                        No. 12119
    IN THE SUPREME COURT OF THE STATE OF MONTANA
                          1972

                            -       -   ---



STATE OF MONTANA, ex re1 , JOSEPH GUTKOSKI,
                        .

                     Relator and Respondent,


DON M e LANGUOR, JR., et. al.,
                     Defendant~~and
                                  Appellants.


Appeal from: District Court of the Eighteenth Judicial District,
             Honorable W. W Lessley, Judge presiding.
                           .
Counsel of Record:
       For Appellant:
            Berg, ~'Connell, Angel and Andriolo, Bozeman,
             Montana.
            Ben E Berg argued, Bozeman, Montana.
                 .
            Holter and Heath, Bozeman, Montana.
       For Respondent:
            McKinley Anderson argued, Bozeman, Montana.


                                              Submitted: May 16, 1972
Mr. Chief Justice Harrison delivered the Opinion of the Court.

       This is an appeal by the city commissioners of Bozeman,
Montana, and other Bozeman city officials from a judgment granting
a writ of prohibition on behalf of relator Joseph Gutkoski, a
landowner in the city of Bozeman, arresting a zone change of
certain property and awarding relator counsel fees.
       The land involved is the east half of lots 8B and 8C of
the Homesites Addition to the city of Bozeman.    The two parcels
of land are owned by Wayne Edsall.   Gutkoski owns lot 8A in
the same addition, which borders the Edsall property on the south.
Edsall first purchased lot 8C and built his family home on the
west half.   He used the remaining 150 feet for his construction
business.    In 1967, Edsall purchased the east 150 feet of lot 8B
from Richard Munger to expand his construction business.      This
was the ownership of the land at the time it was annexed by the
city. At that time the property was zoned as residential.      Adjacent
to this land on the east and north is a large trailer court which
is zoned as motor business.
       The events leading to the issuance of the writ of prohi-
bition began in November 1970, when Edsall requested the Bozeman
City-County Planning Board to rezone the east half of lots 8B and
8C to motor business from residential classification, The board
denied his request and the city commission followed the recommenda-
tion of the planning board.   In early 1971, Edsall again approached
the city commission with the same request. At this time the matter
was referred to the City Board of Adjustment.    This board held a
hearing at which time the landowners in the area of the proposed
zone change were allowed to present their protests.      The Bcard of
Adjustment recommended to the city commission that the land be
rezoned to the "MB"   (motor business) classification.    Upon the
a d v i c e of t h e c i t y a t t o r n e y , t h e c i t y commission passed a
r e s o l u t i o n of i t s i n t e n t t o follow t h e Board of Adjustment's
recommendation and gave n o t i c e of a p u b l i c h e a r i n g on t h e question
of rezoning,            The c i t y commission              a f t e r t h e h e a r i n g adopted t h e
zone change rezoning t h e e a s t h a l f of l o t s 8B and 8C t o a motor
b u s i n e s s zone.
           S u i t t o p r o h i b i t t h e enforcement of t h e change by
Gutkoski was commenced on May 5 , 1971, and t h e d i s t r i c t c o u r t
i s s u e d an a l t e r n a t i v e w r i t of p r o h i b i t i o n on May 13, 1971.            After
a h e a r i n g , t h e d i s t r i c t c o u r t d e c l a r e d t h a t t h e a c t i o n of t h e
                                 I'
c i t y commission was                s p o t zoning" and gave judgment i n f a v o r of
Gutkoski, g r a n t i n g a w r i t of p r o h i b i t i o n .
           There a r e two i s s u e s presented by t h i s appeal.                       W shall
                                                                                           e
d e a l f i r s t w i t h t h e q u e s t i o n of whether t h e rezoning by t h e c i t y
                                        II
commission was i n f a c t                   s p o t zoning" a s found by t h e d i s t r i c t
court.
           There a r e many d e f i n i t i o n s f o r t h e term "spot zoning",
b u t t h e most g e n e r a l i s a s d e f i n e d i n Thomas v. Town of Bedford,
11 N.Y.2d 428, 230 N.Y.S.2d                       684,688:
           "* *      9; s p o t zoning * 7k * i s t h e ' p r o c e s s of s i n g l i n g
           o u t a small p a r c e l of land f o r a use c l a s s i f i c a t i o n
           t o t a l l y d i f f e r e n t from t h e surrounding a r e a , f o r t h e
           b e n e f i t of t h e owner of such p r o p e r t y and t o t h e d e t r i -
           ment of o t h e r owners. ' I '
           I n a review of t h e f a c t s we do n o t f i n d t h e Bozeman c i t y
commission was g u i l t y of "spot zoning".                        The two l o t s a f t e r r e -
zoning were n o t t o t a l l y d i f f e r e n t from t h e r e s t o f t h e area.                   To
t h e n o r t h and e a s t of t h e s e two pieces of land was a l a r g e t r a i l e r
                        been
c o u r t , which h a d / i n e x i s t e n c e f o r some time p r i o r t o rezoning a c t i o n
by t h e c i t y commission.                  It i s apparent t h a t t h e commission was

doing n o t h i n g more than extending a p r e e x i s t i n g zone c l a s s i f i c a t i o n
t o i n c l u d e a l a r g e r a r e a , which we conclude i s n o t "spot zoning'.'.
          The c a s e Law i n t h i s a r e a o f t h e l a w s u p p o r t s t h i s con-

clusion.        The Supreme Court of Kansas i n a s u i t where a c i t y r e -

zoned r e s i d e n t i a l p r o p e r t y t o a use o t h e r t h a n r e s i d e n t i a l upheld

t h a t c i t y ' s a c t i o n a s n o t being "spot zoning", where t h e f a c t s

showed t h a t t h e p r o p e r t y on t h r e e s i d e of t h e rezoned p r o p e r t y
was devoted t o u s e s o t h e r t h a n r e s i d e n t i a l .    Arkenberg v. C i t y

o f Topeka, 197 Kan. 731, 421 P.2d 213.                       The Supreme Court of
Washington i n McNaughton v . Boeing, 68 Wash.2d 659, 414 P.2d 778,
780, reached t h e same c o n c l u s i o n d e c l a r i n g :
           II
           W f i n d i t d i f f i c u l t t o envision the rezoning
              e
          from r e s i d e n c e t o b u s i n e s s of a undeveloped t r a c t
          of 23 a c r e s contiguous t o a b u s i n e s s zone a s con-
          s t i t u t i n g 'spot zoning'.          I t merely extended an
          e x i s t i n g b u s i n e s s zone. I I
           Based on t h i s r e a s o n i n g , we f i n d t h a t t h e r e z o n i n g of t h e
two t r a c t s of land by t h e c i t y commission of Bozeman was an ex-

terlsion of t h e motor b u s i n e s s zone and n o t "spot zoning".

          The remaining i s s u e r a i s e d by a p p e l l a n t s i s whether o r n o t

i t w a s proper f o r t h e d i s t r i c t c o u r t t o i s s u e a w r i t of p r o h i b i -

t i o n i n t h i s cause.

          I n view of our r u l i n g t h a t t h e d i s t r i c t c o u r t was i n e r r o r

i n h o l d i n g t h e r e z o n i n g t o be "spot zoning", which w i l l r e q u i r e a

r e v e r s a l of t h e judgment, t h e r e would appear t o be no n e c e s s i t y
t o d i s c u s s t h e p r o p r i e t y of t h e d i s t r i c t c o u r t ' s procedure.

          The judgment i s r e v e r s           and t h e d i s t r i c t coulrt i s d i r e c t e d
                                                                               I
t o v a c a t e and annul t h e s a         qnd &-smiss t h e a c t i o d .
W e Concur:
