Plan to give board more power delayed

A proposed zoning text amendment that would give the Flathead County Board of Adjustment power to revoke variances has been postponed until the planning staff adds language explaining how due process would play out in such cases.

The county commissioners on Thursday voted to wait with a final decision until the amendment includes an explanation of how the hearing process would work in cases showing evidence that the terms and conditions of a variance are not being met.

“I think it would be words well spent to clarify due process,” Commissioner Joe Brenneman said.

The County Attorney’s office requested the amendment in the wake of Robert Beasley’s lawsuit against the county and Board of Adjustment following a dispute over a gravel-pit permit.

In that case, Zoning Administrator Jeff Harris initially agreed that the permit could be transferred, but after Flathead Citizens for Quality Growth appealed that decision, the Flathead Board of Adjustment denied the permit transfer to Beasley in 2006.

The Montana Supreme Court ruled in the county’s favor earlier this year in the Beasley lawsuit, but one of Beasley’s allegations was that there is nothing in the zoning regulations saying the Board of Adjustment has the power to revoke variances and permits.

“It’s difficult to go to court to ask [for a permit to be revoked] if there’s nothing in the regulations,” Deputy County Attorney Jonathan Smith said.

Currently, allegations of zoning permits are investigated by Harris and findings are presented to the commissioners. If there’s a dispute, it ends up in court.

Normally, once a variance or conditional-use permit is issued, it remains in effect in perpetuity if the conditions are met.

“This amendment makes clear the board’s discretion to revoke permits if terms and conditions of approval are not met,” Harris said. “We feel pretty comfortable the board has that right.”

Gary Krueger was the lone citizen testifying at Thursday’s public hearing on 11 text amendments that included the Board of Adjustment issue. He has a conditional-use permit for a gravel-pit expansion in the West Valley Zoning District and also serves on the Board of Adjustment.

“I don’t feeling comfortable being on the board and being given the task of revoking permits,” Krueger said.

After the hearing, Krueger said he hasn’t found any documentation in state law that gives a Board of Adjustment the authority to revoke permits.

“They’re trying to cover their ass,” Krueger said of the county’s proposed amendment.

MOST OF the 11 amendments considered by the commissioners were housekeeping changes to existing zoning regulations. One added fire and police stations as permitted uses in public zoning districts.

The commissioners removed a proposed amendment that would have allowed the county, for the purpose of enforcing zoning, to attempt to obtain voluntary compliance at least 30 days before filing a complaint over a violation.

Smith said the county attorney’s office already has a process in place for dealing with zoning complaints.

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com