a party t o
the suit.
            On June 12, 1970, the Zoning Board adopted ordinances f o r the area
i n question which defined a rural r e s i d e n t i a l zone and the existence of
mobile home courts o r parks a "conditional use".                 A procedure was s e t f o r t h
f o r obtaining permission t o build a "conditional use".                N appeal was taken
                                                                          o
by any party t o t h a t lawsuit.
            A t the time of the adoption of the foregoing ordinance on June 12,
Landowners had moved three mobile homes onto t h e i r land and had provided
services f o r three more, making a t o t a l of s i x .          Subsequently Landowners
continued t o move mobile homes onto the land.                On November 2 , 1970, the
county attorney f i l e d an action f o r injunction t o stop the construction of
the mobile home court.         This matter was t r i e d in the d i s t r i c t court on Jan-
uary 15, 1971 , w i t h the Zoning Board, Landowners and neighboring l andowners
a l l participants.      The t r i a l court, Judge Sid Stewart then presiding, con-
cluded t h a t Wheelers had established a nonconforming use f o r s i x t r a i l e r s .
Wheelers were permanently enjoined from f u r t h e r violations of the ordinance
and were ordered t o remove a l l b u t s i x t r a i l e r s .   T h i s order was dated May
3 , 1971.
            Wheelers did not comply with the order t o remove a l l but s i x t r a i l -
e r s ; and, i n f a c t , continued t o move more t r a i l e r s on i n vi.olation of the
order.
            The neighboring landowners then sought, on June 24, 1971, by
motion t o enforce the judgment, t o force Wheelers t o comply.
            After t h i s attempt t o enforce the judgment, the Wheelers then,
on June 30, 1971, f i l e d a p e t i t i o n f o r variance before the Zoning Board.
On July 9, 1971, the Zoning Board denied the p e t i t i o n f o r variance on two
grounds:      ( a ) a l l of the matters raised have been presented t o the d i s t r i c t
court and the d i s t r i c t court has made i t s decision; and ( b ) i t was the
opinion of the Board t h a t the public i n t e r e s t would not be served by a
granting of t h e variance a t this l a t e date.
             Meanwhile, on the same day, July 9, 1971, Judge Stewart held a
hearing on the motion t o enforce t h e judgment mentioned above; and a t the
conclusion, the court noted t h a t the previous judgment was c l e a r , t h a t the
nonconforming       use was 1imited t o s i x t r a i l e r s , and s a i d :
             "That i s the order of the Court. And i t will be
             carried out. And i f counsel d e s i r e s t o have the de-
             fendants c i t e d i n t o court f o r contempt well, they may
             do so. If they do, t h a t i s going t o be the ruling of
             the Court u n t i l i t i s changed and u n t i l proper procedures
             a r e brought f o r a change. Definitely, they a r e v i o l a t -
             ing the Court Order when they have more than s i x t r a i l e r s
             on t h a t court. I f you wish, you may draw an order t o
             t h a t e f f e c t and have the s h e r i f f serve i t upon them.
             That may eliminate a contempt procedure. The Court
             would be willing t o go ahead w i t h t h a t . "
            Judge Stewart having indicated t h a t the next s t e p i n the proceed-
ing would have t o be a contempt hearing, Intervenors on August 3, 1971 , f i l e d
an action charging contempt.            Judge Stewart was thereupon d i s q u a l i f i e d and
the matter heard by the Honorable Bernard W. Thomas on September 1 , 1971.
            After hearing testimony, Judge Thomas gave the Wheelers u n t i l Octo-
ber 12, 1971 t o comply w i t h the judgment.             The Wheelers s t i l l refused t o
comply w i t h Judge Stewart's order and f a i l e d t o b r i n g t h e i r property i n t o
compl iance by the dead1 ine of October 12, 1971. Thereafter, counsel f o r the
Intervenors f i l e d an a f f i d a v i t s t a t i n g t h a t ten t r a i l e r houses remained on
the property and on October 18, 1971, Judge Thomas found the Wheelers t o be
in contempt and fined each of them Two hundred f i f t y d o l l a r s ($250.00) plus
the sum of Twenty-five do1 l a r s ($25.00) each per day t h a t the Wheelers
remained i n contempt of court.
           On October 21, 1971, the Wheelers indicated t o the Court t h a t
they were i n compliance w i t h Judge Stewart's order and paid t o the c l e r k
of the d i s t r i c t court the sum of $600 representing a contempt f i n e .
           Heretofore we have recited the f i l i n g , an June 30, of the p e t i -
tion f o r variance before the Zoning Board.
           Cause No. 19630. Variance appeal presently before the Court.
A indicated above, on o r about June 30, 1971, the Wheelers submitted a
 s
"Petition f o r Variance" t o the Zoning Board.            Essentially the p e t i t i o n f o r
variance s e t forth t h a t the Wheelers a f t e r learning t h a t i n the spring of
1970 there were no regulations prohibiting a mobile home court i n the
area, converted t h e i r eight acres of land i n t o a mobile home court and re-
ceived approval from the Gallatin County Health o f f i c e .             Also, t h a t a non-
conforming use f o r s i x t r a i l e r s had been established, t h a t the lands were
                                          and
useless f o r any other purpose, /that the creation of the mobile home court
was done i n reliance upon assurances of the county o f f i c i a l s t h a t the
Wheelers had exhausted t h e i r resources and would s u f f e r hardship i f the
zoning ordinance were " s t r i c t l y enforced" as against p e t i t i o n e r s .     Also,
i t was alleged there was no health or s a f e t y problem created and t h a t the
value of nearby property would not be damaged by use of the e i g h t acres
as a mobile home court.         I t was alleged t h a t the immediate neighbors did
not object t o the maintenance of the mobile home court.
           As indicated above the Zoning Board met and considered the p e t i -
t i o n , without pub1 i c hearing, and notice, and elected t o deny the p e t i t i o n
upon the grounds t h e matter had been considered by the d i s t r i c t court
and the d i s t r i c t court had made i t s decision.       Further, the Board held
t h a t t h e public i n t e r e s t would not be served by the granting of a variance
a t such a l a t e time.
           W repeat some of the dates heretofore r e c i t e d .
            e                                                              The p e t i t i o n f o r
variance was f i l e d June 30, 1971.        The Zoning Board denied the petition
on July 9, 1971.         Judge S o r t e ' s order dismissing the petition was on
September 28, 1971. Meanwhile, i n the other action concerned w i t h the
attempt of the Zoning Board t o enforce Judge Stewart's judgment, the
motion was f i l e d on June 24, 1971 (before the p e t i t i o n f o r variance).
On July 9, 1971 , Judge Stewart ruled as heretofore quoted.                       The contempt
action was f i l e d on August 3 , 1971. Judge Thomas gave Wheelers u n t i l
October 12, 1971 t o comply, and on f a i l u r e , Judge Thomas fined them f o r
contempt.     This was paid on October 21 , 1971            .
            Thus we have Landowners Wheeler f a i l ing t o comply with court
orders during the same time they a r e petitioning f o r variance f o r the
very same a c t i v i t y they a r e i n contempt f o r .       A d i f f e r e n t judge now, Judge
Sorte, considers the appeal from the order denying a variance; b u t takes
judicial notice of the other f i l e s i n t h a t court.
            Appellant Landowners s t a t e four issues f o r review; which we sum-
marize as being whether the Landowners a r e e n t i t l e d t o a hearing on t h e i r
petition f o r variance.
            Respondents do not squarely answer the contentions of appel l a n t s ,
but r a t h e r s e t up two reasons why the d i s t r i c t court was correct.            These
reasons a r e (1) the issues presented on the p e t i t i o n f o r variance a r e the
same as decided i n local Cause No. 19250, involving the same p a r t i e s , and
(2) t h a t the Zoning Board did not e r r since the issues and p a r t i e s a r e
the same.
            The s i t u a t i o n here i s this:   Landowners Wheeler were fighting
on one f r o n t t o stop the application of the new zoning ordinances t o
t h e i r property.     They succeeded t o the extent of s i x mobile homes.                While
t h a t b a t t l e i s going on, Landowners Wheeler attempt t o conform t o the zoning
ordinance by petitioning the Zoning Board f o r a variance.
            Meanwhile the Zoning Board b a t t l e s t o stop the Wheelers i n the
court action.         While t h a t b a t t l e rages, they summarily deny the p e t i t i o n
f o r variance on the grounds t h a t the court has decided the matter and the
public i n t e r e s t would not be served a t t h i s l a t e date.
             Respondents would have us apply the r u l e s of res adjudicata as
stated i n Brannon v . Lewis & Clark Cty., 143 Mont. 200, 387 P.2d 706;
Smith v. Baxter, 148 Mont. 291, 419 P.2d 752; and Smith v . County of
Musselshell, 155 Mont. 376, 472 P.2d 878.                   The c r i t e r i a are:
             ( 1 ) Parties the same;
             ( 2 ) Subject matter of the action the same;
             (3) The issues must be the same and must r e l a t e t o the same
subject matter; and
             (4) The capacities of other persons must be the same i n reference
t o t h e subject matter and t o the issues between them.
             I t would appear, i f these c r i t e r i a have been met, t h a t Landowners
Wheeler have had due process, have had t h e i r opportunity t o be heard on a l l
matters.
             The respondents then go on t o argue t h a t even though a variance
i s not the same as a defense and proof of a nonconforming use, t h a t the
designation of the petition as a "variance" p e t i t i o n i s somehow i n bad
faith.     However, the f a c t t h a t Landowners Wheeler had f a i l e d t o e s t a b l i s h
a nonconforming use t o a l l e i g h t acres they owned, does not d e t r a c t from
t h e f a c t t h a t they were successful in establishing a nonconforming use t o
s i x units.     To then seek a variance f o r the balance does not s t r i k e t h i s
Court as evidence of "bad f a i t h " .            I t i s t r u e t h a t they were in contempt
and paid f i n e s f o r contempt, b u t they have simply never had a hearing on
t h e i r p e t i t i o n f o r variance.
             While the d i f f i c u l t i e s of convincing the Zoning Board under the
f a c t s and circumstances here a r e readily apparent, a t the very l e a s t due
process requires an opportunity t o be heard.
             I t is c l e a r t h a t under the c r i t e r i a heretofore s e t f o r t h , the
same issue i s not present.                 A nonconforming use and a variance a r e simply
n o t t h e same.
          Accordingly Judge Sorte's order appealed from i s s e t aside
and the matter returned to the d i s t r i c t court f o r hearing on the peti-
tion f o r variance.
