W1L L iA\Z RUSSELL

FL,ATIIFAD COVNTY, and THE FLATHEAD CObhT Y BOARD OF ADJUS 1MEVT,

Defendants and Resportdents

r%PPEAIdFROM: District Court of the Eleventh Judicial District, In and for tile County of Flathead, f-tonorable ICatherine R. Curtis: Judge Presiding

COUKSEL OF RECORD

For Appellatlt

Rlcliard DeJana, Richard DeJana & Assocrates, PLLC, Kalrspcll. Montana

For liespondcnts:

Thomas Esch, County Attonic); Jonathan B Sriilth. l)cputy County rlito~~icq, ICalispcll, llo~itana

Sublnittcd on Briefs: September 20, 2001

Decided: January 23,2003

Filed: of J ~ I S I I C CJ!n: Rice iiclivercd ihc Opit~lor! ihc C'ourl,

9 ,r\ppejjdnl $Viliiam Rassci'i /Ri:sseii) appe:iis f~.rom;he orJcr.i or'rhi- f<lsreaih.iiidiciai ~ ~

District Courtl Flathead County, in favor of Respondent Flathead Coun~y, enjoining R~rsscll's

use of his property as violative of the C:ou!it);'s zoning regularions LVc a f t f r n ~ ~

7l.) Thc ibllowing issues are presented on appeal:

Y3 I . Eid the District Court err in concluding that Russcll's challcngc to ihc zoning

district pursuant to 9 75-2-202, MC"2;was barred by thc statute of limitations'?

7j4 2. Did the District Court err in dctel.~niningthat Russcll's pr-itpcrty \\-as inciudcd

within the boundaries of the zoning district when the district was crcateci"

!lJ *!'c ? Did the District Court err in eonc!i~dingthat Russell's tisc ofrile properly was ar:

impcnnissible nonconforming use'?

FA<:TUAI, AND PKOI:E:DC'RAId BACKC;KOUND

76 The High\vay 03 North Zoning District (District) was created on Ma); 7. 100 I , by thc

Flatl~ead County Board o r Commissioners. The resolutioi? cstabiishing the ilisrricr

established several subdistricts, each ~vith own regulations regarding uses and typcs of its

b~iiidings within the subdistrict.

"7 On March 1, 1907; R~isscllpurchased a 4.9 acrc pa^-cel fioni !VilIiam ilcdstrom

(1-ledsiromi. which i s the property si~bjcct this dispute. Russcli's propci-ty iics within :1le to

1)istrii.t. At the time of the creation of thc District, Russell's property, titen olv~ieiiby i-iciisirorn, \sas classiiieil as SAG-1 (,Siiburban ~ ~ r i c u l t u r a i )'4' revision ot'thc Fkithcad ,

Reg~ilaiionsin Scp;cmher -rti93 chai~geii iiesignatior? f~-om Cvur;iy Z ~ n i i ~ g #. ihc SAG-] to

SAG-LO, but continued the suburban agricultural ciassification.

"i8 For years prior to the adoption of the L3istricr, i;iedstrom operated a dair? farm on tile

property. and at the rime the Lhtrict was created, was using approximately two-thirds of the

property to support his dairy operation, 'rvhich includecl t3fty to one hundred head of cattle.

'The shop on the property was built in 1973. When thc District was created in iW1;

I-iedstrorn was wing the shop to repair farm equipment, both his and that owned by others,

and to brtild trailers and hitches. Eledstrom testified that he did all the sllop work himself9

thirty-five ihours a u-cck iri thc shop. Liedstrorn's use oftile propelty spending ilpproxin~arcly

did not include the general storage of hea\:y equipment. 1 . 1 ~ testified that l'iom one to three

pieces of F ~ I -equipment were occasionally stored on the property, but that this equipment ~I

was "well-screened frorn public view by the knoll on the highway side of the property, and

by the dairy buildings, grain bins, tinct equipment sl~ed located 011 the property.

9 Prior to purchasing the property; Russell was aware that tledsirorn operated a dairy

and that the property was classified as agricultural. !iussell ctid noti however, solicit

information from the planning office regarding perrriissible uses of thc iiropcrty prior to his

'A "Suburban Agricultural SAC;-I" class~iicat~ondcfii~cd a "~IISI~ICI protect and PI-CSC~VC I.; as to agriciiltural lands ibs thc pel-Sormance of iirnitcd agricultural liinctioiis aiid to pr-:i\:~dca huili.r bct\vcerl uhaii iir~ciunlimited ;rgricultur-a! uses. encoiil-aging conce~~tratiol-i such iiics in al.eas where potential of iiiction of uses ivill be minirriii'ed.'. Sect~!)n3.02(. Chapter 3; t:latliead ('oi~nty ('om~~rcl?ens!vc Zoning Regulations (1991). ptirchiise. Since his purchase; K~issell has operiiied a busincss involi-ing the rc~pair,

nriii~~izi?ancc.. storage of heavy cyuiprncnt on tlre propcrry, iiusxii employs one pel-con arrd

to work at the shop full-time and has stored tir,cnty to thirty pieces of h~cavy ccjuipmcnt. i n

various stages of repair, on the property. including logging trucks; s c ~ ~ ~ i - t r ~busses, _ ~ c ' K i iiiid

bulldozers. Russell admitted in his testimony rhat tbe extent of his use wries fi-orn

Hedstrom's use, because no agricultural use of the propcrty has occurred sir~ccRussell

purchased the propelt);.

0 SI Tire testimony of several neighbors established that the use ofthe propcny prior to the

p~irchase Russell war generally observable as agricultural. Following R~isscll's by purchase

of ihe property, ilie g e ~ ~ e r a l obscrvablc usc o r thc property lias ltccn industrial. The

equipment repair conducted by ffedstrom prior to Russell's purchase \\:as conducted inside

the sliop. out oftile view of adjoining property owners. Russell's current use is highly visible

and occasionally audible to the adjoining neighbors. Russell's use of the property in~olves

substantially more equipnicnt than the onc to thrcc pieces that iledstrom had ii the property ii

and involves equipment not traditionally considered farm equipment. It also involves the

storage of equipment on the property in a manner that is not screened fron-r public vic\v,

71 I In thc fall of 1097; the connty zoning adtninistrator rcceivecl crtmpiaicits regarding

Ri~sscll's~1st. the property. C)n December 31: 1997, the ioniny adrninistrittoi issued a of

determination that Russell's usc was rronconfortning under t l ~ c [oning rcgulaiions. Russcll tippcalcii this decision to Blc FIt~theadCounty Board of Aiijr;sul~eni. T l ~ eBoard o f

uplicid r dccisliiil of the ~cii~ii:g Ai?j~~strncrr: k admir~lsiriitor.

41 12 0 1 1 may 6. 1998, Russell appealed thc Board of Adj~~stn-iciii's decisioii to the District

C'oitrt. His Coinplaiiit alleged that the adoption of zoning regitlations was Illegal (('oitnt 1 ):

that Plaintiff's use of the property was the same as thc use beli)i-c adoption of the District

(Count 2), anci that PIaintif?s property was excluded froin the actual boundaries of the

iorrii~gdistr~iet(Count 3). Flathead County filed an Answer and Co~interclainl claiming

R~tssell'suse of the property was not a permitted use or a continuation of a nonconforming

use, artct ii motion for summat-yjudgmcnt on Count 1 of IZussell's Complaint: contencling that

Ri~sscll'scliaiie~~gc the zoning ordinance thereu~~clerV ~ Sbarred by the staiutc of ro L

limitations set forth in $ 76-2-202(1)(,b), 11CrZ. Russell responded by tiling an rlmendcd

Cori~plaint also moving fbr summary judgment as to Count 1 . By Mcniorandum and and

Ordei- cntcrcd o n October 19, 1098, the tlistrict Court grailtcd the County's ii~otionfor

summary- judgment and denied Russell's motion for srimi~~ary judg~iicnt to COLIII~ as 1.

713 issues were tried in a bc~ich T'he re~naining trial before the f-lonorable Katherine R.

('urtis. and on Yovcmher 14. 2000, the District Court critercd its Findings of Fact,

Conclusions of J.aw and an Order in favor of Flathead County, enjoining R ~ ~ s s e l l using li-orn

the propetTy other than as allo\t-ed by St\<;- I0 ~ o n i n g regulations; except as the propell): was

used prior to the creation of the District. flussell appeals ilie judgment entered by the District

('onrt. 4;14 Did the District C o u r t e r r in ca>nciudingrlsat Russell's cllsllenge to tire District

w a s barred b: the statute of limitations?

15 Russell claimcii in his Cou!lt 1 that the subdistricvs created withirr the District, and the

differingrcgulations for property located \vithin each subdistrict, violaicd $76-2-292, ili:?,

which requires that zo~titigregulations Tor each ciass or kind of buildings "throughout a

district" hc uniform. The Viistrict Court entered summary judgment in favor of Flatitcad

Count! on the grounds tliat thrs clarm was barred by the statute crf i~rnttat~ons.

:[I 6 (li. We review a district court's order granting summar-yj~idgmerla irovr~, applying the

same evaluation as the disti-ict court does pursuant t Kulc 56, M.R.C'i\-.P. Rr-uner v. o

I.ello14 i f o w C'cilrnry ( I 095), 272 Mont 261,264,000 P.2d 001,003 In /jizrlzer. itr set f'orth

our inquiry:

I'hc niovaut must demonstrate that no genuine issues of material fact exist. Orice this has been accon~plished,the burden then shifts to the non-111oving party to prove, by more than Inere denial and speculation, that a gen~iiileissue docs exist. l-laving deterniined tliat genuine issues of fact do not exist, the court rnusi liten determine whether the moving party is entitled ro juclgnie~it as a matter of law. We reiielz the legal determinations made by a district court as to whether tile court erred. [Citations omitted.]

'"'1 7 I ,~\ti l ~ c l?eart of the issile here is the tirnc limitatioit provision sct f~i,t-th I I$ 76-5-202. ~

hlCA. which provides that actions ckallenging tlre creation of a zoning district niiist be . . ''within 5 years itiicr the date oi'ihc ordcr hy thc bmrd oico~mty c~rn111er3ccci comrnxcsioncrs . . creating tlrc district. . . ." Section 76-2-2(?2(i)(bi, XICA ( r ...( q .'i .i, i).'

!!8 C.ornrnissioncrs on May The i>istrictwas crcated by rcsolritinri ofthe Board of'Ci;ui~?y

7, ioo19 and I<~~sscil his Complaint on May 6; 1008. Flathcad Coiint)- ~naiiltains filed that

Rtrsscil's action is a challe~lgeto rlie crcation of the District. bvith i t s subdistricts, anti

thercforc. is harrcd by the five-year linlitation provision within $ 56-2-202(i )jb), PICA.

I Russell argues that becausc he is seeking lo invalidate diffc~~ing regulations witliirr tlie

I>isrrict. and not the creation of the District, the five-year liinitaiio~i provision is inapplicable.

in support of his position, R ~ ~ s s eoffers that the zoning statutes gcncrally distinguish ll

e ~ cvcatioti o f a district and tllc establisli~nent b e t ~ v e the ~ ofthe regulations ii~c.reur~dcr, i tihi~t a~ d

the iivc-year li~niratio~l provision applies olily to actions challengilig tile actual creation of

a district. F-ie reasons that applying the five-year li~nitatiotiperiod here ivcttlld bar all

challenges to illcgal regulations if a zoning district had bccn in existence for more than fTve

years, itlternati~cly,Russell argues that if the fivc-ycar provision docs apply, then tlic

limitation period began to run on September 27, 1993, when the county ccii~~nrissio~icrs

enacted a resolutioli amending the /oniilg regulations, and changing the zonc designation

from SAG-1 to S A G 10. and therefore. his action was timely filed 011 May 6. 19'18.

rcfcrred to the icroion o i t h c MCP. upon Ncithcr party. :lor thc 1)istrict Court in its dcc~sion. which they werc relying. Ilowever. tlrc 19x9 version ofthe Cod& ~ v l ~ i c h in vffcci'CI at (hi' time tlrc \\as contains the 5 ycar limitation provisioii at issuc h u e . arid 13 relied upon herein. A ilistrict \\as CI-eatcd, virtually identical provision rernains in effect under the 2001 ('ode. B:?() r>i;trict ci=rc ar:aly.e:d Russell's ciailri a11d detcr-mined 2 : s : I rnettcr o f law that i t

was r: ch:iiicnye to the creation ofii!c District, stating its hiiuws:

f i e basis of Plai~itift-sargument that the regulations are invalid is ihat thc n~ultiple districts were crcateci incorrectly itnd arc aoiual!!; one district. As counsel for Plaintiff stated at oral argument: ""L-ferewe have a district with illegally crcated subdistricts." I'hcrc could nor be a [clearer] challenge to '-the creation of a zoning district.'' which must he commenced within five years after the creation. Plaintiffs claini is barred by the statute of limitations sct hnh in Scction 76-2-202( l)(h). M.C.A.

!121 Wc agree with tile District i:ourt's conclusion. Russell's assertion iiot~vithstandiiig,

he is arguing that the creation of the District with distinctive subdistricts docs not comply

tvith $76-2-202. MCA. f h e crux of Russell's argument i s that the District is invalid hecause

the County cttactcri different property classifications and regulations for properties within the

subdistricts of a single district. This differing treatment of property within the suhtlisiricts

regulations vere amended in September 1001, but, rather. d ~ not occur \+hen thc r o n ~ n g d

when the District was created in May 1991. Thus, li~isscll's true challenge is to the creation

district, and the five-year limitation provision contained in $ 76-2-202(lj(b'). of this ~ o n i n g

1 a l e . t3ecause his ('omplaint was tiled morc than rice years after the crcatioli of

the Distr~ct, clarm his I S ttrne barred

722 Neither Lire \+-c by R~lssell's argi~mcntthat this conclusion bar.; a i l

challc~igcs zoning rcgulations after a district has bccn in csislencc for five years. 1Vc arc to

not fiiced here \vith the q~restionof whether the tivc-year lirnitatictn procisioi~in 4 76-2-

202(l)(b), MC.\, applies to challenges to /t>n!ng regulat~onsnhtch are u~rel3tcdto a district's c:.eaiion, a i ~thcrcbr:, this ciecisiorz has no bearing on that issuc. K~inethcitrss, i this

dccision should no: be Intc~pi-crcd imposing a bliinh-; prohibition on chailcngcs to zoning as

rcgriiations aftcr a district has been in existence for f i ~ years. c

42 '3 We conclitde that the District Coiirt did not err in granting srimmai-5-judgment 10

Flathead County on Count 1.

')124 Did the District Court err in determining that Russell's property was included

within the Oistrict when it was created?

725 'The pcrimcter description of the District includes the propcrry owncd by Russell. as

does the description of the property within the perimeter classified as SAG-I . These facts

are not disputed. Russell acknowledges in his brief that "[t]he plain riff"^ propeny is within

tltc first S'ACi-1 area described."

2 C-[owever.Kussell argues that the area described as SriC-1 is itself cxcluded from the

District. He asserts that the description clearly excluded certain areas within the District's

ouier boundary, such as the Prairie Vie\? Zoning District and the proposed Schrocder Ridge

Zoning i)isrrict, and that the same kind of exclusion language was used to cvclude the area

described as SAC-1 ~rhich includes his property. Thus, Russell asks that this Court declare

his property, and all other property within the SAG-1 classific:~tio:l,to be outsidc the District:

and unaffected by regulations adopted pursuant to the District's creation. P : " in ifrafting I)istrict's pcrimcter drscription, ilic drafter-s first classified the entire

diffcren: classification. Russell asserts that by placing the word "excluding" immediately

preceding the land descriptions not classifieci as AG-40, these properties were renioveci from

the U~strict.

7128 The property description in the resolution approving the District is set brill in thc

follon ~ n g manner:

PERIMETER DESCK!P-i.!Ofi OF 1-1ICi!!lV.4\( 0 3 XORTFI ZOKlNC; DISTRICT to be zoned ACi-30

E:xcluding the Prairie View Zoning District described as follows: [property cicscriptionJ

.4nd excluding tltc proposed Scl~roeiierRidge Zoning District described as follows: [property description]

SAG- I

Excluding a tract of land to be zoned SAC;-1 described as follows: [property description]

'An "Agricult~~ral A?\(;-40"classifi~atlon defined as a ~'disti-ict protect and preserve is tcr agrici~liuralland iiir the pcri;?rmancc.oTa u-icic mngc oi'agriciti:~iral iirnctiriiis. 11 is intended to control the scattcrcd jntrus~onot'iiscs not compnrihlc with an agricultural e n ~ i r o n m c n incliiding hilt nor iiniiled t~ to residential ilcrelopmi.~~r." 3. Seciion 3.02, ('l~aprn. I:lathc:jd f'ouniy i'omprcl~erisiveZoning Kegulations ( 19!>1). Excluding a tract of land m be zoned K-2 cbcscribcd as fb!iows: [property dcicriptionj

Erc!uding : tract of land to be ,7olicd B-1 desc:-;bed as fbl!nws: [property I description]

Excluding a tract of imd to he zoncii R-i described as itllows: [~properry description]

No. 837, adopted March 5; 1991. Kesol~ltion

"20 l o repeat. it is undisputed that Russell's property is located within thc pcrimctcr

property descriptiorr of the Districi and nititin the property described and classi ficd as SiPCi-

I . 1.-iowcver,referencing the word "excluding" which precedes the dcscription of the area

classified as SAG-1. Russell claims that his property, and all S"i<i-I property, \.*as excluiicd

li-om the District entirely.

aj30 She County offers that the language used in describing the properties that were to be

ciassitied other than ACi-40 could have been clearer, but that it was suilficient to serve the

purpose for wilich it was irltended~~to notify thc public and !andowners of'tbc ~ o n i n g ivliich

was proposed for their property. Furthcrmorc, thc C'oiinty argues that thc LISC of the word

"exclrrding" to describe propel?? not classified as 1Ci-30 tiid not cxclirde the propcriy from

the District. but simply eucluiied the property fii-itrtl the -I(;-40 classification so that such

propcrt) could bc separated Into subd~strtcts ciasstficd d~tfcrcntly and (ii3i Russell's argument is kvithout merit. : piain reading of Rcsiiiiiiion 837 dcrnonsl-rates l

- x~.!licir pr-ccecits the tJla:ix?oi,i "exciu&r~~" il~itt pmp-1-iy designated as S;lCI- i ixvar L L S C i ~o

exclude the described prcjpc1Ty i-~ror-ii ;iCi-40 classifkiition ihc tihe siiiglc purpose of

classifying the property as SAG-I. The dcscriptior; states "Exclui!ii?g a tract oflanci to he

zont'ii Sz1C1-l." The intention to zone tile property as SAG-1 was clearly expressed by tlhis

laiiguage in the property description. Further. it was also expressed in the body of the

XO\V. THEREFORE, R E I'T RESOL,VED, that the Board of Commissioners of Flathead County, Montana. . . hereby adopts this resolution of intention to create the Higllway 03 North Zoning District. The proposal woulil result in zoning portions of the area set fbrth [herein] as A<;-40, SAC- I , R- 1, R-2, B- I .

232 There can be 1 0 cotlfusion 1 about the effect of the Resolution. Further, if Russtlls

interpretation was adopted, then the Resolution's use oi'the word "excluding," which was

also used to define those areas within the 4G-40 perinieter description ~vhich were roncd as

R-I, R-2 and B-I, would like\visc escludc thcsc other areas from tlic District. We coi~cliidc

the District Court did not err in deterriii~iingthat Russell's property was properly included

within thc Ilistrict when it was created.

'33 Did the District Court err in concluding that Russell's use of the property vta$

an impermissible nonconforming use?

734 The District Court bund that Russell's use of the property varied substantiall j from

the use at the time the District was created, and thereibre, exceeded a!lowances nlade in state and countgcodes fi)rcontinuatior~ ofexisling, noncol-ifo~mingi s c s .i n affirming the decision ~

of the i3i)ilrCi oi'/idjcstrnens. the District i'imn iriq>i>sed condiiions \vhich restricted the kind

of cquipmei-ii which could be repaired in Russell's faciiity ar~d iliimhcr of hoiiis of ihc

operation, and also requircdeyuipmeni stored outside of the shop m be screened from public

view,

725 Russell challenges the District Court's conclusion that his Llse oftile property was trot

:in existing use. Me asserts that the r>isrrictCourt may have foitncl that his particular manner

of use was objectioni~hle,hut that, nonetlreless, his use was essentially thc same as it was

prior to zoning: the repair of eyuiptncnt. He argues, relying on tliis Court's holding in

~(L'IZSIIIOL' ('& 1'. ,i ~fICli.ssouJn (1 97 I), 156 Pvlont. 40 1, 480 1'..2d833. timi the standarc1 for

determining rhe validity of an existing, nonconfornling use under both state statute and city

he ordinance sl~ould flexible, and that the District Court's consideration was too narron:. tfc

contends that the imposition of restrictions upon his use of the propcr%y--restrictiot~s which

are not found within tile zoning regiilations--constitutes ji~diciallegislating, and that tile

restrictions must be struck.

'36 The District Court relied up or^ $ 76-2-208, MCA. ~cliich states:

Continuation of nonconlitrming uses. Anylawf~tl whiclt is made of land use or buildings at the time any zoning resolution is adopted by the board of county commissioners rnay be continued although such ~ t s c does not conforrn to the provisions of such rcsolt~tion. 737 The District Court also applied a county /oiling regulation addressing the ccjntinuiiaun

iifnii~iconhrrnir~g ofproper?.>. Section 2.07.0iO; F1atbcad Couiity Zoning iicguiations; uscs

states:

A lot or building being used in an otherwise lawful rnanner that does not conform to the use provisions of the Flathead County Zoning Regulations, may continue to be uscd in the manner and to tlie extent that it was beirrg used at the time of the adoption of the zoning.

The District C'ilur? found Russell's use to be in violation of both oftlicsc provisions.

4i3S In orcier to resolve this issue. we n~ust examine Hedstrom's use of the property at t l ~ c

time of zoning. The District Court found, anci Russell does nor cliallenge on appealt that

Russell admitted in his testimony that the extent of his use varies significantly from

tleiistrom's use of the property.

739 operatcd it dairy faml on At the time the property was zoned in May 1091,l-iedstron~

the property. Incidental to the dairy operation on the property. l-lcdstrornalso usecl the shop

located on the property to repair ftir~ii equipment. t~iedstromuscd the shop to repair both his

obvn furm ecluipment anci that of others. kiedstrotn also built trailers and hitches ill the shop.

Hedstrom testified that at the timc of zoning he would spcnd approximately thirty-five hours

a ~veekin thc shop, and that he did all the shop work hirnsclf. :it the timc of'zor~icg,

Hedstroni stated-he would store one to three pieces of farin cqilipn~eut the propcrty from 011

time-to-time.

'140 Since purchasing the property in March 1997, Kusscll has opcr::ted an ccluipnient

repair business on tlie property. Russell has ~tsed property to repair, maintain, ar~d the store heavy eyuipn~cci. Krissei! employs onc pcrson to ix;irrk 1.~11-time rbi: shop. Kursrii also in .--I stores t.iyenty to ei-iiny piece.; of cyuipmcrri. in i-ariuiis stages of repair. on tile property. 1 r-ic

stored cqiiiplnent inc!udcs logging trucks, semi-trucks, busses, and bcildo~ers, Xo

agricultural use has occ~trred the property since Russell purchased thc property. on

4 The District Coun concluded that Russell's use was "substantially difi-c'icci'. than ihe

pre-existing, nonconforming use of the property, and therefore violared both Seeti011

2.07.010, Flathead County Zoning Regulations, and 8 76-2-208, 11C;I. W c find tliat the District Court did not err in so concluding. The District C o ~ ~ r tlrolding was supported by 's

sul~sraiitial evicience that Russell was not using !he property"ii1 the lnanner and to the extent

that it u a s being used at the time oft112 adoption of the zoning," as required by thc ordinance.

7/42 Fur-ther. the District Court's holding is consistent with 5 76-2-208$ MC'A, which

provides that "[ajny lawful use . . . may be continued." In his brief, Russcil argues that the

plain ineaninp of this statutory language "does not imply a limitation on expansion" ofa prc-

existing la~vful use of the property, and therefore, his activities on the property rniisr be

pcm~~tted. contemplates continuatloll ofthc status q~to. Howe~er, find that thc lang~iage me

7 he word "continued," defined as "lasting or eutend~ng nithout inten-~~ption."' means slmpiy

that a pre-existing use lnay he maintained. The evidence herc es!ablishes that R~issc!lhas

done more than maintain the existing use. He has expanded the kind. or the nature. of thc

property's use to include activities which did not exist at the time of zoning (from Fdnn

'blerrianr-LVchstcr Collegiate 1)ictionary. Tenth ilditlon, I098

I5 cyuipinetit repair to h e a q cornlllercial equipment repair): and silbstaniially ir~crensedthc

q - ~ ~ m t i t i ~ ythe ~ciiumc, tihi: new activitv biiond t!mr associaical nit!? li previous or , of > . ii: ti= of

thc property (from one to threc i-ehiclcs to ivreilty to thirty \,chicics at a timc).

743 li: firz.snzoe, an uninhabitahlc trailer home on thc subject property, a noncon'iorming

use, was replaced with a newer trailer home. The City of hlissoula brougllt an action to

prohihit this perpetuation of the nonconformi~lg use. This Cotill held in favor of the plaintiff

property owner, recognizing, based upon the City's ordinance, that "plaintifflras an existing

vested right to a nonconforming, continuous, and uncl~anging ofthe land in question as use

a site fitr maintaining one single family residential trailer." Kel~smoe.I56 bfont. at 406,480

P.2d at 838. We concluded tlrat the non-conforming trailer borne co~liil properly replaced bc

in accordance wit!] this vested right. Section 70-2-208: MCA. was not zippliecl.

"44 Contrary to Iiussell's argument. this Court's preclusion of the City's cf'ii113to restrict

the property owner in Kerrsi~zoe offers no support for Russell's argument here. The property

owner in Kerrsmoc sought to eontinuc the precise prc-existing, nonconfor~ning but n-ith use,

a newer trailer home. Slic did not seek to expand or changc the purposes for which hcr

property w a s ~iscd, the volume of such use. 1:11like tlte property owner iir k'irrisn~oc. nor

K~lssel!has engaged in activities which siihstantially dcviate torn the pre-existing uses of

llrc property.

q45 Finally; Russell argucs ~ o n i n g a legislati\-c functictn. and that by imposing r11e time is

and use res~rictionsoil the property? the [>istrier C'ourt !us excceded its power and is legislating. Russell corztcnds that the court's ciistincticin bct\vecn farm ecpiprncnl and heavy

oivn descriptioiis. i i c argnis equipnrcot ciriscs not from ihi rcgeiarion, bat horn the cou~t's

that nothing in tile A(;-30 or S.A(;-1 zoniiig ngultlticins prohibits storage ofheat - eqitiprnei~t i .

on t i ~ propcrty, rcsi~.icts c uses to certail~ requirement. times o f thc day, or imposes a scrcci~ing

and therefore. these conditions were impermissibly imposed.

746 We disagree. Russell's use of the property exceeds tile pre-existing notlcontbrming

usc of the property in both manner and extent of use. From the evidence prcscnted, the

District Court detertnineci the use of the property at the tintc of zoning, and limited Russell's

use with respect to the type ofequipment repaired, the number ofpieces ofecjuiprnent stored

on the property, and number of lrours operated per week to tlte rnanncr and cxtctii of that

prior use. Consistent with the historical storage of vchiclcs otrt oi' public view on the

propcrty. the District Court ilnposeti a scrcenillg requircme~lt shield vehicles from public to

view. In imposing these conditions, tlie Listrict Court was not legislating limitations on the

property. Ratl~cr, court was enforcing the ordinance's requiremenr that nonconfdnning the

uscs be continued in thc same manner as "at tlie time of the adoption ofthe ~oning."Section

2.05.010, Flatiiead County Zoning Regulations. We find no error.

947 Tho orcier of the District C'ourt is affkmed. \ b e concur: