Sacred ground

Why lawsuits have beome weapon of choice in the Flathead's growth debate

For B.J. Carlson, the inspiration to do battle came more than a decade ago, in a meeting about billboards.

A quintessential "little old lady" wearing a blouse and a light sweater, Carlson remembers a speaker at the event lavishing praise on the Flathead. He said it was a world-class location, the kind of place most people only dream of living in.

"He said we have a responsibility to preserve it, not only for ourselves, but for everyone," Carlson said quietly. "And if we have a lot of cookie-cutter development … that isn't what this place is about. This is a different place, a special place."

This vision of the Flathead as a treasure in need of protection serves as a call to action for Carlson and others. It has prompted a kind of resistance movement, as people seek to slow down, obstruct, guide, improve or modify what they see as an epidemic of commercial and residential growth that's transforming the valley and tarnishing its riches.

In recent years, litigation has become the weapon of choice in this movement.

Carlson, for example, is a board member for North 93 Neighbors, a group that two years ago sued to block the Bucky Wolford/Glacier Mall growth-policy amendment and zone change, and that recently filed a second lawsuit about the Two Rivers Neighborhood Plan, which would allow higher density development on 1,460 acres just north of Kalispell, near the proposed mall site.

"It's the tool that's available," Carlson said of the litigation.

North 93 is hardly alone in employing this option: Since October 2003, Flathead County has been sued at least 18 times, by 15 different groups or individuals, in disputes about land-use decisions (see related story on page A6).

To put the number of lawsuits in perspective, it's equivalent to 5 percent of all the major subdivision, zone change and growth-policy amendment applications that went before the Flathead County Planning Board during that time.

Most land-use proposals, thus, make it through the process largely unopposed, but if a planning application is even modestly controversial, its chances of being tied up in litigation here are roughly 30 percent. ("Controversial" means at least five people spoke against it during the planning board hearing.)

"When I talk with people about their projects, I tell them whether I think the odds of a lawsuit are high or low - but I assume that anyone who brings forward a land-use project in Flathead County will be sued," said Ken Kalvig, a Kalispell attorney who represents Two Rivers and Bucky Wolford.

That isn't the norm across Montana, even in other high-growth areas.

Officials in Missoula and Gallatin counties, for example, said they've only been sued once or twice in recent years. Kalispell, Whitefish and Columbia Falls, each with their own growth challenges, have been sued a combined three or four times in the last two years.

So what's going on with Flathead County? Why has its planning process turned into an annuity for lawyers?

2001 was turning point

The way some people see it, planning in the Flathead turned rogue in 2001.

For years before that, local landowners had somewhat limited options about how to develop their property. The county growth-policy and zoning regulations were interpreted fairly strictly. Sharp deviations from past practices, from the established character of

a neighborhood, were largely frowned upon.

But these planning documents failed to keep pace with the growth that was occurring. As they got older, their effectiveness dropped off, and the pressure to amend them increased.

The county also ended a joint planning relationship with the three cities in 2001 and opened its own planning office - one that took a more receptive view toward development proposals.

Suddenly, a wide variety of growth-policy amendments and zone changes were being approved.

Whatever the merits of this philosophical shift, it created a new class of winners and losers.

Property owners in rural areas, some of whom had cared for and worked the land for years, could now multiply the value of their holdings overnight, all for the price of a zone change. What had been one lot worth thousands of dollars an acre quickly turned into 20 lots worth tens of thousands an acre.

Planning in the Flathead became a million-dollar ballgame.

As a result, neighbors who went to bed with open space next door woke up to find themselves, appalled, beside the latest Suburbia View Estates.

It seemed to some as if nothing was sacred, as if the planning office and commissioners were unwilling to reserve any part of the valley for rural development - even when that's what the zoning regulations called for.

Residents of the Country Highlands subdivision along U.S. 93, for example, sued the county after their neighborhood was rezoned from 40-acre minimum lot sizes down to half-acre lots in less than two years.

"The Highway 93 North Zoning District was specifically created to preserve agricultural lands and to limit commercial development and suburban sprawl," the lawsuit noted. "This zone change will effectively dismantle the district [and] undermine the integrity of both the district and the planning process."

Although typically not this extreme, similar transformations have taken place across the Flathead: In the last three years, the commissioners opened up more than 10,000 acres to higher-density development.

And, of course, people sued.

"When the playing field is subject to constant change, when there are no set rules, it creates fear and uncertainty," said Tom Jentz, director of Kalispell's planning office and former head of the countywide joint planning office.

"The people involved in the planning process need to understand that and adjust accordingly," Jentz said. "Hold more public hearings, be more thorough, bring the neighborhood together. If neighbors and developers know what the rules are, then no one is caught by surprise. Lawsuits are rarely avoided when you just bull ahead."

County mostly prevails

However, even if Flathead County went through a pro-growth phase - one that, because of the resulting litigation, victimized developers as much as it offended some residents - that's not to say it broke the law.

In fact, the county has only lost one court ruling in a land-use case during the past several years. It also settled a case after agreeing that a public hearing in Bigfork wasn't handled properly.

On three other occasions, including most recently at the Montana Supreme Court, judges have ruled in the county's favor. Five other cases were settled on favorable terms.

"We win most of our cases because we follow the procedures," said Commissioner Gary Hall.

"I think one of the main reasons for all these lawsuits is the 'NIMBY' attitude," Hall said, referring to the famous acronym for Not in My Back Yard. "In our society, if you don't get your way, you sue. I think a lot of these people have also watched and learned from the success of environmental groups, which have been able to shut down every timber sale in the forest for minimal cost."

Local surveyor Jeff Larsen, who is just finishing his sixth year on the county planning board, thinks some parts of the valley are more hostile to development than others.

"With most small subdivision proposals, you typically don't worry too much about litigation," Larsen said. "But there are certain places that seem to be more important to the groups that are filing lawsuits."

In fact, eight of the 18 lawsuits have focused on just two areas: Three deal with subdivisions in the Lower Valley, near the intersection of North Somers Road and Manning Road; five others, including both by North 93 Neighbors, address projects near the U.S. 93 corridor north of West Reserve Drive.

"I do think there's a concerted effort to stop growth north of Reserve," Larsen said. "For years, that's been sacred ground."

Many neighbors also refuse to admit that "their" patch of sacred ground may be ripe for development.

A recent growth-policy amendment and zone change in Bigfork, for example, requested urban-scale densities for a 63-acre site adjacent to the post office, in an area that could easily be served by public water and sewer.

County planners said it was a "classic example" of infill development, yet many community members wanted the area preserved for large lots and agricultural uses.

Similarly, opponents of the Two Rivers proposal asked that the area north of Reserve be set aside for rural-scale development, even though Kalispell's sewer lines are just down the road.

"That's why I voted for Two Rivers," Larsen said. "It has sewer and water right there. The issue is, where do we want density to go?"

A public concern

Ideally, the planning process would resolve disputes of this kind by bringing people together and hammering out a compromise.

Jeff Harris, the county's new planning director, is certainly moving in that direction. Since his arrival in June, he's encouraged and prodded developers to take a more inclusive approach toward major land-use changes.

Good intentions only go so far, though.

In an atmosphere of frantic change, the potential for litigation here is compounded by developer-friendly planning procedures that delay any consideration of specific impacts until late in the process.

The public invariably wants more information about potential impacts up front, yet applicants aren't required to provide that information until after the growth policy and zoning have been amended - at which point some sort of higher-density development is almost guaranteed.

The planning process essentially relegates the public to the back of the bus: The findings of fact used to justify decisions are written early on, well before most neighbors have had a chance to comment. They're based largely on information provided by developers, and rarely get modified to reflect public concerns.

Because of this, one of the most frequent complaints cited in the 18 lawsuits is that the public's right to know and participate have been violated.

Other common complaints are that the county failed to follow its subdivision and zoning regulations, that its decisions violated the constitutional guarantee of a clean and healthful environment, and that they were inconsistent with the growth policy.

The county follows the same procedures with all of its planning applications, regardless of how controversial they are.

Consequently, the fundamental proposition being tested by these lawsuits isn't simply that specific land-use decisions were illegal - it's that the county's entire planning process is illegal, because it fails to properly balance public and private rights.

"That's the tension we see being played out in these cases," said Kalispell attorney Roger Sullivan. "Is a balance being struck? Is the public interest being protected, even as individual projects are being addressed and largely approved?"

Sullivan represents plaintiffs in three of the 18 lawsuits. He also represented the Flathead Alliance for Sensible Growth, a group of Kalispell business owners who sued the county, and later the Kalispell City Council, about the approval of two earlier master plan amendments for the Glacier Mall in 2001 and '02.

Kalispell sued the county in that dispute as well, after the commissioners unilaterally amended the Kalispell City-County Master Plan, even though it was a joint planning document.

Sullivan dates the "modern era" of local land-use lawsuits to that action.

"It seems to me the real value of the planning process is that, rather than just respond to particular development proposals, it considers in a much broader context the goals, policies and values that the community itself shares and approves of," he said. A master plan or growth policy "is like a land-use constitution. It says 'Here's what's important to us, and here's how we're going to try to preserve those things for ourselves and for future generations.'"

So when the commissioners started changing that constitution in blatant disregard of the city's input, and later in blatant disregard of their constituents' concerns, they subverted the planning process from a shared community dialog into an outright political power struggle.

It's unclear, though, whether that's really illegal or if it was just bad leadership.

That's essentially what plaintiffs are asking the courts to decide: What steps must be taken to maintain the integrity of the planning process? Did Flathead County do all it should to weigh the broad public interest, or did it just go through the motions to justify decisions that benefit a few?

"I don't think it's a bad thing for courts to be asked to resolve these questions of public policy," Sullivan said.

Delaying tactics?

Most plaintiffs, however, aren't filing lawsuits to establish new legal precedents. They're typically just trying to block an undesirable project from being built in their neighborhood.

That being the case, it's questionable how effective litigation really is.

Anyone even contemplating a lawsuit had better be ready to pony up at least $10,000, according to estimates provided by several attorneys, and that's assuming it doesn't turn nasty.

(Flathead County pays a $3,000 deductible per case; most remaining costs are covered by insurance.)

Moreover, even if the plaintiffs win their cases, they won't necessarily get the results they want.

The bulk of the issues being litigated are procedural. Consequently, the specific subdivisions, zone changes or plan amendments at stake could be resubmitted the day after the court ruling, start right back through the process, and potentially be approved yet again.

It seems the only definite outcome of these lawsuits is delay - which leads some to conclude that that's the primary motive.

"We could have told North 93 Neighbors, 'You make up the rules; we'll follow them,' and if the county had approved the project, they still would have sued," said Ken Kalvig, the Glacier Mall attorney.

"If it's really the planning process they object to, then they should try to change the process - and you don't change it by going to court," he said. "If they have a good idea for improving the process, they should take the tens of thousands of dollars they're spending on lawsuits and file their own amendment. A judge isn't going to say that the county's process sucks. He's only going to say whether the commissioners followed it or not."

Some say the plaintiffs' motives are further cast into doubt by inconsistencies on their part.

For example, protecting the Evergreen aquifer was a major rallying cry for opponents during the first Glacier Mall debate in 2001 and '02. However, a 54-lot subdivision - with on-site sewage treatment - was proposed just a few months later, on property that would have abutted the mall, and nobody said a word.

In fact, concern about the aquifer didn't resurface until this year, when Neighbors over the Aquifer sued to block the approval of Pressentine Estates, an 82-lot subdivision on 165 acres along Helena Flats Road.

Some of the plaintiffs in this case also were involved in creating the Helena Flats Neighborhood Plan, which arguably did little to improve protection for the aquifer. The plan does call for undeveloped buffer zones next to streams and encourages the use of more-advanced septic systems, water-quality monitoring, and cluster subdivisions with community water and sewer systems.

Pressentine Estates, which was approved before the Helena Flats plan was adopted, is a cluster subdivision with 60 percent open space, a public water supply, a public Level II sewer system, a 150-foot no-build buffer around the perimeter, and monitoring wells.

The only significant aspect of the neighborhood plan that the subdivision didn't satisfy was a 5-acre density recommendation - it had more lots than the opponents wanted.

Examples like this make it appear that plaintiffs are simply looking for whatever legal excuses they can find to stymie growth.

The great divide

There is no doubt, of course, that people on both sides of the growth debate are concerned about water quality, and that they truly want to keep the Flathead a special place.

But with planning lawsuits filed on a regular basis, it is often hard to see the common ground. Rather than bring people together to improve the process or a project, the lawsuits sharpen the focus on differences and tend to split people into hostile camps.

Once the issue goes to court, it means war.

Jerry Nix, a retired developer and chairman of the county's Long-Range Planning Task Force, thinks plaintiffs might be better served if they kept things in the public realm.

"If you go to court, it will cost a minimum of $10,000 to $20,000 and take a minimum of several months," he said. "And during that period, the issue just festers. It's not on anyone's radar screen. That's why the public participation route is better."

Nix and the Sunrise Terrace Homeowners Association recently sued the county about a zoning decision related to gravel pits.

However, he also used every other avenue he could find to overturn that decision. To a greater extent than any other plaintiff in any of the 18 lawsuits, he worked the system - collecting information, providing testimony at public hearings, lobbying local officials, and meeting with legislators and gravel industry representatives to find an acceptable compromise and change state law.

"On many issues, if you don't file a lawsuit as a 'stick,' your concerns aren't going to be taken seriously. That's an unfortunate reality of American society," Nix said. "But reaching out is a more effective approach. It's 10 times more difficult. It takes a lot of time and hard work - but if policy-makers can be convinced that there's a problem, they can make the necessary changes. The sooner we realize we're all in this together, the sooner we can start talking about how to get quality growth. That will be the key to the valley's success."

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