Biologists pan subdivision rules

Farmers also oppose proposals

For different reasons, farmers and fisheries biologists have united in condemning Flathead County's proposed new subdivision regulations.

A 30-day written comment period on the draft regulations ends March 28. A formal public hearing also takes place that afternoon and evening.

Only a handful of comments have come in to date. The ones that have been submitted are all critical, saying the document either doesn't go far enough in protecting water quality or goes too far in limiting landowner options.

The U.S. Fish and Wildlife Service and the Montana Fish, Wildlife and Parks Department both slammed the draft regulations, saying they ignore scientifically defensible recommendations for stream setbacks and riparian buffers.

"Conservation of high water quality, wildlife habitat and natural settings don't just happen," wrote Mark Deleray, a fisheries biologist with Fish, Wildlife and Parks. "In fact, the history of urban development has shown that, without development design standards and/or other restrictive measures, water-related resources are severely degraded. These regulations, as written, will not protect water quality, habitat and natural settings along our waterways, and therefore will not protect the resources that county citizens have asked the commissioners to conserve and protect."

The draft isn't completely silent on this issue.

While it doesn't call for specific stream setbacks, it does include design standards prohibiting subdivisions within the 100-year flood plain, in wetlands and in areas of shallow groundwater. There's also language preventing developers from using river banks or lake shores that have slopes in excess of 30 percent, and that requires them to preserve the natural terrain, natural drainage, wildlife and fish habitat "to the extent possible."

Nevertheless, Wade Fredenberg with the U.S. Fish and Wildlife Service said his agency is "deeply concerned that adoption of these proposed regulations will set a low standard which we cannot reverse. Where else in Montana are streams and water quality more important than in Flathead County? We need to set the bar in that regard, not slide under it."

Fredenberg was one of several technical experts who met with the county planning staff last spring to help develop recommendations for building setbacks and riparian buffers. He said the group ultimately proposed a tiered approach, with wider setbacks along large rivers and narrower setbacks along small streams.

For example, on the Flathead River and its forks, 300-foot building setbacks were recommended, with the first 100 feet along the bank being left as a naturally vegetated riparian buffer. On the Whitefish, Stillwater and Swan rivers, and on Ashley Creek, 200-foot setbacks with 75-foot buffers were proposed. The remaining small streams would have 100-foot setbacks with 50-foot buffers.

"These widths were determined using the best available scientific literature, and are supported by examples from other Montana counties and municipalities," Fredenberg said.

The draft regulations, however, say only that the commissioners "may require stream riparian setbacks" and may require these buffers to be set aside in perpetuity.

"Arguably, the proposed regulations could be considered weaker than the [current] regulations," Fredenberg said. "The public demands a higher standard as it regards protection of our vulnerable water quality, fish and wildlife populations and scenic natural beauty, while acknowledging that development will proceed in this valley."

Not everyone in the public is demanding a higher standard for stream setbacks.

During a March 7 Planning Board workshop, Bigfork businessman and landowner Bill Myers said he owns property along the Swan River that's only 135 feet deep - less than the 200-foot setback recommended by the biologists.

If the new subdivision regulations give the commissioners the ability to require substantial setbacks - particularly of an undetermined dimension - he said it could severely limit the development potential and value of his property and of waterfront property throughout the county.

"This is my retirement," Myers said. "It's clear that something is anticipated here [in the draft regulations], and it isn't being talked about. The setbacks need to be spelled out before this gets adopted - and who's going to pay for the foregone development opportunities? That was a major shortcoming of the growth policy, and it's carried forward here."

Foregone opportunities and inflexible standards were major concerns of the valley's agricultural landowners as well.

More than 120 people signed a petition asking the commissioners to put the draft regulations on hold for six months, "until a review and update of the regulations is completed."

The petition described the draft as "deeply flawed" and said it would "negatively affect the local ag community."

It cited three specific examples of language that should be changed or removed:

. The definition of cluster development - which allows smaller-than-normal lots to be clustered together, in exchange for keeping other areas open - requires that open space be set aside in perpetuity.

"We like cluster development, we like what it does, but with perpetuity it will never be used," the petition stated.

. The draft regulations also prohibit remainder lots of less than 160 acres - something the petition described as "very troubling to the ag community" because it might prevent landowners from developing their property in the future.

Subdivisions are occasionally proposed in which several home lots are identified, together with an unused "remainder" that isn't intended for development, at least initially.

However, during the March 7 workshop, Planning Director Jeff Harris said this process is frequently abused by developers who use the remainder to meet the overall density requirements for one subdivision, and who then turn right around and propose another subdivision on the remainder tract.

. The draft regulations indicate that "encroachment or development of prime agricultural land is strongly discouraged."

The petition said this was "a commendable goal, [but] the ag community has learned in the West Valley that it's almost impossible and unfair to implement zoning based on soil type."

Copies of the draft regulations are available online at www.co.flathead.mt.us/fcpz/index.html

Comments can be submitted to the commissioners at 800 S. Main, Kalispell MT 59901.

The March 28 public hearing runs from 3-7 p.m. in the second-floor conference room of the Earl Bennett Building, 1035 First Ave. W. in Kalispell. The commissioners are currently scheduled to take action on the proposed regulations on April 9.

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