Mission accomplished?

By WILLIAM L. SPENCE

Opinions differ on practical impact of Glacier Mall ruling

The Daily Inter Lake

Three weeks after the Montana Supreme Court issued its long-awaited decision in the Glacier Mall lawsuit, there's little agreement about what the case actually accomplished.

Some local attorneys say it resulted in a groundbreaking ruling that will strengthen the public's role in major land-use decisions.

Others say it did nothing but burden Flathead County with a meaningless accounting exercise - one that will be moot almost as soon as it's completed, if not before.

This diversity of views seems fitting, given that Glacier Mall has been a lightning rod for opinions about growth and development in the Flathead ever since it was first proposed five years ago.

Even the Supreme Court was divided, with one dissenting justice chiding the four-member majority for a decision he described as "confusing, burdensome [and] inherently contradictory."

The lawsuit was filed in December 2003 by North 93 Neighbors, a group that's concerned about commercial development north of West Reserve Drive.

The legal action sought to overturn the Flathead County commissioners' approval of a growth policy amendment and zone change for Wolford Development, the Chattanooga, Tenn.-based firm that wants to build an enclosed shopping mall and related commercial/retail facilities on 481 acres north of the intersection of U.S. 93 and West Reserve. It named the commissioners as defendants; Wolford later joined as an intervenor for the defense.

District Court Judge Stewart Stadler issued summary judgment in favor of the county in February 2005.

On appeal, a panel of five Supreme Court justices three weeks ago unanimously affirmed Stadler's ruling on almost every point:

. They dismissed North 93's claim that the commissioners had to issue independent findings of fact before approving the amendment or zone change - a proposition raised in several local land-use lawsuits.

. They agreed that the commissioners and the Flathead County Planning Office analyzed the amendment as required by law, by comparing it with the goals outlined in the existing growth policy.

. They said the county followed the proper procedures in adopting the zone change, and refuted North 93's contention that this was spot zoning - two additional grievances that have been cited in several recent lawsuits.

. They said the growth policy didn't suffer from "fatal internal inconsistencies" - another common lawsuit complaint.

. Finally, they concluded that the mall amendment was consistent with the growth policy.

However, four of the five justices said the commissioners failed to demonstrate that they gave adequate consideration to the almost 4,400 letters and e-mail messages submitted in the month prior to their approval of the amendment.

Consequently, they remanded that portion of the lawsuit to the District Court.

Basically, the justices want the county to show that no new issues were raised in the comment letters - issues that hadn't already been dealt with in the planning staff report - or if there were, that they were evaluated in some way during the decision-making process.

If new issues were raised that weren't adequately addressed, they want the commissioners to go back and examine them now.

It's this portion of the ruling, together with its practical effect, that local attorneys are interpreting so differently.

"I think it's groundbreaking in some ways," said Ken Kalvig, the Kalispell attorney representing developer James "Bucky" Wolford.

"What the Supreme Court did was put a spotlight on public comment and remind local governments that it's important," Kalvig said. "It's sending a strong message that, when you get 4,400 comments, you probably need to do more than just spend a few minutes summarizing them."

When the commissioners approved the Glacier Mall amendment in December 2003, they offered essentially no explanation or rationale for their decision. Other than noting that some people wanted a public vote on the amendment, they didn't acknowledge a single issue or concern that was raised in what was likely the largest outpouring of public comment on any individual development proposal in the history of the Flathead Valley.

Moreover, the planning staff report and findings of fact that the commissioners used to support their decision were written months before the public comment period ended.

"The commissioners' sole reliance on the report, prepared before 4,400 members of the public voiced their concerns, renders their decision unreasonable and an abuse of discretion," Justice Brian Morris wrote in the majority opinion. "Absent any indication in the record that the commissioners considered these comments, they cannot demonstrate that they satisfied their duty to flesh out the pertinent facts upon which they relied in approving the amendment."

Kalispell attorney Roger Sullivan, who was not involved with the North 93 case, said the ruling is important because it affirms the principle of meaningful public participation in local government decisions.

"The court is describing what elected officials have to do to fulfill that obligation," Sullivan said. "They're saying it can't be some hollow, pro forma evaluation. The commissioners have to demonstrate that they've fully considered the comments and incorporated them into the decision-making process."

One possible way to meet this new standard, he said, would be to evaluate controversial land-use proposals in the same way that state and federal agencies handle major project analyses.

For example, when the Montana Department of Natural Resources wrote its neighborhood plan for the Section 36 school trust property in Kalispell several years ago, the decision notice included a list of every significant issue and concern raised during months of public comment, together with the agency's response to each of those items.

"The 4,400 mall comments probably could have been broken down into about 10 separate issues," Sullivan said. "Collecting the comments, categorizing them and summarizing your response is one way to make sure that all the relevant issues have been identified and addressed. The purpose of this is to help local government make good decisions.

"That's a good thing. Meaningful public participation - meaning informed participation - leads to better decisions. Good decision-makers aren't going to be fearful of that process."

Not everyone is convinced, though, that the North 93 ruling really raised the bar in terms of the quality of the analysis that must be performed for major land-use changes.

For example, the planning staff's analysis of the Glacier Mall zone change - which the court upheld - was no more comprehensive than its analysis of the mall growth policy amendment. And when the commissioners approved the zone change in February 2004, they didn't explain that decision to any greater degree than they did the amendment decision.

They also relied on findings of fact that were prepared well before any public testimony was received, just as they did with the amendment.

The difference was that the zone change resolution specifically stated that the commissioners considered issues raised during the public comment process. The amendment resolution, by contrast, said the commissioners "considered information presented to them since the adoption of the resolution of intent."

This suggests that the only problem with the amendment resolution - the critical flaw that prompted the remand - might be that its language wasn't clear enough to convince the justices that the 4,400 comments were fully considered.

In other words, it was the written record that was inadequate, not the quality of the analysis or the "meaningfulness" of the public participation.

"I think the court is saying there wasn't enough of a written record," said Rich DeJana, a Kalispell attorney who teaches land-use law. "They aren't saying there was a lack of meaningful review. If the commissioners had stuck the same sentence [about considering public comment] in the amendment resolution that was in the zoning resolution, I think it would have gone through."

Moreover, given that the court upheld the zone change, DeJana sees the whole remand as a pointless exercise.

"They said the zone change was fine," he said. "So why send the amendment back if the property is already zoned? Why make the county do something that won't make any difference - especially in light of the fact that we're supposed to be getting a new growth policy by October 1, which will make the old policy meaningless?"

DeJana's bleak assessment of the North 93 ruling was shared by Supreme Court Justice Jim Rice, who blasted his colleagues in his dissenting opinion.

"I believe the minutes, along with the final resolution, demonstrate that the commissioners' actions completely satisfied the statutory obligation to consider public comments," Rice wrote. "The commissioners had their staff review the public correspondence and prepare a calculation of the 4,400 comments … they cited the comments during the meeting, noted and rejected the suggestion made by some to put the matter to a vote, described the comments as 'passionate' and expressed appreciation for them, noting that they came from all the surrounding area. Nothing more is required under the statute.

"I agree that having additional fact-finding [and a more complete written record] would be helpful to the courts when reviewing these legislative decisions. However, convenience does not equate to a requirement. Having imposed formal requirements upon the exercise of legislative powers, this majority decision will have far-reaching and adverse ramifications for local governments … In my opinion, these requirements will foster micro-management of local governing bodies by the courts."

Following the Supreme Court ruling, North 93 Neighbors declared victory, saying it had prevailed in its battle to protect the public's right to participate.

"North 93 is pleased that our lawsuit has resulted in strengthening the role of public input in county decision-making," the group said in a press release. "We wish to make it clear, however, that filing lawsuits isn't our preferred course of [action]. Our primary goal is to insist that Flathead County revise its decision-making procedures to ensure that public comment is respectfully and meaningfully considered."

But if that was the intent - if the lawsuit wasn't about delaying the mall or discouraging Wolford, if it wasn't a fishing expedition for a new legal precedent - did the group really accomplish its mission? Will the remand force Flathead County to overhaul its planning process?

"No. Other than making sure the commissioners consider all the comments, it doesn't change our basic procedures," said Deputy County Attorney Jonathan Smith, who handles civil and matters for the county, including land-use issues.

Regarding North 93's assertion that the lawsuit will result in "meaningful" consideration of the public comment, Smith said he didn't know what that meant.

"If it means responding to every item, then no, I don't think that's what we have to do," he said. "If it means reviewing the comments, yes. The commissioners have to show that they listened to the public, understood the issues that were raised and considered them in their decision."

Given these various interpretations about what the court intended, it is difficult to reach any sure conclusions about the long-term impact of the lawsuits.

Even without any prompting by the courts, after all, the political process has already produced many changes in how the county is dealing with issues of growth and development. Those changes are probably rooted in the two most recent county commissioner elections, and the subsequent inclusion on the planning board of a number of diverse local voices.

The natural evolution of policy through a changing electorate can be contrasted to North 93's legal challenge, which barely made a dent in Flathead County's planning procedures, despite two-and-a-half years of delay, possibly hundreds of thousands of dollars in legal fees, and two court rulings that took the issue entirely out of the public's hands.

Perhaps that explains Justice Rice's concerns about court meddling.

"This court is imposing its own judicially created requirements upon local governing bodies," he wrote. It's requiring the county "to evaluate each of the 4,400 comments to determine whether they were addressed in the planning report, and if they weren't, to make findings of fact about how the commissioners disposed of them.

"Not only do such obligations far exceed the 'consideration' required by statute, they are inconsistent with any practical understanding of the duties of local elected officials. These are lay officials elected to listen, not to document everything they've heard."

Kalvig, who has been working on the Glacier Mall proposal almost as long as Wolford, speculated that the sheer volume of public comment in this case may have tempted the court to set a precedent. Nevertheless, he agreed with Rice that local governments can't operate effectively if they are second-guessed by courts every time an action is taken.

"We need to give elected officials room to exercise their judgment," Kalvig said. "Then it's up to voters to decide if they're doing a good job."

However, Sharon DeMeester, president of North 93 Neighbors, argues that the recent political changes here might not have taken place at all without the impetus of the lawsuit.

When the mall amendment was approved in 2003, "we looked at all the ways we could deal with that situation," DeMeester said.

The group could have followed the same public process that Wolford used and requested a growth policy amendment or zoning text amendment to improve the county's planning procedures and encourage a more thorough evaluation of major proposals. It also could have taken a longer-term approach and simply lobbied the commissioners to change their ways.

Neither alternative, though, would have convinced the commissioners to delay a decision on the mall.

"A lawsuit was really the only option we had," DeMeester said. "Things have changed considerably in the last few years, but at that time, the mall would have gone forward without any response."

Moreover, the lawsuit helped focus public attention on the way in which planning decisions were being made here.

"It galvanized a lot of people," DeMeester said. "It brought them together. That's a good thing. Until that happened, nothing would have changed."

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