W1L L iA\Z RUSSELL
FL,ATIIFAD COVNTY, and THE FLATHEAD
CObhT Y BOARD OF ADJUS 1MEVT,
Defendants and Resportdents
r%PPEAIdFROM: District Court of the Eleventh Judicial District,
In and for tile County of Flathead,
f-tonorable ICatherine R. Curtis: Judge Presiding
COUKSEL OF RECORD
For Appellatlt
Rlcliard DeJana, Richard DeJana & Assocrates, PLLC, Kalrspcll. Montana
For liespondcnts:
Thomas Esch, County Attonic); Jonathan B Sriilth. l)cputy County
rlito~~icq,
ICalispcll, llo~itana
Sublnittcd on Briefs: September 20, 2001
Decided: January 23,2003
Filed:
of
J ~ I S I I C CJ!n: Rice iiclivercd ihc Opit~lor! ihc C'ourl,
9 ,r\ppejjdnl $Viliiam Rassci'i /Ri:sseii) appe:iis f~.rom;he orJcr.i or'rhi- fnciudingrlsat Russell's cllsllenge to tire District
w a s barred b: the statute of limitations?
15 Russell claimcii in his Cou!lt 1 that the subdistricvs created withirr the District, and the
differingrcgulations for property located \vithin each subdistrict, violaicd $76-2-292, ili:?,
which requires that zo~titigregulations Tor each ciass or kind of buildings "throughout a
district" hc uniform. The Viistrict Court entered summary judgment in favor of Flatitcad
Count! on the grounds tliat thrs clarm was barred by the statute crf i~rnttat~ons.
:[I 6 (li.
We review a district court's order granting summar-yj~idgmerla irovr~,
applying the
same evaluation as the disti-ict court does pursuant t Kulc 56, M.R.C'i\-.P. Rr-uner v.
o
I.ello14 i f o w C'cilrnry ( I 095), 272 Mont 261,264,000 P.2d 001,003 In /jizrlzer. itr set f'orth
our inquiry:
I'hc niovaut must demonstrate that no genuine issues of material fact exist.
Orice this has been accon~plished,the burden then shifts to the non-111oving
party to prove, by more than Inere denial and speculation, that a gen~iiileissue
docs exist. l-laving deterniined tliat genuine issues of fact do not exist, the
court rnusi liten determine whether the moving party is entitled ro juclgnie~it
as
a matter of law. We reiielz the legal determinations made by a district court
as to whether tile court erred. [Citations omitted.]
'"'1 7
I
,~\ti l ~ c
l?eart of the issile here is the tirnc limitatioit provision sct f~i,t-th I I$ 76-5-202.
~
hlCA. which provides that actions ckallenging tlre creation of a zoning district niiist be
. .
''within 5 years itiicr the date oi'ihc ordcr hy thc bmrd oico~mty
c~rn111er3ccci comrnxcsioncrs
. .
creating tlrc district. . . ." Section 76-2-2(?2(i)(bi, XICA ( r
...( q
.'i
.i, i).'
!!8 C.ornrnissioncrs on May
The i>istrictwas crcated by rcsolritinri ofthe Board of'Ci;ui~?y
7, ioo19 and I<~~sscil his Complaint on May 6; 1008. Flathcad Coiint)- ~naiiltains
filed that
Rtrsscil's action is a challe~lgeto rlie crcation of the District. bvith i t s subdistricts, anti
thercforc. is harrcd by the five-year linlitation provision within $ 56-2-202(i )jb), PICA.
I Russell argues that becausc he is seeking lo invalidate diffc~~ing
regulations witliirr tlie
I>isrrict. and not the creation of the District, the five-year liinitaiio~i
provision is inapplicable.
in support of his position, R ~ ~ s s eoffers that the zoning statutes gcncrally distinguish
ll
e ~ cvcatioti o f a district and tllc establisli~nent
b e t ~ v e the ~ ofthe regulations ii~c.reur~dcr, i tihi~t
a~ d
the iivc-year li~niratio~l
provision applies olily to actions challengilig tile actual creation of
a district. F-ie reasons that applying the five-year li~nitatiotiperiod here ivcttlld bar all
challenges to illcgal regulations if a zoning district had bccn in existence for more than fTve
years, itlternati~cly,Russell argues that if the fivc-ycar provision docs apply, then tlic
limitation period began to run on September 27, 1993, when the county ccii~~nrissio~icrs
enacted a resolutioli amending the /oniilg regulations, and changing the zonc designation
from SAG-1 to S A G 10. and therefore. his action was timely filed 011 May 6. 19'18.
rcfcrred to the icroion o i t h c MCP. upon
Ncithcr party. :lor thc 1)istrict Court in its dcc~sion.
which they werc relying. Ilowever. tlrc 19x9 version ofthe Cod& ~ v l ~ i c h in vffcci'CI at (hi' time tlrc
\\as
contains the 5 ycar limitation provisioii at issuc h u e . arid 13 relied upon herein. A
ilistrict \\as CI-eatcd,
virtually identical provision rernains in effect under the 2001 ('ode.
B:?() r>i;trict ci=rc ar:aly.e:d Russell's ciailri a11d detcr-mined 2
:
s :
I rnettcr o f law that i t
was r: ch:iiicnye to the creation ofii!c District, stating its hiiuws:
f i e basis of Plai~itift-sargument that the regulations are invalid is ihat thc
n~ultiple districts were crcateci incorrectly itnd arc aoiual!!; one district. As
counsel for Plaintiff stated at oral argument: ""L-ferewe have a district with
illegally crcated subdistricts." I'hcrc could nor be a [clearer] challenge to '-the
creation of a zoning district.'' which must he commenced within five years
after the creation. Plaintiffs claini is barred by the statute of limitations sct
hnh in Scction 76-2-202( l)(h). M.C.A.
!121 Wc agree with tile District i:ourt's conclusion. Russell's assertion iiot~vithstandiiig,
he is arguing that the creation of the District with distinctive subdistricts docs not comply
tvith $76-2-202. MCA. f h e crux of Russell's argument i s that the District is invalid hecause
the County cttactcri different property classifications and regulations for properties within the
subdistricts of a single district. This differing treatment of property within the suhtlisiricts
regulations vere amended in September 1001, but, rather.
d ~ not occur \+hen thc r o n ~ n g
d
when the District was created in May 1991. Thus, li~isscll's
true challenge is to the creation
district, and the five-year limitation provision contained in $ 76-2-202(lj(b').
of this ~ o n i n g
1 a l e . t3ecause his ('omplaint was tiled morc than rice years after the crcatioli of
the Distr~ct, clarm
his I S ttrne barred
722 Neither Lire \+-c by R~lssell's argi~mcntthat this conclusion bar.; a i l
challc~igcs zoning rcgulations after a district has bccn in csislencc for five years. 1Vc arc
to
not fiiced here \vith the q~restionof whether the tivc-year lirnitatictn procisioi~in 4 76-2-
202(l)(b), MC.\, applies to challenges to /t>n!ng regulat~onsnhtch are u~rel3tcdto a
district's c:.eaiion, a i ~thcrcbr:, this ciecisiorz has no bearing on that issuc. K~inethcitrss,
i this
dccision should no: be Intc~pi-crcd imposing a bliinh-; prohibition on chailcngcs to zoning
as
rcgriiations aftcr a district has been in existence for f i ~ years.
c
42
'3 We conclitde that the District Coiirt did not err in granting srimmai-5-judgment 10
Flathead County on Count 1.
')124 Did the District Court err in determining that Russell's property was included
within the Oistrict when it was created?
725 'The pcrimcter description of the District includes the propcrry owncd by Russell. as
does the description of the property within the perimeter classified as SAG-I . These facts
are not disputed. Russell acknowledges in his brief that "[t]he plain riff"^ propeny is within
tltc first S'ACi-1 area described."
2 C-[owever.Kussell argues that the area described as SriC-1 is itself cxcluded from the
District. He asserts that the description clearly excluded certain areas within the District's
ouier boundary, such as the Prairie Vie\? Zoning District and the proposed Schrocder Ridge
Zoning i)isrrict, and that the same kind of exclusion language was used to cvclude the area
described as SAC-1 ~rhich
includes his property. Thus, Russell asks that this Court declare
his property, and all other property within the SAG-1 classific:~tio:l,to be outsidc the District:
and unaffected by regulations adopted pursuant to the District's creation.
P
:
" in ifrafting I)istrict's pcrimcter drscription, ilic drafter-s first classified the entire
diffcren: classification. Russell asserts that by placing the word "excluding" immediately
preceding the land descriptions not classifieci as AG-40, these properties were renioveci from
the U~strict.
7128 The property description in the resolution approving the District is set brill in thc
follon ~ n g
manner:
PERIMETER DESCK!P-i.!Ofi OF 1-1ICi!!lV.4\( 0 3 XORTFI ZOKlNC;
DISTRICT to be zoned ACi-30
E:xcluding the Prairie View Zoning District described as follows: [property
cicscriptionJ
.4nd excluding tltc proposed Scl~roeiierRidge Zoning District described as
follows: [property description]
SAG- I
Excluding a tract of land to be zoned SAC;-1 described as follows: [property
description]
'An "Agricult~~ral A?\(;-40"classifi~atlon defined as a ~'disti-ict protect and preserve
is tcr
agrici~liuralland iiir the pcri;?rmancc.oTa u-icic mngc oi'agriciti:~iral iirnctiriiis. 11 is intended to control
the scattcrcd jntrus~onot'iiscs not compnrihlc with an agricultural e n ~ i r o n m c n incliiding hilt nor iiniiled
t~
to residential ilcrelopmi.~~r." 3.
Seciion 3.02, ('l~aprn. I:lathc:jd f'ouniy i'omprcl~erisiveZoning
Kegulations ( 19!>1).
Excluding a tract of land m be zoned K-2 cbcscribcd as fb!iows: [property
dcicriptionj
Erc!uding : tract of land to be ,7olicd B-1 desc:-;bed as fbl!nws: [property
I
description]
Excluding a tract of imd to he zoncii R-i described as itllows: [~properry
description]
No. 837, adopted March 5; 1991.
Kesol~ltion
"20 l o repeat. it is undisputed that Russell's property is located within thc pcrimctcr
property descriptiorr of the Districi and nititin the property described and classi ficd as SiPCi-
I . 1.-iowcver,referencing the word "excluding" which precedes the dcscription of the area
classified as SAG-1. Russell claims that his property, and all S"ii>sed
condiiions \vhich restricted the kind
of cquipmei-ii which could be repaired in Russell's faciiity ar~d iliimhcr of hoiiis of
ihc
operation, and also requircdeyuipmeni stored outside of the shop m be screened from public
view,
725 Russell challenges the District Court's conclusion that his Llse oftile property was trot
:in existing use. Me asserts that the r>isrrictCourt may have foitncl that his particular manner
of use was objectioni~hle,hut that, nonetlreless, his use was essentially thc same as it was
prior to zoning: the repair of eyuiptncnt. He argues, relying on tliis Court's holding in
~(L'IZSIIIOL' ('&
1'. ,i ~fICli.ssouJn (1 97 I), 156 Pvlont. 40 1, 480 1'..2d833. timi the standarc1 for
determining rhe validity of an existing, nonconfornling use under both state statute and city
he
ordinance sl~ould flexible, and that the District Court's consideration was too narron:. tfc
contends that the imposition of restrictions upon his use of the propcr%y--restrictiot~s
which
are not found within tile zoning regiilations--constitutes ji~diciallegislating, and that tile
restrictions must be struck.
'36 The District Court relied up or^ $ 76-2-208, MCA. ~cliich
states:
Continuation of nonconlitrming uses. Anylawf~tl whiclt is made of land
use
or buildings at the time any zoning resolution is adopted by the board of
county commissioners rnay be continued although such ~ t s c
does not conforrn
to the provisions of such rcsolt~tion.
737 The District Court also applied a county /oiling regulation addressing the ccjntinuiiaun
iifnii~iconhrrnir~g ofproper?.>. Section 2.07.0iO; F1atbcad Couiity Zoning iicguiations;
uscs
states:
A lot or building being used in an otherwise lawful rnanner that does not
conform to the use provisions of the Flathead County Zoning Regulations, may
continue to be uscd in the manner and to tlie extent that it was beirrg used at the
time of the adoption of the zoning.
The District C'ilur? found Russell's use to be in violation of both oftlicsc provisions.
4i3S In orcier to resolve this issue. we n~ust
examine Hedstrom's use of the property at t l ~ c
time of zoning. The District Court found, anci Russell does nor cliallenge on appealt that
Russell admitted in his testimony that the extent of his use varies significantly from
tleiistrom's use of the property.
739 operatcd it dairy faml on
At the time the property was zoned in May 1091,l-iedstron~
the property. Incidental to the dairy operation on the property. l-lcdstrornalso usecl the shop
located on the property to repair ftir~ii
equipment. t~iedstromuscd the shop to repair both his
obvn furm ecluipment anci that of others. kiedstrotn also built trailers and hitches ill the shop.
Hedstrom testified that at the timc of zoning he would spcnd approximately thirty-five hours
a ~veekin thc shop, and that he did all the shop work hirnsclf. :it the timc of'zor~icg,
Hedstroni stated-he would store one to three pieces of farin cqilipn~eut the propcrty from
011
time-to-time.
'140 Since purchasing the property in March 1997, Kusscll has opcr::ted an ccluipnient
repair business on tlie property. Russell has ~tsed property to repair, maintain, ar~d
the store
heavy eyuipn~cci. Krissei! employs onc pcrson to ix;irrk 1.~11-time rbi: shop. Kursrii also
in
.--I
stores t.iyenty to ei-iiny piece.; of cyuipmcrri. in i-ariuiis stages of repair. on tile property. 1 r-ic
stored cqiiiplnent inc!udcs logging trucks, semi-trucks, busses, and bcildo~ers, Xo
agricultural use has occ~trred the property since Russell purchased thc property.
on
4 The District Coun concluded that Russell's use was "substantially difi-c'icci'. than ihe
pre-existing, nonconforming use of the property, and therefore violared both Seeti011
2.07.010, Flathead County Zoning Regulations, and 8 76-2-208, 11C;I. W c find tliat the
District Court did not err in so concluding. The District C o ~ ~ r tlrolding was supported by
's
sul~sraiitial
evicience that Russell was not using !he property"ii1 the lnanner and to the extent
that it u a s being used at the time oft112 adoption of the zoning," as required by thc ordinance.
7/42 Fur-ther. the District Court's holding is consistent with 5 76-2-208$ MC'A, which
provides that "[ajny lawful use . . . may be continued." In his brief, Russcil argues that the
plain ineaninp of this statutory language "does not imply a limitation on expansion" ofa prc-
existing la~vful
use of the property, and therefore, his activities on the property rniisr be
pcm~~tted. contemplates continuatloll ofthc status q~to.
Howe~er, find that thc lang~iage
me
7 he word "continued," defined as "lasting or eutend~ng
nithout inten-~~ption."'
means slmpiy
that a pre-existing use lnay he maintained. The evidence herc es!ablishes that R~issc!lhas
done more than maintain the existing use. He has expanded the kind. or the nature. of thc
property's use to include activities which did not exist at the time of zoning (from Fdnn
'blerrianr-LVchstcr Collegiate 1)ictionary. Tenth ilditlon, I098
I5
cyuipinetit repair to h e a q cornlllercial equipment repair): and silbstaniially ir~crensedthc
q - ~ ~ m t i t i ~ ythe ~ciiumc, tihi: new activitv biiond t!mr associaical nit!? li previous
or , of > . ii: ti= of
thc property (from one to threc i-ehiclcs to ivreilty to thirty \,chicics at a timc).
743 li: firz.snzoe, an uninhabitahlc trailer home on thc subject property, a noncon'iorming
use, was replaced with a newer trailer home. The City of hlissoula brougllt an action to
prohihit this perpetuation of the nonconformi~lg
use. This Cotill held in favor of the plaintiff
property owner, recognizing, based upon the City's ordinance, that "plaintifflras an existing
vested right to a nonconforming, continuous, and uncl~anging ofthe land in question as
use
a site fitr maintaining one single family residential trailer." Kel~smoe.I56 bfont. at 406,480
P.2d at 838. We concluded tlrat the non-conforming trailer borne co~liil properly replaced
bc
in accordance wit!] this vested right. Section 70-2-208: MCA. was not zippliecl.
"44 Contrary to Iiussell's argument. this Court's preclusion of the City's cf'ii113to restrict
the property owner in Kerrsi~zoe
offers no support for Russell's argument here. The property
owner in Kerrsmoc sought to eontinuc the precise prc-existing, nonconfor~ning but n-ith
use,
a newer trailer home. Slic did not seek to expand or changc the purposes for which hcr
property w a s ~iscd, the volume of such use. 1:11like tlte property owner iir k'irrisn~oc.
nor
K~lssel!has engaged in activities which siihstantially dcviate torn the pre-existing uses of
llrc property.
q45 Finally; Russell argucs ~ o n i n g a legislati\-c functictn. and that by imposing r11e time
is
and use res~rictionsoil the property? the [>istrier C'ourt !us excceded its power and is
legislating. Russell corztcnds that the court's ciistincticin bct\vecn farm ecpiprncnl and heavy
oivn descriptioiis. i i c argnis
equipnrcot ciriscs not from ihi rcgeiarion, bat horn the cou~t's
that nothing in tile A(;-30 or S.A(;-1 zoniiig ngultlticins prohibits storage ofheat - eqitiprnei~t
i .
on t i ~ propcrty, rcsi~.icts
c uses to certail~ requirement.
times o f thc day, or imposes a scrcci~ing
and therefore. these conditions were impermissibly imposed.
746 We disagree. Russell's use of the property exceeds tile pre-existing notlcontbrming
usc of the property in both manner and extent of use. From the evidence prcscnted, the
District Court detertnineci the use of the property at the tintc of zoning, and limited Russell's
use with respect to the type ofequipment repaired, the number ofpieces ofecjuiprnent stored
on the property, and number of lrours operated per week to tlte rnanncr and cxtctii of that
prior use. Consistent with the historical storage of vchiclcs otrt oi' public view on the
propcrty. the District Court ilnposeti a scrcenillg requircme~lt shield vehicles from public
to
view. In imposing these conditions, tlie Listrict Court was not legislating limitations on the
property. Ratl~cr, court was enforcing the ordinance's requiremenr that nonconfdnning
the
uscs be continued in thc same manner as "at tlie time of the adoption ofthe ~oning."Section
2.05.010, Flatiiead County Zoning Regulations. We find no error.
947 Tho orcier of the District C'ourt is affkmed.
\ b e concur: