Questions to ponder about growth policy

By FRANK MIELE

The Daily Inter Lake

The county commissioners are in the midst of examining and modifying a document which will probably have an enduring impact on the future of Flathead County. The county growth policy is a document authorized by the Legislature for the purpose of formalizing community goals and objectives in such matters as land use, population, infrastructure, housing, and development.

The use of growth policies presumably represents the will of the people of Montana, since the law regarding them (as opposed to the earlier master plans) was first passed in 1999, and has since been confirmed several times.

And yet, there is considerable concern and consternation about how the growth policy might be used by politicians, anti-growth groups, pro-growth developers and even future generations. No one I've talked to is quite sure how the black and white words in the policy for Flathead County will be used or implemented as we go forward, and this despite the fact that there is a chapter on "implementation" in the document.

Some people hope that the growth policy will be used as a blueprint to ensure orderly and reasonable growth in ways that protect the common good and "the character" of the Flathead Valley.

Others fear that the growth policy will be used as a cudgel to take away people's property rights and to limit their opportunity to use their own land as they see fit.

Both sides make good points, and it is hard to argue with the goals of either one. As a whole, the community has an expectation that decisions will be made that protect our general well-being. We all would like a peaceful, crime-free, pollution-free, traffic-free Flathead, with open spaces, bountiful jobs and endless opportunity.

The trouble is that we are a community of individuals, and each of us has our own individual goals and needs as well, many of which will inevitably conflict with each other. Over and over, this has been demonstrated in land-use decisions.

If I own a piece of property, I have an expectation that I will be able to utilize that property for the benefit of myself and my family. Thus, I may decide, for instance, to subdivide a ranch in order to build homes for the many newcomers to our valley, or I may opt to open a gravel pit on my property in order to avail myself of the rich mineral deposits in my land. Alternatively, I might decide to keep using my land as a pig farm - no matter what the neighbors think about the smell.

Those are reasonable expectations. Most people who own land have a vast portion of their wealth invested in that land. They don't so invest merely to see their name on a deed, but rather to use the land as a way to increase their wealth. That is the very nature of an investment.

But not all wealth is monetary, and some people consider the true value of their land to be that it provides them a place of refuge - a sanctuary against the worries and cares of the busy world. So when one of these refugees finds out that a gravel pit is going in next door, with the loud, disruptive sounds of dump trucks, crushers, and earthmovers joining the chirping birds and the morning insects, he or she is understandably distressed.

First comes a call to the county commissioners, then a call to the lawyers.

And so it goes.

One thing is sure. The growth policy won't change any of that. It won't change the nature of the struggle at all, just the battleground. But because it is a lengthy document that includes 50 goals and more than 200 supporting policies, the battleground will assuredly be bigger than ever, and possibly bloodier.

So what exactly is a growth policy and what does it do?

As the Montana Code mandates, "… the governing body within the area covered by the growth policy … must be guided by and give consideration to the general policy and pattern of development set out in the growth policy" in any future zoning matter.

On the other hand, the law states that the "growth policy is not a regulatory document and does not confer any authority to regulate that is not otherwise specifically authorized by law or regulations adopted pursuant to the law." Moreover, "A governing body may not withhold, deny, or impose conditions on any land use approval or other authority to act based solely on compliance with a growth policy…"

So once we get a growth policy, we must all be prepared to live somewhere within the gray area between "must be guided by" and "does not confer any authority to regulate."

In other words, we will live under the same conditions we do now - our future is in the hands of our elected officials who can vote as they please, as long as they first consider what the growth policy says.

That being the case, it might be a good idea for the county commissioners to make sure that everyone understands just how they intend to utilize the growth policy in their future decisions.

It is inevitable that the commissioners will adopt some kind of growth policy. They must do so by state law, or else virtually cease and desist from all zoning changes. But they should do two things before approving a growth policy:

. First, make sure they have heard from everyone who wants to make a comment. At the recent public meeting, comment was cut off because the meeting was running long. But the commissioners might want to consider holding another session that runs as long as necessary to let people be heard. This is particularly prudent considering the recent lawsuit involving public comment and the proposed Glacier Mall.

. Second, the commissioners should prepare a statement that explains to the public exactly how the growth policy will be used by them in making decisions about growth in the future. Again, this seems particularly important because we should reduce ambiguity as much as possible about the purpose and intent of the growth policy in order to avoid costly and time-consuming lawsuits.

As an example of how lawsuits might be promulgated by the growth policy, consider this: Although Montana Code dictates (chapter 76-1-605-2b) that "A governing body may not withhold, deny, or impose conditions on any land use approval or other authority to act based solely on compliance with a growth policy adopted pursuant to this chapter," it also says the opposite. In the very next line (76-1-606), the Code says that, "When a growth policy has been approved, … subdivision regulations adopted … must be made in accordance with the growth policy."

To me, that sounds like the growth policy has regulatory authority. And if it sounds that way to me, it certainly may sound that way to a court.

In addition, that chapter on "implementation" in the growth policy notes that, "Existing neighborhood plans should be reviewed for their compliance and consistency with Chapter 10 of this document," the chapter on neighborhood plans. It appears that the intention therefore is to throw out existing neighbordhood plans or force them to come into compliance with the growth policy. How exactly does this comport with the notion in Montana code that the growth policy "is not a regulatory document and does not confer any authority to regulate"? I admit to some confusion on this point, as well as on many others where it appears the growth policy is indeed a regulatory document.

Again, I am afraid that if it sounds that way to me, it may sound that way to others as well, which is why I encourage the commissioners to formally explain in a written statement how the growth policy will be used by them when voting on future development and subdivision proposals. Perhaps they will include that in their formal "resolution of intent," which they are scheduled to consider on Jan. 22. I think we need to hear from them whether or not they consider the growth policy to be suggestive only, or whether they believe it represents the will of the people and must thus be followed.

My recommendation would be that the commissioners should forge a simple "signing statement" that establishes their belief that the contents of the growth policy represent a "best effort" to establish a consensus viewpoint for the community, but not a universal one. It should be clear that the commissioners will give weight to the growth policy, but will not be bound to it exclusively when making zoning decisions.

Such a statement may help to reassure our citizens that there will be no unintended consequences from adoption of a "non-regulatory" growth policy, and may help ward off lawsuits based on a phrase snatched from here or there in the growth policy. Once the commisioners devise such a signing statement, and explain to the public exactly how the growth policy will be used, then the public will be much better informed about how the future will look.

If our citizens are reassured, then they will probably support the growth policy and it will remain viable for many years to come, as an integral part of our community efforts to retain the "character" of the Flathead Valley that we love.

But if the citizenry is not reassured, if there is any hint of being railroaded or flummoxed by the planning board or the commissioners, then you can bet one thing for certain - that I am not the only person who has noticed this other provision in the Montana Code (chapter 76-1-604-4):

"The qualified electors of the area covered by the growth policy may by initiative or referendum adopt, revise, or repeal a growth policy under this section. A petition for initiative or referendum must contain the signatures of 15 percent of the qualified electors of the area covered by the growth policy."

Government by initiative is not my favorite thing, but I am smart enough to know that the option exists. So are the commissioners, and if they want to avoid a prolonged battle, they had better make sure they have the support of the people, namely the people who live in the lands covered by the growth policy (which significantly does not include the cities of Whitefish, Kalispell or Columbia Falls).

Next up is a Jan. 23 meeting when the commissioners are scheduled to announce their own revisions to the growth policy. It will be interesting to hear from them at that time how they propose to proceed.