### No, 12749 INTHE SUPREME COURT OF THE STATE OF MONTANA 19 74

ROBERT R. 

### ALDEN, Plaintiff and Appellant,

BOARD 

### OF ZONING 

### COMMISSIONERS, etal.

## , Defendant and Respondent.

Appeal from: District Court of the Second Judicial District, Honorable James D. 

### Freebourn, Judge presiding. Counsel of Record: 

### For Appellant: 

### John L. Hamner argued, Butte, Montana For Respondent: 

### Lawrence G. 

### Stimatz, County Attorney, Butte, Montana

Submitted: 

### November 12, 1974

Filed: I z 4374 >,Mr. JusticeWesley Castles delivered the Opinion of the Court.
This 

### is an appeal by a property owner from an order of the district court, Silver Bow County, dismissing the property owner's appeal from a ruling of the Board of County Commissioners in a zoning matter. This 

### is an unusual and unprecedented situationwhere the respondent-defendant Board does not appear by brief or argument,
even thnugh this Court issued an xderto show cause as t?why such appearance was not made. Under such situation this Court shall take the appellant's vershns and positions asbeing correct ifthey are in fact supported by the record. The district court order appealed from reads: "plaintiff has filed in the above entitled acti~n an anpeal frqm a ruling of the 3oard of Cqunty Commissioners and 

### its c~mmission in accordance with Title 16, Chapter 41, Revised Codes of Pfontana, 1947, as amended. Said appeal came regularly on for hearing before the court. Plaintiff was present and represented by counsel, John Leslie Hamner and the defendants were representedby designated individuals and were represented by the County Attorney of Silver B3w County, Montana, Lawrence Stimatz. Witnesses were sworn and testified. Upon the conclusion of the testimony the matter, upon the furnishingof briefsby the respective parties, was submitted to the court f~r decisimand was thereupon taken under advisement by the court. "~rom therecord, the testimony and the briefs, the Court finds as follows: 

### "1. That Chapter 41 of Title 16 of the Revised Codes of ?lantana, 1947, as amended, was declared constitutional by the Supreme Court qf Montana inMissoula County v. Missoula City, 

### 139 I~iontana atpage 256. "2. That Chapter 47 of said Title 16 3f the Revised Codes 3f Montana, 1947, as amended, does n~t supersede or supplement Chapter 41 of said Title 16 of the Revised Codes of Xontana, 1947 as amended. 

### "3. That plaintiff among other things, inhis appeal, has alleged that the original zoning regulations were amended 

# ***, but that such amendments and changes follow unreasonable, arbitraryand discriminatoryboundaries 

#   "4. That plaintiff has the duty toprove by a preponderance of the evidence the allegations of his claim. Ilaintiff has failed tocarry such burden. 

### "5. That by plaintiff's failure toprove the allegations of his claim as aforesaid, plaintiff's appeal must be dismissed.

### 7 he court concludes as follows: 

### hat plaintiff's appeal isordered dismissed. "~et judgment be entered inaccordance with the foregoing. "~ated December 

### 26, 1973.

## "s/ James 

### D. Freebourn Judge.II The only issue actually ruled 9n was that Chapter 47 did not amend Chapter 

### 41of the 1947 Revised Codes of Montana; and that Alden failed inhisburden of proof. Since thematter 

### isnot contestedhere, we doubt the wisdom of an in depth treatment of the validity of allthe issues presented. Appellant 

### listsnine issues under three general headings: (1) Appellant claims the zoning plan 

### isgenerally invalid; 

### (2) That even ifvalid, there was arbitrary and illegal discrimination as to appellant's property; and 

### (3)That the facts proven did not failtocarry the burden of proof. Attrial only two witnesses testified,Alden, the property owner, and one DeGeorge, Chairman of the Board of County Commissioners. Exhibits c~nsisting of two maps and 

### a copy of the resolution establishinga planning and zoning district f3r the Floral Park

areawere introduced. The two maps show Alden's pr~perty as a vacant lotand a lot containing a multiple purpose building, surrounded by commercial properties except for one residence, and in somewhat 9f a transition area between commercial and residential. The Board chairman testified, ineffect, that be that as itmay, the grandfather clause covering any use existingwould adequately protect Alden. More willbe said later about the "grandfather clause". Alden moved for a new trialand fgramendment of the order to show a ruling 9n the specific issues attacking the validity of the resolution itself. This was denied. A reading of the resolution shows that it isnot inconformity with sections 16-4102 through section 16-4107, R.C.14. 1947, inmany particulars, contrary 

### t~ the findings of the district court heretofore quoted.Appellant argues the resolution contains a number of invalid and illegal prwisions that affect the entireresolutim and make 

### it invalid as tohis pr~perties.We need nor rule here on this. Here the facts gleaned from the exhibits and the testimony of the two witnesses demonstrate an illegaldiscrimination as to appellant'spropertics. The trialcourt merely ruled that appellant failed tocarry theburden of proof. These facts show unreasonable discrimination as toappellant's property: (1) The zoning b3ard modified itsoriginal plan by creating

a commercial district due south of and c-mtiguous to appellant's land, prior toadopti,?nof the plan, and forno apparent reason it failed to include appellant's property ina commercial designation. (2) There 

### isbut one residence surrounded by commercial propertiesdthin the area designated 

### R-1 Residential between the above described commercial district and theboundary of the zoning district due north: and this includes appellant's pr3perty having

a commercial use. (3) The "existing use provision" of the Fl?ral Park plan goes beyond the expression of the legislature in these sections of the Revised Codes of Montana, 1947: "16-4102. 

# ** 

# * providing that existingnonconforming uses may be continued, although not inconformity with such zoning regulations. 11 "16-4709. Continuatton of existinguses. Any lawful use which ismade of land or buildings at the time any zqning resolution isadopted by the board of county commissioners may be continued, although such use docs not conform to the provisions of such resolution.II Section 13-19 of the Floral Park plan creates a situation where property in existence conflicting as toheight, area, yards, courts,~floor area and set-baclc restrictions 

### istaken from the 

### - protection of the above cited two cqde sections. Thus, the grandfather clausewould not protect appellant, since one of his properties isa vacant lot and the other commercial but defined by the resolution so asnot tobe protected. This amounts toan unreasonable and discriminatory action.

### The order of the district court 

### isreversed. The cause is returned to the district court for entry of an order either excludtngAlden's property from the zoning provisions or xdering the C~mmission to z'xie it 

### properly as commercial. The record indicates, without clearing it

### up, that the city isgoing to
orhas annexed part of the area and we areunable to determine frgm this record the true situation. Appellant shallhave his costs.

We Concur:

Chief Justice 

# n

Justices.