By Michael Howell
Bitterrooters for Planning (BFP), a local planning advocacy group, has filed a lawsuit in District Court challenging the preliminary plat approval of the Legacy Ranch Subdivision. The 639-unit subdivision, located along the Eastside Highway north of Stevensville, was unanimously approved by the County Commissioners on August 14, following an extensive series of public meetings.
Missoula Attorney Jack Tuholske, who represents the group, notes in his petition for judicial review and declaratory judgment, that Legacy Ranch subdivision is situated in close proximity to the Bitterroot River and adjacent to the Lee Metcalf National Wildlife refuge. He alleges that the largest subdivision ever proposed in Ravalli County “will overload local highways, degrade the Bitterroot River, add to existing air pollution, tax fire and police services, and further undermine the agricultural base of the Bitterroot Valley. It will also severely impact wildlife populations on the Refuge, one of the last bastions of intact wildlife habitat in the rapidly developing Bitterroot Valley.”
Tuholske claims that the commissioners failed to meet their legal duty to adequately address these problems. He states that plenty of relevant information was submitted by the public and other government agencies about these potentially negative impacts but the Commissioners failed to address them with effective mitigation measures.
The lawsuit relates the long history of the subdivision review process which began back in 2005 leading to a denial of the subdivision based on the Interim Zoning in effect at the time. That denial was overturned in court following a challenge by the developer and the subdivision proposal was re-submitted in 2008. Tuholske notes that the Planning Department sent out numerous “deficiency letters” starting in 2011, noting deficiencies related to water quality and quantity, wildlife, traffic, and other impacts. He claims the Planning Department also suggested the applicant delay proceedings pending the enactment of new subdivision regulations, and provided several examples of how it anticipated the new regulations would be more favorable to the developer. Then in May of 2012, an “Insufficiency” letter was sent out after examining the proposal under the new county subdivision regulations to be implemented in June 2012.
It is claimed that at this point, in November of 2012, that Planning Department Administrator Terry Nelson inexplicably dropped the deficiencies and arbitrarily and unlawfully removed all environmental deficiencies except for requesting a list of identified plant species.
The Planning Board then approved the subdivision application without addressing those deficiencies, according to Tuholske.
Tuholske alleges violations of the Montana Subdivision and Platting Act. He claims the failure in the record, including the environmental assessment, to address and respond to the comments of the BFP, the public, and government agencies, and to fully and adequately address potential impacts under the review criteria, renders the final decision arbitrary, capricious, and unlawful under the Act.
“Many of the mitigation measures depend on voluntary compliance and future actions beyond the Board’s control, and are therefore arbitrary and capricious and inadequate as a matter of law,” he writes.
He also states that the Board of County Commissioners’ decision to approve all 15 phases of the Legacy Ranch Subdivision in advance prohibits it from imposing any additional mitigation measures as conditions for approving the final plat for any of those phases.
Another claim made is that by failing to provide the public with the opportunity to comment on its final decision, “which was so fundamentally different from what was contemplated at the public hearing,” the Board violated the Plaintiff’s right to meaningfully participate in the decision making process.
He claims the Board also violated Plaintiff’s members’ right to meaningfully participate in government when it ignored or brushed aside their comments made on the record without providing a reasonable substantive response and addressing their concerns.
The lawsuit also claims a violation of the public’s constitutional rights to a clean and healthy environment as well as a violation of the Board’s constitutional duty to provide adequate remedies to prevent degradation of natural resources.
“Bitterrooters for Planning believe that the commissioners, by ignoring state law and citizens’ comments, have fundamentally violated the public trust and shown a blatant disregard for the basic rights of our citizens and universally-accepted democratic processes,” said BFP President Kelsey Milner. “We believe that we must act now if our community hopes to maintain these cherished and necessary democratic processes into the future. Bitterrooters for Planning has, therefore, been left no choice by this commission’s actions other than to file for redress of grievances within the 30-day window, as mandated by state law.”
The group is asking the court to find the Commissioners’ decision approving the subdivision to be contrary to law, and order that the decision be set aside and require a new submittal. It also asks for attorney’s fees and any other remedy the court finds appropriate.