No. 93-282

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

RON BENSON,

Plaintiff and Appellant,

-vsTHE CITY OF HELENA and BRANDT

SALO, BUILDING DEPARTMENT,

Defendants and Respondents.

OCT2 0 1993

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Frank Smoyer; Smoyer Law Firm, Helena, Montana

For Respondents:

David N. Hull, Attorney at Law, Helena, Montana

Filed:

Submitted on Briefs: September 16, 1993

Decided: October 20, 1993
Justice John Conway Harrison delivered the Opinion of the Court.

This is a zoning case. Appellant Ron Benson (Benson) appeals

the First Judicial District, Lewis and Clark County, order granting

the City of Helena (City) summary judgment on a declaratory

judgment action which declared the nonconforming use of Benson's

building at 1715 Peosta to be a bus barn or vehicle storage and the

nonconforming use as abandoned.

We affirm.

Benson raises several issues in his brief. However, two

issues are dispositive in this case.

1 . Did the District Court err in concluding that Benson

presented no genuine issues of material fact to preclude the

granting of summary judgment to the City?

2 . Did the District Court err in concluding Benson or his

predecessors in interest abandoned the nonconforming use at 1715

Peosta by failing to use the building for vehicle storage?

Historically, before the enactment of the City's zoning

ordinance in 1969, the original owner, Walter Sutheimer, used the

Peosta building for the storage of buses. After the adoption of

the zoning ordinance, the City classified the building as R-2,

single family residential. Accordingly, pursuant to 5 11-19-3,

City of Helena zoning ordinance, the City allowed Sutheimer to

continue to use his building as a nonconforming use for the storage

of buses.

Following the adoption of the zoning ordinance, Sutheimer

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continued to store buses in the building. Additionally, he

maintained a small office, serviced and repaired buses, restored

and sold eleven antique automobiles, infrequently worked as a

homebuilder, and occasionally stored boats and contractors'

supplies at the building.

In 1974, Sutheimer discontinued the bus business and sold the

property. In 1985, however, the City signed an agreement which

reestablished the nonconforming use of the building as vehicular

storage on a par with the original bus barn. After numerous

owners, Benson acquired the property.

On February 26, 1991, Benson filed a declaratory judgment

action to determine the permitted uses of the building.

Subsequently, however, the parties notified the District Court that

Benson planned to apply for a change of nonconforming use and

stipulated to vacate the trial set for November 22, 1991. On

January 21, 1992, Benson applied for a change of nonconforming use

from "[a] grandfathered right for use as a bus barn (storage,

repair and daily dispatch of some 25 buses), to [a] general rental

storage (70%) and a limited vehicle repair (30%)." The City

Commission passed Resolution No. 10379 on March 2, 1992, granting

Benson the change in nonconforming use subject to certain

conditions.

Benson did not comply with the conditions of the Resolution.

Instead, Benson moved for summary judgment. The City also moved

for summary judgment on the declaratory judgment action. On March

17, 1993, the District Court granted the City summary judgment. On

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April 27, 1993, Benson filed a Notice of Appeal with this Court.

On April 28, 1993, Benson filed an Amended Notice of Appeal.

I

This Court's scope of review on a grant of summary judgment is

the same as the trial court's standard of review. McNeil v. Currie

(1992) I 253 Mont. 9, 14, 830 P.2d 1241, 1244. "Summary judgment is

proper when no genuine issues of material fact exist and the moving

party is entitled to judgment as a matter of law." Rule 56(c),

M.R.Civ.P.: Sprunk v. First Bank System (1992), 252 Mont. 463, 465,

830 P.2d 103, 104 (citation omitted). Initially, the moving party

must prove that no genuine issues of material fact exist. Sprunk,

830 P.2d at 104. Then the burden shifts and the non-moving party

is compelled to prove the existence of genuine issues of material

fact. Sprunk, 830 P.2d at 104. Accordingly, our review extends to

the record to determine whether any genuine issues of material fact

exist which would preclude summary judgment and require a reversal

of the District Court.

In Snrunk, we discussed the difficulty of ascertaining the

existence of genuine issues of material fact. 830 P.2d at 105.

Specifically, "the determination is whether the material facts are

actually disputed by the parties or whether the parties simply

interpret the facts differently." Sprunk, 830 P.2d at 105. When

the facts are actually disputed by the parties, "summary judgment

is not a proper remedy." Sprunk, 830 P.2d at 105. On the other

hand, when the parties disagree as to the interpretation of the

same facts, then summary judgment is the proper remedy. Strunk,

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830 P.2d at 105.

Benson contends that genuine issues of material fact exist

which should preclude summary judgment. We conclude that Benson

labels his issues genuine issues of material fact, but, in

substance, only recites the same facts with a different

interpretation or conclusion.

First, Benson argues that a genuine issue of material fact

exists in ascertaining which grandfathered or nonconforming uses

existed at the building. Benson is mistaken. The facts are not in

dispute. Rather, Benson, in his interpretation, attempts to extend

the grandfathered uses beyond the enactment date of the City's

zoning ordinance. Specifically, Benson argues the effective time

period to determine the scope of the grandfathered uses extends

from the enactment date of the zoning ordinance to the present day.

This argument lacks merit.

The facts are clear and undisputed. Before the City enacted

the zoning ordinance the building was only used to store buses.

The law is equally clear. Chapter 19, City of Helena zoning

ordinance, entitled NONCONFORMING USES AND STRUCTURES, is

controlling. Section 11-19-3, City of Helena zoning ordinance,

NONCONFORMING USES OF LAND AND/OR STRUCTURES, states:

Where a use of land or a structure lawfully existed at

the time of adoption of this Title . . ., but which would

not be permitted by the regulations imposed by this Title

. . the use may be

otherwise lawful . . . .

continued where it remains

Additionally, we take judicial notice of 5 76-2-105, MCA, and 5 76-

2-208, MCA, which compel zoning commissions to allow the

5
continuance of existing uses.

"The duty of this court is to construe the law as it finds

it." Doull v. Wohlschlager (1963), 141 Mont. 354, 363, 377 P.2d

758, 763. We have stated that zoning ordinances "must be given a

fair and reasonable interpretation . . . .'I Whistler v. Burlington

Northern Co. (1987), 228 Mont. 150, 155, 741 P.2d 422, 425.

However, in Whistler, we concluded that "considerable judicial

deference should be accorded the interpretation provided by an

officer charged with its enforcement.l' 741 P.2d at 426.

Section 11-19-3, City of Helena zoning ordinance, requires

nonconforming or grandfathered uses to be in existence on the

enactment date of the zoning regulation. Further, the use

established on that date is the only use which endures in the

future. Section 11-19-3, City of Helena zoning ordinance.

Consistent with the interpretation of the City's Director of

Building and Safety, the building was only used to store buses on

the enactment date of the zoning ordinance. Moreover, in 1985, the

City reestablished the nonconforming use by signing an agreement to

allow the use of the building for "vehicular storage on a par with

the original bus barn usage." Thus, we hold that Benson has not

established a genuine issue of material fact. The only

established, grandfathered use of the building is for a bus barn or

vehicular storage, nothing else.

The City's attempt at establishing different permitted uses

for the building via two resolutions does not generate genuine

issues of material fact. In fact, the various owners, and

6
specifically, Benson, failed to comply with the conditions of the

resolutions. Thus, the resolutions do not affect the grandfathered

uses issue.

The resolutions do, however, establish the City's cooperation

with owners of the building. The City has attempted to establish

a use for this building. Despite the City's expression of

goodwill, the owners, and specifically, Benson, have consistently

failed to comply with the resolutions. Effectively, Benson's

inaction prevents him from renting general storage spaces at the

building.

Finally, Benson contends that a genuine issue of material fact

exists in determining if he or the prior owners abandoned the

property. Benson is incorrect.

The facts are undisputed. Sutheimer sold the property and

discontinued the bus barn in 1974. The building was not used as a

bus barn for several years after 1974. Moreover, the grandfathered

use was reestablished in 1985 for vehicle storage, so long as the

use did not exceed the original bus barn use.

The City has established that the building was not used for

vehicle storage after 1987. Conversely, Benson has failed to

establish vehicle storage at the building after 1987. Benson has

failed to meet his burden. Therefore, we hold that Benson presents

no genuine issues of material fact on the issue of abandonment.

II

Next, Benson contends the District Court incorrectly

interpreted the law of abandonment. Specifically, he argues the

7
City must show an intent to abandon the nonconforming uses. We

disagree.

Many courts have discussed the propriety of proving intent to

abandon nonconforming uses. When a zoning ordinance contains an

objective time limit some courts have decided to dispense with the

intent element. See Hartley v. City of Colorado Springs (Colo.

1988), 764 P.2d 1216, 1224, (citation omitted), and Choi v. City of

Fife (Wash. App. 1991), 803 P.2d 1330, 1333 (citations omitted).

Specifically, these courts dispense with the intent requirement to

avoid derogation of the zoning commission's legislative intent.

See Hartley, 764 P.2d at 1223; Choi -I 803 P.2d at 1333.

Similarly, here, we are concerned with derogation of the

zoning commission's legislative intent. Section 11-19-4, City of

Helena zoning ordinance, states:

If any . . . nonconforming use ceases for any reason for

more than one year . . . any subsequent use of . . .

[the] structure shall conform to the regulations [of]

this Title for the district in which . . . [the]

structure is located.

Clearly, the City's ordinance does not require proof of intent

to abandon. Therefore, we refuse to read one into the ordinance.

In order to prove abandonment, the City need only prove that the

nonconforming uses ceased for more than one year.

The City has met its burden. The bus barn was discontinued in

1974 and was never reestablished. Additionally, use of the

building for vehicle storage ceased in 1987. Accordingly, we hold

the City does not need to prove an intent to abandon the

nonconforming use.

8
We conclude the District Court has correctly determined that

no genuine issues of material fact exist. Moreover, the District

Court was correct in finding that Benson or his predecessors in

interest abandoned the nonconforming uses at 1715 Peosta. The City

was entitled to summary judgment.

Affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

Justices

9
October 20, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the

following named:

Frank Smoyer

SMOYER LAW FIRM

1085 Helena Ave.

Helena, MT 59601

DAVID N. HULL

Attorney at Law

P.O. Box 534

Helena, MT 59624

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA