No. 85-142

IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

Robert J. LEE and Dorothy Marie Lee, hus band and wife, Louis Crohn and Irene J. Crohn, husband and wife, Elmer and Marie Sprunger, husband & wife, Plaintiffs and Appellants,

-vsFLATHEAD COUNTY, Flathead County Board of Commissioners, Nakul Verma, Flathead County Zoning Administ rator, et al., Defendants and Respondents.

APPEAL FROM: District Court of the El eventh Judicial District Court, In and for the County of Flathead, The Honorable E. Gardner Brownlee

COUNSEL OF RECORD: For Appellant: Keller & German;Robert S. Keller, Kalispell, Montana For Respondent: Jonathan B. Smith, Deputy County Attorney, Kalispell Montana Oleson & DeJana: Richard DeJana, Kalispell, Montana

Submitted on Briefs June 14, 1985. Decided Aug. 22, 1985.Mr. Justice Frank B. Morrison, Jr. de livered the Opinion of the Court. Appellants commenced th is action on October 5, 198 4, against respondent land developers, and Flathead County to enjoin construction of an apartment building until compliance with the Montana Subdivision and Plat ting Act. Appellants also alleged a public and private nuisance and requested abatement and da mages. The District Court of the Eleventh Judicial District granted summ ary judgment against appellants on Counts I and II, reserving Count III, a damage claim, for trial. This appeal followed. In April 1984, Paulson and Grant (developer s) commenced construction of a four-unit building on a 115 feet by 110 feet tract in Bigfor k, Montana. The building is 106 feet wide and the units were originally adve rtised 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 atto rney issued a stopwork order to the attorney for the developers because if the units were to be sold as condominiums, they must undergo subdivision re view under the Subdivisi on and Platting Act. The condominiums had not gone through subdivisi on review. The deve lopers made some preliminary efforts to qualify for subdivision 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 buildi ng to an apartment house. The county ceased its request for a stop-work orde r and construction continued. On June 27, 1984, the Attorney General issu ed an opinion, 40 Op. Att'y Gen. 57 (1984), which held that construction of an apartment bu ilding for rental occupancy is a subdivision, andmust be submitted for local review under the Subdivision and Platting Act. Flathead County

determined that since construc tion of the four-plex had begun, pr ior to the Attorney General's opinion, the apartment house was not requ ired to undergo su bdivision review. At this point, appellants, several landowne rs adjoining the apar tment house property, hired an attorney and filed this action. Th ey sought to enjoin the Flathead County Commissioners from granting subdi vision approval until appropria te compliance, and for a writ of mandamus to compel the Flathead Count y Commissioners to enforce the Montana Subdivision and Platting Act, th e Administrative Rule s of Montana and th e County Regulations as to subdivisions, to withdraw the sewer pe rmit issued for the condominium until compliance, and to enforce the prohibition against sale, le ase or transfer of a ny unit of the building. Count two of the complaint was against the developers, and alleged a public and private nuisance, and requested ab atement and damages. Count three, which is not involved here, is a claim by plaintiffs Sprunger against the devel opers for damages for trespass and removal of lateral and subjacent support.

At the commencement of the actio n, appellants filed a notice of lis pendens against the subject property owned by the de velopers. 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 summar y judgment as to count one. The trial court granted summary judgment in favor of all defendants as to all clai ms 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 moti on of defendants Grant and Paulson to remove

the notice of lis pendens.

3. The trial court erred in ru ling without consideri ng a requested subsequent affidavit. Appellants have raised nume rous issues and arguments on the problems surrounding the construction of the respondents' four-plex. The ma in thrust of their arguments is that the respondents should have had to go through subdivision review. Appe llants concede in their reply brief that, “[t]he real question is can a developer now use the bu ilding complex as an apartment building, without subdivision re view as a result of an amendm ent by the legislature to the subdivision laws during the pendenc y 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 Sena te Bill 354, Chapter 700 of the 1985 legislative session, which was signed into law April 16, 1985. The Bill was an amendment to § 76-3-204, MCA, which provided that the sale, rent, lease, or conveyance of one or mo re parts of a building, structure, or other improvements s ituated on one or more parcels of land is not a di vision of land subject to subdivision review. The amendment makes it clear that not only is the renting of existing buildings exempt from subdiv ision 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 subdivi sion 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 grante d and prior to the amendment, the Attorney General's opinions were correct. We need not determine whether the Attorney General was correct because § 76-3-204, MCA, as amended is controlling.Generally, an appellate court must apply th e 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 princi ple 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 right-of-way. After judgment was entered for the Highway Commission in District Court, the legislature enacted a statut e 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), 703 P.2d 850, 42 St.Rep. 1116, we base d our decision on a federal regulation which was adopted by the Department of Health and Environmental Scienc es after the filing of the notice of appeal. Likewise, in the case at hand, we must apply th e law in effect at this time. The amendment to § 76-3-204, MCA, makes subdivision review unnecessary for the respondents' four-plex. Our reso lution 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 cour t erred in granting the respondents' motion to

remove the notice of lis pendens. The trial co urt found that the lis pendens was improperly

filed. In view of our decision on the fi rst 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 trialcourt ruled on the day following th e hearing without considering th e affidavit. The trial court ruled that it would not anticipate damages that mi ght occur to a county road in the future and granted summary judgment to respondents. We find that summary judgment was not prope r on this issue. The affidavit submitted by the appellants indicates damage will likely occu r to the road. We remand on this issue with

instructions for the tria l court to consider the Northern Engi neering 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.

TURNAGE, C.J., and HARRISON, SHEEH Y and GULBRANDSON, JJ., concur.