                                    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 condomin-
iums 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 o f     a   road or

highway and 15 feet from the other boundaries of the develop-
ment 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 J u n e 2 7 ,      1984, t h e A t t o r n e y G e n e r a l i s s u e d a n opin--

ion,    40 Op.      A t t ' y Gen.       57     ( 1 9 8 4 ) , which h e l d t h a t c o n s t r u c -

tion     of    an    apartment           building           for    rental     occupancy             is   a

s u b d i v i s i o n , and must b e s u b m i t t e d f o r l o c a l review u n d e r t h e

S u b d i v i s i o n and    Platting          Act.         Flathead       County d e t e r m i n e d

t h a t s i n c e c o n s t r u c t i o n o f t h e f o u r - p l e x had begun, p r i o r t o

t h e Attorney General's opinion,                       t h e a p a r t m e n t h o u s e was n o t

r e q u i r e d t o u n d e r g o s u b d i v i s i o n review.

        A t t h i s point,         a p p e l l a n t s , s e v e r a l landowners a d j o i n i n g

the    apartment         house      property,          hired       an    a t t o r n e y and    filed

this     action.            They    sought        to    enjoin          the   Flathead         County

Commissioners from g r a n t i n g s u b d i v i s i o n a p p r o v a l u n t i l a p p r o -

p r i a t e compliance,         and f o r a w r i t o f mandamus t o compel t h e

F l a t h e a d County Commissioners t o e n f o r c e t h e Montana S u b d i v i -

s i o n and     Platting Act,             t h e A d m i n i s t r a t i v e R u l e s of Montana

and    t h e County R e g u l a t i o n s        a s t o subdivisions,               t o withdraw

t h e sewer p e r m i t i s s u e d f o r t h e condominium u n t i l c o m p l i a n c e ,

and t o e n f o r c e t h e p r o h i b i t i o n a g a i n s t s a l e , l e a s e o r t r a n s -

f e r o f any u n i t o f t h e b u i l d i n g .

        Count two o f t h e c o m p l a i n t was a g a i n s t t h e d e v e l o p e r s ,

and     alleged      a      public       and    private           nuisance,      and     requested

a b a t e m e n t and damages.            Count t h r e e ,         which i s n o t i n v o l v e d

here,     i s a c l a i m by p l a i n t i f f s S p r u n g e r a g a i n s t t h e d e v e l o p -

ers     for    damages        for     trespass          and       removal     of     lateral         and

subjacent support.

        A t   t h e commencement o f              the action,            appellants filed a

notice of        l i s p e n d e n s a g a i n s t t h e s u b j e c t p r o p e r t y owned by

t h e developers.            The d e v e l o p e r s moved for summary judgment a s

t o c o u n t s one and two, and moved t h e c o u r t t o g r a n t a n o r d e r

l i f t i n g t h e l i s pendens.         The d e f e n d a n t F l a t h e a d County moved

f o r summary judgment a s t o c o u n t o n e .                    The t r i a l c o u r t g r a n t -

ed    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
t h ~
    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. Hous-
ing 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 right-
of-way.    After judgment was entered for the Highway Comrnis-
sion 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 Environmen-
tal   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 r e s o l u t i o n o f t h i s i s s u e r e n d e r s c o n s i d e r a -

t i o n o f t h e z o n i n g r e g u l a t i o n s and t h e v a l i d i t y o f t h e s e w e r

permit unnecessary.                  W e a f f i r m t h e t r i a l c o u r t on c o u n t o n e .

        The a p p e l l a n t s a l s o a r g u e t h a t t h e t r i a l c o u r t e r r e d i n

g r a n t i n g t h e r e s p o n d e n t s ' m o t i o n t o remove t h e n o t i c e o f -
                                                                                           lis

pendens.          The t r i a l       court      found       that       the    - pendens
                                                                               lis               was

improperly          filed.          In     view o f         our    decision      on   the      first

i s s u e , w e a f f i r m t h e removal o f l i s p e n d e n s .

        Appellants           argue t h a t       the t r i a l      c o u r t should n o t have

ruled       on   the      issue      of    damage       to    the       county    road    without

c o n s i d e r i n g a n a f f i d a v i t s u b m i t t e d a f t e r t h e summary judgment

hearing.          Appellant          had    requested         that       the court not          rule

u n t i l t h e a f f i d a v i t was s u b m i t t e d , b u t t h e t r i a l c o u r t r u l e d

on    the     day      following          the    hearing without               considering       the

affidavit.             The t r i a l c o u r t r u l e d t h a t it would n o t a n t i c i -

p a t e damages t h a t m i g h t o c c u r t o a c o u n t y r o a d i n t h e f u t u r e

and g r a n t e d summary judgment t o r e s p o n d e n t s .

        We    find       that     summary judgment                was    not proper       on   this

issue.        The a f f i d a v i t s u b m i t t e d by t h e a p p e l l a n t s i n d i c a t e s

damage w i l l         l i k e l y occur        t o the      road.        We    remand    on t h i s

issue with instructions f o r the t r i a l court t o consider t h e

N o r t h e r n E n g i n e e r i n g and T e s t i n g ,    Inc.,      affidavit.        By t h i s

remand,      w e do n o t e x p r e s s any o p i n i o n on t h e c l a i m ' s m e r i t .

        W e a f f i r m t h e D i s t r i c t C o u r t r e s u l t i n p a r t and remand

in    part       for     further         proceedings          in     accordance       with     this

opinion.
We c o n c u r :
                    /
       K-
        T
 h i e f Justice
                   ,I
