Neighborhood plan debate growing heated

The fight over neighborhood plans and their authority took yet another dramatic turn Wednesday night.

The Flathead County Planning Board listened to planning and zoning staff, local citizen groups and many angry residents about the attempt to "take the teeth" out of the plans.

Flathead County was caught off guard when a Montana Supreme Court ruling in January pointed out that a provision in the county's zoning regulations made neighborhood plans regulatory. Since then, the county has been working on language to fix the issue.

"No one ever thought they were regulatory," Deputy County Attorney Jonathan Smith said. "The commissioners never did, and they certainly wouldn't have adopted them if they were. That's my recollection, anyway. I've heard them say, 'This isn't regulatory so we can live with it' so many times."

Planning and zoning staff initially suggested deleting the clause that states that if a neighborhood plan has aspects related to zoning, the provisions that are more strict than the growth policy shall control.

Jeff Harris, director of the Planning and Zoning Office for the county, said deleting that paragraph wasn't good enough because it then left a hole regarding how the growth policy, neighborhood plans and zoning interact.

The growth policy, which includes adopted neighborhood plans, states in the implementation chapter that it is not a regulatory document. This is based on state law, which says "A growth policy is not a regulatory document and does not confer any authority to regulate…"

Harris said a growth policy is an umbrella document used to make planning decisions in conjunction with zoning regulations. Regulatory zoning is the implementation mechanism for growth policies and neighborhood plans. On the other hand, zoning often comes from the direction of land-use desires written into neighborhood plans.

"The growth policy is looking from 25,000 feet down," Harris told the Planning Board. "It presupposes that there will be other planning documents closer to the ground."

Neighborhood plans are those documents.

"We go to great efforts to support neighborhood plans," Harris said. "This is where the rubber hits the road."

Harris has worked in other states and communities and said he's never seen a neighborhood plan that was regulatory.

"That's not how it works in the planning world or in this state under the statute," he said. "If there is a perception that neighborhood plans are regulatory, people will have less interest in wanting them."

When the county adopted its new growth policy in March 2007, it automatically triggered a revision of all neighborhood plans.

On Wednesday, the Planning Board chose to make a distinction between new and updated plans after the growth policy was adopted and older plans that have not been updated.

New and updated plans include statements that they are non-regulatory. Of all the older neighborhood plans, only the 1997 Ashley Lake plan specifically points to the clause that allows the plan to become regulatory. All other plans are silent on the issue.

The Planning Board voted 6-0 to give older plans until Jan. 1, 2010, to be updated under the new growth policy's rules, which will make them explicitly non-regulatory. If they aren't updated by then, they become non-regulatory by default.

Some members of the Planning Board and Harris said that the 18-month timetable is unrealistic.

"That's not enough time," Harris said. "We can't provide the level of assistance that gives me any comfort. I wish we could devote more time to them because they are so important."

When the commissioners take up the issue, they will be able to set a different deadline if they so choose.

The commissioners likely will face the same public outcry that the Planning Board heard.

Kalispell attorney Roger Sullivan spoke on behalf of Flathead Citizens for Quality Growth, the group whose lawsuit brought about the Supreme Court decision. Sullivan said deleting the provision that makes the plans regulatory was a "sledgehammer approach that destroys the expectations of thousands of people."

"It's because of West Valley Neighborhood Plan language about gravel extraction that the Supreme Court reversed the Board of Adjustment," Sullivan said. "If this is deleted, then West Valley faces an invasion of gravel trucks."

Sullivan also pointed out that making plans nonregulatory means future zoning decisions by the county could completely undo the vision put forth by a community. Future zoning amendments may not match more restrictive policies in neighborhood plans.

Mayre Flowers, executive director for Citizens for a Better Flathead, pointed to an example in the Ashley Lake area. The plan for that community placed a restriction on guest houses, but the county removed the restriction because zoning in the area already covered the issue.

A few years later the county amended the area's zoning, and guest houses were no longer regulated. The extra buildings quickly began to spring up.

Numerous people who had worked on neighborhood plans also spoke up.

Karen Reeves, who worked on the North Fork Neighborhood Plan, said she gets nervous about the Planning Board being able to interpret the plans because of what she called "anti-planning" members in the past.

"We wanted our plan to be regulatory," Reeves said. "People spend the time on it, and to say that it really doesn't mean anything gets us in a world of hurt."

John Ulrich, who is on the committee developing the Lakeside plan, told the Planning Board: "There are a lot of folks out there that would just assume that neighborhood plans went away so they could do whatever they damn well please. We want some clout if we are going to spend all this time developing this plan."

County resident Joe Granna wondered aloud if he was still in America.

"Isn't citizen the highest office held in this country?" he asked. "I am really tired of being run over roughshod by a few large, rich landowners. All I ask is to be listened to."

Granna said Flathead Citizens for Quality Growth fought its battle all the way to the Supreme Court, and the county was now looking for a back-door attempt to subvert the court and take control away from citizens.

Planning Board chairman Gordon Cross said he was surprised by the night's testimony because during the numerous meetings to update the growth policy, the conflict over neighborhood plans never came up.

"No one ever brought up the regulatory argument," Cross said. "I believe the staff when they say they didn't know that clause was in the zoning regulations. Nobody brought it to anyone's attention. In some ways I think this has been a little disingenuous."

Fallout and consequences from the meeting quickly will be put to the test.

The Planning Board is holding a workshop Wednesday, June 25, to go over the updated Bigfork Neighborhood Plan, which has provisions that are more restrictive than county zoning.

Reporter Michael Richeson may be reached at 758-4459 or by e-mail at mricheson@dailyinterlake.com