                                             No. 85-142

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                1985



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,

              -vs-

FLATHEAD COUNTY, Flathead County Board of Commissioners, Nakul Verma, Flathead
County Zoning Administrator, et al.,

                               Defendants and Respondents.



APPEAL FROM:            District Court of the Eleventh 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. 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 alleged 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 II, reserving

Count III, 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 Bigfork, 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 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 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 opinion, 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 the 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, “[t]he 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 § 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

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 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 right-of-way. After judgment was entered for the Highway Commission 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), 703 P.2d 850, 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 § 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.



TURNAGE, C.J., and HARRISON, SHEEHY and GULBRANDSON, JJ., concur.
