Judge denies request to intervene in Egan Slough zoning fight

A Flathead District Court Judge has denied a Creston area resident’s request to force the Flathead County commissioners to set a Nov. 7 election for a ballot issue on the proposed Egan Slough Zoning District expansion or show cause why they won’t do so.

Amy Waller, who lives near the proposed bottling plant site east of Kalispell that is the crux of the proposed district expansion, on Tuesday filed a complaint and request for a writ of mandamus in Flathead District Court because the commissioners have not set an election that places the proposed zoning district expansion on the ballot.

Waller and a group of property owners in the affected area successfully conducted a petition drive to create a ballot issue for the district expansion, collecting 12,455 valid signatures in less than 60 days.

The goal of expanding the district is to include the acreage where Lew Weaver of the Montana Artesian Water Co. plans to build a bottling facility and thereby stop the project.

Judge Heidi Ulbricht noted in her order issued late Tuesday that the commissioners’ legal duty to submit the question to the electors at the next regular or primary election does not attach until 60 days after receiving the petition. The signatures were submitted on June 27 and it was certified to be placed on a county election ballot on July 11.

“The 60 days provided for in [state law] has not expired and will not have expired by Aug. 14,” the date by which Waller asked the commissioners to set the election.

In November 2016, the commissioners denied a citizen-initiated request to add 530 acres to the Egan Slough Zoning District, a tract of 1,150 acres of largely agricultural land near Creston. Egan Slough neighbors then sued the county, asking the court to declare the commissioners’ decision unlawful and an abuse of discretion. That litigation is still pending.

Kalispell attorney Tom Esch, Waller’s counsel, told the commissioners on Monday it’s their duty to set the election.

“You owe it to your constituents,” he said.

Esch earlier had told the commissioners his interpretation of state law is that the election must be set for Nov. 7, and that it must be set 85 days before that, creating an Aug. 14 deadline.

The commissioners declined to respond to Esch’s comments.

The commissioners could not be reached for comment on Tuesday. Deputy County Attorney Tara Fugina, who provides legal counsel to the commissioners, said she could not comment on the case.

In the complaint, Waller cited state law that requires that a petition certified for election “must be submitted to the electors at the next regular or primary election.”

A legal brief in support of the motion for a writ of mandate notes “if the zoning is not put before the electorate, changes involving industrial uses of property near the boundaries of the current Egan Slough Zoning District will forever alter the character of the agricultural and residential area.”

Prior to the commissioners’ rejection last year of the citizen-initiated request to expand the district, they maintained the zoning effort was an attempt to stop an individual landowner from going through the permitting process to set up a water-bottling facility. They asserted the county would be restricting property rights by expanding the district.

Commissioner Phil Mitchell previously voiced his opposition to the cost of holding a countywide election for what otherwise is only a city election on Nov. 7. The county’s cost is estimated at $120,000.

The next opportunity for a countywide election is the June 2018 primary election.

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