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IN THE SUPREME COURT OF THE STATE OF MONTANA

G. ROBERT MAHRT and WESTERN MONTANA
REGIONAL MENTAL HEALTH CENTER,
Petitioner and Respondent.
vs.

CITY OF KALISPELL,
Respondent a.nd Appellant.

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ORDER AND OPINION

The City of Kalispell appeals an order of the Flathead
County District Court granting the Western Montana Regional
Mental Health Center a conditional use permit to locate a
group home for eight or fewer mentally disabled adults in an
Kalispell area zoned residental.

The Health Center applied to the Kalispell Board of Adjustment for a conditional use permit to convert a residence to a group home in a Residential-5 area, as defined by the Kalispell City Code. In applying, the Health Center satisfied the requirements of the Kalispell City Code. The Health Center relied on sections 76-2-411 a-nd 412 (1983), MCA which defines a group home as a community residential facility and mandates group homes to be considered residential use of property for zoning purposes. Despite the law, the Kalispell Board of Adjustment denied the conditional use permit. The Health Center challenged the decision of the Board in District Court where the Board's obvious error wa-s corrected. Now the City of Kalispell asks this Court to review the District Court's decision. Based on our decision in State ex rel. Thelen v. Missoula (1975), 545 P.2d 173, 168 Mont. 375, and the 1egi.slative mandate in Tit3.e 76, Ch. 2, Part 4 we decline to review the decision of the District Court.
There is absolutely no question that in Montana a. group
home for eight or fewer people is a residence and may be
located in anv area in Montana zoned residential. Article
XXI, 3 (3) of the Monta.na Constitution, Title 76, Ch. 2,
Part 4 of Montana statutory law and case law as stated in
Thelen v. Missoul.a, 168 Mont. 375, 543 P.2d 173, make it
clear this is the rule in Montana. This Court will not
require community residential facilities to repeatedly defend
their well established right to locate in any residential
area in Montana. The Kalispell appeal is meritless and
dismissed as frivolous. Costs in the sum of $500 are
assessed against the City and in favor of the petitioners
under Rule 32, M.R.App.Civ.P., with costs of this appeal, and
the usual costs in District Court.

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Chief "Justice

Justice Daniel. J. Shea special concurrence:

I do not view the dismissal here as a summary dismissal.
Rather, it is a short opinion d.isposing of the merits an6
decl-axing that a longer opinion will not be written. With
that I agree. The appeal is totally

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Montana Law