Neighbors sue to stop Swan Lake subdivision

Two attorneys and 56 of their neighbors filed a pre-emptive lawsuit against Lake County on Tuesday, seeking to block a proposed subdivision of the historic Kootenai Lodge property before it even makes it to the county commissioners for consideration.

The action also named The Milhous Group as a defendant.

Earlier this year, developer Paul Milhous submitted plans to subdivide the 41-acre Kootenai Lodge property, which is located about eight miles southeast of Bigfork, along the east shore of Swan River and the northeastern shore of Swan Lake.

The project initially called for 50 new single-family homes, plus the renovation of five existing buildings and conversion of five others into duplex condominiums, for a total of 65 dwelling units. It was later scaled back to 57 units.

Milhous also proposed building an on-site water system and public sewer system that would collect sewage and transport it through pipes to an off-site treatment facility almost a mile to the south. He would rebuild and pave about 1.6 miles of county roads as well, and donate land to the Ferndale Volunteer Fire Department for a future fire station.

The Lake County Planning Office recommended that a maximum of 50 dwelling units be allowed. The staff report also presented 33 conditions of approval, including a mandated 80-foot setback from the lake and the river and a minimum 100-foot setback from Johnson Creek.

The office has received more than 100 letters in opposition to the project. Many cite density as a major concern, together with impacts to wildlife, water quality and the property's historic character.

The lodge was built by two Anaconda Mining Co. executives in 1921 and used as a seasonal retreat for entertaining business associates. According to the planning staff report, it's one of only two structures in Lake County listed on the National Register of Historic Places - a designation that could be lost if these additional housing units are built.

The planning board held a public hearing Wednesday on the proposed subdivision.

In an unusual move, the opponents chose to file the lawsuit prior to the meeting, rather than wait for the board or the commissioners to reach a decision.

Helena attorney Erik Thueson and Kalispell attorney Tracy Axelberg, who both own property in Lake County, are among the 58 plaintiffs in the case. They are also representing the group.

The action suggests that the plaintiffs' rights to a clean and healthy environment and to the preservation of cultural resources - as provided by the Montana Constitution - "are imminently threatened by action the Lake County public officials are currently considering."

Specifically, the plaintiffs say the project would threaten trout spawning grounds on Johnson Creek, eliminate the wildlife corridor along the lake shore, pollute the lake and river and make swimming and canoeing unsafe through increased boat traffic. They claim it would also destroy people's "quiet enjoyment of their property [with] the ongoing roar of jet boats," and cause traffic congestion along area roadways.

The lawsuit says state statutes governing subdivision approval improperly place the interests of developers above the interests of the public.

"There is no compelling state interest requiring the county to ignore or shortchange its residents' right to a clean and healthful environment in order to further the economic interest of a subdivider," it said. Therefore, the subdivision statutes "must be reformed to require consideration and balancing of the constitutional guarantee."

The action requests declaratory judgment on four main issues: That the Montana Subdivision and Platting Act and the Lake County subdivision review process be declared unconstitutional; that the constitutional guarantee to a clean and healthy environment be made "an integral part of and substantial factor in" the subdivision review process; that taxpayers not be required to pay damages to subdividers if county officials deny a project; and that if the Kootenai Lodge project is approved, it be declared null and void.

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com