Schendel v. Board of Adjustment

774 P.2d 379, 237 Mont. 278, 1989 Mont. LEXIS 119
CourtMontana Supreme Court
DecidedMay 4, 1989
Docket88-519
StatusPublished
Cited by8 cases

This text of 774 P.2d 379 (Schendel v. Board of Adjustment) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schendel v. Board of Adjustment, 774 P.2d 379, 237 Mont. 278, 1989 Mont. LEXIS 119 (Mo. 1989).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

[279]*279This appeal arises from the July 18, 1988 decision of the District Court of the Eighteenth Judicial District, Gallatin County, Montana, and that court’s September 19, 1988 order refusing to reconsider and amend its order upholding the decision of the Board of Adjustments of the City of Bozeman (Board). We affirm.

This matter appeared in the District Court on a writ of certiorari and was returned to the Board for a full hearing on December 1, 1986. The case was ultimately submitted to the District Court upon stipulated facts, exhibits and issues, and on July 18, 1988, the District Court found in favor of the Board. Upon the court’s denial of appellants’ request for “reconsideration” they appeal to this Court.

In 1977, appellants Wendi and Dale Schendel (Schendels) purchased 2.7 acres in an R-S zone adjacent to the city of Bozeman. Shortly after the Schendels built their home they began to collect and care for various types of waterfowl. They initially began raising only a few birds and by 1986 gradually built up the bird population to 350 or more, especially during the summer months. While acquiring more and more waterfowl the Schendels spent over $35,000 in pens, ponds and fences to accommodate and control the various birds. The Schendels testified that they have arranged the ground level basement of their house to accommodate many of the ducks and geese during the winter months.

In 1985 an unsigned complaint was received by the Board concerning the waterfowl in the Schendels’ area. A hearing was held before the Board as a result of the determination and subsequent order of the Bozeman building official that the Schendels’ use of their property violated the Bozeman Municipal Zoning Code. This first hearing before the Board was held May 5, 1986. As a result of the May 5, 1986 hearing, the matter went to the District Court on a petition for writ of certiorari and was then returned to the Board for a full hearing. A transcript was taken at this second Board hearing held on December 1, 1986, which indicates a number of people appeared in support of the Schendels’ continuation of their homesite operation. There were also a number of other people who appeared objecting to the noises caused by the numerous ducks and geese heard throughout the major portion of the year. Some of the neighbors testified that they were awakened and kept awake from 2:00 a.m. and 3:00 a.m., particularly in the spring and fall of the year and that they had discussed this with the Schendels. The Schendels testified at the hearing that they did not realize there was much objection to the waterfowl and the resulting noise. The Schendels further testified [280]*280that some of their operations were in conjunction with the Federal and State government in raising rare waterfowl.

As noted, the Schendels originally began their operation with very few ducks and geese but, when the population increased to over several hundred, it became “ducks unlimited” and the noise, combined with the unsanitary conditions of the waterfowl made an intolerable situation for some of the neighbors.

After the Board’s December 1, 1986 full hearing, it granted a variance which required the Schendels limit the number of birds on their property to only 40 resident birds, and 200 transient birds during the nesting period. The terms of the variance were made effective for two years or until their property was sold, which ever first occurred.

Following the first hearing on May 5, 1986, the Schendels filed a petition for a writ of certiorari in the District Court. The petition requested relief by certiorari under Title 27, Chapter 25, MCA, and under the zoning regulation, Section 18.66.080, of the Bozeman Municipal Zoning Code which provides:

“Any person or persons . . . aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to the court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part specifying the grounds of illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the Board.”

The Schendels allege that the District Court had before it not only their request for writ of certiorari relief, but also an appeal as to whether the Board’s decision was legal and that the District Court erred in deciding this case on only the first point.

The principal issue before the District Court and before this Court is whether the Board of Adjustment of the City of Bozeman acted outside its jurisdiction in granting a variance to the Schendels which imposed limits on the number of waterfowl the Schendels could raise; and whether the District Court properly approved the action of the Board.

The District Court received the writ of certiorari on stipulated facts which state as follows:

“1. Wendi Schendel and Dale W. Schendel, plaintiffs, are the owners of the following described property in Gallatin County, Montana:
“Lot 7 in Sourdough Ridge No. 2 Subdivision according to the offi[281]*281cial plat thereof, on file and of record in Book 1 of Plats, Page 30, Office of the Clerk and Recorder in such county.
“2. Wendi and Dale Schendel have raised water fowl and endangered birds on those premises since 1978. These activities progressively increased on the premises until about 1986. The Schendels’ property has carried, at times, as many as 350 water fowl; and the Schendels’ [sic] plan to indefinitely continue to have as many as 300 water fowl on the premises during the summer months.
“3. Pursuant to a notice by the defendant, Board of Adjustment of the City of Bozeman, a copy of which is attached as Exhibit ‘A’, plaintiffs appeared before such board on December 1, 1986.
“4. At the time of the hearing, the board received testimony and affidavits in support of the Schendels’ water fowl production, as well as testimony and affidavits in opposition of [sic] the granting of variance to Wendi and Dale Schendel ....
“5. At the hearing on December 1, 1986, the Board acknowledged that raising water fowl was an agricultural use as per the adopted definition listed under Section 18.04.030, accepted by the Board.
“6. Following testimony in the hearing, the board made a decision allowing the Schendels a variance for the raising of water fowl on the following conditions:
“ ‘The water fowl population on your property will not exceed 40 permanent birds, and 200 transient birds; the variance shall be for two years, or until the property is sold, whichever is first . . .’
“7. Plaintiffs [sic] property is located in zone R-S-2, that zoning allows by Section 18.12.020 a permitted use by any party of their property if it is for ‘agricultural purposes’. 18.04.03 defines agricultural use as:
“ ‘Agriculture means the tilling of soil, the raising of crops, horticulture and gardening, dairying or animal husbandry, including uses customary [sic] incidental thereto, but not including any agricultural industry or business such as fruit, plants, fur farms, animal hospitals, commercial feed lots, or similar use. . .’

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Schendel v. Board of Adjustment
774 P.2d 379 (Montana Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
774 P.2d 379, 237 Mont. 278, 1989 Mont. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schendel-v-board-of-adjustment-mont-1989.