Paper chase: Planning lawsuits
A chronology of recent planning lawsuits filed against Flathead County, including the lead plaintiff, relief requested, some specific claims and status:
October 2003
-Country Highlands Homeowners Association
Relief: Seeks to overturn a zone change and preliminary plat approval for Majestic Hills, a 52-lot mixed-use subdivision proposed on 148 acres along U.S. 93, across from the Majestic Valley Arena.
Also challenges a subsequent growth-policy amendment and zone change that allowed even higher housing densities in the area, as well as two zoning text amendments that substantially changed the county's cluster subdivision and planned unit development requirements.
Claims: Plaintiffs say the policy amendment and zone changes gutted the Highway 93 North Zoning District, converting an area that previously featured large-lot agricultural zoning (mostly 40-acre minimums) into half-acre tracts and a commercial strip in less than two years.
Supporters of the changes said it was absurd to restrict development along a major transportation corridor to 40-acre parcels.
Status: Active; final briefs are due by the end of October.
This is the second lawsuit Country Highlands has filed against Majestic Hills; the first was dismissed in December 2003 after various planning decisions were "reconsidered" in light of an opinion by the state attorney general.
-Steven and Susan Cummings
Relief: Appealed the commissioners' preliminary approval of Ficken Farms, a 13-lot subdivision on 73 acres at the intersection of North Somers Road and Manning Road.
Status: Settled and dismissed; project was allowed to move forward.
December 2003
-North 93 Neighbors
Relief: Wants to block a growth policy amendment and zone change for Glacier Mall, a $150 million shopping center and related commercial complex on 481 acres near the intersection of U.S. 93 and West Reserve Drive, north of Semitool.
Claims: Among other things, North 93 said the commissioners violated Montana's public participation laws by restricting public comment the day they approved the amendment. Despite the massive outpouring of written comment (more than 4,000 letters and e-mail messages), the plaintiffs thought public opinion was ignored during the decision-making process.
Status: District Court Judge Stewart Stadler granted summary judgment to the county in February 2005, saying the commissioners followed the statutory requirements for public notice and participation.
"The plaintiffs admitted [in depositions] that there was nothing more they needed to comment on at the meeting that they hadn't already commented on in writing," he noted.
North 93 has since appealed the case to the Montana Supreme Court. It could be months before a ruling is issued.
-Let the People Vote
Relief: Challenged the county's determination that only voters who lived in the county planning jurisdiction could sign a petition seeking a referendum on the Glacier Mall growth policy amendment.
Status: Case was dismissed in District Court in January 2004; it was appealed to the Montana Supreme Court, which finally upheld the lower court decision a few weeks ago.
February 2004
-Lower Valley Partnership
Relief: Appeals the preliminary approval of Skyview Estates No. 2, a 25-lot subdivision on 135 acres near the intersection of Manning Road and Farm Road.
Claims: Plaintiffs say the county failed to consider the cumulative environmental impacts from three major subdivisions that were approved in this area in a six-month period (including Ficken Farms, mentioned above).
The Montana Department of Fish, Wildlife and Parks and U.S. Fish and Wildlife Service, which almost never comment on local subdivisions, expressed concerns about wildlife impacts related to these projects, because of their proximity to the Blasdel waterfowl protection area.
In its response to the lawsuit, the county noted that "although the [commissioners] may not have addressed the wildlife concerns to the extent the plaintiff or agencies desired, the record reveals that their decision wasn't random or unreasonable. Potential adverse impacts were identified, [but] the county determined that they could be mitigated."
The county also questioned whether the plaintiff had "standing."
State law says the only parties who can appeal a subdivision decision (with some exceptions) are the developer and county landowners who can demonstrate a likelihood of material injury to their property or property values.
"While [Lower Valley Partnership's] stated purpose may be to promote 'sound planning,' it certainly appears that the organization was formed for the purpose of filing the lawsuit," the county noted in its brief. "It can't claim its public participation rights were violated when it didn't even exist during the decision-making process."
Lower Valley Partnership has subsequently amended its lawsuit to challenge the constitutionality of the state law that governs standing.
Status: Active; the case went to District Court in March for a summary judgment ruling.
Lower Valley also sued over the preliminary approval of Farmland Acres, the last of the three subdivisions in question. The 15-lot project is on 78 acres adjacent to Ficken Farms, at the intersection of North Somers Road and Manning Road.
That case was dismissed in June 2004; the project was allowed to move forward.
May 2004
-Norwood Nedom
Relief: Disputed the Flathead County Planning Board's favorable recommendation of the Harbor Springs growth-policy amendment, which converted 63 acres near the Bigfork Post Office from agricultural to urban residential uses.
Claim: The Bigfork Land Use Advisory Committee didn't let all the opponents speak during its public hearing on this proposal. Nedom pointed that out to the Planning Board, but the board proceeded to vote on the amendment anyway.
Status: Settled and dismissed after the county agreed to send the proposal back through the public hearing process. The Planning Board subsequently reversed its favorable recommendation; a lower-density suburban designation later was approved for this property.
June 2004
-Flathead Lake Protection Association
Relief: Protested the approval of a planned unit development application for Montana Eagle Development, which wants to renovate and expand a marina in Lakeside.
Status: Confused. District Court Judge Stewart Stadler granted summary judgment in favor of the plaintiffs in March, saying the PUD was improperly approved. He ordered a halt to all construction activity related to that application.
This was the first actual court ruling in a planning lawsuit that the county had lost in several years.
However, the county also approved several variances and lakeshore construction permits for the project that were independent of the PUD. When work continued even after the summary judgment ruling, the Flathead Lake Protection Association returned to court to ask for full relief. The court has yet to rule on that request.
October 2004
-Harry Brown
Relief: Appealed the preliminary approval of Harvest View, a 45-lot subdivision on 157 acres on Church Drive, just west of the Stillwater River.
Claims: Because this is a cluster subdivision, the applicant received a 50-percent density bonus (15 lots) in exchange for setting aside 60 percent of the total acreage as open space.
However, the county amended its cluster regulations in 2003, eliminating a requirement that the open space be maintained in perpetuity. Now, it only has to be set aside "until such time as the planning and zoning documents for the area are amended to facilitate further development" - meaning it could be sold and further subdivided at some point.
Brown says the cluster amendment was contrary to state law.
Status: Inactive; has never been served officially, possibly because the legality of the cluster amendment is also being challenged by the Country Highlands lawsuit.
January 2005
-Batavia-Kienas Homeowners Association
Relief: Seeks to overturn the final approval of four minor subdivisions that together created 20 lots on 40 acres along Batavia Lane and Kienas Road, west of Kalispell.
Claims: Given that the projects were proposed by the same applicants, adjacent to each other, and being marketed as a single subdivision, the plaintiffs said they should have gone through the major subdivision review process (which is required for projects that create more than five lots). Because that process was avoided, they thought the cumulative impacts never were addressed adequately.
The County Attorney's Office agreed that the applicants tried to skirt the subdivision laws, and recommended that the projects go through public review.
However, the Planning Office initially allowed the subdivisions to proceed, and the commissioners later waived preliminary plat approval for all four projects.
Based on those actions, the applicants invested considerable money in the endeavor. Consequently, the county thought it would be unfair to deny final plat approval.
Status: Active; still being briefed.
The Batavia-Kienas group has also asked the state to created a 7,000-acre closed groundwater area in and around this neighborhood, because of concerns about water availability. That proposal is slowly moving towards a decision.
March 2005
-Neighbors over the Aquifer
Relief: Wants to void the preliminary approval of Pressentine Ranch, an 82-lot subdivision on 165 acres along Helena Flats Road, just east of the intersection with Birch Grove Road.
Status: Active; still being briefed.
April 2005
-Flathead Lake Protection Association
Relief: Challenges the variances and lakeshore construction permits that were granted for the Montana Eagle Development marina in Lakeside (see above).
Status: Active; still being briefed.
August 2005
-North 93 Neighbors
Relief: Appeals the Two Rivers growth-policy amendment, which changed the land-use designations on 1,460 acres located north of Reserve Drive, allowing higher-density development to take place in the area.
Status: Active; just beginning the process.
In addition to the above items, five lawsuits related to gravel pits have been filed against the county since January. Two of these cases have been settled and dismissed, and one hasn't been served. The last two cases are active. They involve the same West Valley project; opponents and proponents of the project are suing the county.
Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com