The Montana Supreme Court issued a ruling last week that effectively stops the county from implementing a settlement agreement it entered into over a federal lawsuit involving 11 subdivisions until the appeal of the District Court's denial of a preliminary injunction can be resolved. The settlement agreement allows the subdivisions to be processed despite the fact that they do not meet the voter-mandated restrictions imposed by Interim Zoning that prohibit subdivisions from creating any lots smaller than two acres.

The federal lawsuit was initiated when the developer of the Lords subdivision sued the county for not processing the subdivision within the timeline mandated by state law. The grievance relates to a one-month period in 2007 when the county quit processing subdivisions because it had failed to revise its subdivision regulations to bring them into compliance with new state laws. The legislature gave counties a year to come into compliance with the new law but Ravalli County failed to do so. Processing of subdivisions was then suspended until the regulations were amended. Developers of 13 other subdivisions whose application reviews had also been delayed during that lapse soon joined the Lords' lawsuit. The county arrived at a settlement agreement over 11 of the 14 subdivisions in the lawsuit. Those subdivisions, if approved, would create 1,656 new residences on about 1,708 acres.

Following the settlement agreement, which was rushed to be approved on election day before the three new commissioners were voted into office, the county also agreed to allow five other subdivisions that were not involved in the lawsuit, but which met the same conditions as those in the lawsuit, to be processed as well, even though they do not meet the restrictions of the one dwelling per two acre restriction of Interim Zoning. Those subdivisions, if approved, would create an additional 97 new lots on 87.4 acres, bringing the total of possible new lots being created by the situation to 1,753.

Bitterrooters for Planning and Phillip Taylor then filed a lawsuit in Ravalli County District Court challenging the legality of the settlement agreement. They allege that the agreement violated the Montana Constitution because documents regarding the settlement agreement were not provided for public review before the decision to settle was made, despite repeated requests prior to the decision. They also asked the District Court for a preliminary injunction to halt implementation of the settlement agreement until its legality could be decided. District Judge Jeffrey Langton denied the injunction request on October 15, simply by making a notation on the face of the motion for injunction that it was denied. That decision was then appealed to the Montana Supreme Court.

Four of the subdivisions involved in the settlement agreement have already been given conditional approval by the commissioners. One other, that was not part of the settlement agreement but is being processed because it met the same conditions, has also been given conditional approval. BFP and Taylor argue that allowing approval of subdivisions under terms of the settlement agreement before the legality of the settlement agreement is decided would deprive them of proper relief if they should prevail in the lawsuit.

The Supreme Court notes in its response that BFP raised important statutory and constitutional claims. It further notes that the law provides that a District Court's order, such as Langton's denial of the preliminary injunction, must include "findings of fact and conclusions of law, or in a supporting rationale, the relevant facts and legal authority" on which it bases its order. It notes that Langton failed to do so.

"The District Court's omission hinders our ability to evaluate the merits of the Bitterrooter's motion for an injunction pending appeal," wrote the Court. "The Court further recognizes the importance of reaching a correct resolution of this motion in as short a time period as possible."

The Supreme Court remanded the motion for appeal back to Langton, ordering him to provide either findings of fact and conclusions of law or relevant facts and legal authority set forth in a supporting rationale. It also ordered that the Board of County Commissioners' implementation of the Settlement Agreement be stayed pending its review of Langton's response.

Deputy County Attorney Alex Beal said that the Supreme Court's order "appears to have stayed the implementation of the Settlement Agreement, although I'm not sure that's what they intended to do."

However, he said that, based on the advice of attorney Allen McCormick, the attorney representing the county's interest in the case, the county has stopped processing all the subdivisions involved in the Settlement Agreement. He said that this included the subdivisions being reviewed that were not part of the agreement but deemed to be in similar circumstances and being exempted from the Interim Zoning restrictions. He said that those subdivisions that had already been given conditional approval would not be allowed to file a final plat as long as the stay was in effect.

Stewart Brandborg, President of Bitterrooters for Planning, said, "We are encouraged by the action of the Court in requesting the facts to support Langton's denial of our request for a preliminary injunction. It is obvious to us that the Settlement Agreement was done without the proper involvement of the concerned public, who were given no opportunity to meaningfully participate in the decision."

He said that in his opinion it was a favorable development and the group looked forward to the further developments in the case.

Twin Creeks subdivision gets preliminary approval by Stevi council

By Michael Howell

The Stevensville Town Council gave preliminary approval, Monday, November 26, to the Twin Creeks subdivision, a proposed 117-lot development on 42 acres located on the east side of Middle Burnt Fork Road. The property has not yet been annexed into the Town. Following the advice of Town Attorney Keithi Worthington, the council gave the preliminary approval prior to annexing the property into the town. Although the preliminary approval would be a worthless act if the property is not annexed into the city, both Worthington and consulting engineer for the development, Nathan Lucke, called the approval with conditions a "contract" between the Town and the developers John and Kristie Anderson and Rebecca Thoft. The Andersons own a 40-acre parcel and Thoft owns an adjoining 2-acre parcel that would be included in the subdivision. The contract would ostensibly become valid once the property is actually annexed into the Town.

The developers are required to supply a survey showing the exact area involved prior to annexation. The developer and the Town agreed to enter into an annexation agreement, but if no annexation agreement is entered into, then the Town Council will have the choice to annex the property in three phases corresponding to the three phases described in the subdivision application.

County Attorney Alex Beal told the County Commissioners, who are closely following the development, that if the property is not eventually annexed into the town, the preliminary plat approval would "amount to nothing since the Town has no authority to approve a subdivision in the county."

Potential effects of the subdivision on traffic in the area was a central concern of the public and Stevensville Mayor Bill Meisner. It is also a big concern for the county which claims Middle Burnt Fork Road as a county road. It was estimated that traffic from the subdivision would almost double the current traffic on that road. As a result, one condition of approval placed on the subdivision was that the developers would pay for a Traffic Impact Study for any roads, streets and highways that may be impacted by the development. This includes but may not be limited to, Middle Burnt Fork Road, the Eastside Highway, Park Street, Cimarron Lane, Alex Lane, and Logan Lane. The developers would pay for any improvements that the study deemed necessary.

Impacts to the town's water system were also a serious concern. The developers have agreed to donate a small parcel of land in the area for development of a future well field for the Town. One well would be installed by the developers and given to the Town. The Town would be responsible for development of any future wells at the site.

A recently adopted preliminary engineering report on the Town's water system has recommended abandonment of the Town's water treatment plant located two miles up Middle Burnt Fork Road at the intersection with South Burnt Fork Road. That plant currently treats water absorbed through an infiltration gallery above the reservoir located at the treatment plant site. That water is considered surface water and must meet more stringent regulation standards than well water. The report recommended finding a suitable site near town for development of a well field in lieu of using the treatment plant.

Based upon concerns expressed by Councilor Susan Evans, the developer also agreed to transfer existing water rights on the land to the Town since the Town is obliged to provide water to the subdivision once it is annexed. Those water rights and perhaps others may be needed to ensure that the Town can get a water right for the new well that is to be installed. Following a court case on the Smith River in which it was determined that ground water wells may have a negative impact on surface water rights, it has become more difficult to acquire new well water rights (over 35 gallons per minute) in the Bitterroot River Basin, which has already been closed to any new surface water rights.

The developers also agreed to donate $300 per lot to the Stevensville Police Department to help offset the negative impacts upon the Town's public safety by the increased population generated by the subdivision. It is estimated that the proposed subdivision will increase the Town's population by 15 percent.

The developers declined to make any donation for effects upon the school district. Territorial-Landworks consulting engineer Nathan Lucke said that the school had expressed no objection to the development. The school has agreed to allow an easement across school property for the Town sewer and water lines to be extended to the subdivision. The school will be allowed one connection to the main line as part of the agreement.

More problems for Creekside Meadows

By Michael Howell

Developers of Creekside Meadows, Arlo and Jean Ellison, have had a passle of problems in installing the 155-lot subdivision that was approved on the east side of Stevensville. Now they face a few more.

First there were complaints, leading to lawsuits, about flooding problems on adjacent properties in the area. Neighbors attributed flooding on their property to the improper installation of water and sewer lines serving the homes in the subdivision. They claimed that the trenches dug for placement of the lines now serve as collectors and conduits for high ground water in the area, delivering it towards their homes.

Then there was the problem of low water pressure within the subdivision. The Ellisons eventually agreed to the installation of a booster pump into the Town's system to increase the water pressure in the subdivision.

Then, as installation of the first two phases of the five-phase subdivision progressed, there was dissension over who would be responsible for installation and maintenance of the street lighting system, the developers or the Homeowners Association. Issuance of building permits for new homes in the subdivision was suspended during the controversy.

Now, according to Stevensville Mayor Bill Meisner, members of the Homeowners Association are refusing to accept responsibility for maintenance of the open land areas of the subdivision. They believe it is the developer's responsibility. He said the homeowners are also very upset after learning that half the subdivision has been zoned R-2. The first two phases of the subdivision, the only phases so far officially approved, are zoned R-1. The homeowners claim that they were not informed that the other phases had a different zoning status.

On top of all this, the County Road and Bridge Department has recently decided to refuse to grant an approach permit for the planned access to the subdivision from Middle Burnt Fork Road. The access to the first two phases of the subdivision is on Logan Road. But plans called for an access onto Middle Burnt Fork Road as part of the phase three development.

County Road Supervisor David Ohnstad recently told the County Commissioners, however, that the permit would not be granted. He said that a preliminary approach permit was previously granted for access onto Middle Burnt Fork Road but that it had expired after a year. He said that he had recently received a "re-application" for the approach permit, but it was not possible under the regulations that were adopted by the county in the meantime.

Deputy County Attorney Alex Beal stated that once a preliminary permit expired, it required that a new application be made. He said that the new application would have to meet the requirements of the regulations that are in effect at the time that the new application is made.

Ohnstad said that the current regulations prohibit the issuance of an approach permit on a major collector road such as Middle Burnt Fork Road within 600 feet of an intersection with another major collector road. If it involves significant traffic as this subdivision will produce, he said, it must be 900 feet from the intersection. The proposed access point is closer than that to the intersection with Logan Road, which is classified as a major collector road on the stretch north of Middle Burnt Fork Road. As a result, he said, the permit cannot be granted.

Redesigning the subdivision to change the access point would be a major change, according to Stevensville Building Inspector Don Rainey, who handles these issues for the Town. He said it would require not only re-drawing the plans but also going through the public review process once again to gain approval of the change.

Rainey said that other problems exist with the subdivision layout as it currently exists since a high pressure gas line extends under some of the lots in the current layout. He said that he could not imagine anyone wanting to build a home over a high pressure gas line.

Arlo Ellison, developer of the subdivision, said that he had not yet been notified about the problem with the approach permit.

He also denied a rumor, rampant in town, that he had sold his interest in the remaining portion of the subdivision to someone else.

"It's just not true," he said.

Turmoil continues over Victor Park District

By Michael Howell

Turmoil continues over the Victor Park District. On Monday the Ravalli County Commissioners served as a sounding board for the third time in the last few weeks as members of the Victor Youth Athletic Association and some other members of the community squared off against members of the Victor Park District board of directors in an ongoing dispute primarily over funding for the Ball Field and the Victor Garden Club.

Commissioner Alan Thompson explained that the impetus for forming the Victor Park District came primarily as a result of the Montana Department of Transportation's current project to widen Highway 93 through the valley. Members of the Victor community, like other communities along the highway, expressed a desire for additional improvements to the highway project rather than simply an expansion of highway lanes. The bike path along the highway was one outcome of that input. In Victor, a median between the lanes was proposed as well as other additions. But MDOT officials were loathe to consider such additions to the plan unless some local entity would take on the responsibility for maintenance of the improvements in perpetuity. Without that local commitment, MDOT officials said, there would be nothing but a straight shot of four lanes through the community.

The Victor Park District was formed to accept those responsibilities, but as a park district it also inherited responsibility for all park lands within the area. This included the Victor Ball Field as well as the Main Street improvement project and longstanding maintenance work by the Victor Garden Club.

The Victor Park District board, with a budget of about $15,000 per year, and a significant commitment to about $20,000 per year for upkeep of the highway improvements, has found itself strapped for cash. They also felt like they had inherited a mandate, set by the County Commissioners, to do some fence building at the Ball Field for safety reasons. As a result the board decided to quit funding the Garden Club and build a fence at the Ball Field.

Members of the Victor Youth Athletic Association felt left out of the decision making process and disagreed with the priorities being set by the Park Board. The fact that their ten-year lease of the Ball Field is set to expire on December 31 also added a lot of angst to the situation.

Frustration on both sides of the dispute has grown to the boiling point. Following two acrimonious meetings before the County Commissioners, who have only a very limited involvement in the affairs, led to the recent submission of resignations by three of the Victor Park District's five board members, Ann Hayman, Dave Meadow, and Anita Drewien.

Without a quorum, the board was essentially dysfunctional. As a result the County Commissioners scheduled Monday's meeting to decide whether to appoint three new board members or simply dissolve the board. But in the meantime Drewien rescinded her resignation within the 72-hour time period allowed by the law. As a result of that, the board retained enough members to have a meeting and County Attorney Alex Beal said that as a functioning board it retained the power to appoint its own replacements for the vacant positions and the commissioners were out of the picture once again. Those appointments, however, would only be good until elections could be held for the positions in May.

Some members of the public expressed dismay that the Park District Board would make the appointments because they felt that the board would appoint people that sided with them in the dispute and shared their priorities for funding. Complaints were also made that the current members of the Park Board would not even discuss the situation with the members of the Victor Youth Athletic Association and their concerns over an expiring lease. They said that plans for the coming ball season were in jeopardy without a lease.

Chairman of the Board James Webb said that a new draft lease had already been prepared and that he was willing to discuss it with the Victor Youth Athletic Association.

County Commission Chairman James Rokosch reminded the group that the Commissioners did not have authority over the problems, that the Park Board alone had the authority to make appointments to the vacant seats on the board. He said that in May, however, the residents of the Victor Park District would be able to vote on those postions. He urged the two sides to get together and work on a new lease agreement. Commissioner Kathleen Driscoll volunteered to attend the next Park District meeting and help mediate.

The next meeting of the Victor Park District board is scheduled for January 22.

An election for the two board seats recently vacated will be held on May 6, according to County Clerk and Recorder Regina Plettenberg. Filing for the positions will begin on Christmas Eve and close on February 21. Any resident of the district may file for the position, including the new board members that may be appointed to those positions in the meantime.

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