Mall proposal reigns Supreme

The Montana Supreme Court unanimously ruled in favor of Flathead County on Tuesday, in a long-running lawsuit related to the Glacier Mall proposal.

The decision was the latest in a long string of legal victories for the multimillion dollar retail and commercial center, which would be located north of Semitool, near the intersection of U.S. 93 and West Reserve Drive

After five years of effort, developer Bucky Wolford now has just one more lawsuit to clear before he can proceed with the largest retail project ever proposed in Flathead County.

Tuesday's Supreme Court ruling upheld District Court Judge Stewart Stadler's decision to dismiss the lawsuit, which was filed in December 2003.

Let the People Vote, Sharon DeMeester, Amy Mohn, Meghan Saunders, Dan Brunet and Linda Katsuda were plaintiffs in the case. The county commissioners, Flathead County Election Department and election officials were named as defendants.

Let the People Vote was formed in November 2003, shortly after the commissioners approved a growth policy amendment for the mall.

The group started a voter petition drive, seeking to put the amendment on the ballot and hold a public vote on the controversial issue.

The basic question raised by the lawsuit was whether qualified electors throughout the county could sign the petition - including residents of Kalispell, Whitefish and Columbia Falls - or whether it could only be signed by electors who lived within the growth policy's jurisdictional boundaries.

The county growth policy covers everything outside of the three cities' planning jurisdictions.

Let the People Vote argued that the Montana Constitution gives all county voters the right to sign petitions regarding any resolution or ordinance approved by the commissioners.

However, Deputy County Attorney Jonathan Smith said petitions related to growth policy amendments can only be signed by people who live in the area affected by the policy.

"If city people can vote on this [mall amendment], then they can vote on any other county amendment," Smith said in a January 2004 interview. "Does that mean if the commissioners make a change up the North Fork that Kalispell voters can put it on the ballot? That doesn't seem to make a lot of sense, but it's the logical next step."

Stadler agreed with Smith, dismissing the lawsuit.

The Supreme Court, however, didn't even address the question of who could sign the petition.

Rather, its decision was based on the failure of Let the People Vote to gather enough signatures on the petition within the statutory deadline.

For the petition to succeed, Let the People Vote had to collect 4,331 signatures within 90 days. (More signatures would have been needed if city residents could have signed the petition.)

However, only 3,483 signatures were collected.

Let the People Vote argued that the 90-day deadline should have been "tolled" or extended until the question of who could sign the petition was settled. The Supreme Court, though, found no merit in that proposal.

"There is no statutory authority that would allow this court to grant [Let the People Vote] additional time to gather petition signatures," noted Justice James Nelson in the court opinion.

Consequently, given that insufficient signatures were gathered by the statutory deadline, the court upheld Stadler's decision to dismiss the case - 19 months after the ruling was made.

Only one lawsuit now blocks Wolford from proceeding with the mall.

That case, which was filed by a group of homeowners, challenges the legality of the growth policy amendment and a related zone change.

Earlier this year, Stadler issued a summary judgment in the lawsuit which favored Wolford and Flathead County, saying the plaintiffs failed to demonstrate that the commissioners had done anything wrong.

"The commissioners did all that was required by statute and regulation," he concluded.

Nevertheless, the homeowners appealed the lawsuit to the Supreme Court. It's there now, awaiting a ruling.

Given a favorable decision in that case, Wolford probably still would have to submit a subdivision proposal before beginning any construction. He faces other regulatory hurdles as well, particularly regarding sewage disposal and storm water drainage.

On the Web: www.lawlibrary.state.mt.us/dscgi/ds.py/View/Collection-11972

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