Opinion

Prezeau v. City of Whitefish

  • 198 Mont. 416
  • 646 P.2d 1186
  • 1982 Mont. LEXIS 833
Court
Montana Supreme Court
Filed
Jun 21, 1982
Status
Published
Author
Sheehy
On the bench
Sheehy, Daly, Harrison, Morrison, Shea, Weber, Bennett, Haswell
Cited by
2 cases
Authority
More cited than 56.4%

The opinion

No. 81-424

IN THE SUPREME COURT OF THE STATE OF MONTANA

1982

MICHAEL C. PREZEAU,

Plaintiff and Respondent,

VS.

THE CITY OF WHITEFISH,

Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District,

In and for the County of Flathead

Honorable James M. Salansky, Judge presiding.

Counsel of Record:

For Appellant:

Fisher and Erickson, Whitefish, Montana

Leif B. Erickson argued, Whitefish, Montana

For Respondent:

Michael C. Prezeau, Pro Se, argued, Kalispell, Montana

Submitted: March 30, 1982

Decided :

JUN 2 1 1982

Filed:

Mr. Justice John C. Sheehy delivered the Opinion of the

Court.

The City of Whitefish appeals a judgment entered in the

Eleventh Judicial District enjoining the City from constructing

or authorizing the construction of an indoor rifle range in

Baker Avenue Park until the project is approved by a majority

of the voters of Whitefish in a special election.

In 1909, the Whitefish Townsite Company conveyed to the

City a parcel of land which later became part of Baker

Avenue Park. The deed conveying the property contains the

following language:

". . . Also subject to the condition that the

said property is to be used exclusively for

public park purposes, by the said Town, and in

case the same is not so used, it will revert to

the grantor hereof. . ."

The District Court found that the Whitefish Townsite

Company no longer exists, that its successors in interest

are unknown, and that there has been no waiver of the

restrictions contained in the deed.

Baker Avenue Park is located within the Whitefish city

limits and is used for outdoor park purposes including

tennis and a playground for children.

The Whitefish Rifle and Pistol Club, Junior Division,

Inc. (hereafter referred to as Rifle Club), is a private,

non-profit corporation which was established in Whitefish in

about 1932.

On March 2, 1981, the Whitefish City Counsel authorized

construction of an indoor rifle range on a portion of Baker

Avenue Park. At the same council meeting the City affirmed

an undated, written lease agreement between the City and the

Rifle Club. The agreement provides that the City will lease

the rifle range, upon completion of construction, to the

Rifle Club for a five year period with an option to renew

the lease at the end of that period. Under the agreement the

City is to provide the site for the rifle range and contribute

$10,000 toward construction of the building. The County of

Flathead, which is also a party to the agreement, is also to

contribute $10,000. The agreement provides that "the Rifle

Club is willing to furnish and pay the balance of the cost

of construction of such a building if they can lease the

same for the use of their members and the public." The

agreement also states "[tlhat all real property used for the

purpose herein mentioned and the improvements placed thereon

shall be owned and belong to the City and be public property."

The Rifle Club is to maintain the premises, pay for utilities,

and carry insurance on behalf of the City. In order to

defray these expenses the agreement allows the Rifle Club to

charge the public and club members a "reasonable use fee."

Finally, the agreement provides that the Rifle Club shall

operate the facility "in a manner commensurate with its

status as a municipal rifle range."

The District Court found that the range would be used

primarily during the winter with some summer use possible.

Use of the range is not predicated upon membership in the

Rifle Club but a $5 use fee is contemplated for nonmembers.

The public would be allowed use of the premises possibly one

night per week with membership leagues having priority.

Cost of membership is anticipated to be about $20 per year

plus a small usage fee.

The dimensions of the proposed building are 50 feet by

88 feet. A nearby parking lot will measure 60 feet by 72

feet.

The City presents two issues:

1. Whether the City of Whitefish must receive voter

approval in a special election before leasing Baker Avenue

Park to the Rifle Club.

2. Whether an indoor rifle range constitutes a "public

park purpose. "

We affirm the District Court's ruling on the first

issue. We hold that the second issue is not properly before

this Court.

Section 7-8-4201(2) (b), MCA, controls the first issue.

That statute provides in pertinent part:

"Disposal or - - of municipal property

- lease

. . . If the property is held in trust for

a specific purpose, the sale or lease thereof

must be approved by a majority vote of the electors

of the municipality voting at an election called

for that purpose. .

."

The District Court's order enjoining construction of

the rifle range is based upon this statute.

The City argues that the District Court's order con-

stitutes a failure to abide by this Court's interpretation

of the statute in Colwell v. City of Great Falls (1945), 117

Mont. 126, 157 P.2d 1013. In Colwell, we stated:

"Sec. 5039.61 [R.C.M. 1935, as amended by Ch.

35 of Laws of 1937--now section 7-8-4201,

MCA], supra, was designed to permit the cities

and towns of this state, with the approval of a

majority vote of their taxpayers, to sell or lease

their property which was held in trust for a

specific purpose, in abrogation of, - -

or in

- _ -

substantial interference with theuse of the

property - - specific purpose." (Emphasis

for such

added.) 117 Mont. at 146, 157 P.2d at 1022.

The District Court did not conclude that the rifle

range would be in abrogation of or in substantial interference

with a public park purpose. Instead, it concluded that the

range "may be incompatible" with a public park purpose.

The statute, as construed in Colwell, requires a finding that

the proposed rifle range be in abrogation of or in sub-

stantial interference with a public park purpose. The City

argues, therefore, that because no such finding was made in

the present case, an election is not necessary.

Section 7-8-4201 (2)(b), MCA, is relatively clear. It

requires an election to approve the sale or lease of municipal

property that is held in trust for specific purposes. Neither

party disputes that Baker Avenue Park is "property held in

trust for a specific purpose." It follows, therefore, that

before the property is leased to the Rifle Club, a majority

of the electors of the City of Whitefish must approve the

lease thereof.

By our holding in this case we overrule Colwell,

supra, and Hames v. City of Polson (1950), 123 Mont. 469,

215 P.2d 950, to the extent that they conflict with this

opinion and the clear language of section 7-8-4201(2) (b),

MCA. Our research indicates that these are the only Montana

cases construing the statute since its enactment in 1921.

The statute commands that the sale or lease of municipal

property held in trust for a specific purpose must be approved

in an election called for that purpose. The statute does

- state that an election is required only if the sale or

not

lease is in abrogation of or in substantial interference

with the specific trust purpose.

The City has asked this Court to decide whether the

proposed rifle range constitutes a "public park purpose" as

the phrase is used in the reversion clause of the 1909

conveyance. Technically, this question will not be ripe for

decision until the lease is approved in an election. At that

time, the question must be faced in resolving the ownership

of the property under the reversion clause. It has no bearing

on the primary issue in this appeal, that issue being whether

an election must be held. Furthermore, the District Court

has not made a final judgment on this issue. It concluded

only that the leasing and contemplated use of the park "may

be incompatible" with a public park purpose.

Af firmed.

Q~ Justice

We Concur:

d l 6)* - l I i,

Hon. Gordon ~enne'f~t-istrlct

Judge, Sitting for Mr. Chief

Justice Frank I. Haswell, who

deems himself disqualified

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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