DA 22-0395

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 74N

INGE and MARK CAHILL, RANDY and

KERIN GAYNER, WILLIAM and

NANETTE REED, and IRVING ERICKSON,

 Petitioners and Appellants,

 v.

CITY OF COLUMBIA FALLS, COLUMBIA

FALLS BOARD OF ADJUSTMENT, and

CNS PROPERTY DEVELOPMENT, LLC,

a Montana Limited Liability Company,

 Respondents and Appellees.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV-20-1176

Honorable Robert B. Allison, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Lindsey W. Hromadka, Weinberg & Hromadka, PLLC, Whitefish, 

Montana

For Appellee City of Columbia Falls and Columbia Falls Board of Adjustment:

Stephanie Breck, Breck Law Office, PC, Columbia Falls, Montana

For CNS Property Development, LLC:

Karl Rudbach, Ramlow & Rudbach, PLLP, Whitefish, Montana

Submitted on Briefs: March 1, 2023

 Decided: May 2, 2023

Filed:

__________________________________________

Clerk

05/02/2023

Case Number: DA 22-0395
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 Inge and Mark Cahill, Randy and Kerin Gayner, William and Nanette Reed, and 

Irving Erickson (collectively, Petitioners) appeal an Eleventh Judicial District Court ruling 

affirming on judicial review the Columbia Falls Board of Adjustment’s (the Board’s) 

approval of CNS Property Development, LLC’s (CNS’s) zoning variance request. We 

affirm.

¶3 A nine-unit apartment building, “the Swiss Apartments,” was built sometime around 

the late-1960s, outside of the Columbia Falls City (City) limits. The property was unzoned 

at the time. In 1978, the property was zoned as one-family residential and in 1998, the 

property was annexed into City limits, maintaining a single-family residential (CR-3) 

zoning designation. CNS purchased the property in 2005. 

¶4 Notwithstanding the single-family zoning designation, CNS continued to operate 

the Swiss Apartments pursuant to Columbia Falls Municipal Code (CFMC) § 18.211.010, 

which allows for the continued existence of structures built before the zoning code became 

applicable. In early August 2020, two fires completely destroyed the Swiss Apartments. 

CNS sought to rebuild. However, the municipal code made clear that the accommodation 
3

for preexisting nonconforming structures terminates upon destruction of the structure and 

that such properties are thereafter subject to “all of the regulations” otherwise applicable 

to structures in the zoning district. CFMC § 18.211.050(A). 

¶5 Unable to rebuild pursuant to the accommodation for preexisting nonconforming 

uses, CNS instead sought a zoning variance from the Board that would allow CNS to 

rebuild apartments on the property otherwise zoned for single-family residential uses. 

Rather than build a single nine-unit building like that which had burned down, CNS 

planned to divide the nine units between three smaller buildings to better blend in with the 

look of the neighborhood. On November 17, 2020, the Board held a meeting where it took 

public comment, deliberated, and ultimately approved the variance request. Petitioners 

sought judicial review in District Court, which affirmed the Board’s decision. Petitioners 

now appeal to this Court.

Standard of Review

¶6 A district court reviews a board of adjustment’s decision for an abuse of discretion. 

Carlson v. Yellowstone Cty. Bd. of Adjustment, 2017 MT 186, ¶ 13, 388 Mont. 232, 399 

P.3d 322; Flathead Citizens for Quality Growth, Inc. v. Flathead Cty. Bd. of Adjustment, 

2008 MT 1, ¶ 32, 341 Mont. 1, 175 P.3d 282. A board abuses its discretion when it relies 

on “information so lacking in fact and foundation” that its decision is “clearly 

unreasonable.” Carlson, ¶ 13; Flathead Citizens, ¶ 32. So long as the board’s decision 

was not illegal or without jurisdiction, a court does not examine the wisdom of its decision. 

Carlson, ¶ 13; Schendel v. Bd. of Adjustment, 237 Mont. 278, 283, 774 P.2d 379, 382 

(1989). On appeal to this Court, we review a District Court’s affirmation of a board of 
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adjustment’s decision for an abuse of discretion. Carlson, ¶ 13; Schendel, 237 Mont. at 

283, 774 P.2d at 382.

The Board’s Factual Findings

¶7 Petitioners argue that the Board’s findings were erroneous and that its decision to 

grant the variance was an abuse of discretion. The following conditions must be met for a 

variance to be proper: (1) the variance must not be contrary to the public interest; (2) a 

literal enforcement of the zoning ordinance must result in unnecessary hardship owing to 

conditions unique to the property; and (3) the spirit of the ordinance must be observed and 

substantial justice done. Carlson, ¶ 17.

¶8 Petitioners challenge the District Court’s findings on each of these factors. First, 

Petitioners challenge the conclusion that the variance is in the public interest inasmuch as 

it will help “provid[e] affordable housing for young families and members of the workforce 

living in Columbia Falls.” Petitioners point out that CNS’s purported commitment to 

keeping its rentals affordable has not been backed up by a legally-enforceable instrument 

such as a deed restriction. Regardless, the District Court found that preventing the loss of 

nine rental units in Columbia Falls was in the public interest, a conclusion we do not disturb 

here.1 Petitioners further argue that the District Court failed to consider “evidence of 

1 Petitioners cite to Cutone v. Anaconda Deer Lodge, 187 Mont. 515, 610 P.2d 691 (1980), where

we upheld a district court affirming an adjustment board’s decision not to grant a variance for a 

proposed tavern found to constitute a potential fire hazard, source of parking problems, and source 

of increased traffic. The facts of Cutone are distinguishable, as Petitioners fail to point us to 

substantial objective evidence that rebuilding the nine rental units at issue here pose the risks of 

fire, parking problems, and increased traffic that the bar in Cutone did. Moreover, on the layered 

deferential standards of review applicable in a zoning case, affirming a board decision to deny a 

variance does not necessarily mean that we would have overturned a board decision to grant a 

variance. Petitioners’ other cited case, Lambros v. Bd. of Adjustment, is similarly unhelpful to 
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untidiness” by the Swiss Apartments’ tenants. Petitioners fail to point us to any authority 

designating alleged untidiness by former tenants on a property as precluding a finding of 

public interest in a variance, and we decline to make such a determination here.

¶9 Second, Petitioners challenge the District Court’s finding that a failure to grant a 

variance would result in unnecessary hardship owing to conditions unique to the property. 

Petitioners allege that the destruction of the Swiss Apartments in two fires does not rise to 

the level of unnecessary hardship stemming from unique conditions on the property. 

Petitioners point out that the property could still be used for a single-family home and that 

the zoning code already sought to avoid “undue hardship” by allowing the Swiss 

Apartments to have continued standing in the first place as a preexisting nonconforming 

use prior to the fire. CFMC § 18.211.010. Petitioners point us to no authority providing 

that an accidental fire destroying a preexisting nonconforming use in such circumstances 

cannot constitute an unnecessary hardship owing to conditions unique to the property, and 

we decline to so hold here.2

¶10 Third, Petitioners contend that the variance violates the spirit of the applicable 

ordinances, which have zoned the area for single-family residential and which sunset the 

accommodation for preexisting nonconforming uses upon destruction of the structure. 

Petitioners because, in that case, this Court held that the variance should have been granted, as 

was done here. 153 Mont. 20, 452 P.2d 398 (1969).

2 To the contrary, the only caselaw cited by Petitioners on the matter—where preexisting 

nonconforming use was a consideration in finding unique conditions on the property—cuts against 

Petitioners’ argument and Petitioners therefore seek to factually distinguish it. Lambros, 153 

Mont. at 26-27, 452 P.2d at 401.
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Petitioners take issue with the District Court’s finding that the presence of other multi-unit 

structures in the neighborhood weighed in favor of granting the variance, as those 

structures apparently went through a Planned Unit Development (PUD) process that allows 

for fewer units than the nine CNS wishes to rebuild. Regardless, the District Court found 

that rebuilding the nine preexisting units—now broken up into three smaller structures to 

better blend in with the character and aesthetic of the neighborhood—complied with the 

spirit of the ordinance, a finding we do not overturn on this standard of review.

¶11 Additionally, Petitioners argue that the Board failed to apply the relevant zoning 

ordinances appropriately. In granting a variance, a board must apply the relevant zoning 

ordinances under local law. Carlson, ¶ 17. Here, Columbia Falls municipal ordinances 

provide for variances to avoid “unnecessary hardship” through “strict compliance” with 

applicable zoning regulations when each of the following eight factual findings are made:

1. Strict compliance with the provision of this title will:

a. Limit the reasonable use of the property, and

b. Deprive the applicant of the rights enjoyed by other properties 

similarly situated in the same district.

2. The hardship is the result of lot size, shape, topography or other 

circumstances over which the applicant has no control.

3. The hardship is peculiar to the applicant property.

4. The hardship was not created by the applicant.

5. The hardship is not economic (when a reasonable or viable alternative 

exists).

6. Granting of the variance will not adversely affect the neighboring 

properties or the public.

7. The variance requested is the minimum variance which will alleviate the 

hardship.

8. Granting the variance will not confer a special privilege that is denied 

other similar properties in the same district.

CFMC § 18.209.030.
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¶12 Petitioners challenge the factual findings made by the Board pursuant to CFMC 

§ 18.209.030. Starting with Finding 1.b., Petitioners take issue with the District Court’s 

failure to address its argument that the Board incorrectly concluded that declining to give 

a variance would deprive CNS of a right enjoyed by others in the area; namely, the “right 

to reconstruct.” Petitioners contend that there is no “right” to reconstruct a nonconforming 

use under the CFMC. Regardless, Petitioners do not point to any instance in which the 

Board has refused an applicant’s request for a variance to rebuild a preexisting 

nonconforming use and it is undisputed that other properties in the same zoning district 

also have multi-unit structures on them. Notwithstanding Petitioners’ claim that these other 

multi-family residences are less dense than CNS’s proposed nine-unit rebuild, we cannot 

say that factual finding 1.b. is so lacking in foundation as to be unreasonable. 

¶13 Second, Petitioners take issue with the District Court’s affirmance of the Board’s 

finding that the hardship is the result of “circumstances over which the applicant has no 

control,” in the form of an accidental fire. Petitioners contend that the only reason for the 

“hardship” is that CNS wishes to build nine units in a single-family home zoning district. 

However, CNS is seeking a variance because of the confluence of two factors—the zoning 

regulations and the fire.3 Petitioners point to no authority suggesting that the hardship 

3 Petitioners cite to Carlson, ¶ 21, where we held that a failure to seek a necessary permit before 

commencing construction did not render the subsequent necessity of tearing down a partially-built 

garage a hardship “inherent in [the applicant’s] land.” Here, the hardship does not result from an 

applicant voluntarily choosing to begin construction without first obtaining the required permit 

but, rather, from an accidental fire.
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cannot be considered a result of a fire if applicable zoning regulations also played a role. 

Factual finding number two is not so lacking in foundation as to be unreasonable.

¶14 Third, Petitioners challenge the District Court’s finding that the hardship was 

peculiar to CNS’s property because, unlike the owners of zoning-compliant structures in 

the area, CNS could not rebuild the Swiss Apartments due to the structure’s 

nonconformance. Petitioners contend that seeking to continue avoiding compliance does 

not constitute a peculiar hardship. Regardless, the accidental fire clearly constitutes a 

hardship unique to CNS’s property. Petitioners provide no authority supporting their claim 

that an accidental fire cannot be classified as a unique hardship under the ordinance simply 

because the same fire also served as the trigger for terminating the legal accommodation 

for a preexisting nonconforming use under CFMC § 18.211.050(A). We decline to so hold 

here and factual finding number three is not so lacking in foundation as to be unreasonable.

¶15 Petitioners do not challenge the Board’s fourth factual finding. Under factor number 

five, Petitioners contend that the hardship is both economic and amenable to a reasonable 

or viable alternative. Petitioners point out (1) that the rentals are intended to generate profit 

and (2) that CNS could simply build fewer units (three) pursuant to the PUD ordinance, 

just as other properties in the area have done. See CFMC § 18.348.010 (defining planned 

unit development as allowing “under certain circumstances, a more flexible means of land 

development than is otherwise generally permissible under lot-by-lot restrictions.”). CNS 

responds that the District Court and Board were correct that building only three units was 

not a reasonable alternative to the proposed nine-unit complex and that the hardship is the 

inability to rebuild after a fire, rather than of a purely economic nature. It is the Board’s 
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purview to weigh conflicting evidence and, under the applicable standard of review, we do 

not conclude that factual finding five is so lacking in foundation as to be unreasonable.

¶16 Petitioners challenge factual finding number six, that the variance will not adversely 

affect the neighboring properties or public. Petitioners highlight their allegations of 

“uncleanliness” and the “nuisance” of Swiss Apartments’ “unmanaged tenants” as well as 

unspecified “safety implications” posed by the number and presence of said tenants. 

Petitioners point to testimony regarding “trash, general untidiness, and occupied tents.” 

Petitioners also allege, without support, that the two fires are evidence of chronic disrepair. 

However, the Board concluded that the variance will not negatively affect the public, as it 

will, to the contrary, provide much needed “clean affordable place[s] for the residents of 

Columbia Falls to live.” This Court’s role is not to reweigh the evidence. 

¶17 As to factor number seven, Petitioners challenge the Board and District Court’s 

findings that the variance is the minimum variance to alleviate the hardship because it will 

allow the applicants “to replace nine units of apartments lost in the fire and no more.” 

Petitioners contend that the rebuild will involve more buildings (three) and more square 

feet than the original, which it believes will lead to more people, parking, traffic, and 

nuisances. As the District Court found, however, the new design was intended to better 

conform to the character of the single-family neighborhood and the total number of units 

will remain the same. Petitioners fail to show that the Board’s seventh factual finding—

that the variance did not need to specify the number of bedrooms or total square feet in 

order to constitute the minimum variance—was so lacking in foundation as to be 

unreasonable. 
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¶18 Finally, with regard to factor number eight, Petitioners argue that the variance 

confers a special privilege denied to similar properties in the same district. Petitioners 

contend that the Board has never before granted a variance for a rebuild of a nonconforming 

use. However, neither do Petitioners point to any instance in which the Board has denied

such a variance to a similarly-situated party and raises no indication that it would do so in 

the future. The Board found that such circumstances were exceedingly rare but noted that 

it had provided a setback variance to accommodate the rebuilding of a burned-down home 

in 2014. The Board’s factual findings were not so lacking in foundation as to be 

unreasonable and the District Court did not abuse its discretion in declining to overturn the 

Board’s decision on this basis.

Applicability of Growth Plan

¶19 In the alternative, Petitioners claim that the Board erred in failing to consider the 

requirements of the City’s growth policy in addition to the ordinances discussed above. 

The Growth Policy designates the area as “urban residential” in which “[s]ingle-family 

houses are the primary housing type.” See City of Columbia Falls Growth Policy, 2019 Ed 

(Growth Policy).4 It further states that “[d]uplexes, guest houses, accessory apartments, 

and small dispersed areas of multi-family housing are also anticipated.” Growth Policy at 

26. Petitioners claim that CNS’s proposed rebuild would violate this Growth Policy. 

However, Petitioners point to no authority indicating that nine units, divided between three 

buildings, could not constitute “small dispersed areas of multi-family housing” within a 

4 Available at https://perma.cc/CRL9-H4XA. 
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designated region for which single-family houses are only the “primary” housing type, in 

accordance with the Growth Policy.

¶20 Petitioners argue that the District Court erred in concluding that the Growth Policy 

must only be considered in adopting zoning ordinances, but not in applying those to 

specific properties such as in the variance decision at issue here. Section 76-2-304(1), 

MCA, provides that zoning regulations are to be adopted by the city council “in accordance 

with a growth policy,” and § 76-1-605(2)(a), MCA, provides that a “growth policy is not 

a regulatory document and does not confer any authority to regulate that is not otherwise 

specifically authorized by law or regulations adopted pursuant to the law.” (Emphasis 

added.) See also § 76-1-605(2)(b), MCA (“A governing body may not withhold, deny, or 

impose conditions on any land use approval or other authority to act based solely on 

compliance with a growth policy adopted pursuant to this chapter.”). Thus, the role of a 

growth policy is to guide adoption of more specific zoning ordinances implementing that 

policy, not to itself regulate properties directly. See Growth Policy at 2 (Growth Policy 

“presents the goals and policies necessary to give guidance to making decisions concerning 

development but does not indicate site-specific locations, engineered solutions, or detailed 

regulations.”). 

¶21 Petitioners counter by citing to our decision in Heffernan v. Missoula City Council, 

where we held that a city council’s approval of a development with complete disregard to 

an established growth policy rendered the decision arbitrary and capricious. 2011 MT 91, 

¶ 79, 360 Mont. 207, 255 P.3d 80; § 76-1-605(1)(c), MCA (local governing body must be 

“guided by and give consideration to the . . . growth policy in the adoption of zoning 
12

ordinances and resolutions.” (emphasis added)). However, in Heffernan, the local 

governing body had failed to adopt zoning regulations to implement the growth plan, so it 

had failed to apply either the growth policy itself or any ordinances implementing it. 

See Heffernan, ¶ 17. Here, the Columbia Falls Growth Plan was duly implemented by the 

CFMC, applied to CNS’s property as discussed above. See CFMC § 18.103.010 (stated 

purpose of zoning ordinances is to “implement and promote the growth policy.”). Thus, 

unlike the zoning determination found to be arbitrary and capricious in Heffernan, the 

Growth Policy at issue here was not completely disregarded, as it was implemented by the 

zoning regulations applied by the Board.

¶22 Petitioners also point to our holding in Flathead Citizens, ¶¶ 39-40, where we held 

that § 76-1-605, MCA, “does not prohibit the enforcement of growth policies in all 

circumstances.” There, we found that a growth policy was directly applicable to a specific 

property because the zoning regulations at issue explicitly incorporated the growth policy 

and provided that its growth policy’s provisions “shall control” when more restrictive than 

the applicable regulations. Flathead Citizens, ¶ 40. Here, even if Petitioners could show 

that Columbia Falls’ Growth Policy is more restrictive than its ordinances, no express 

incorporation provision is found in the Columbia Falls ordinances like that in Flathead 

Citizens. CFMC § 18.104.010 provides only that a more restrictive “statute or local 

ordinance or regulation”—not a growth policy—controls over the regulations contained in 

that part. See also § 76-2-304(1)(a), MCA (zoning ordinances must be adopted “in 

accordance with the growth policy”); CFMC § 18.103.010 (providing that the ordinances 

are intended to “implement and promote the growth policy”); Flathead Citizens, ¶ 40 (a 
13

growth policy “only acquires legal force by virtue of another law or regulation.”). The 

District Court did not err on this issue.

Change in Use Restriction

¶23 Petitioners’ third and final argument is that the Board’s variance decision violated 

CFMC § 18.207.030, which provides that “The board of adjustment shall not by either 

variance or appeal process make any change in uses categorically permitted in any zoning 

classification or zoning district, or amend the zoning text or map.” Petitioners claim that 

the variance created a “change in use[]” by allowing the property to be used differently—

for multi-family dwellings—than the single-family dwelling use categorically permitted 

by the zoning district’s classification. Upon reviewing CFMC § 18.207.030, titled 

“Jurisdiction,” we agree with the District Court that the provision merely makes clear that 

the Board may not make changes to zoning district maps and classifications; it does not bar 

the Board from granting variances for individual properties not in “strict adherence” to the 

zoning ordinances pursuant to CFMC § 18.209.010. See CFMC § 18.209.010 (purpose of 

variance is to avoid “unnecessary hardship [that] is created through strict adherence to the 

provisions of this title.”); see also CFMC § 18.206.020 (zoning commission makes 

recommendations to city council to create zoning districts’ boundaries and regulations).5

5 Petitioners also claim that the District Court erred to the extent that it relied upon its finding that 

the variance simply maintained the pre-fire status quo, pointing out that the rebuild will involve 

nine units divided into three smaller structures, instead of a single, large structure, as had existed 

before. This argument is not relevant to our interpretation of CFMC § 18.207.030 as addressing 

only zoning maps and classifications, not the Board’s application of the variance ordinance to a

single parcel. 

Petitioners further argue that the variance violated CFMC § 18.211.030, which provides 

that “[a]ny non-conforming structure shall not be altered or enlarged in any way that increases its 

non-conformity, but may be altered to decrease its non-conformity.” CFMC § 18.211 is not 
14

¶24 In their Reply Brief, Petitioners also point to CFMC § 18.316.010, located at the 

beginning of the definitions of the various zoning use districts, which provides that:

no land, building, or structure shall be used and no building or structure shall 

be erected, reconstructed, or structurally altered for any purpose except as 

allowed in the district [in which it is located]. . . . Any variance from the 

dimensional regulations shall require prior, specific approval of the board of 

adjustments[.]

(Emphasis added.)

¶25 Petitioners argue this supports their interpretation of the Board’s variance authority 

as extending only to noncompliance with dimensional regulations, not use restrictions. 

However, the provision’s reference to “dimensional regulations” in no way purports to 

exclude other regulations from the variance process. Moreover, the general provision that 

“no . . . structure shall be erected . . . for any purpose except as allowed in the district” is 

controlled by the more specific provision that the Board may grant a variance where 

“unnecessary hardship is created through strict adherence to the provisions of this title.” 

CFMC § 18.209.010; Mosley v. Am. Express Fin. Advisors, Inc., 2010 MT 78, ¶ 20, 356 

Mont. 27, 230 P.3d 479 (specific provision controls over more general inconsistent 

provision). Petitioners point us to nothing barring this variance authority from applying to 

nonadherent uses. 

¶26 Upon review, we cannot conclude that the District Court abused its discretion in 

determining that the Board did not abuse its discretion in granting CNS’s application for a 

applicable here, as the proposed structures are not preexisting “non-conforming structure[s]”

pursuant to the regulatory accommodation for preexisting structures under CFMC § 18.211.010. 

Rather, they are new structures permitted via a variance pursuant to CFMC § 18.209.
15

variance. See Carlson, ¶ 13 (district court reviews board decision for abuse of discretion, 

while Supreme Court reviews a district court’s decision for abuse of discretion).

¶27 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. 

¶28 Affirmed.

/S/ MIKE McGRATH

We Concur: 

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ DIRK M. SANDEFUR

/S/ JIM RICE