                             No.    89-609
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990


RONALD KUNZ and ROSIE KUNZ
          Plaintiffs and Appellants,


BUTTE-SILVER BOW, a political
Subdivision of the State of
Montana, and DOROTHY K. DUGDALE,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Second Judicial District,
               In and for the County of Silver Bow,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Leonard J. Haxby, Esq., Butte, Montana
          For Respondents:
               Kathleen McBride, Esq., Butte, Montana
               Brad Newrnan, Butte-Silver Bow Deputy County
               Attorney, Butte, Montana
               Mark A. Vucurovich, Esq., Butte, Montana


                                    Submitted on Briefs:   May 3, 1990

                                          0
                                                ~ecided: September 4, 1990
Filed:



                               Clerk
Justice Diane G. Barz delivered the Opinion of the Court.

       Ronald and Rosie Kunz appeal from an order of the District
Court of the Second Judicial District, Silver Bow County, granting
respondents1 motion to dismiss.   We affirm.
       Appellants own real property at 4809 Hope Road in Silver Bow
County. Respondent Dorothy Dugdale owns an adjacent parcel at 4801
Hope Road.      Appellants1 property   is zoned residential while
Dugdale1s property is part of a light industrial zone.        Both

parties acknowledge that the parcel including Dugdale1s property
has been subject to light industrial use for a substantial period.
The surrounding property is zoned for commercial, residential and
light industrial use.
       In August 1978, the Butte-Silver Bow government adopted a
zoning ordinance which, after challenge by affected property
owners, this Court found was enacted in accordance with Montana
law.   Martz v. Butte-Silver Bow Government (1982), 196 Mont. 348,
641 P.2d 426.      The subject parcel was originally zoned light
industrial.    On November 2, 1988, Butte-Silver Bow adopted a new
zoning ordinance pursuant to 5 76-2-301 et seq., MCA.     This new
ordinance included the original 1978 ordinance and its amendments.
       Appellants contend the ordinance was adopted over their
objections and they filed suit in District Court. Appellants filed
a complaint against Butte-Silver Bow seeking a zoning change in the
subject parcel from light industrial to residential, or, in the
alternative, creation of a buffer zone between their property and
the business currently located at 4801 Hope Road.        Following
respondents1 motion to dismiss, appellants amended their complaint
to add Dorothy Dugdale as a party and seeking review of Butte-
Silver Bowls adoption of the zoning ordinance.      The District Court
granted respondentst second motion to dismiss concluding appellants
lacked standing to challenge the zoning ordinance and failed to
state a claim upon which relief could be granted by failing to
exhaust their administrative remedies.
     Appellants raise the following issues on appeal:
     1.     Did   the   District   Court   erroneously   conclude   that
appellants had failed to exhaust their administrative remedies?
     2.   Did the District Court erroneously conclude appellants
lacked standing to protest the zoning of the subject property?
     Subsequent to filing of appellants1 reply brief, respondents
moved to strike appendices A and B of that document for the reason
that the matters contained therein were not part of the lower court
record.   We do not find it necessary to address this motion.
     It is well settled that a district court properly grants a

M.R. Civ.P. 12 (b)(6) motion to dismiss only when the plaintiff could
not prevail I1[u]nder any set of facts which could be proved in
support of the claim.I1 Mogan v. City of Harlem (1987), 227 Mont.
435, 437, 739 P.2d 491, 492-93.      Respondents, by filing a motion
to dismiss, admit all the well-plead allegations of appellants1
complaint, thus the District Court must I1construe         . . .    [the
complaint] in the light most favorable to        . . .    [appellant]."
Moqan, 739 P.2d at 493.
     The District Court concluded appellants lacked standing to
challenge the zoning ordinance under question.         The issue of
standing has previously been addressed by this Court in the case
of Stewart v. Board of County Commissioners (1977), 175 Mont. 197,
573 P.2d 184.   In Stewart this Court stated:
          [Tlhe issue presented      for review must
          represent a llcasell llcontroversyll
                            or                within the
          judicial cognizance of the state sovereignty.
          Additionally, the following minimum criteria
          are necessary to establish standing to sue a
          governmental entity:     (1) the complaining
          party must clearly allege past, present or
          threatened injury to a property or civil
          right; and (2) the alleged injury must be
          distinguishable from the injury to the public
          generally, but the injury need not be
          exclusive to the complaining party.
Stewart, 573 P.2d at 186.
     Respondents emphasized before the District Court appellants1
failure to plead any specific injury incurred by them as a result
of the enactment of the zoning ordinance.       Appellants stated in
their amended complaint:
          By adoption of a zone of M-1 over the
          objections of the Plaintiffs and other
          residents in the area which is the subject of
          this Complaint, the Defendant, Butte-Silver
          Bow, committed an arbitrary and capricious act
          in violation of the Statutes of the State of
          Montana.


          The plaintiffs herein in particular will
          suffer irreparable harm and damage if the
          subject M-1 zone is allowed to exist in that
          they are not allowed the quiet and peaceful
          possession of their property. Their property
          has depreciated in value as a result of said
          zone. The M-1 zone, by its very nature, is
          one that creates noise and certain pollutants
          which would harm the Plaintiffst property and
          in fact the Plaintiffs1 property is being
          harmed at the present time by the present use
            of the M-1 zone and irreparable harm and
            damage will be caused the Plaintiffs and other
            users and owners in the neighborhood and area
            if said M-1 zone is allowed to continue.
From the above, we conclude the appellants1 recited facts which,
if taken as true, afford appellants standing to challenge the
zoning ordinance enacted.
     The District Court further concluded appellants failed to
state a claim for which relief can be granted on the grounds that
appellants failed to exhaust their administrative remedies.                 We

agree with this reason for denying relief.
     The Butte-Silver Bow zoning ordinance was adopted by the
Butte-Silver Bow Council of Commissioners pursuantto the municipal
zoning procedures of 5 5 76-2-301, et seq., MCA.          Section 76-2-305,
MCA, sets forth the procedure for formally protesting a proposed
zoning regulation.     Additionally, the Butte-Silver Bow Municipal
Code at Chapter 17.52.010 et seq., provides for an administrative
appeal    remedy.     Chapter    17.52.010   et   seq.,    allows    for the
submission of a petition to the Council of Commissioners or the
Zoning Commission asking for a resolution of intent to amend,
change, modify or repeal the zoning boundaries or restrictions.
While there are facts recited in appellants1 complaint showing they
objected to the adoption of the zoning ordinance in question, there
is nothing to show appellants followed the administrative appeal
procedure available to them under the Butte-Silver Bow Municipal
Code. Once appellants have exhausted their administrative remedies
the District Courtls function is limited to a determination of
whether    adoption   of   the   ordinance   constituted     an     abuse   of
                                     5
discretion. Schendel v. Board of Adjustment (Mont. 1989), 774 P.2d
379, 382, 46 %.Rep.       800, 804. The District Court could not order
respondent, Butte-Silver Bow, to rezone or require buffer areas on
the area in question. Such action would require the District Court
to act as a I1super zoning boardw which is not a proper function.
We hold the District Court properly concluded that appellants
failed to exhaust their administrative remedies.
     Affirmed.
                                                /




We concur:            A
                      '
