                                          No. 02-676

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 108



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DEBORAH STEWART,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DV-00-240,
                     Honorable John S. Henson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Christopher Daly, Attorney at Law, Missoula, Montana

              For Respondent:

                     Fred Van Valkenburg, County Attorney; Martha McClain, Deputy
                     County Attorney, Missoula, Montana




                                                        Submitted on Briefs: January 30, 2003

                                                                   Decided: April 24, 2003


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Appellant Deborah Stewart (Stewart) appeals the District Court’s grant of summary

judgment to the State, which, in part, permanently enjoins Stewart from using her property

in violation of applicable residential zoning laws. We affirm.

                           Factual and Procedural Background

¶2    Deborah Stewart leases a 1.28 acre parcel of property from the Department of State

Lands. The property is located in an area of Missoula County that is subject to zoning. The

property is classified as CA-3 under the Missoula County Zoning Resolution. This zoning

district provides for a “low density residential development of an open and rural character

in areas best suited for such purposes and provides for environmental protection of those

areas that are fragile and cannot support more intensive urbanized activities due to

physiographic, hydrologic, biologic and economic conditions.” Missoula County Zoning

Resolution, No. 76-113.

¶3    In April 1994, a Missoula County City Zoning Officer approved Stewart’s proposed

architectural plans for the construction of her home. In January of 1995, the City of

Missoula, Public Works Department/Building Division, issued Stewart a Certificate of

Occupancy for the building. This certificate listed the building’s use as “single family

dwelling.” Following the completion of her home in 1995, Stewart began leasing out the

daylight basement of her house and an attached enclosed carport, called “the studio,” to

tenants. The basement apartment, consisting of two bedrooms, a bath, a kitchenette and a

living room was rented to Brock Bowles in August 1998 under a lease with a term of one


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year. Stewart had Bowles sign a “Residential Lease Agreement for 10570 Grant Creek

Road,” which provided that “Tenant” and “Owner” will “fulfill the duties and responsibili-

ties” contained in the Montana Residential Landlord and Tenant Act. The lease agreement

permitted Stewart to run a credit check on prospective tenants and set parameters for various

aspects of the tenants’ personal conduct.

¶4     According to Bowles, he and Stewart did not live together in a communal manner.

For example, Bowles was provided with keys to one basement apartment bedroom and to the

entry of the basement apartment, but not to the front door accessing the main floor where

Stewart resided. Similarly, Bowles did not share meals or groceries with Stewart; he did

housework only in the basement apartment; he did not share a telephone with Stewart; he did

not watch TV with Stewart; and he did not enter the main floor of the house except as far as

the landing at the top of the basement stairs where Stewart left his mail and where the rent

checks were to be deposited.

¶5     After Bowles moved into the basement apartment, a second tenant, Laurel Hahn,

moved into the basement apartment. During the tenancy of Hahn and Bowles, Stewart rented

the studio apartment to a tenant who likewise lived independently of Stewart. In June 2000,

Stewart rented the basement apartment to David and Myra Gray under an identical

Residential Lease Agreement for 10570 Grant Creek Road. During their tenancy, the Grays

did not maintain a common household with Stewart or the studio tenant.

¶6     On April 7, 2000, the State commenced a civil action against Stewart challenging her

use of a single family unit as a multiple family unit and seeking injunctive relief. Stewart


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filed a motion to dismiss nearly two years later based on the State’s failure to litigate the

case. The District Court denied the motion. Next, both parties filed motions for summary

judgment and the District Court held a brief hearing in July 2002 regarding the motions. The

Court granted the State’s motion and issued an injunction against Stewart. Stewart filed this

timely appeal.

                                     Standard of Review

¶7     Our standard of review in appeals from summary judgment rulings is de novo; and we

follow the same criteria applied by the District Court pursuant to Rule 56, M.R.Civ.P. The

moving party must establish both the absence of genuine issues of material fact as well as

entitlement to judgment as a matter of law. Once this has been accomplished, the burden

shifts to the opposing party to prove, by more than mere denial and speculation, that a

genuine issue does exist. See Stockman Bank of Montana v. Potts, 2002 MT 178, ¶ 3, 311

Mont. 12, ¶ 3, 52 P.3d 920, ¶ 3.

                                          Discussion

¶8     At trial, the State contended that Stewart violated zoning restrictions that limit her use

of the property to a single family dwelling by leasing a portion of her single family home and

her garage to tenants. The State introduced testimony of former tenants to support this claim.

Stewart did not offer any substantial contradictory evidence. Instead, she maintained that

the house had in no way been modified since the Missoula County City Zoning Officer

approved its architectural plans in April 1994, and therefore, the structure was still in

compliance with zoning restrictions. The State responded that Stewart’s argument was


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misplaced because it was her use of the structure, not the structure itself, which violated the

zoning regulations. In its order, the District Court granted the State summary judgment,

concluding that the affidavits of her former tenants clearly established that the parties did not

live together communally and that the “[d]efendant has not come forward with any evidence

to refute the State’s charge that [her] use of the real property has been in violation of the

applicable zoning.”

¶9     It is undisputed that Stewart’s leased property is zoned CA-3 under the Missoula

County Zoning Resolution which provides, at Section 2.08, for the following permitted uses:

       1.     Single family dwelling.
       2.     Mobile homes on lots five (5) acres or larger and minimum yard
              setbacks of fifty (50) feet.
       3.     Accessory buildings and uses.
       4.     Agriculture on lots five (5) acres or larger, including any and all
              structures or buildings needed to pursue such activities, except
              intensive agricultural use such as feed lots and poultry farms. Mini-
              mum yard setbacks of fifty (50) feet shall be maintained for all
              agricultural buildings.

Section 1.05(28) of the Zoning Resolution defines a “Single family dwelling” as “a detached

building designed for occupancy by one (1) family,” and Section 1.05(30) defines a family

as: “[o]ne or more persons. . . living and cooking together as a single housekeeping unit.”

¶10    The testimony of two former tenants, Bowles and Gray, confirms that Stewart’s home

was being used as a multiple family dwelling. Both stated that they did not live and cook

together with Stewart as a single housekeeping unit. Bowles specifically testified that he

neither shared meals or groceries with Stewart nor did he share a telephone with her. These

facts demonstrate that each tenant ran a separate housekeeping unit within the house. For


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her part, Stewart has not presented sufficient evidence to demonstrate that she and her

tenants lived as a single housekeeping unit. Instead, she mistakenly relies on her trial

argument that the house at 10570 Grant Creek Road has not been structurally modified since

a Missoula County City Zoning Officer approved the home’s architectural plans in April

1994. This argument is misguided because, as the State correctly points out, the zoning laws

at issue regulate the use of the structure, not the structure itself.

¶11    Next, Stewart argues that Missoula’s Zoning Resolution violates both the Montana

Human Rights Act and the Federal Fair Housing Act. Again, Stewart’s argument misses the

mark. Stewart contends that the Montana Human Rights Act (HRA) at § 49-2-305(2), MCA,

preempts Missoula county zoning regulations. This section exempts landlords who rent

sleeping rooms in single family dwelling, such as the proprietor of a boarding house, from

the Act’s prohibition against discriminatory practices. Stewart submits that this statute

recognizes the right of landlords to rent rooms out of a single family dwelling; therefore, any

inconsistent zoning regulation which precludes such an arrangement is preempted by this

statute. The State responds that this argument is neither tenable nor supported by authority

in Stewart’s brief. We agree. Stewart cites no authority for her argument that the zoning

regulations and the HRA are inconsistent. Reading the statutes consistently, as we must, see

§ 1-2-101, MCA; E.H. Oftedal and Sons, Inc. v. State ex rel. Montana Transp. Comm'n,

2002 MT 1, ¶ 19, 308 Mont. 50, ¶ 19, 40 P.3d 349, ¶ 19, the HRA assumes that a person

renting out rooms in a single family dwelling is doing so consistently with applicable zoning

regulations.


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¶12    Next, Stewart claims the Zoning Resolution’s definition of “family” violates the

Federal Fair Housing Act. She directs us to the holding of City of Edmonds v. Washington

State Bldg. Code Council (9th Cir. 1994), 18 F.3d 802; however, in that case, the Federal

Fair Housing Act was implicated by alleged discrimination and failure to reasonably

accommodate handicapped persons. See City of Edmonds, 18 F.3d at 806. In this instance,

however, Stewart has not offered any evidence that the State sought to enforce its zoning

restrictions in a discriminatory manner against handicapped persons or anyone else.

¶13    In this case, the State established both the absence of genuine issues of material fact

as well as entitlement to judgment as a matter of law. The testimony before the District

Court established that Stewart was using her home as a multiple family dwelling in violation

of the applicable zoning laws and the Certificate of Occupancy. Stewart did not meet her

burden to prove, by more than mere denial and speculation, that a genuine issue of material

fact exists. Therefore, we affirm the District Court’s grant of summary judgment.


                                                         /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE




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