The Montana Supreme Court, on Thursday, denied a motion for an injunction to stop the implementation of a settlement agreement reached last summer between the county and about a dozen developers while a lawsuit challenging the agreement is being decided. This ruling effectively lifts the stay that the Supreme Court put in place last November while it considered the appeal of the District Court’s denial of an injunction.

The original lawsuit that led to the settlement agreement was filed in federal court last year. That 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. 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 is ongoing with three developers who did not participate in the settlement.

Following the settlement agreement, 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. In all, 16 subdivisions are now being processed under the settlement agreement, potentially creating 1,753 lots on 1,195 acres.

Bitterrooters for Planning (BfP) and Phillip Taylor then sued the county challenging the settlement agreement and asked District Court Judge Jeffrey Langton to place an injunction on the implementation of the settlement agreement. Langton denied the motion for an injunction in October simply by making a notation on the face of the motion. BfP appealed that denial to the Supreme Court. Then, in November, the Supreme Court remanded the matter back to Langton, ordering him to provide findings of fact and conclusions of law, or relevant facts and legal authority supporting his decision. In the meantime the Supreme Court placed a stay on implementation of the settlement agreement. Langton responded in December and the Supreme Court then proceeded to consider the appeal of the District Judge’s denial.

In its ruling over the motion, issued last Thursday, the Supreme Court agreed with Langton’s decision to deny an injunction on the grounds that BfP was not likely to succeed on the merits of the case, would not suffer irreparable harm in the absence of an injunction, and that the judgment would be rendered ineffectual without an injunction. The ruling did not address the merits of the case itself directly.

The Court notes that the plaintiffs were provided with a copy of the settlement agreement as soon as it was available. It notes that no argument was made by the plaintiffs that the agreement’s content were inaccurate or distorted and do not allege any problem understanding the meaning or the effect of the settlement. The Court notes that the public meeting lasted several hours and was continued to a second day allowing for sufficient review by the public.

The Court also stated, however, that “it is important to bear in mind that the issue before the court is whether the Bitterrooters are likely to prevail on their appeal from the denial of their request for a preliminary injunction. The Bitterrooters’ appeal does not present the question of whether Bitterrooters are likely to prevail on the merits of the possible approval of the proposed subdivisions and their objections thereto - these questions remain for another day.”

The Court notes that “the Bitterrooters may prevail on appeal on these substantive issues. Under the particular facts presented here, however, the Bitterrooters have failed to establish the requisite statutory likelihood of prevailing on appeal on their claim that they were denied the right to know and the right to participate.” The Court denied the request for an injunction on those grounds.

Justice James Nelson wrote a dissenting opinion in which he argued for granting an injunction pending appeal and expediting the appeal.

“I am not willing to prejudge, without having had the benefit of the appellate briefs, the likelihood that the Bitterrooters will or will not succeed on the merits,” wrote Nelson. Nelson states that “more importantly, given two recent decisions by the Court (Povsha v. City of Billings and Henesh v. Board of Commissioners of Gallatin County), it is likely that the Bitterrooters’ appeal will be rendered moot before the Court ever gets a chance to consider it.”

Nelson notes that in those two cases “we have created a situation where there is an incentive for the local government or developer to finalize whatever action is at issue as quickly as possible and, most certainly, before this Court has the opportunity to render a judgment on the merits of the underlying activity and on the challenger’s claims and issues on appeal. Indeed, we have placed a premium on the local government’s or developer’s ability to exploit the lack of an injunction on appeal or stay of judgment on appeal, to moot the appeal itself. We have effectively tipped the scales of justice in favor of the appellee and against the appellant, when we should be preserving the status quo.”

Attorney Alan McCormick of Missoula, who is representing the County in this case, emphasized that the Court had found that the appellants did not have a likelihood of winning their case. He said that he considered all this wrangling over a preliminary injunction to be a “waste of resources” and looked forward to getting to the substantive issues of the case.

“The facts in this case are pretty simple,” he said. “The Commissioners reached a settlement agreement, they shared it with the public and conducted a public hearing over the matter. The hearing was continued into a second day and nobody showed up.” He expressed confidence in winning the case on the substantive issues.

Attorney for the plaintiffs, Sarah McMillan, could not be reached for comment in time for publication.

Stewart Brandborg, President of Bitterrooters for Planning, said that in the months preceding the settlement agreement the three holdover commissioners had been in negotiations with the developers’ attorneys. He said that the agreement, as approved by the commissioners, allowed the developers to proceed with their 16 housing projects by circumventing the voter-approved interim zoning with restrictions on subdivisions of one house per two acres. Brandborg said that e-mail communications obtained by the Bitterroot Star showed that the Commissioners and Deputy County Attorney Alex Beal and the developers’ attorneys called for hurried action on the agreement so that it could be completed by election day, when three new commissioners were voted into office.

“In their rush to sign the agreement on election day,” he said, “BfP representatives were given short but inadequate opportunity to review the multi-page document. Through June 5, when it was finally approved, the agreement was still a work in progress and had not been made available in final form for public review and inspection.”

Brandborg noted that the Supreme Court decision, with the dissent of Justice Nelson, deals only with BfP’s request for a preliminary injunction. It leaves open the opportunity to pursue an appeal on the issue of whether BfP was denied the right to know and the public’s right to participate.

“We take heart in the Supreme Court’s own words in the ruling that, ‘The Bitterrooters may prevail on appeal on these substantive issues’,” said Brandborg.

Ravalli County Planner John Lavey said that the county is currently trying to finalize contracts with WWC Engineering in Helena and WGM Engineering in Missoula to handle the three largest subdivisions tied to the settlement agreement in order to preserve staff time for the countywide zoning project which has a set schedule for completion. Those subdivisions include Hawks Landing (150 lots on 92 acres), Legacy Ranch (582 lots on 395 acres), and Flat Iron (626 lots on 411 acres). Four of the other subdivisions tied to the settlement agreement have already received preliminary approval by the Commissioners and the planning staff would now begin processing the remaining nine subdivisions in house, he said.

Lavey said that a preliminary estimate of the work and time involved leads him to believe that those subdivisions can be processed without unduly delaying work on the countywide comprehensive zoning process.

“There is likely to be a crunch,” said Lavey, “but if we hunker down and work extra hard I believe we can meet all our deadlines.”

Commissioners hear more about streamside setbacks

By Greg Lemon

Nearly 100 people packed the Ravalli County commissioners’ meeting room last Wednesday to hear the details of the interim streamside setback regulation.

The county’s streamside setback committee requested the 90-minute meeting so they could present their interim regulation and field questions from the commissioners. The meeting also gave citizens a chance to voice their feelings about streamside setbacks.

The commissioners had asked the streamside setback committee to draft an interim streamside setback regulation. The committee completed the task in November, but the commissioners have yet to make a decision on the interim regulation.

The interim regulation would essentially prohibit new construction a certain distance from streams in Ravalli County. The setback distance would be measured from the high water mark and depends on the type of stream. On the main Bitterroot River the setback distance would be 200 feet. On the East and West Forks of the Bitterroot River it would be 150 feet. On major tributaries, like Skalkaho Creek and Bear Creek, it would be 100 feet. On all other perennial streams it would be 75 feet. On intermittent streams it would be 50 feet.

Existing structures would be grandfathered in and not be affected by the regulation. Agriculture practices would also be exempt. Existing homeowners within the setbacks could expand their structure by 50 percent or up to 1,000 square feet. They could also rebuild if their home was destroyed by the same parameters for expansion.

Currently 432 homes are built within the proposed setbacks in Ravalli County, said Montana Fish, Wildlife and Parks fisheries biologist Chris Clancy, who is also a committee member.

“Whether you think that’s a big deal, well, that’s up to you,” Clancy said.

The committee is also working on a permanent setback regulation, said committee member Clayton Dethlefsen.

“The current status of the initial draft of the final regulation is on track,” Dethlefsen said.

The committee plans to have a draft of the final regulation ready by July, he said.

Streamside setback regulations are needed because there is a gap between state regulations dealing with work in streambeds and floodplain regulations, said commissioner Jim Rokosch. The number of structures currently in the proposed setbacks also troubled him.

“I think that’s a fairly significant number of structures that we’re talking about,” he said.

Commissioner Kathleen Driscoll is in favor of setbacks.

“I stand with setbacks,” Driscoll said. “I feel strongly that within 50 years this place you’re living will not look like the place it is now.”

The commissioners devoted about 40 minutes of the meeting to public comment, which was largely in favor of setbacks.

But Chris Daniel isn’t in favor of them. Streamside setbacks would “impinge” on private property rights for those who own land along the river, he said. Besides, the water quality in the valley is still very good.

“It begs the question of why do we need this,” Daniel said.

Don Mabry disagrees. He owns land on Skalkaho Creek and said there aren’t enough laws to protect the river and to keep landowners from doing damage to the water quality and wildlife habitat river corridors provide.

“I think we have a very good opportunity to do something right for this county,” Mabry said.

The commissioners took no action on the interim regulation.

After the meeting, commissioner Carlotta Grandstaff spoke in support of setbacks.

“I totally support streamside setbacks,” she said. “I’ve always supported that concept. We will have them, the question is when.”

She’s worried that passing the interim regulation would confuse people about the county’s current countywide zoning project and hamper its progress.

“That project is paramount and cannot be allowed to fail,” Grandstaff said.

Hamilton City Council annexes property, approves lift station

By Greg Lemon

The last Hamilton City Council meeting was a marathon session, but concluded with some important decisions, said Mayor Jessica Randazzo.

The meeting, held Feb. 5, lasted nearly four hours, but ended with the council approving initial plans for a sewer lift station near Old Corvallis Road on the east edge of the city.

The lift station will serve what is commonly known as Area 3, which is east of Old Corvallis Road. In that area the Council on Aging and the Ravalli County Economic Development Authority are planning two projects, which could not go forward without the lift station, said RCEDA executive director, Julie Foster.

The RCEDA is planning an entrepreneurship center, which would focus on developing businesses to support and enhance the two biotech labs in Hamilton, GlaxoSmithKline and Rocky Mountain Laboratories, as well as other local businesses.

The $3 million RCEDA project has been in the works since 2005, Foster said, which has included securing large grants to build the center. But it has all hung on the city approving the lift station.

“We need the lift station so that we can provide sewer service to the entrepreneurship center,” she said.

Also, the Council on Aging is planning a senior cooperative housing development near the entrepreneurship center. It also depended on the lift station, Foster said.

Before the lift station is built, the final plans will have to meet council approval, said city planner, Dennis Stranger. The lift station will pump sewer into the line that runs along Old Corvallis Road and to the Hamilton waste water treatment facility.

The lift station made sense for Hamilton, Randazzo said.

“I’m glad that the city of Hamilton is supporting the RCEDA and the Council on Aging,” she said. “The city of Hamilton has invested years of planning and literally millions of dollars into infrastructure so that area can be developed.”

Hamilton is planning to grow east, particularly along Old Corvallis Road, so providing more infrastructure in the area is smart, she said.

In other action, the council annexed most of the remaining pieces of property that are completely surrounded by property within the city limits.

The council held public comment on each annexation to allow citizens a chance to voice opinion and ask questions. But state law doesn’t provide citizens with the ability to protest annexation if their property is fully surrounded by property within city limits, Randazzo said.

The property owners will have five years to hook up to city services like water and sewer, she said.

FS one step closer to new planning rule

The U.S. Forest Service has moved one step closer to finalizing a new planning rule that will engage the public in the development, implementation and monitoring of forest plans. The release of the agency’s Final Environmental Impact Statement (FEIS) for the 2008 Planning Rule identifies the Forest Service’s preferred alternative and is a procedural move towards the implementation of a new planning rule.

The planning rule is important because it brings people together with the Forest Service to develop land management plans which provide the framework for all resource and recreation management on national forests and grasslands nationwide.

“The process of developing a forest plan is a public service that ensures a great future for national forests on behalf of the American public,” stated Joel Holtrop, Deputy Chief of the National Forest System. “We’re proud of this vitally important planning process and yet we recognize that improvements were needed to emphasize more public collaboration, to be more adaptive to changing environmental conditions, and to ensure the protection of wildlife. The preferred alternative encompasses all of these elements.”

After receiving and considering over 79, 000 comments on a draft environmental impact statement, the Forest Service developed ‘Alternative M’ as their preferred alternative. The alternative is based on public comment and builds on the 1982, 2002, and 2005 Planning Rules and years of professional forest planning experience. The preferred alternative provides extensive public participation and offers an approach to quickly respond to changing natural resource conditions.

“This preferred alternative expands public involvement by requiring early and frequent public dialogue in all phases of the development, implementation and monitoring of land management plans,” stated David Dillard, Director of Ecosystem Management Coordination. “This exceeds National Environmental Policy Act (NEPA) requirements for public involvement. Our goal is to create strong, relevant conversations that address local issues as well as incorporate the latest available science and technology in the plans. Additionally, all plans and projects developed under those plans are expected and required to comply with NEPA.”

The preferred alternative is responsive to changing conditions because adaptability is built in the approach. Plans will be able to adjust more quickly to changing conditions such as those brought about by climate change. By doing so, they will better protect resources of the forest and address the concerns of the surrounding communities.

Alternative M requires improved monitoring and sustainability standards for wildlife protection as well as the requirement for an Environmental Management System to be in place prior to the implementation of approved projects. In addition, Forest Service Timber Policy will not be affected by the preferred alternative because resource protections for timber management activities have not changed.

The FEIS will now be sent to the Department of Agriculture for a decision on a final rule for forest planning. The Record of Decision and final rule will be published in the Federal Register in approximately 30 days. Additional information on the planning process can be found at: HYPERLINK "http://www" http://www. fs.fed.us/emc .

The mission of the USDA Forest Service is to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet the needs of present and future generations. The agency manages 193 million acres of public land and is the largest forestry research organization in the world.

FWP seeks comment on proposed improvements at Poker Joe Access Site

Montana Fish, Wildlife & Parks (FWP) is seeking public comment on a proposal to build a gravel parking area for 12 vehicles and install a latrine at Poker Joe Fishing Access Site (FAS) on the Bitterroot River between Florence and Stevensville.

The proposed improvements are part of a September 2007 agreement between FWP and adjacent landowners that ensures public access to the FAS through a road easement and establishes that FWP will complete site improvement projects to address traffic and parking concerns. Some of these measures, such as installing speed bumps and posting signs, have already been implemented. The proposed site improvements, to be completed by the end of July 2008, are part of ongoing work to address public safety and reduce resource damage.

A draft environmental assessment (EA) is now available for review and comment. You may view the EA at FWP’s website, fwp.mt.gov, under “Recent Public Notices” or request a copy by mailing FWP, 3201 Spurgin Road, Missoula MT 59804; phoning 542-5540; or emailing shrose@mt.gov. Comments should be directed to Lee Bastian by mail at the address above; phone to 542-5517; or email to lbastian@mt.gov; and must be received no later than 5 p.m., March 10, 2008.

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