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

ClerkJustice 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 respondents1motion to dismiss. We affirm. Appellants own real property at 4809 Hope Road in Silver Bow County. RespondentDorothyDugdaleownsanadjacent parcel at 4801 Hope Road. Appellants1 property is zoned residential while Dugdale1sproperty is part of a light industrial zone. Both parties acknowledge that the parcel including Dugdale1sproperty hasbeen subject to light industrialuse for a substantial period. The surroundingproperty 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 objectionsand they filed suit inDistrictCourt. Appellants filed

a complaintagainst Butte-SilverBow 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. Followingrespondents1motion todismiss, appellants amended their complaint to add Dorothy Dugdale as a party and seeking review of ButteSilverBowls adoption of the zoning ordinance. The District Court granted respondentstsecond motion todismissconcludingappellants 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 appellantshad failed to exhaust their administrative remedies? 2. Did the District Court erroneously conclude appellants lacked standing to protest the zoning of the subjectproperty? Subsequent to filing of appellants1reply brief, respondents moved to strike appendicesA and B of that document for the reason thatthematters contained thereinwere notpart of the lower court record. We do not find it necessary to address thismotion. It is well settled that a district court properly grants a M.R.Civ.P. 12 (b)(6)motion todismiss onlywhen theplaintiff 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 tochallenge the zoning ordinance under question. The issue of standing has previously been addressed by this Court in the case of Stewartv. Board of County Commissioners (1977),175Mont. 197, 573 P.2d 184. In Stewart this Court stated: [Tlhe issue presented for review must representa llcasell or llcontroversyll 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 thepublic 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 arbitraryand capriciousact 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 Plaintiffstproperty and in fact the Plaintiffs1 property 

### is being harmed at the present time by thepresent useof the M-1 zone and irreparable harm and damagewill be caused the Plaintiffsand other users and owners in the neighborhood and area if said M-1 zone is allowed to continue. From the above, we conclude the appellants1recited 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 BowCouncil of Commissionerspursuantto themunicipal zoningprocedures 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 factsrecited inappellants1complaint showingthey objected to theadoptionof the zoningordinance inquestion, there is nothing to show appellants followed the administrative appeal procedure available to them under the Butte-Silver Bow Municipal Code. Once appellantshaveexhausted theiradministrativeremedies the District Courtlsfunction is limited to a determination of whether adoption of the ordinance constituted an abuse of 5discretion. Schendelv. Board ofAdjustment (Mont.1989)

## , 774 P.2d 379, 382, 46 %.Rep. 800, 804. The District Court could not order respondent, Butte-Silver Bow, to rezone or requirebuffer areas on thearea in question. Suchaction would requiretheDistrictCourt to act as a I1superzoning boardwwhich is not a proper function. We hold the District Court properly concluded that appellants failed to exhaust their administrative remedies. Affirmed. 

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We concur: A'