Benson v. City of Helena ( 1993 )

No. 93-282
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
RON BENSON,
Plaintiff and Appellant,
-vs-
THE CITY OF HELENA and BRANDT OCT2 0 1993
SALO, BUILDING DEPARTMENT,
Defendants and Respondents.
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
Submitted on Briefs: September 16, 1993
Decided: October 20, 1993
Filed:
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 continued where it remains
otherwise lawful . . . .
Additionally, we take judicial notice of 5 76-2-105, MCA, and 5 76-
2-208, MCA, which compel zoning commissions to allow the
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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
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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; -I 803 P.2d at 1333.
Choi
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
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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