Posted by: Patricia Salkin | June 26, 2012

MT Supreme Court Affirms Revocation of Building Permit Not in Accordance with City Zoning Ordinance

DeVoe applied for a building permit for a large storage building on a vacant lot he owned. The City’s Office of Planning and Grants informed him that under the applicable zoning regulations he could only build an accessory building that would be incidental to the ordinary use of a building located on the same premises.  DeVoe’s plans essentially outlined a large warehouse which in no way could be construed as an accessory building. DeVoe did not appeal, but submitted a new application for a similar building on a nearby lot, which was granted. After inquisitive neighbors complained about the building to the city, the Board of Adjustment voted in a public hearing to revoke the building permit on the grounds that it would be used to store business assets and was not an accessory to the existing single-family home.

After his permit to build a large storage building was revoked, Devoe brought action against the city and the objecting neighbors. DeVoe claimed a violation of constitutional rights, violation of civil rights, deprivation of property, estoppel, vague ordinances, selective enforcement, and negligence and sought injunctions and restraining orders. The District Court found in favor of the city on all issues and dismissed the claims against the individual objectors, awarding attorney fees to them.

Regarding the issue of the Board’s decision to revoke the building permit, the District Court concluded that the Board did not abuse its discretion since DeVoe did not display any intention of using the building as an accessory to a prior existing building and since it was different in both size and character to those used in such a setting.  The Supreme Court found that the determination of the board was supported by facts and that it was not unreasonable. Furthermore, the court concluded that the statute is not unconstitutionally vague merely because it could be subject to different interpretations as a person of ordinary understanding could understand the language of the ordinance.

DeVoe v. The City of Missoula, Montana City Board of Adjustment, 364 Mont. 375 (MT, 4/3/2012)

The opinion can be accessed at:

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