DEQ drops violation against alpine coaster developers

The Montana Department of Environmental Quality retracted late last month allegations that developers planning an alpine coaster in Lakeside violated state code by moving ahead with construction at the site.

In a Sept. 22 letter sent to developers Jessica and Torsten Wedel, DEQ officials concede the land for the proposed coaster was subdivided before the enactment of state subdivision laws, so it is not subject to state subdivision review. It came a little more than a month after the state agency sent a letter warning the Wedels that they were in violation of the Montana Sanitation in Subdivision Act by starting construction without a Certificate of Subdivision Approval, or a COSA.

The proposed alpine coaster, which came to light earlier this year, is slated for a property off of U.S. 93 just north of Lakeside. The amusement ride sends bobsled-like carts down a track built into a hillside.

The project has seen staunch opposition from residents in and around Lakeside in the months since it became publicized.

DEQ Enforcement Specialist Susan Bawden told the Wedels in her Sept. 22 letter that the agency’s determination for that violation was based on their review of deeds from 1944, 1951, 1972 and 1986, as well as Certificate of Survey No. 8633. These deeds suggested that the property had been transferred in 1951 and 1972 as a single tract of land.

She said the language in these deeds implied that the rights-of-way for the state and Flathead County were easements but that the title to the underlying land remained with the property owner.

Bawden said she was contacted Aug. 9 by Marc Liechti with Apec Engineering and Rick Breckenridge with Montana Mapping Associates who provided additional information regarding the property, specifically a ‘Preliminary Expert’s Report” authored by Breckenridge and a 1992 opinion from the Montana Attorney General. That opinion said “a county clerk and recorder may not require a survey or plat for the recordation of an instrument transferring title to a remainder that was created when the State of Montana obtained property for a highway right-of-way.”

According to the letter, Breckenridge indicated in his report that the property had been divided by the highway right-of-way and that the property on either side of the highway had since existed as separate parcels. He said the 1986 survey was a retracement survey of those already-divided parcels.

The 1992 attorney general’s opinion concluded that a division occurred when the state took the land for highway purposes, which was exempt from review under the Montana Subdivision and Platting Act. Because any subsequent transfer of the entire severed parcel would not involve a division land, the opinion concluded there would be no requirements for surveying or platting.

Bawden said that DEQ reviewed Breckenridge’s report and consulted with the Montana Department of Transportation, which confirmed that the highway is held by the state in fee simple, rather than as an easement.

Bawden said the DEQ ultimately concluded that the original parcel was bisected by U.S. 93 on land owned by the state, creating three isolated parcels owned by one person, rather than a single continuous parcel. Since the division occurred before the effective date of the Sanitation in Subdivisions Act and no further division of Tract 1 has occurred, DEQ subdivision review to obtain a COSA is not required for this project.

She said the state agency is withdrawing the violation and closing the complaint.

Developer Jessica Wedel said they have always known the project was exempt from needing a COSA.

“We've been trying to tell the DEQ we don't have to go through that process the entire time,” Wedel said. “The Upper West Shore Alliance’s lawyer pushed DEQ to prove it without a doubt. APEC Engineering is a 30-year Lakeside family owned company. They follow the laws and regulations, always.”

DEQ Public Information Specialist Moira Davin said the agency takes in all available information to make their decisions.

“DEQ works off of the information we are provided and will reconsider, if necessary, to reach the correct result. When additional information was presented, it was determined that the parcel was not subject to state subdivision review,” Davin said.

Bawden concluded the letter by advising developers that nothing in the retraction relieved them from their obligations to comply with Public Water Supply Laws or other applicable statutes, rules, or permits.