No. 85-142 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROBERT J. LEE and DOROTHY MARIE LEE, 

husband and wife, LOUIS CROHN and 

IRENE J. CROHN, husband and wife, 

ELMER and MARIE SPRUNGER, husband & 

wife, 

Plaintiffs and Appellants, 

FLATHEAD COUNTY, FLATHEAD COUNTY 

BOARD OF COMMISSIONERS, NAKUL VEREIA, 

FLATHEAD COUNTY ZONING ADMINISTRATOR, 

et al., 

Defendant and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable E. Garnder Brownlee, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Keller & German; Robert S. Reller, Kalispell, Montana 

For Respondents: 

Jonathan B. Smith, Deputy County Attorney, Kalispell, 

Montana 

Oleson & DeJana; Richard DeJana, Kalispell, Montana 

-- 

Submitted on Briefs: June 14, 1985 

Decided: August 22, 1985 

Clerk 
Mr. 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 construction of an apartment building until compliance 

with the Montana Subdivision and Platting Act. Appellants 

also a1 leged 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 I and 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 director of the Flathead Regional Development Office 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 Platting Act. The condominiums had 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 boundaries of 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 apartment house. 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 local review 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 to undergo subdivision review. 

At this point, 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 until appropriate compliance, and for a writ of mandamus to compel the 

Flathead County Commissioners to enforce the Montana Subdivision and Platting Act, the Administrative Rules of Montana 

and the County Regulations as to subdivisions, to withdraw 

the sewer permit issued for the condominium until compliance, 

and to enforce the prohibition against sale, lease or transfer of any unit of the building. 

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 the developers 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 

the developers. The developers moved for summary judgment as 

to counts one and two, and moved the court to grant an order 

lifting the lis pendens. The defendant Flathead County moved 

for summary judgment as to count one. The trial court granted 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 subsequent affidavit. 

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 review as 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, which was 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 or more parts of a building, structure, 

or other improvements situated on one or more parcels of land 

is not a division of land subject to subdivision review. The 

amendment makes it clear that not only is the renting of 

existing buildings exempt from subdivision review, but so are 
all new buildings which are to be used as rentals. Thus, had 

this amendment been in effect when appellants brought this 

action, clearly respondents would 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 it was not in effect at the time summary 

judgment was granted and prior to the amendment, the Attorney 

Genera 1 ' s opinions were correct. We need not determine 

whether the Attorney General was correct because 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 action was brought to determine 

whether the State Highway Commission had authority to issue 

an encroachment permit on a portion of unused highway rightof-way. After judgment was 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 

which was adopted by the Department of 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, makes 
subdivision review unnecessary for the respondents' 

four-plex. Our resolution of this issue renders consideration of the zoning regulations and the validity of the sewer 

permit unnecessary. We affirm the trial court on count one. 

The appellants also argue that the trial court erred in 

granting the respondents' motion to remove 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 affirm the removal of lis pendens. 

Appellants argue that the trial court should not have 

ruled on the issue of damage to the county road without 

considering an affidavit submitted after the summary judgment 

hearing. Appellant had requested that the court not rule 

until the affidavit was submitted, but the trial court ruled 

on the day following the hearing without considering the 

affidavit. The trial court ruled that it would not anticipate damages that might occur to a county road in the future 

and granted summary judgment to respondents. 

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 to consider 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 in part and remand 

in part for further proceedings in accordance with this 

opinion. 
We concur: 

,I 

/ KThief Justice