The Ravalli County Commissioners decided last Thursday to request an Attorney General's opinion about the interpretation of the one dwelling per two acre density restriction included in the Interim Zoning regulations passed by voters last November. The decision to seek the opinion came after listening to a roomful of people express divided opinions about whether the limitation refers to lot size or whether it refers to the overall average density of the subdivision. In the meantime, it was agreed by default after several failed motions, that the Planning Department would continue to follow the interpretation offered by the County Attorney's office and treat the regulation as a minimum lot size.

Despite protests from the initiators of the zoning initiative, the county's Planning Department has been operating since the passage of the ballot measure with the understanding that dwellings could be placed on lots smaller than two acres provided that the overall average density of the subdivision was one dwelling per two acres or greater. But then Ravalli County Attorney George Corn weighed in on the matter and issued an opinion that the regulation, based upon its original intent, actually establishes a minimum lot size. Corn's opinion was not well received by many members of the development community nor, it seems, by the County Commissioners. As a result, last Thursday's meeting was scheduled to consider the matter.

Corn was not in attendance, but Deputy County Attorney Alex Beal explained Corn's ruling to the 80 plus citizens that packed the meeting room. Beal said that although the Interim Zoning regulation was "not as clear as it could have been," it did establish a minimum lot size of two acres. He said that the planning staff had looked at professional terminology to make a decision, but that the county attorney's office had to look at the voters' intent.

The Commissioners heard comments from about 29 members of the public. Opinions were close to being evenly divided among those who spoke.

The thirteen people who spoke out against Corn's interpretation were composed mostly of developers, real estate agents, builders and consultants. They argued that the plain meaning of the restriction was that it referred to overall density and not lot size. They urged the Commissioners to stick with the Planning Department's original interpretation despite the County Attorney's opinion.

Chip Pigman, a builder and member of the Planning Board, said that the current attorney's opinion was the opposite of what was determined in the recent Grant Meadows subdivision and represented an unacceptable flip flop in the county's interpretation. Others complained of disruptions in the subdivision review process and costly re-designs of their projects that would be incurred. Most said that their understanding of the regulation hinged on the use of the words "density" and "ratio" which they took to clearly mean that the restriction referred to average density, not individual lot size. Professional consultant John Kellogg said that cluster housing was a generally accepted planning principal that would not be allowed if the density requirement applied to lot size. Others agreed, stating that the county attorney's opinion would remove the possibility of preserving open space by not allowing the clustering of homes.

"It's time to take the politics out of the county attorney's office," said Paul Wilson. "Under George Corn's interpretation, the county is relegated to two years of poor land use."

Speakers in agreement with Corn's opinion slightly outnumbered those that spoke against it. They claimed, for the most part, that the obvious reading of the regulation was that it did set a minimum lot size.

Sarah McMillan, attorney for Bitterrooters for Planning, the organization that spearheaded the initiative effort, emphasized that the Interim Zoning regulation was only temporary. She said that it was a citizen enacted regulation and was not drafted by the planning staff. She said that the intent of the initiative was to slow development while comprehensive zoning regulations were formed and noted that the drafters meant to limit density to one dwelling per two acres.

"They never mentioned the word 'average' density and it should not be added now," said McMillan.

Pat Tucker pointed out that the opponents of the Interim Zoning initiative did a good job in advertising the down side of the density regulation by noting that it would increase sprawl by eliminating the possibility of clustering. Others expressed the concern that if the regulation was interpreted as "average" density and homes were clustered, developers would come back and fill in the open space created with more housing after the interim regulation expired.

"My understanding was that we were voting for an emergency zoning plan to give the commissioners a breather until comprehensive zoning was in place," said Doug Soehren. "This was the intention of the drafters. We are not planners. We are common everyday citizens, and the language we used was one house per two acres." He said that it was not up to the commissioners to interpret the intent and not up to developers.

"George Corn is standing tall for the voters," said Soehren.

Following the public comment period, Commissioner Alan Thompson said that he was disappointed that Corn was not present at the meeting to address what he called a "huge mish-mash that disappoints me." He said that he did not initially like the one per two acre regulation but that proponents of the ordinance argued that clustering could still happen. He mentioned Corn's rationale that the regulation had been drafted by everyday citizens and not planners and said, "I find this dishonest."

He said that he was sick and tired of people saying the commissioners serve the interests of realtors and developers. "It disgusts me, quite frankly," said Thompson. He claimed to have no friends that are developers.

Thompson called Montana a "pro-development state" and said that our laws were designed to help development. He said that he did not like Corn's opinion, but he could live with it.

Commissioner Howard Lyons said, "Developers and realtors merely work for landowners. The three of us also work for landowners as well." He read from a prepared statement. "Has there been wild, rampant development? I think it's a matter of opinion. Can we do zoning in a year or two? It would be a miracle if we could. Will (development after comprehensive zoning is enacted) be much different than what the Planning Department has allowed so far? I don't think so. It's part of the animal we deal with."

He said that we are looking at retirees moving in with more money than Ravalli County.

"They will do what they want," said Lyons. "This is not new to us. It is just new to us to have to deal with it." He suggested following the pattern that has taken place elsewhere in the country.

Commissioner Greg Chilcott said that when he took office he "made the mistake of mentioning the word zoning."

"But we've come a long way in five years," said Chilcott. "I am ashamed we haven't shared with you what we were doing."

He said that he objected to the idea that the drafters of the interim zoning regulation had no knowledge of planning terminology. He said that the use of the word density was clear and that the later use of the word "ratio" in relation to the limitation validated that interpretation. He said that he was not smart enough or arrogant enough to say what the voters were thinking, but he did want to get to the bottom of what was meant and that getting an Attorney General's opinion would be the way to do that.

"I want to be sure we respect the voters' wishes," he said. "Either way, the citizens win."

County attorney Beal said that it was not fair to say that the word '"density" has only one meaning. He said that it had a general meaning that can be defined further by adding terms like "average" density, or "net" density, or, "cluster" density.

"In the end it is the intent of the voters as a whole that matters most," said Beal.

Thompson moved at least three times that the Commission direct Corn to seek an Attorney General opinion and in the meantime abide by Corn's opinion. But that motion failed due to lack of a second.

Lyons moved first for a continuance, which failed due to lack of a second and then to seek an AG opinion but abide by the planning department's notion of "average density" in the meantime. That motion also failed due to lack of a second.

In the end the Commissioners agreed to direct Corn to seek an AG opinion on the matter. Without any new or explicit direction from the commissioners about how to proceed, it was agreed that the department would proceed by operating under Corn's interpretation in the meantime.

Streamside Setback Committee goes to public hearing

By Michael Howell

Last Tuesday the Ravalli County Commissioners agreed to schedule a public hearing to consider establishing a Streamside Setback Committee to help form setback regulations for the county. The public hearing is scheduled for April 12 at 10 a.m.

The idea of establishing the committee emerged from the Planning Department staff and gained full approval of the Ravalli County Planning Board last month. Following the Planning Board's recommendation, with one possible addition, the Commissioners and the public will be considering a committee with 17 voting members. Those members would include three experts in hydrology, ecology, fish and wildlife biology, geology, or other related scientific fields; two professional engineers or land surveyors; one representative from each of the following boards: Ravalli County Planning Board, Ravalli County Health Board, Bitterroot Conservation District, Right to Farm and Ranch board, Bitterroot Valley Board of Realtors, Bitterroot Builders Association, and the Bitterroot Water Forum; and five members of the public.

The composition of the committee has been the subject of some discussion and was again at Tuesday's meeting. As a result it was suggested at the end of the meeting to reserve two of the citizen seats for persons belonging to conservation groups, two for streamside landowners and one for a citizen at large.

The Ravalli County Floodplain Administrator may serve as an ex-officio non-voting member.

The committee, once it formulates a setback regulation, would recommend its adoption to the full Planning Board. From there it would go to the County Commissioners for final approval.

The Bitterroot Valley Board of Realtors has been involved for some months in formulating its own version of a setback regulation with accompanying maps. The mapping project remains incomplete but the organization has drafted a proposed resolution. It was asked at the meeting how the establishment of this committee would affect the Board of Realtors project.

Commissioner Alan Thompson said that the Realtors board had recently submitted something to the commissioners and asked them to adopt it.

"But I can't adopt anything from any one group," said Thompson.

The room full of citizens and organization representatives on hand for the discussion that day were unanimously in favor of holding a public hearing to establish the committee.

Friends of the Bitterroot representative Doug Soehren said, "We're feeling very positive about establishing a setback committee. You guys ought to be commended and the planning staff ought to be commended for the excellent public participation. We're moving in a positive direction." He asked the commissioners to consider placing a member of Friends of the Bitterroot on the committee.

Laura Merrill endorsed the establishment of the committee but urged that past work by others, such as the Board of Realtors and Fish, Wildlife and Parks, not be ignored.

"Let's take the collective wisdom already brought forth by these groups, instead of starting from scratch," said Merrill. "We need to move forward as quickly as possible."

A few members of Trout Unlimited and Ravalli County Fish and Wildlife and a member of the Bitterroot River Protection Association also spoke in favor of establishing the committee and emphasized the need for a broad based composition.

Jack Mauer, a longtime fishing guide and boater in the area, showed the commissioners some photos of a house recently placed on the riverbank following the removal of some very large trees along the bank that were in the way. He urged the commissioners to act quickly on the setback regulations to stop such development.

Commissioner Thompson referred to several news articles from around the country about water and the need to protect water quality and quantity.

"We need to be looking at it," he said, "both the ground water and the surface water." He referred to the dozen or so dams on local tributaries to the Bitterroot River, calling them a tremendous asset that must be cared for and considered.

"I'm in favor of setbacks on the river," said Thompson.

Commissioner Howard Lyons said that there was tremendous growth going on everywhere.

"We're not the only ones dealing with this," he said. "But one thing to remember is that somebody owns the land on both sides of it and under it." He said we need to think about that when we go out to chop off some areas. He said that irrigation rights were also threatened. He said that the East and West Forks of the Bitterroot River did not have much floodplain.

"Maybe this first go-round we should forget them," he said.

Commissioner Greg Chilcott said, "To me this is about balance. It's about balancing private property rights and preservation."

He said that he was one of the lucky citizens that got to pay taxes on property next to the river and even on an island in the river and also has the privilege of picking up all the trash left by the public. He said that he could support a setback regulation if it was reasonable and science-based and not an arbitrary line. He praised the work done to date by the Board of Realtors and Fish, Wildlife and Parks, calling it "a start in the right direction."

Public comments may be made in writing to the Ravalli County Planning Board, 215 S. 4th St., Suite F, Hamilton MT 59840, or call 375-6500.

RML incinerator in compliance

By Michael Howell

Dr. Marshall Bloom, Associate Director of the Rocky Mountain Laboratory (RML), and Dianne Huhtanen gave an environmental compliance update concerning disposal of infectious medical waste at the lab to members of the Ravalli County Health Board last week.

RML is part of the National Institute of Allergy and Infectious Diseases. Scientists at the lab study pathogenic, infectious agents, including viruses, bacteria and prion agents. Prion agents are involved in diseases such as "mad cow" disease in cattle and Chronic Wasting Disease in elk and other animals. Infectious disease research generates medical wastes.

According to Huhtanen, RML inactivates the infectious medical waste by treatment with disinfectants, steam sterilization (autoclaving), and incineration. These methods are typically used in concert with an emphasis on redundancy. Incineration is the final step in the process.

The reasons for incineration are threefold, according to Huhtanen. It is the best way to eliminate the potential for spread of disease to the general public. It reduces the volume of infectious medical waste needing to be transported and disposed of off site. It provides the ultimate form of redundancy for other inactivation methods. It is also the only method available, according to Bloom, that can destroy prions. They are only neutralized in heat up to 1800 to 1850 degrees.

"Incineration is the safest and most unambiguous method for destroying prions," states the World Health Organization in its Infection Control Guidelines for TSEs. The Centers for Disease Control also believes that the safest and most unambiguous method for ensuring that there is no risk of residual infectivity on contaminated instruments and other materials is to discard and destroy them by incineration.

The lab only incinerates animal waste such as bedding and carcasses and lab waste. Following the terms of a settlement agreement reached over a lawsuit in 2004, the lab no longer incinerates general refuse or recyclables, hazardous waste or chemicals, mercury-containing devices, such as thermometers, or PVC plastics.

According to Huhtanen, the lab recycles about 35 percent of its waste now or about 65 tons per year. The lab incinerated about 86 tons of waste in 2006. That's 15 tons less than the previous year. Incineration provides a 96 percent reduction in the mass and volume of waste that must be shipped out for disposal.

RML sends its incinerator ash for analysis for metal content quarterly. So far, according to Bloom, no arsenic, barium, cadmium, chromium, lead, mercury, selenium, or silver has been detected in the ash.

The emissions from the incinerator are also monitored for other pollutants and must meet EPA and DEQ standards. The emission standards for the lab's permits were based upon burning 3,504 tons per year, but the lab only burns about 86 tons per year. This may increase following the planned expansion of the lab. All waste from the BSL-4 lab will be incinerated. To date the emission test results are far below the permit limits. Dioxin emissions are 1,000 times below the allowable limit. Lead is 50 times lower, cadmium 30 times lower, and mercury 70 times lower than the allowable limits.

Huhtanen said that burning 20 pounds of waste in a barrel produces more dioxins in one day than the RML incinerator generates in an entire year.

In conclusion, she said, RML is committed to using methods that are proven to effectively inactivate all forms of infectious agents. The incinerator meets and exceeds current and proposed air emission limits and incineration eliminates public concerns about transporting infectious medical waste off site.

In other business the Health Board:
• heard from Human Resources director Skip Rosenthal that the original field of seven applicants for the vacant position of Environmental Health Department director had been narrowed to two applicants to be interviewed.
• was informed about a planned meeting with city officials from Stevensville, Darby, Pinesdale and Hamilton to address the letter to the County from DEQ regarding air quality violations. The meeting is scheduled for March 28, at 1:30 p.m.
• heard words of caution about the potential for more West Nile Virus human infections this summer
• saw a demonstration of a device called a kid-catcher that can be installed in septic systems to prevent children from falling in.

Trout Unlimited National Council wants to back away from stream access issues

By Michael Howell

The National Board of Trout Unlimited (TU), one of the largest conservation groups in the nation and a major player in the establishment of Montana's Stream Access Law, is now considering a policy change that would prohibit local TU Chapters and Councils from participating in stream access disputes.

Acting Chair of the Board of Trustees, Robert Teufel, and president and CEO, Charles Gauvin, recently informed all local councils about the pending policy change. The proposed amendment to the organization's policy would effectively prohibit any involvement in stream access issues by any local council.

"The primary reasons given for this proposed amendment are that stream access issues are divisive, stream access is not within TU's conservation mission and this issue would inhibit National TU's ability to garner contributions and cooperation from landowners for future conservation initiatives," writes Gauvin in a letter to Montana TU. This resolution goes before the Board of Trustees for a vote on March 28.

"The issues surrounding grassroots involvement in stream access disputes has been very controversial within the TU Board, with the latest compromise, in the form of the 2006 policy, representing at best an uneasy truce," Gauvin wrote in a letter to the National Council dated March 14.

"Much as we all value stream access, however, it simply is not part of the mission. Moreover, when a TU chapter or council steps into a case where claims of public access are in conflict with claims of property rights, involvement in stream access can undermine accomplishment of the mission because it is divisive and alienates landowners who might otherwise be willing partners in conservation," he wrote.

The issue reaches beyond the question of how the organization responds to dissatisfied donors, he states. He says that it has always been a difficult issue because it is inherently divisive and not a part of the mission and because it is something many members value.

"In both championing voluntary and incentive-based access programs and in leaving the door open to involvement in disputes between access and private property rights, we have tried to serve two masters and, in doing so, we have served neither well. The Teufel-Roosevelt proposal recasts TU's position in a manner that avoids organizational entanglements in disputes that, however meritorious, will almost always hurt TU in some way," wrote Gauvin. He recommends championing voluntary and incentive based access programs and prohibiting all involvement in the name of TU over stream access disputes.

Marshall Bloom, who has served as the local chapter president, as State TU Chairman, Regional Vice President, and as a member of TU's National Board, is unhappy about the proposal.

Bloom said that the Mitchell Slough controversy here in the Bitterroot was the primary genesis of the proposed change. He called Gauvin's justifications for the policy change "patently fatuous."

"The reason for this is that a small number of wealthy donors have complained using the old bromides about private property rights," he said.

Bloom said that Montana Trout Unlimited is vehemently opposed to the proposed amendment and is taking actions to convince the National Board to vote it down.

"A core value of Montana Trout Unlimited is to defend existing laws that allow public access to state waters. This is what we believe in and is what it says in our Bylaws as one of our purposes for existing as an organization," said Bloom.

He said that the ability to access streams and rivers to fish and enjoy the resource is vitally important to Montana TU members.

"Our strength as an organization comes from our members. If we lose the ability to access our streams and rivers to fish, we will lose members and TU will be a significantly less effective organization," said Bloom.

Bloom said that Montana's laws are clear and concise and that the organization should be able to defend them.

"There is no private property interest being taken away in defending these laws, but rather a preservation of an existing public right," he said.

Bloom said that the existing national policy was only enacted in 2006 and has not been given a fair chance to work. He believes that the National Board's decision must be based on the wishes and desires of TU members rather than the wishes and desires of large donors. He notes that the organization is involved in many activities that can be said to affect private property rights, including the enactment and enforcement of water quality laws, anti-cyanide initiatives for gold mining, streamside setback laws, and others.

"If we cave in to the wishes of large donors on the stream access issue due to the property rights issue claim, what issues will large donors come after us on next?" he questions.

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