Court overturns Helena Flats subdivision OK
Flathead County's recent string of lawsuit victories came to a sudden end on Monday with a court ruling that could require developers to provide more thorough analysis of the potential impacts of their projects.
Monday's ruling, which was issued by District Court Judge Kitty Curtis, also voided the preliminary plat of Pressentine Ranch, an 84-lot subdivision proposed on 165 acres located along Helena Flats Road, just east of the intersection with Birch Grove Road.
The county commissioners approved the project in February 2005. Neighbors Over the Aquifer, a group of Helena Flats landowners, sued the county a month later.
A main contention in the lawsuit was that the environmental assessment submitted with the application failed to address all of the items required by law, and that its description of the potential impacts was wholly inadequate.
State statutes and the county subdivision regulations say the assessments must describe every surface stream or water body that could be impacted by a proposed subdivision. They also have to provide information about groundwater, on-site sewage systems, water availability, public services, possible effects on wildlife and other issues.
In its answer to the lawsuit, the county maintained that the assessment for Pressentine Ranch offered enough information for the commissioners to make a decision, even if it didn't address every issue required by law.
Moreover, any alleged deficiencies in the assessment "amount to nothing more than a disagreement with the developer on what an application should include or what impacts might result," the county said.
Judge Curtis found no merit in the county's position.
"There are a myriad of reasons why the legislature has required applicants to provide the information prescribed for in the environmental assessment - one being that this is a burden that cannot and should not be placed upon the public," she wrote in the ruling. "The plaintiffs have demonstrated that, based upon objective standards, the assessment is inadequate. This issue compels the court to void the subdivision approval."
Among other deficiencies, Curtis noted that the Pressentine Ranch assessment failed even to mention the Evergreen aquifer - which underlies the entire Helena Flats area - and failed to discuss the well-known connection between the aquifer and the Flathead River.
The assessment also failed to provide information, or offered contradictory information, regarding the sewage collection and on-site treatment system proposed for the subdivision.
Deputy County Attorney Jonathan Smith declined to comment on the implications of Monday's decision, saying he hadn't had a chance to study the ruling.
The adequacy of environmental assessments has been a frequent point of contention in recent years. Subdivision opponents regularly accuse developers of doing a superficial job of describing the potential impacts from their projects. This issue has been raised in several other lawsuits as well.
Curtis also took exception to the commissioners' hands-off approach to sewer and water issues.
Historically, the planning office and commissioners rarely even address the adequacy of the sewer or water system that's proposed for a given subdivision, saying they lack the authority and expertise to do so.
Instead, they place a condition on the preliminary plat requiring developers to satisfy the Montana Department of Environmental Quality. Until the agency issues the necessary septic permits or permits an on-site treatment system, the subdivision can't get final plat approval.
Consequently, developers usually don't even apply for DEQ permits until after they receive preliminary plat approval - an approach that spares them some significant, up-front engineering costs, in cases where the preliminary plat is denied.
The subdivision regulations, however, say this sewer and water information needs to be supplied before preliminary plat approval.
"The fact that meeting DEQ requirements prior to preliminary plat approval 'could be a significant waste of time and money' [as the county argued in its lawsuit response] is no justification for simply disregarding the requirements of the law," Curtis wrote.
If the commissioners really don't want that information up front, she said, then "the subdivision regulations must be amended … rather than asking the court and, more importantly, the public to just ignore the requirements."
Monday's decision is only the second unfavorable court ruling the county has suffered in the last several years in land-use lawsuits, other than a recent decision remanding a portion of the Glacier Mall lawsuit to the commissioners for further review.
That's offset by at least a dozen favorable rulings or settlements. Several other lawsuits are still awaiting judgment.
Neighbors Over the Aquifer was represented by Kalispell attorney Roger Sullivan. Sullivan also represented the Flathead Lake Protection Association, which in 2004 successfully overturned the county's approval of a planned unit development agreement for a Lakeside marina.
Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com