No, 12749 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

ROBERT R. ALDEN, 

Plaintiff and Appellant, 

BOARD OF ZONING COMMISSIONERS, et al. , 

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. Justice Wesley 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 situation where the 

respondent-defendant Board does not appear by brief or argument, 

even thnugh this Court issued an xder to show cause as t? why 

such appearance was not made. Under such situation this Court 

shall take the appellant's vershns and positions as being correct 

if they 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 represented by 

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 furnishing of 

briefs by the respective parties, was submitted to the 

court f~r decisim and was thereupon taken under advisement by the court. 

"~rom the record, 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 in Missoula County v. 

Missoula City, 139 I~iontana at page 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, in his appeal, 

has alleged that the original zoning regulations were 

amended * * *, but that such amendments and changes 

follow unreasonable, arbitrary and discriminatory boundaries * * ** 

"4. That plaintiff has the duty to prove by a preponderance of the evidence the allegations of his claim. 

Ilaintiff has failed to carry such burden. 

"5. That by plaintiff's failure to prove the allegations 

of his claim as aforesaid, plaintiff's appeal must be 

dismissed. 
7 he court concludes as follows: 

 hat plaintiff's appeal is ordered dismissed. 

"~et judgment be entered in accordance with the foregoing. 

"~ated December 26, 1973. 

"s/ James D. Freebourn Judge. I I 

The only issue actually ruled 9n was that Chapter 47 did not 

amend Chapter 41 of the 1947 Revised Codes of Montana; and that 

Alden failed in his burden of proof. 

Since the matter is not contested here, we doubt the wisdom 

of an in depth treatment of the validity of all the issues presented. Appellant lists nine issues under three general headings: 

(1) Appellant claims the zoning plan is generally invalid; 

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

(3) That the facts proven did not fail to carry the burden of 

proof. 

At trial 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 

establishing a planning and zoning district f3r the Floral Park 

area were introduced. 

The two maps show Alden's pr~perty as a vacant lot and 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, in effect, that be that as it may, the grandfather 

clause covering any use existing would adequately protect Alden. 

More will be said later about the "grandfather clause". 

Alden moved for a new trial and fgr amendment 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 is not in conformity 

with sections 16-4102 through section 16-4107, R.C.14. 1947, in many 

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 entire resolutim and make 

it invalid as to his 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 illegal discrimination as to 

appellant's propertics. The trial court merely ruled that 

appellant failed to carry the burden of proof. These facts show 

unreasonable discrimination as to appellant's property: 

(1) The zoning b3ard modified its original plan by creating 

a commercial district due south of and c-mtiguous to appellant's 

land, prior to adopti,?n of the plan, and for no apparent reason it 

failed to include appellant's property in a commercial designation. 

(2) There is but one residence surrounded by commercial 

propertiesdthin the area designated R-1 Residential between the 

above described commercial district and the boundary 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 existing nonconforming 

uses may be continued, although not in conformity with 

such zoning regulations. 11 

"16-4709. Continuatton of existing uses. Any lawful 

use which is made of land or buildings at the time any 

zqning resolution is adopted by the board of county 

commissioners may be continued, although such use docs 

not conform to the provisions of such resolution. I I 

Section 13-19 of the Floral Park plan creates a situation 

where property in existence conflicting as to height, area, yards, 

courts,~floor area and set-baclc restrictions - is taken from the 

protection of the above cited two cqde sections. 

Thus, the grandfather clause would not protect appellant, 

since one of his properties is a vacant lot and the other commercial 

but defined by the resolution so as not to be protected. This 

amounts to an unreasonable and discriminatory action. 
The order of the district court is reversed. The cause is 

returned to the district court for entry of an order either 

excludtng Alden'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 is going to 

or has annexed part of the area and we are unable to determine 

frgm this record the true situation. 

Appellant shall have his costs. 

We Concur: 

Chief Justice 

n 

Justices.