                                   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


                                       2
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,

                                        4
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

                                          5
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

                                        7
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




                                 9
                                    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
