No. 89-609 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

RONALD KUNZ and ROSIE KUNZ 

Plaintiffs and Appellants, 

BUTTE-SILVER BOW, a political 

Subdivision of the State of 

Montana, and DOROTHY K. DUGDALE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Leonard J. Haxby, Esq., Butte, Montana 

For Respondents: 

Kathleen McBride, Esq., Butte, Montana 

Brad Newrnan, Butte-Silver Bow Deputy County 

Attorney, Butte, Montana 

Mark A. Vucurovich, Esq., Butte, Montana 

Filed: 

Submitted on Briefs: May 3, 1990 

0 ~ecided: September 4, 1990 

Clerk 
Justice Diane G. Barz delivered the Opinion of the Court. 

Ronald and Rosie Kunz appeal from an order of the District 

Court of the Second Judicial District, Silver Bow County, granting 

respondents1 motion to dismiss. We affirm. 

Appellants own real property at 4809 Hope Road in Silver Bow 

County. Respondent Dorothy Dugdale owns an adjacent parcel at 4801 

Hope Road. Appellants1 property is zoned residential while 

Dugdale1s property is part of a light industrial zone. Both 

parties acknowledge that the parcel including Dugdale1s property 

has been subject to light industrial use for a substantial period. 

The surrounding property is zoned for commercial, residential and 

light industrial use. 

In August 1978, the Butte-Silver Bow government adopted a 

zoning ordinance which, after challenge by affected property 

owners, this Court found was enacted in accordance with Montana 

law. Martz v. Butte-Silver Bow Government (1982), 196 Mont. 348, 

641 P.2d 426. The subject parcel was originally zoned light 

industrial. On November 2, 1988, Butte-Silver Bow adopted a new 

zoning ordinance pursuant to 5 76-2-301 et seq., MCA. This new 

ordinance included the original 1978 ordinance and its amendments. 

Appellants contend the ordinance was adopted over their 

objections and they filed suit in District Court. Appellants filed 

a complaint against Butte-Silver Bow seeking a zoning change in the 

subject parcel from light industrial to residential, or, in the 

alternative, creation of a buffer zone between their property and 

the business currently located at 4801 Hope Road. Following 
respondents1 motion to dismiss, appellants amended their complaint 

to add Dorothy Dugdale as a party and seeking review of ButteSilver Bowls adoption of the zoning ordinance. The District Court 

granted respondentst second motion to dismiss concluding appellants 

lacked standing to challenge the zoning ordinance and failed to 

state a claim upon which relief could be granted by failing to 

exhaust their administrative remedies. 

Appellants raise the following issues on appeal: 

1. Did the District Court erroneously conclude that 

appellants had failed to exhaust their administrative remedies? 

2. Did the District Court erroneously conclude appellants 

lacked standing to protest the zoning of the subject property? 

Subsequent to filing of appellants1 reply brief, respondents 

moved to strike appendices A and B of that document for the reason 

that the matters contained therein were not part of the lower court 

record. We do not find it necessary to address this motion. 

It is well settled that a district court properly grants a 

M.R. Civ. P. 12 (b) (6) motion to dismiss only when the plaintiff could 

not prevail I1[u]nder any set of facts which could be proved in 

support of the claim.I1 Mogan v. City of Harlem (1987), 227 Mont. 

435, 437, 739 P.2d 491, 492-93. Respondents, by filing a motion 

to dismiss, admit all the well-plead allegations of appellants1 

complaint, thus the District Court must I1construe . . . [the 

complaint] in the light most favorable to . . . [appellant]." 

Moqan, 739 P.2d at 493. 

The District Court concluded appellants lacked standing to 
challenge the zoning ordinance under question. The issue of 

standing has previously been addressed by this Court in the case 

of Stewart v. Board of County Commissioners (1977), 175 Mont. 197, 

573 P.2d 184. In Stewart this Court stated: 

[Tlhe issue presented for review must 

represent a llcasell orllcontroversyll within the 

judicial cognizance of the state sovereignty. 

Additionally, the following minimum criteria 

are necessary to establish standing to sue a 

governmental entity: (1) the complaining 

party must clearly allege past, present or 

threatened injury to a property or civil 

right; and (2) the alleged injury must be 

distinguishable from the injury to the public 

generally, but the injury need not be 

exclusive to the complaining party. 

Stewart, 573 P.2d at 186. 

Respondents emphasized before the District Court appellants1 

failure to plead any specific injury incurred by them as a result 

of the enactment of the zoning ordinance. Appellants stated in 

their amended complaint: 

By adoption of a zone of M-1 over the 

objections of the Plaintiffs and other 

residents in the area which is the subject of 

this Complaint, the Defendant, Butte-Silver 

Bow, committed an arbitrary and capricious act 

in violation of the Statutes of the State of 

Montana. 

The plaintiffs herein in particular will 

suffer irreparable harm and damage if the 

subject M-1 zone is allowed to exist in that 

they are not allowed the quiet and peaceful 

possession of their property. Their property 

has depreciated in value as a result of said 

zone. The M-1 zone, by its very nature, is 

one that creates noise and certain pollutants 

which would harm the Plaintiffst property and 

in fact the Plaintiffs1 property is being 

harmed at the present time by the present use 
of the M-1 zone and irreparable harm and 

damage will be caused the Plaintiffs and other 

users and owners in the neighborhood and area 

if said M-1 zone is allowed to continue. 

From the above, we conclude the appellants1 recited facts which, 

if taken as true, afford appellants standing to challenge the 

zoning ordinance enacted. 

The District Court further concluded appellants failed to 

state a claim for which relief can be granted on the grounds that 

appellants failed to exhaust their administrative remedies. We 

agree with this reason for denying relief. 

The Butte-Silver Bow zoning ordinance was adopted by the 

Butte-Silver Bow Council of Commissioners pursuantto the municipal 

zoning procedures of 55 76-2-301, et seq., MCA. Section 76-2-305, 

MCA, sets forth the procedure for formally protesting a proposed 

zoning regulation. Additionally, the Butte-Silver Bow Municipal 

Code at Chapter 17.52.010 et seq., provides for an administrative 

appeal remedy. Chapter 17.52.010 et seq., allows for the 

submission of a petition to the Council of Commissioners or the 

Zoning Commission asking for a resolution of intent to amend, 

change, modify or repeal the zoning boundaries or restrictions. 

While there are facts recited in appellants1 complaint showing they 

objected to the adoption of the zoning ordinance in question, there 

is nothing to show appellants followed the administrative appeal 

procedure available to them under the Butte-Silver Bow Municipal 

Code. Once appellants have exhausted their administrative remedies 

the District Courtls function is limited to a determination of 

whether adoption of the ordinance constituted an abuse of 

5 
discretion. Schendel v. Board of Adjustment (Mont. 1989) , 774 P. 2d 

379, 382, 46 %.Rep. 800, 804. The District Court could not order 

respondent, Butte-Silver Bow, to rezone or require buffer areas on 

the area in question. Such action would require the District Court 

to act as a I1super zoning boardw which is not a proper function. 

We hold the District Court properly concluded that appellants 

failed to exhaust their administrative remedies. 

Affirmed. 

/ 

We concur: A'