No. 85-142 INTHE SUPREME COURTOF THE STATEOF MONTANA

ROBERT J. LEE and DOROTHY MARIE LEE, husband and wife, LOUIS CROHN and IRENEJ. CROHN,husband andwife, ELMER and MARIE SPRUNGER,husband & wife, PlaintiffsandAppellants,

FLATHEAD COUNTY,FLATHEAD COUNTY BOARD OF COMMISSIONERS,NAKULVEREIA, FLATHEAD COUNTY ZONING ADMINISTRATOR, et al., Defendant and Respondents.

APPEAL FROM: DistrictCourt 

### of the Eleventh Judicial District, In and for the County of Flathead, The HonorableE. Garnder Brownlee,Judgepresiding.

COUNSELOF RECORD: ForAppellants: Keller & German; Robert S. Reller,Kalispell, Montana For Respondents: Jonathan B. Smith,Deputy CountyAttorney,Kalispell, Montana Oleson & DeJana;Richard DeJana,Kalispell, Montana

-- Submitted on Briefs: June 14, 1985 Decided: August 22, 1985

ClerkMr. Justice Frank R. Morrison, Jr., delivered the Opinion of the Court. Appellants commenced this action on October 5, 1984, against respondent land developers, and Flathead County to enjoin constructionof an apartmentbuildinguntil compliance with the Montana Subdivision and Platting Act. Appellants also a1leged a public and private nuisance and requested abatement and damages. The District Court of the Eleventh Judicial District granted summary judgment against appellants

on Counts Iand 11, reserving Count 111,a damage claim, for trial. This appeal followed. In April 1984, Paulson and Grant (developers) commenced construction of a four-unit building on a 115 feet by 110 feet tract in Rigfork, Montana. The building is 106 feet wide and the units were originally advertised for sale as condominiums. In August 1984, it came to the attention of the directorof the Flathead Regional DevelopmentOffice that the units were intended to be condominiums. On August 17, 1984, the Flathead county attorney issued a stop-work order to the attorney for the developers because if the units were to be sold as condominiums, they must undergo subdivision review under the Subdivision and PlattingAct. The condominiumshad not gone through subdivision review. The developers made some preliminary efforts to qualify for subdivisj-on review as a condominium. The Flathead county subdivision regulations required condominiums to be located 25 feet from the site boundary adjoining the right-of-way of a road or highway and 15 feet from the other boundariesof the development site. The developers did not continue their efforts to qualify for subdivision review and decided to change the use of the building to an apartmenthouse. The county ceased its request for a stop-work order and construction continued.On June 27, 1984, the Attorney General issued an opin-- ion, 40 Op. Att'y Gen. 57 (1984),which held that construction of an apartment building for rental occupancy is a subdivision, and must be submitted for localreview under the Subdivision and Platting Act. Flathead County determined that since construction of the four-plex had begun, prior to the Attorney General's opinion, the apartment house was not required toundergo subdivision review. Atthispoint, appellants, several landowners adjoining the apartment house property, hired an attorney and filed this action. They sought to enjoin the Flathead County Commissioners from granting subdivision approval untilappropriate compliance, and for a 

### writof mandamus tocompel the Flathead County Commissionerstoenforce theMontana Subdivision and Platting Act, the Administrative Rules of Montana and the County Regulations as to subdivisions, towithdraw the sewer permit issued forthecondominium until compliance, and toenforce theprohibition against sale, lease ortransferof anyunit of thebuilding. Count two of the complaint was against the developers, and alleged a public and private nuisance, and requested abatement and damages. Count three, which is not involved here, is a claim by plaintiffs Sprunger against thedevelopers for damages for trespass and removal of lateral and subjacent support. At the commencement of the action, appellants filed a notice of lis pendens against the subject property owned by thedevelopers. The developersmoved for summary judgment as tocounts one and two, and moved the court togrant an order liftingthe lispendens. The defendant Flathead County moved for summary judgment astocount one. The trial courtgranted summary judgment in favor of all defendants as to all

### claims in counts one and two, and as a 

### part of 

### the judgment ordered that the lis pendens be removed. The judgment was certified as a final judgment. The plaintiffs appeal from the judgment raising the following issues: 1. The trial court erred in granting summary judgment to the defendants on counts one and two of the plaintiffs' complaint. 2. 

### The trial court erred in granting the motion of defendants Grant and Paulson to remove the notice of lis 

### - pendens. 3. The trial court erred in ruling without considering

a 

### requested subsequentaffidavit. Appellants have raised numerous issues and arguments on th~ problems surrounding the construction of the respondents' four-plex. The main thrust of their arguments is that the respondents should have had to go through subdivision review. Appellants concede in their reply brief that, "[tlhe real question is can a developer now use the building complex as an apartment building, without subdivision reviewas a result of an amendment by the legislature to the subdivision laws during the pendency of the action that was brought to stop the developers from using the complex for failure to go through subdivision review?" The amendment appellants refer to is Senate Bill 354, Chapter 700 of the 1985 legislative session,whichwas signed into law April 16, 1985. The Bill was an amendment to S 

### 76-3-204,MCA, 

### which provided that the sale, rent, lease,

or conveyance of one ormore parts of a building, structure, or other improvements situated on one or more parcels of land isnot a division of land subject to subdivision review. The amendment makes it clear that not only is the renting of existing buildings exempt from subdivisionreview,but soareallnewbuildingswhich are to be used as rentals. Thus,had this amendment been in effect when appellants brought this action, clearly respondentswould be exempt from subdivision review because they have declared their building 

### is to be used as apartments. Appellants contend that the amendment does not affect this action because itwas not in effect at the time summary judgmentwas granted and prior to the amendment, the Attorney Genera1

### 's opinions were correct. We need not determine whether the Attorney General was correctbecause 

### 5 76-3-204, MCA, as amended is controlling. Generally, an appellate court must apply the law in effect at the time it renders its decision. Thorpe v. Housing Authority of the City of Durham (1969),393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474. Montana followed this principle in Wilson 

### v. State Highway Commission (1962), 140 Mont. 253, 370 P.2d 486. In Wilson, an actionwas brought to determine whether the State Highway Commission had authority to issue

an encroachmentpermit on a portion of unused highway rightof-way. After judgmentwas entered for the Highway Comrnission in District Court, the legislature enacted a statute granting to the commission the authority to rent unused highway right-of-way. This Court determined that the appeal of the District Court judgment had become moot because the statute resolved the question. In the recent case of West-Mont v. Board of Health and Environmental Sciences (Mont. 1985), P.2d I 42 St.Rep. 1116,we based our decision on a federal regulation whichwas adopted by the Departmentof Health and Environmental Sciences after the filing of the notice of appeal. Likewise, in the case at hand, we must apply the law in effect at this time. The amendment to 

### 5 76-3-204,MCA,makessubdivision review unnecessary for the respondents' four-plex. Our resolution of this issue renders consideration of the zoning regulations and thevalidity of the sewer permit unnecessary. We affirm the trial court on count one. The appellants also argue thatthetrialcourt erred in granting the respondents' motion toremove the notice of 

### - lis pendens. The trial court found that the 

## - lis pendens was improperly filed. In view of our decision on the first issue, we affirmtheremoval of lispendens. Appellants argue that the trial court should not have ruled on the issue of damage to the county road without consideringan affidavit submitted afterthe summary judgment hearing. Appellant had requested that the court not rule until the affidavitwas submitted, but the trialcourt ruled

on the day following the hearing without considering the affidavit. The trial court ruled that it would not anticipate damages thatmight occur toa county road inthe future and granted summary judgment torespondents. We find that summary judgment was not proper on this issue. The affidavit submitted by the appellants indicates damage will likely occur to the road. We remand on this issue with instructions for the trial court toconsider the Northern Engineering and Testing, Inc., affidavit. By this remand, we do not express any opinion on the claim's merit. We affirm the District Court result inpart and remand in part for further proceedings in accordance with this opinion.We concur: ,I 

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# KThief Justice