text:
    STATE OF MONTANA, Plaintiff and Defendant, v. GARY LEROY ULSTAD, Defendant and Appellant.
    No. 90-295.
    Submitted on Briefs Sept. 27, 1990.
    Decided Dec. 18, 1990.
    246 Mont. 102.
    802 P.2d 1260.
    Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Lawrence G. Allen, Legal Intern, Helena, Harold L. Hanser, Yellowstone County Atty., Charles Bradley, Deputy, Billings, for plaintiff and defendant.
   JUSTICE HUNT

delivered the Opinion of the Court.

On October 30, 1989, the appellant Gary Ulstad was tried and convicted in the Thirteenth Judicial District, Yellowstone County, of one count of criminal possession of dangerous drugs, a felony. He appeals from that conviction. We affirm.

The sole issue raised on appeal is whether the District Court erred by refusing to permit the jury to rehear portions of the trial testimony.

On December 31, 1988, appellant Gary Ulstad and a companion were detained by members of Yellowstone County law enforcement. Ulstad consented to a search of his car and motel room. Police testified that while they were searching his car, Ulstad mentioned some money in the glove compartment about which he was concerned. When the police opened the compartment, they retrieved 1.3 grams of cocaine from a plastic bag, an empty bindle, and two syringes. Ulstad later admitted to having used drugs earlier in the day, but denied any knowledge of the substance found in his car. His fingerprints were not on the package containing drugs. At trial, Ulstad attempted to raise a reasonable doubt about whether he was “in possession” of the cocaine by insinuating that his companion had placed it in the glove compartment of his car without his knowledge. In support of his argument, Ulstad pointed to the unreasonableness of a confessed drug user consenting to a search of an area where he knew drugs would be, and the unreasonableness of a drug possessor pointing out the specific area of the car in which the drugs were located. Conflicting testimony was presented by the deputies as to whether or not the glove compartment had been locked prior to the search.

Shortly after the jury retired to deliberate, the bailiff delivered a message to the court from the jury. The note read, “First deputy mentioned locked glove box, second Deputy said it was not. Could you verify the question.” Defense counsel requested that the testimony of the second deputy be read back to the jury. The court refused. It was unclear exactly which information the jury wanted, and the court would not let counsel decide that by choosing which testimony to read back. The court stated that the jury had heard all the evidence and would have to resolve it. On appeal, Ulstad maintains that the court did not exercise its discretion by failing to determine the exact nature of the jury’s difficulty, to isolate the precise testimony which could solve it, and to weigh the probative value of the testimony against the danger of undue emphasis.

Thiis issue is controlled by § 46-16-503(2), MCA, which states:

“After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. When the jurors are brought into court, the information requested may be given in the discretion of the court. If such information is given, it must be given in the presence of the county attorney and the defendant and his counsel.” (Emphasis added.)

The trial court is authorized to exercise its discretion in providing the jury with trial testimony. Unless prejudice is shown by reason of the court’s refusal to require reading of testimony, no abuse will be found. State v. LaFontaine, 157 Mont. 490, 487 P.2d 301 (1971). The appellant protests that the court should have probed more deeply for a precise statement of the jury’s question. However, the court’s action was correct. The question was unclear and the court properly decided not to interpret the testimony of the witnesses for the jury, or to allow defense counsel to choose which testimony to have read back to the jury verbatim. This decision did not prejudice the appellant. There was no abuse of discretion.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, McDONOUGH and BARZ concur.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    JOHN H. ALLEN, Claimant and Respondent, v. TREASURE STATE PLUMBING, Employer. EMPLOYERS’ COMMERCIAL UNION, Insurer-Defendant and Appellant, CHARTER OAK FIRE INSURANCE COMPANY, Insurer-Defendant and Respondent.
    No. 90-192.
    Submitted on briefs Oct. 11, 1990.
    Decided Dec. 19, 1990.
    246 Mont. 105.
    803 P.2d 644.

      C.J. Seifert, Gough, Shanahan, Johnson & Waterman, Helena, for insurer-defendant and appellant.
    Donald D. Sommerfeld, Towe, Ball, Enright & Mackey, Billings, Terry G. Spear, Matovich, Addy & Keller, Billings, for respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Employers’ Commercial Union appeals from the judgment of the Workers’ Compensation Court which held that Employers’ Commercial Union must pay permanent partial disability benefits and attorney’s fees to claimant, John Allen. We affirm.

The issues we find necessary for review are:

1. Whether the Workers’ Compensation Court properly allocated John Allen’s benefit payments among insurers;

2. Whether the Workers’ Compensation Court properly awarded John Allen attorney’s fees.

At time of trial, John Allen (Mr. Allen) was a 48 year old married man who worked for his father as a laborer at Treasure State Plumbing and Heating since the age of 14. Since that time, Mr. Allen has worked as a plumber, laborer and as a backhoe operator.

In July of 1973, he began to experience low back pain. In an effort to alleviate the pain, Mr. Allen sought treatment from Dr. Sterling R. Hayward, a Billings orthopedic surgeon. According to Dr. Hayward, Mr. Allen’s back condition had existed for at least five years and was aggravated by his work as a backhoe operator. As a result of this diagnosis, Dr. Hayward recommended that Mr. Allen change jobs and discontinue his work as a backhoe operator.

Apparently, Mr. Allen did not heed this advice and on October 25, 1974 he suffered a second back injury while operating a backhoe. Following this injury, he did not return to work until March 12,1976. Mr. Allen sought workers’ compensation benefits and Employers Commercial Union accepted liability and paid medical benefits as well as temporary total and partial disability benefits.

Following this accident, Mr. Allen again sought treatment from Dr. Hayward. Following several examinations, the doctor determined that Mr. Allen’s back condition may have been the result of a herniated nucleus pulposus. This unconfirmed, yet suspected diagnosis, matched his conclusions of a year earlier, when Mr. Allen first sought treatment. Once again, Dr. Hayward recommended that Mr. Allen seek different employment.

In May of 1976, the doctor again examined Mr. Allen and noted that his back condition was “staying about the same.” Following this examination, Dr. Hayward rendered his opinion that Mr. Allen had reached a condition of maximum medical improvement.

After returning to work, Mr. Allen decreased his amount of time operating the backhoe. In fact, the only time he did any backhoe work was when there was no light work available. He noticed that even a small amount of time on the backhoe aggravated his back injury.

On September 12, 1977, Mr. Allen, while working for Treasure State Plumbing, again injured his back. Apparently, this injury occurred while he was helping a co-worker lift a ten inch clay sewer pipe, which weighed approximately 230 pounds. The insurer at risk at the time of this accident was Charter Oak Fire Insurance Company (Charter Oak), however Mr. Allen did not pursue any claim against it at this time.

Fearing that Dr. Hayward would recommend he undergo surgery, Mr. Allen decided to seek chiropractic care. Therefore, instead of returning to Dr. Hayward, he sought treatment from Dr. Cromwell, a Billings chiropractor. While in Dr. Cromwell’s care, he returned to work where he reinjured his back while lifting some bathtubs. Once again, Mr. Allen did not report this accident, nor did he file a claim.

Following these accidents, Mr. Allen discontinued working in the field and began working in the office. Finally, in 1987, he filed a petition before the Workers’ Compensation Court alleging that he had suffered an injury on October 24, 1974 and further that he was entitled to 500 weeks of permanent partial disability payments, attorney’s fees, costs and penalties. This petition was filed against his employer, Treasure State Plumbing and Heating and the appellant Employers Commercial Union Insurance Company (ECU).

Discovery conducted after this petition was filed, revealed job related injuries occurring in 1977. It further revealed Dr. Hayward’s opinion that Mr. Allen’s back injury reached maximum medical improvement in May of 1976. Based upon these facts ECU determined that it was not the insurer on risk at the time of the 1977 injuries. It therefore entered into a partial settlement with Mr. Allen and joined with him in an amended petition before the Workers’ Compensation Court. In this amended petition, ECU sought a judgment holding Charter Oaks liable for all permanent partial disability payments occurring after September 12,1977, the date of Mr. Allen’s subsequent injury. It based its arguments on the fact that Charter Oaks was the insurer on risk at the time of this injury and that Mr. Allen had reached maximum healing in 1976 —■ before the 1977 accident.

Following trial, the Workers’ Compensation Court held that Charter Oaks was responsible for all compensation benefits reasonable related to the temporary aggravation of Mr. Allen’s back condition resulting from his accident of 1977. However, it further found that the 1974 injury was the cause of Mr. Allen’s present permanent partial disability and related diminution in earning capacity. It therefore held that ECU was liable for the full extent of Mr. Allen’s permanent partial disability payments. It further held that ECU was liable for costs and attorney’s fees.

ECU filed a notice of appeal and eventually, following an order of this Court, Mr. Allen was dismissed as a party. Therefore, the only issues submitted for our review concern the disputed liability between ECU and Charter Oaks and the resultant attorney’s fees.

Initially, we note the standard of review applicable to appeals from the Workers’ Compensation Court. When reviewing questions of fact, we limit our examination of the record to determine if substantial credible evidence exists to support the lower court’s findings. O’Brien v. Central Feeds (1990), 241 Mont. 267, 786 P.2d 1169. In reviewing questions of law, we merely determine whether the lower court’s interpretation of the law is correct. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 770 P.2d 522.

The lower court extensively reviewed all of the evidence surrounding Mr. Allen’s back injuries. It noted that he began having problems with his back at least as early as 1972, when he first sought medical treatment. At that time, the examining physician advised him to discontinue backhoe work. Apparently, this condition progressed and Mr. Allen suffered additional compensable injuries in 1974 and 1977.

Following the 1974 injury, Dr. Hayward noted that Mr. Allen had reached a condition of maximum medical improvement. Particularly, in May of 1976 he noted that Mr. Allen’s back condition was “staying about the same.”

In 1975, Dr. Hayward conducted a physical examination of Mr. Allen. During this examination, Dr. Hayward made numerous findings concerning Mr. Allens’ flexibility, extension and sensations of pain. The doctor did not, however, attempt to extrapolate any impairment rating from these findings.

Approximately ten years later, at the request of Mr. Allen’s counsel, Dr. Hayward performed another physical examination. The doctor was asked to determine an impairment rating. Consequently, this examination was much more detailed than that given in 1976. Following the examination, Dr. Hayward determined that Mr. Allen’s condition was probably worse in 1986 than in 1976. However, he in no way attributed the worsening of Mr. Allen’s condition to any injury suffered in 1977. To the contrary, the doctor testified that ongoing deterioration was natural for a person with Mr. Allen’s condition.

Finally, the Workers’ Compensation Court heard testimony from Mr. Allen, his father and employer, and Mr. Allen’s co-workers, that indicated that Mr. Allen’s back condition significantly worsened after the 1977 injury. According to this testimony, Mr. Allen’s ability to perform on the worksite was greatly impaired following these accidents. However, the lower court also took into consideration testimony which indicated that Mr. Allen had problems doing heavy labor and running a backhoe prior to the 1977 incidents, as well as Dr. Hayward’s testimony indicating that these incidents did not cause further deterioration to his back. Based upon this testimony, the court determined that although the injuries may have temporarily aggravated Mr. Allen’s pre-existing condition, they did not cause his permanent partial disability.

The evidence, when viewed as a whole supports the Workers’ Compensation Court’s conclusion that Mr. Allen’s 1974 injury was the cause of his current disability. This Court will not reverse the Workers’ Compensation Court unless its findings of fact are clearly erroneous. See Tenderholt v. Travel Lodge Itn’l (1985), 218 Mont. 523, 709 P.2d 1011.

Furthermore, we find no error of law warranting reversal. ECU maintains that our decision in Belton v. Hartford Accident and Indemnity Co. (1983), 202 Mont. 384, 658 P.2d 405, controls the outcome of this case. In Belton, we held that once a claimant has reached maximum healing or a medically stable condition, the insurer at risk is no longer responsible for any subsequent injuries or conditions. Using this rule of law, ECU argues that because Mr. Allen had attained a condition of maximum healing in 1976, it should not be liable for the permanent partial benefits claimed in 1987.

We disagree with ECU’s application of Belton to the facts in this case. In Belton, it was undisputed that an injury suffered by the claimant in 1979 aggravated a prior injury sustained in 1977. Belton, 202 Mont, at 386, 658 P.2d 405. The 1979 injury rendered the claimant permanently, totally disabled. In the case now before us, however, Mr. Allen’s doctor testified that his back condition was not permanently aggravated by his second injury. Rather, as stated by the Workers’ Compensation Court, this second injury only temporarily aggravated his pre-existing injury.

In harmony with Belton, the Workers’ Compensation Court required Charter Oak to pay temporary benefits for the temporary aggravation to Mr. Allen’ back caused by the 1977 injury. However, because it found that his permanent partial disability was caused by the 1974 injury, the court correctly held that ECU was responsible for payment of those benefits. We hold this was a correct interpretation and application of Belton and accordingly the Workers’ Compensation Court is affirmed on this issue.

Finally, ECU argues that the lower court erred in awarding Mr. Allen attorney’s fees. According to ECU, the statute in effect at the time of the 1974 injury determines the manner and extent of Mr. Allen’s attorney’s fees award. See Gullett v. Stanley Structures (1986), 222 Mont. 365, 722 P.2d 619. The statute in effect at the time of Mr. Allen’s injury was § 92-616 RCM, which states:

“92-616. Costs and attorneys’ fees payable on denial of claim later found compensable. In the event the insurer denies the claim for compensation or terminates compensation benefits, and the claim is later adjudged compensable, by the division or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the division. However, under rules adopted by the division and in the discretion of the division, an insurer may suspend compensation payments for not more than thirty (30) days pending the receipt of medical information.”

ECU maintains that it did not deny “the claim for compensation or terminate compensation benefits.” Rather, it merely contested the extent of its obligation to Mr. Allen. Therefore, it maintains that § 92-616 RCM does not provide any authority to support the lower court’s award of attorney’s fees and costs.

We disagree. ECU paid medical costs, and disability benefits up until September 12, 1977, the date of Mr. Allen’s second injury. It refused, however, to pay any benefits due after that date. We hold that this refusal was tantamount to a “termination of compensation benefits.” Therefore, the lower court’s award of attorney’s fees and costs is clearly justified under § 92-616 RCM.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER, HUNT, BARZ and SHEEHY concur.


author: JUSTICE BARZ

text:
    MACK T. ANDERSON INSURANCE AGENCY, INC. Plaintiff and Appellant, v. CITY OF BELGRADE, MONTANA, A Municipal Corporation organized under the laws of the State of Montana and Belgrade Board of Adjustment, Defendants and Respondents.
    No. 90-238.
    Submitted Oct. 25, 1990.
    Decided Dec. 20, 1990.
    246 Mont. 112.
    803 P.2d 648.

      McKinley Anderson, Joseph W. Sabol, Bozeman, for plaintiff and appellant.
    William Schreiber, City Atty., Belgrade, for defendants and respondents.

      Leo Ward, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, for amicus curiae Montana League of Cities and Towns.
    Roger Tippy, Tippy & McCue, Helena, for amicus curiae Montana Manufactured Housing and Recreational Vehicle Ass’n.
   JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiff, Mack T. Anderson Insurance Agency Inc., appeals from an order of the Gallatin County District Court granting summary judgment in favor of defendants City of Belgrade and the Belgrade Board of Adjustment and dismissing plaintiff’s complaint which challenged the constitutionality of a Belgrade zoning ordinance. The District Court affirmed the Belgrade Board of Adjustment’s decision which upheld the denial of plaintiff’s application for a building permit. We affirm.

The issues as framed by this Court are:

1. Is the zoning ordinance prohibiting the individual placement of manufactured homes in an R-4 zoning district a constitutional exercise of the City of Belgrade’s police power?

2. Did the District Court abuse its discretion when it granted summary judgment in favor of the defendants without first conducting an evidentiary hearing?

On April 25, 1989, plaintiff applied for a building permit to place a manufactured (mobile) home on Lot 11 of Block 21 of the Armstrong Addition to the City of Belgrade. The manufactured home was to be placed on a permanent concrete foundation. The lot in question is located in an area having an R-4 zoning designation which is defined under Belgrade City Zoning Ordinance No. 466 as a residential-apartment district. The ordinance was enacted in accordance with a comprehensive zoning plan for the City of Belgrade which was adopted in 1972 and revised in 1979. Modular or site-built homes are treated as conventional housing under the ordinance and are a permitted use within the R-4 district. Individual placement of manufactured homes is not a permitted use within the R-4 district, however, they are permitted in R-2-M and R-S-M districts. Additionally, manufactured homes are permitted in mobile home parks as conditional uses in R-3 and R-4 districts.

Under the City zoning ordinance a manufactured home is defined as:

“A factory built or manufactured transportable residential structure more than thirty-two (32) body feet in length and eight (8) feet or more in width, and built on one or more permanent chassis for towing to the point of use, and designed to be used without a permanent foundation as a dwelling unit when connected to sanitary facilities, and which bears an insignia issued by a state or federal regulatory agency indicating that [the] manufactured home complies with all applicable construction standards of the United States Department of Housing and Urban Development definition of manufactured home. The phrase ‘without permanent foundation’ indicates that the support system is constructed with the intent that the manufactured home placed thereon can be moved from time to time at the convenience of the owner. A commercial coach, recreational vehicle, and motor home is not a manufactured home.”

A modular home is defined as:

“A factory-fabricated structure designed primarily for human occupancy to be used by itself or to be incorporated with similar units at a building site into a structure on a permanent foundation and which complies with the Montana Building, Plumbing, Electrical, and Mechanical Construction Codes and the rules and regulations for modular housing of the Building Code Division of the Montana Department of Administration. The term is intended to apply to major assemblies and does not include prefabricated panels, trusses, plumbing trees, and prefabricated sub-elements which are to be incorporated into a structure at the site.
“The meter base for incoming wiring is attached to the exterior wall of the modular home; whereas, for a manufactured home, the meter base must be attached to a pole or a support which is isolated from the structure. The units shall be listed and assessed by the County Assessor as real or personal property.”

Plaintiff’s application was denied on May 4, 1989, by the City planning director on the basis that plaintiff’s placement of its manufactured home in the R-4 district would violate the zoning ordinance.

Plaintiff, pursuant to § 76-2-326, MCA, appealed to the Belgrade Board of Adjustment. Plaintiff argued before the board that the ordinance unduly discriminates against manufactured housing in that no substantial difference exists between manufactured housing and modular housing. The board, in its order dated June 26, 1989, found that: (1) there is a difference between a manufactured home and a modular home as. those types of housing are defined under the ordinance; (2) a manufactured home is not a permitted use in an R-4 district; (3) an adequate supply of vacant parcels exist in R-S-M and R-2-M districts each in which the individual placement of manufactured homes is a permitted use; and (4) a petition signed by fourteen citizens protested the placement of the manufactured home in the R-4 district. Based on these findings the board concluded that the City planning director properly executed her duties and that the administrative decision to deny the building permit was correct.

On August 2,1989, plaintiff filed a complaint in the District Court alleging that the action taken by the board in denying the building permit was unreasonable and unconstitutional. On September 21, 1989, an order for writ of certiorari to issue was entered by the District Court pursuant to § 76-2-327, MCA.

The District Court heard oral argument, reviewed the entire record before it, and made an on-site inspection of the geographical area in question. On March 12, 1990, the court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint and affirming the decision of the board of adjustment. The District Court concluded that the zoning ordinance in question was a legitimate use of the City of Belgrade’s police power. The court also concluded that “[a] decision for Plaintiff in this case would have been ... an unwise move in the direction of judicial zoning, a step the [c]ourt is not prepared to take under the circumstances presented.”

From this judgment plaintiff now appeals.

I.

Is the zoning ordinance prohibiting the individual placement of manufactured homes in an R-4 zoning district a constitutional exercise of the City of Belgrade’s police power?

Local municipal governments in Montana are empowered to enact zoning ordinances restricting the use of property in their jurisdictional area. Section 76-2-301, MCA, in pertinent part states that:

“For the purpose of promoting health, safety, morals, or the general welfare of the community, [the local legislative body ... is hereby empowered to regulate and restrict... the location and use of buildings, structures, and land for trade, industry, residence or other purposes.”

A zoning ordinance enacted pursuant to this statutory authority will be found to be a constitutional exercise of police power if it has a substantial bearing upon the public health, safety, morals or general welfare of the community. Freeman v. Board of Adjustment (1934), 97 Mont. 342, 34 P.2d 534; see also, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.

It is plaintiffs contention that no reasonable basis exists for allowing the placement of modular homes built to Uniform Building Code (UBC) standards within the R-4 district and not allowing the individual placement of manufactured homes built to Housing and Urban Development (HUD) standards since HUD standards are as safe as UBC standards. Plaintiff also argues that the ordinance is unconstitutionally arbitrary because a manufactured home cannot be placed in the R-4 district merely because the home must reach its destination “towed on its own chassis.” Plaintiff further argues that there is no rational relationship between the reasons for denying the requested permit and the purposes for which the zoning ordinance was enacted and that the ordinance is restrictive for persons of low and moderate incomes.

In examining the validity of the ordinance we note that the purposes of local government zoning regulation in this state is set forth in § 76-2-304, MCA:

“(1) Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.
“(2) Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.”

The purpose of zoning is not to provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the community generally by the sensible planning of land uses taking into consideration the peculiar suitabilities and most appropriate use of land throughout the community. Cutone v. Anaconda-Deer Lodge (1980), 187 Mont. 515, 520, 610 P.2d 691, 694.

The City of Belgrade agrees with plaintiff that HUD standards are as safe as UBC standards. However, it asserts that its ordinance prohibiting the individual placement of mobile homes within the R-4 district is based on broader grounds than safety including, but not limited to, a concern for long-term planning, the unique qualities of manufactured homes, and the property values of surrounding residents. It farther asserts that it is necessary to consider these factors to be able to reasonably enforce its zoning regulations to promote the public health, safety, morals or general welfare of the community. We agree with the District Courts as it properly stated in this case, that local government police power not only allows but requires consideration of these matters as fandamental factors in zoning decisions. Accordingly, we hold that these factors are legitimate bases for regulation.

Having determined that the bases for the City of Belgrade’s zoning ordinance are legitimate, the question then becomes whether the ordinance’s prohibition of the individual placement of manufactured homes in the R-4 district bears a reasonable relationship to the advancement of the public health, safety, morals or general welfare of the community. In Freeman v. Board of Adjustment (1934), 97 Mont. 342, 351-52, 34 P.2d 534, 537, this Court stated that:

“The trend of modem decisions, however, is to sustain the validity of such ordinances and the statutes authorizing them ... Such ordinances have been very generally sustained upon the theory that they constitute a valid exercise of the police power; that is to say, they have a substantial bearing upon the public health, safety, morals and general welfare of a community.” (Citations omitted.)

We recognize that manufactured housing has become a major factor in the housing of families and that the rapid increase in the number of manufactured homes presents a complex zoning and planning problem. Just like any other use, manufactured homes must be provided for. However, as stated earlier, any provision must be made by zoning regulations designed to benefit the community generally. Cutone, 610 P.2d at 694; see also Duckworth v. City of Bonney Lake (1978), 91 Wash.2d 19, 586 P.2d 860; Anderson, 2 American Law of Zoning, § 14.01 p. 665 (3d ed. 1986).

Most municipal efforts to totally exclude manufactured homes from a community have been found unconstitutional as an unreasonable exercise of police power. Duckworth, 586 P.2d at 866. However, it has been generally held, in recognition of the differing needs of the community, that manufactured or mobile homes

“are residential uses which possess special characteristics which warrant their separate regulation. Thus, they may be confined to mobile home parks, or may be excluded from residential districts .... Absent exceptional circumstances, the exclusion of this use from a residential district is not regarded as unreasonable.” (Citations omitted.)

City of Lewiston v. Knieriem (1984), 107 Idaho 80, 685 P.2d 821, 824. See also, Duckworth, 586 P.2d at 867. “The indiscriminate placement of mobile homes within a municipality may undermine conservation of property values and stifle the development of a potential residential neighborhood.” City of Lewiston, 685 P.2d at 825. Promoting the general health and welfare includes providing necessary services such as water and sewerage, schools, and fire protection. Section 76-2-304, MCA. “Cities have found it easier to provide and regulate necessary services by limiting mobile homes to mobile home parks or other designated areas.” City of Lewiston, 685 P.2d at 825 (citing State v. Larson (1972), 292 Minn. 350, 195 N.W.2d 180).

In sum, if the municipality provides an adequate area for manufactured home development, manufactured homes may be excluded from conventional residential districts. In Martz v. Butte-Silver Bow Government (1982), 196 Mont. 348, 353-54, 641 P.2d 426, 430, this Court recognized that a municipality must ensure a fair share of housing is within reach of persons of low and moderate incomes and intimated that where an ordinance is shown to unduly exclude manufactured housing the ordinance is unconstitutional. In the present case the ordinance provides an adequate area for manufactured home development. Manufactured homes are permitted uses in R-SM and R-2-M Zoning districts and manufactured home parks are permitted conditional uses in R-3 and R-4 districts. A survey conducted in late 1986 reflects the present existing situation in the community of Belgrade and shows that approximately 16.88% of the available vacant parcels of land in the area are zoned for manufactured housing.

We hold that the ordinance in question bears a reasonable relationship to the advancement of the public health, safety, morals or general welfare of the community of Belgrade and constitutes a valid exercise of the City’s police power.

In so holding, we note that this Court in Cutone v. Anaconda-Deer Lodge (1980), 187 Mont. 515, 610 P.2d 691, quoted with approval from Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 387-88, 47 S.Ct. 114, 118, 71 L.Ed. 303, 310-11, in which the United State Supreme Court stated:

“ ‘The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation... If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.’ (Emphasis added.)”

Cutone, 610 P.2d at 696. In Cutone this Court also quoted with approval from Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797, 803-04, in which the United States Supreme Court, in upholding an ordinance which restricted land use to one-family dwellings and prevented the occupation of residences by more than two unrelated individuals within the district, stated:

“ ‘We deal with the economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be reasonable, not arbitrary* ” (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989) and bears “a rational relationship to a [permissible] state objective.” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed. 2d 225.
“ ‘It is said, however, that if two unmarried people can constitute a “family,” there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial function.’ (Emphasis added.)”

Cutone, 610 P.2d at 696.

As plaintiff points out, a number of state legislatures and local government bodies have viewed the recent technological improvements in manufactured homes as sufficient to eliminate rules distinguishing them from modular homes. However, this Court is not willing to sit as a super-legislature or super-zoning board. Kunz v. Butte-Silver Bow (Mont. 1990), [244 Mont. 271,] 797 P.2d 224, 226, 47 St.Rep. 1615, 1618; Cutone, 610 P.2d at 697. If an ordinance is found to promote the public health, safety, morals or general welfare of the community, as found here, the wisdom, necessity and policy of the ordinance are matters more appropriately left to the legislative body.

II.

Did the District Court abuse its discretion when it granted summary judgment in favor of the defendants without first conducting an evidentiary hearing?

In two recent decisions this Court clarified the appropriate standards for judicial review of an administrative ruling. See, Steer, Inc. v. Dep’t of Revenue (Mont. 1990) [245 Mont. 470,] [47 St.Rep. 2199], 803 P.2d 601; Dep’t of Revenue v. Kaiser Cement Corp. [245 Mont. 502,] [47 St.Rep. 2221], [803 P.2d 1061]. This Court will continue to use the “clearly erroneous” standard for reviewing findings of fact. However, in reviewing conclusions of law, our standard of review will be merely to determine if the administrative agency’s interpretation of the law is correct, instead of applying the inappropriate abuse of discretion standard. In Steer, Inc. we stated that this standard of review relating to conclusions of law applies “whether the conclusions are made by an agency, workers’ compensation court, or trial court.” Steer, Inc. [246 Mont. 470,] 803 P.2d at 603. We further stated in Steer, Inc. that our standard of review relating to conclusions of law is not to be confused with our review of discretionary trial court decisions. In such instances the standard of an abuse of discretion will still be applied. Steer, Inc. [245 Mont. 470,] 803 P.2d at 603 This is the situation we are presented with here.

Plaintiff argues that the District Court erred in that, without an evidentiary hearing, the court had no way of determining if the findings or rulings of the Belgrade Board of Adjustment were supported by the evidence. Section 76-2-327(3), MCA, provides the district court with specific authorization to take additional evidence on an appeal from a board of adjustment. However, the court can, in the exercise of its discretion, determine not to take additional evidence if it shall appear to the court that additional evidence is not necessary to properly dispose of the matter.

In the present case the District Court had before it approximately 45 pages of documents and maps which were submitted by the City, along with 22 stipulations of fact and approximately 20 pages of documents submitted by plaintiff. Additionally, the court viewed the entire geographical area, heard oral argument on two separate occasions, plus had the Belgrade Board of Adjustment’s written decision and tape recording of the board’s meeting in which it upheld the denial of the permit. We hold the District Court did not abuse its discretion.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY, HUNT, WEBER and McDONOUGH concur.


author: JUSTICE HARRISON

text:
    BRUCE R. CAMPBELL, as the father of CASSIE CAMPBELL, a minor; and Cassie Campbell, a minor by and through Bruce R. Campbell, her next friend, Plaintiffs and Respondents, v. JEFFREY DEAN JOHNSON, Defendant and Appellant.
    No. 90-454.
    Submitted on briefs Dec. 13, 1990.
    Decided Dec. 20, 1990.
    246 Mont. 122.
    802 P.2d 1262.
    Dane C. Schofield, Peterson and Schofield, Billings, for defendant and appellant.
    Douglas C. Allen, Great Falls, Douglas D. Howard, Heard & Howard, Columbus, for plaintiffs and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

JeffreyD. Johnson, defendant, appeals from a June 13,1990, order of the District Court of the Seventh Judicial District, Richland County, granting plaintiffs, Cassie Campbell, and her father, Bruce Campbell, a new trial. We remand to the District Court for reconsideration and entry of an order in compliance with Rule 59(f), M.R.Civ.P.

The sole issue is whether the District Court abused its discretion by ordering a new trial pursuant to Rule 59(f), M.R.Civ.P.

I.

On February 24, 1989, Cassie Campbell, a minor, and her father filed a negligence action against Jeffrey Johnson for injuries Cassie sustained in an accident involving Johnson’s vehicle. After two and one-half days of trial, the jury deliberated for approximately twenty-five minutes and came back with an 11 to 1 decision in favor of Johnson.

On April 30, 1990, plaintiffs moved for a new trial. Johnson appeals the District Court’s order granting a new trial.

II.

Did the District Court’s order granting a new trial violate Rule 59(f), M.R.Civ.P.?

The rule governing an order granting a new trial provides:

“Any order of the court granting a new trial, shall specify the grounds therefor with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling, and this may be done in the body of the order, or in an attached opinion.” Rule 59(f), M.R.Civ.P. The granting of a new trial is within the sound discretion of the trial court and will be reversed only for manifest abuse of discretion. Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 312, 757 P.2d 1290, 1296. However, we decline to review a trial court’s decision to order a new trial unless the cotut specifies the grounds upon which the order is granted as required by Rule 59(f), M.R.Civ.P. Shannon v. Hulett (1983), 202 Mont. 205, 656 P.2d 825.

The District Court’s order provides:

“The Court having fully considered Plaintiffs’ Motion for a New Trial filed on April 30, 1990, and having fully considered the Briefs of the parties addressed to said Motion, as well as all of the files, records and evidence in this case, and being fully advised in the premises,
“IT IS HEREBY ORDERED that Plaintiffs’ Motion for a New Trial should be and is hereby granted.”

The order does not specify the grounds or the District Court’s reasons for granting a new trial. We therefore dismiss this appeal without prejudice and remand to the District Court for reconsideration and entry of an order granting or denying a new trial, and if a new trial is granted, specifying the grounds therefor in compliance with Rule 59(f), M.R.Civ.P.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH and WEBER concur.