Court hears county growth policy lawsuit arguments
Whether or not Flathead County complied with mandatory procedures when it adopted an amended growth policy in 2012 was the focus of oral arguments Monday in Flathead District Court.
Citizens for a Better Flathead, a land-use watchdog group, sued the county commissioners in February 2014 over changes made to the 2007 growth policy, alleging the public process was short-changed because the county failed to produce written minutes for Planning Board meetings and consider nearly 1,000 public comments prior to the adoption of the amended growth policy.
The lawsuit — which asks the court to void the growth policy amendments — also takes issue with language added to the growth policy that states when conflicts arise over land use, property rights take precedence over other rights.
The so-called property owners bill of rights is a “trump card” that violates the Montana Constitution and Growth Policy Act, the lawsuit alleges.
Kalispell attorney John Lacey, representing Citizens for a Better Flathead, told District Judge Heidi Ulbricht the public was “essentially shut out” of the participation process because the county failed to generate written reports that are standard for growth policy updates. Instead, the Planning Board meetings were videotaped and put on DVDs.
The DVDs are not an adequate replacement of written minutes and are not available online, Lacey said.
“A lot of this case is about what the county did not do,” Lacey said.
Another shortcoming of the county’s process was not providing a meaningful version of the changes made to the growth policy, he added, asserting no complete side-by-side comparison of the amendments to the original growth policy was provided.
Missoula attorney Alan McCormick, Flathead County’s legal counsel, argued that the county provided a wide array of documents to the public via the county website, including agendas, public comments, maps and postings of changes to the growth policy as the process played out over two years.
He showed the judge a 3-inch-thick stack of related documents printed from the website.
“They do a nice job of keeping those documents available to folks,” McCormick said after the court hearing.
McCormick said written minutes were kept of the public hearings related to the growth policy amendments and of commissioner proceedings when the amended growth policy was adopted. The audiotape of the commissioners’ discussion was presented to the court to show the full extent of the commissioners’ consideration of public comments.
Though video recordings are allowed under state law to be used as documented minutes, the county admitted it did not provide the required time stamps for the video recordings, McCormick said.
Lacey pointed to two other lawsuits the county defended in recent years to drive home the allegation of a flawed public process.
A 2006 Montana Supreme Court ruling in a lawsuit by North 93 Neighbors against Flathead County commissioners required the commissioners to incorporate public comments into their decision-making processes.
As part of the settlement agreement between the county and North 93 Neighbors, the county adopted a resolution binding the commissioners to demonstrate how public comments are considered before a final decision.
More recently, in a 2013 District Court ruling that voided the county’s new greenbelt zoning classification, Citizens for a Better Flathead successfully argued the county failed to follow statutory and regulatory rules in adopting the zoning text and map amendments.
“The commissioners failed to address the public concerns ... and completely failed to address and incorporate those concerns in explaining its decision to make such [zoning] amendments,” District Court Judge David Ortley said in the greenbelt zone ruling.
McCormick said the county still intends to appeal the greenbelt ruling but must wait until Ortley makes a determination on attorney fees before it can file an appeal.
Features editor Lynnette Hintze may be reached at 758-4421 or by email at lhintze@dailyinterlake.com.