Continental Divide Trail Alliance volunteers worked in collaboration with the Bitterroot National Forest to complete a trail maintenance project covering 26 miles of the Continental Divide Trail. They started at Chief Joseph Pass and ended close to the head of Hell Roaring Creek. Nick Hazelbaker, Wilderness Resource Specialist for the Bitterroot National Forest, organized the project, which was scheduled from August 8-15. Mark Lagerstrom, Forest Service crew leader, and Amanda Laban, CDTA crew leader, supervised and worked with the volunteers. Hazelbaker and Bitter Root Back Country Horsemen provided pack support by packing in materials and tools and transporting supplies and crew gear. Unfortunately, the crew was pulled out on Saturday, August 11, because forest fires, though not close enough to endanger the crew, caused the Forest Service to restrict use of roads in the area to firefighters only.

CDTA volunteers logged out the trail, added CDT signs where needed, and installed water bars. The volunteers noted that Nick Hazelbaker and his crew have done a great job working on this trail. The Bitterroot National Forest section of the CDT is on par with the Pacific Crest Trail, which is a well-known and heavily used trail. These two trail systems, along with the Appalachian Trail, make up what is called the "Triple Crown" of trails. The number of "through" hikers, those who aim to hike the entire 3,100 miles of the CDT, is estimated to be almost 100 this year. Hikers and horseback riders come from all over the nation and from other countries. Sula Store is a local business that provides resupply support for CDT hikers.

Congress established the Continental Divide Trail as a National Scenic Trail in 1978. When complete, the "King of Trails" will be the most significant trail system in the world, stretching from Canada to Mexico. Since 1995, the Continental Divide Trail Alliance has played a major role in the completion, management, and protection of the CDT. Every year the CDTA coordinates and supervises more than 1,000 volunteers to work on projects along the trail. In 2007 they organized almost 60 projects in all five trail states: Montana, Idaho, Wyoming, Colorado and New Mexico.

The CDTA's optimistic goal was to finish the trail in 2008, and it looks like about 70% of the entire length will actually be completed by then. Two major roadblocks to trail completion have been acquiring rights-of-way through some areas and separating the trail from motorized routes. Montana has 870 miles of the CDT within its boundaries with 70% projected to be finished by 2008. Depending on 2008 budget allocations, the Bitterroot National Forest section of the trail is on target to be 100% complete by then.

Commissioners will not challenge Board of Adjustments' decision

By Michael Howell

On Friday, August 10 the Ravalli County Commissioners decided for a second time not to challenge a recent decision by the Board of Adjustments to grant a variance to the Brooks Hotel subdivision proposal. The BOA decided on July 17 to grant a variance request to Russ Hunt to construct 14 condominiums on less than 3.35 acres near Corvallis. That variance would allow Hunt to skirt the Interim Zoning Regulation that limits the density of new development to one dwelling per two acres.

Approval of a variance requires, according to the law, that the Board make a determination, based upon findings of fact, that it meets all nine criteria outlined in the Interim Zoning Regulations. Failure to meet any one of the criteria would require denial of the variance request. One of those criteria requires that any variance granted must be in harmony with the general intent of the Zoning Regulations. The County Planning staff submitted a findings of fact that the proposal failed to meet at least four of those criteria. Members of the Zoning Board of Adjustments found otherwise, except for Board Chairman Phil Connelly.

On July 31, in response to protest by a group of citizens, including members of Bitterrooters for Planning, Bipartisan Campaign for Quality of Life, and author of the Interim Zoning initiative Phil Taylor, the County Commissioners considered the matter. At that meeting, the commission made a 3 to 2 decision not to pursue a challenge to the BOA decision. The only possible avenue of appeal of any decision by the BOA is to seek a review of the decision in District Court. At that meeting Commissioner Kathleen Driscoll lamented that no copies of the transcript of the meeting were available for review, making any decision about appealing the matter a difficult one due to lack of essential information. Pressured to make a decision, Driscoll voted along with Commissioners Greg Chilcott and Alan Thompson not to file a petition for review with the court.

Transcripts of the BOA meeting were eventually produced and a second meeting of the commissioners was called to reconsider the matter last Friday. Commissioner Chilcott immediately questioned the need for reconsideration of the matter.

"I don't know why we're here," said Chilcott. "We have taken action. To revisit the issue again, after taking action, is unprecedented."

But Commission Chairman Jim Rokosch stated that the previous decision was a decision not to do something at the time and, since that time, a full transcript of the BOA meeting had been made available. He said that the commissioners had a responsibility to examine the matter of whether the BOA had based its decision on credible findings of fact or not and it could decide today to do something about it. Commissioner Driscoll noted that there is a problem with making "negative" motions in general and that all motions in the future should be stated in a 'positive' fashion, according to Robert's Rules of Order." Chilcott noted that the same rule book also requires that a motion to reconsider a previous motion be made by someone who supported the original motion. Driscoll, who did vote along with Chilcott and Thompson last time, moved to reconsider the issue, "for the sake of discussion."

Stewart Brandborg, President of Bitterrooters for Planning, lobbied passionately and at great length (he was asked to wrap it up more than once by Board Chairman Rokosch), in favor of the commissioners challenging the BOA decision. He recalled in great detail the huge and costly effort by the public to establish Interim Zoning, to expand the Board of Commissioners, and to shorten terms of office. He said that the BOA decision to grant a variance to the Interim Zoning was not in harmony with the intent of the zoning regulations, was based upon fallacious findings of fact, was illegal and capricious, and amounted to a license to destroy the public initiative.

Rick Ferman agreed, calling the Interim Zoning a "blunt instrument." He said that it was nonetheless made necessary "because nothing else was being done." He said that the BOA did not do a credible job. He asked the commissioners to challenge the BOA decision and he called on them to dismiss all sitting members of the BOA.

Retired attorney Curtis Cook reiterated his opinion, given previously, that the BOA is the board of appeal for decisions made by the Planning Board and the Commissioners. He argues that, since no previous decision had been made by the Planning Board or the Commissioners concerning this subdivision proposal, there was no decision to appeal to the BOA. Outside of arbitrating those appeals, they have no authority, he argued.

Hunt's attorney, Jennifer Lint, cautioned the commissioners that if the decision is challenged the court will operate on a "presumption of correctness" on the part of the BOA and give great deference to their opinions on the matter. She also cautioned the commission that, once in court, the commissioners would "lose control over the case," and that intervenors may get involved and the case could expand into an overall challenge of the entire Interim Zoning Regulations. She said that the fear that this would set some sort of legal precedent and bind the BOA in any future decisions was not based on the law. She said that each variance request is considered on its own and that no precedent is set by any particular ruling. Deputy County Attorney Alex Beal agreed with her on this point.

Several more people spoke in favor of challenging the BOA decision and few people spoke against it.

Commissioner Carlotta Grandstaff said that after reading a transcript of the BOA meeting she believes that "the decision was not made honestly." She pointed specifically to the fact that no discussion was held concerning the criteria that got a positive recommendation from the Planning Staff except to give them blanket approval. She took this as an indication that the board was only intent in overturning findings that were deemed negative by the staff.

Commissioner Driscoll stated that the real problem was with the make-up of the BOA. She said that the membership on the board should be the focus of the County Commission. She also stated that she believed the BOA did not base its decision on credible findings of fact.

Deputy County Attorney Alex Beal expressed agreement with Lint over the question of precedent, that no legal precedent is established by this BOA decision, and also that some collateral issues may be brought into the case that could complicate it excessively and involve the legitimacy of the Interim Zoning Initiative itself. He also stated that it would be a severe burden on the County Attorney's Office and could "shut down the County Attorney's Office for weeks."

Commissioner Thompson admitted that the BOA decision may have involved "a lot of mistakes," but said that the decision could be understood as a learning experience and that the board should be given a chance to improve its process.

Commissioner Chilcott agreed with Thompson that the volunteer board members should be given a chance to learn from their mistakes. He stated that the subdivision proposal in question was the kind that the final Comprehensive Zoning Ordinance would probably approve. He said that he supported responsible and sensible countywide zoning and that it was worth fighting for, but this case was not the one to pursue that fight over.

Commission Chairman Jim Rokosch stated that, after studying the transcript, he could not find any credible findings of fact for reversing the planning staff determination that the proposal had not met at least four criteria. He also questioned the determination that this proposal represented a unique hardship created by the physical characteristics of the property. He also stated that, in his opinion, no credible evidence was presented to establish that this was the "minimum deviation required" in relation to the standard requirements.

Chilcott made a motion to table the issue indefinitely. That motion failed due to lack of a second.

A motion to file a petition to review the BOA in District Court was then defeated in a 3 to 2 vote. Rokosch and Grandstaff voted to file the challenge. Chilcott, Thompson and Driscoll voted against.

Afterwards, Driscoll stated that she did not believe the BOA decision was based upon a credible findings of fact, but she did not want to see the case go to court and then balloon into a case against the Interim Zoning Regulations.

"At this point in time," said Driscoll, "I'm going to sit down with the BOA and see if they can make a decision that is inside the intent of the interim Zoning Regulations or not." She said that any member of that board who could not recognize the restrictions of the Interim Zoning and try to uphold them should be removed from the board.

Developer Russ Hunt said that he was happy about the commissioners' decision and glad that the taxpayers would not have to pay for resolving the conflict. He said that this was just a decision to grant him a variance and that his proposal still needed to move through the subdivision review process and meet final approval by the Commissioners.

County seeks reimbursement for alleged evasion of subdivision law

By Michael Howell

The Ravalli County Commissioners decided last Thursday, August 9, to send a letter to Terry Nelson demanding reimbursement to the county to meet the costs of mitigation that might have been collected through the subdivision review process if Nelson had not evaded that process. Nelson has been accused by neighbors of evading the subdivision law by creating a 7-lot subdivision off of Airport Road northeast of Stevensville through abuse of the Family Transfer process.

According to state law a person may divide their property by deeding portions to family members without going through the subdivision review process. Nelson did that to a 14-acre parcel of land when he filed six family transfer deeds in 2004, conveying those lots to various family members including his wife and children. However, neither Nelson nor any of his family ever lived on those lots and all seven, including the remaining lot, were instead sold to third parties within a year or two. Neighbors accused Nelson of evading the subdivision law as early as 2004 but the county did nothing.

However, when over 15 people brought the matter to the current commission's attention a few weeks ago, it was decided to look into potential legal actions to recoup the money that Nelson would have been required to contribute to the county if he had pursued a subdivision rather than used the family transfer mechanism.

In a memo dated August 2, Deputy County Attorney Alex Beal noted that, under criminal law, the one-year statute of limitations for prosecuting the act had passed, removing criminal prosecution from the options. He was also asked to consider possible civil actions. He states that, generally this consists of identifying the legal claim, such as "negligence," "infliction of emotional distress," "breach of contract," "slander," or other identified claim.

"Upon researching the matter, I do not believe we have a traditional legal claim that applies to this situation. What we are left with, however, is a suit in equity, most likely for 'unjust enrichment'. Unjust enrichment is an equitable concept designed to prevent a party from benefiting from its wrongful acts," wrote Beal.

This would require proving that Nelson evaded the subdivision regulations, and as a result, unjustly was enriched by the amounts he did not expend on the project to bring it into compliance. This would include the cost of bringing the road internal to the subdivision up to county standards as well as a pro-rata share for road improvements of the county roads accessing the subdivision. It would also have included payment in lieu of land for a park dedication, as well as payments to offset impacts to the school district, fire district, and sheriff's office. While the exact amounts potentially owed were not determined, a preliminary estimate of Nelson's pro-rata share for road improvement at the time would have totaled over $45,000.

At Friday's meeting Nelson's father Gary Nelson and a few other people criticized the commission for even considering such a retroactive recovery of funds. David Markette, attorney for Nelson, told the Commissioners that they would have to prove intent to evade the subdivision regulations and that this could be very difficult. He called it a "long row to hoe." He said that such an attempt would also open the county to charges of selective punitive enforcement unless they examined all other family transfer cases for similar violations. He said that at the time of these actions the Family Transfer was "a recommended alternative" to subdivision.

"You can't afford to go back and retroactively apply these laws to a single case," said Markette.

Tom Arnott, a local landowner, reminded the commissioners that the county was informed of the violation in a timely manner by the neighbors, but nothing was done.

"Something's going to happen," said Arnott. "We are getting our own attorney."

County planning staff noted that the County Attorney had addressed the issue of the Family Transfer loophole in a memo in 2005, advising that once a family transfer deed was recorded the Clerk and Recorder could refuse to transfer the deed again through sale to a third party for up to 5 years. In 2006 new county subdivision regulations were adopted defining subdivision evasion and enforcement.

"The problem is, we have a de-facto subdivision with a substandard road. What are we going to do?" asked Commissioner Carlotta Grandstaff.

Commissioner Kathleen Driscoll said, "Terry's knowledge has something to do with this. He knows the law and it worries me that he took advantage of this."

Commissioner Greg Chilcott said that the problem was really a loophole in the family transfer law that was "big enough to drive a Mack Truck through." He said that since then the county attorney had addressed the deficiency in a memo and the county's subdivision regulations had also been changed in 2006 to address the issue.

"I think this family transfer met the litmus test at the time and we should not be going back on it now," said Chilcott, especially when "intent" is so hard to prove.

Thompson essentially agreed with Chilcott that the law may have been simply inadequate at the time.

"We looked at the criteria, we sought legal advice and there was nothing to be done except to change the law. We did that," said Thompson. He said that they also sought change in the state law to cover the loophole but the attempt was defeated in the legislature. He said that he has always objected to a family transfer of land from a husband to a wife but the law at the time must be followed.

"If we go back retroactively it worries me," said Thompson.

Rather than file suit in District Court alleging unjust enrichment, a motion was made to send a letter of demand to Nelson asking him to pay the estimated costs, which still need to be accurately calculated, of mitigation measures that would have been required for a subdivision. That way some resolution of the issue might be reached while avoiding the costs of litigation. The motion was passed unanimously.

Notaro rehired as Stevi High School principal

By Michael Howell

Jim Notaro has been re-hired as Stevensville High School principal for the coming school year. Following the recommendation of then school district superintendent Dennis Kimzey last spring, the Stevensville School Board decided not to re-hire Notaro and advertised the position looking for a new recruit. Following a more recent closed door session on the issue involving the new superintendent Kent Kultgen, however, it was agreed to offer the job once again to Notaro. Notaro accepted the offer and has already begun work as of last week.

Notaro, who was not present at the closed door session in which the principal's position was discussed, said that he was glad to be back at work and excited about preparing for the new year.

"I'm not sure how all that came about," he said, "but I'm glad it did."

Superintendent Kultgen said that he could not comment upon what transpired in executive session.

At its July 26 board meeting, the School Board of Trustees agreed to a reduction in force to make up for a shortfall in the budget. The Board agreed to cut one high school para-professional position, four para-professional positions in the elementary school, and one position in the maintenance department to cover a $60,000 shortfall in the budget.

Kultgen explained to the Board that the budget shortfall was due to a failure of the Office of Public Instruction to deliver on promised funding totaling about $119,000. As a result about $56,000 was cut from the budget from every line item possible leaving the district still about $60,000 short. He said a reduction in force was the only way to meet those required cuts. It was decided to recommend elimination of four para-professional positions in the elementary school, one in the high school, and a maintenance position to make up for the missing funds. Although the school administration decides where the cuts are to made, the union decides which people will be cut based on seniority.

"It is not based on job performance," said Kultgen.

Kultgen also recommended suspension of funding for the girls and boys cross country program.

"When you are cutting in academics," said Kultgen, "you have to cut in sports."

He said that cutting the program would not be so significant given the fact that all three students in the program last year had graduated and the coach had resigned. Only one student had expressed interest in joining the program for the coming year.

Kultgen said that "enacting a reduction in force was one of the toughest things any administrator could do."

The Board approved the cuts and the suspension of the cross country program.

Kultgen also cautioned the Board that further cuts might be required if the district is forced to hire an additional sixth grade teacher due to rising enrollment in order to maintain state required levels of student per teacher ratios. The state does not allow a teacher's classroom to exceed a certain number of students. It is different for different grades but the limit in the sixth grade is 30 students per teacher. With only two sixth grade teachers and a student enrollment of 56, the sixth grade is close to exceeding the state limit and if enrollment in September exceeds 59 students the school will be forced to hire another sixth grade teacher, he said, which might require further cuts, although other ways to meet that demand may present themselves and would be considered.

Kultgen produced spreadsheets showing the elementary and high school budgets separately. Expense line items were grouped into three categories: wages and benefits, non-discretionary expenses such as utilities, insurance, telephone, etc., and discretionary expenses such as repairs, rentals, travel, supplies, gas, periodicals, minor equipment, etc. In the high school discretionary items comprise about 8.48 percent of the total budget while non-discretionary items comprise 9.87 percent of the budget. Wages and benefits comprise 81.65 per cent of the budget. In the elementary school it works out to discretionary at 5.28 percent, non-discretionary at 7.10 percent, and wages and benefits comprising 87.62 percent of the total budget. Office and administration amounts to about 5 percent of the total budget in each school. The budget for high school athletics is 3.72 percent of the total high school budget. In the elementary school it amounts to only .85 percent.

Kultgen also told the Board that the Head Start program which has been housed at the Lone Rock School was looking to relocate to Stevensville. He said that the federal government, which sponsors the program, had approved a potential remodeling project to convert the Alternative Learning Center, which is not a currently active program on the Stevensville campus, into a Head Start quarters. However, the government would need to secure a 99-year lease on the property in order to justify the investment. The federal government also approved an alternative development in which it would transport a modular that it already owns from Wyoming and place it on the school grounds. In that case the government would require only a 20- to 25-year lease, the estimated life of the structure.

Board members expressed reluctance concerning a 99-year lease, but were willing to consider a 20- to 25-year lease for the modular. Kultgen said that he would report that the concept of the 20- to 25-year lease was acceptable and ask for further details.

County holds zoning informational meetings

By Michael Howell

The Ravalli County Planning Department sponsored two public informational meetings recently to kickoff its efforts at formulating and adopting countywide zoning regulations. One was held at Lone Rock School and one at Hamilton City Hall. Both featured a presentation on population growth and trends in Ravalli County by Dr. Larry Swanson of the O'Connor Center for the Rocky Mountain West.

At the meeting at Lone Rock School, Swanson raced through a series of charts and graphs showing population trends in Ravalli County and across the nation from the 1980s through about 2005 and projected trends to 2025. The amount of information presented was staggering.

While two-thirds of Montana is losing population, western Montana is gaining. In July of 2005, Ravalli County's population was estimated at 39,940. That is an increase of 3,870 persons since the 2000 Census, representing a growth rate of about 10.7 percent over five years. Ninety-eight percent of that growth was from more people moving into the valley than were moving out, net migration.

But Swanson said that figures show that the growth rate is declining. From a high of 5 to 6 percent annually in the mid 1990s, it was measured at 2.7 percent in 2002-2003 and 1.2 percent in 2004-2005. Despite this slowing growth rate, at a projected 1.8 to 2.8 percent annual growth the valley population would reach between 57,000 to 72,000 in the year 2025.

According to Swanson, the county's population is also aging. In 1980 the median age in the county was 32. In 1990 it was 38. In 2000 it was 41.

A growing population also means a growing number of housing units. In 1980 there were an estimated 9,000 housing units in the county. In 2005 there were 16,300. By the year 2025 we can expect to find between 24,600 and 31,000 housing units in the county.

As the population and the number of housing units grows the amount of agricultural land shrinks, according to the figures compiled in a study done by Swanson for the Ravalli County Farm and Ranch Board and the Bitterroot Land Trust. In the 1980s it was estimated that 7 acres of agricultural land was lost for every new housing unit. In the 1990s this dropped to 5 or 6 acres for every housing unit. It is estimated that an additional 38,000 acres of ag land will be lost in the next twenty years reducing the amount of land in agriculture from the present 210,000 acres to about 170,000 acres.

Swanson notes that the most growth in the nation is occurring in areas surrounded by public lands, mountains and forests, and large open spaces. He said that Ravalli County is a "peninsula" in a sea of public land. The nation's population has become increasingly mobile. And instead of following jobs, as it did in the 1980s, in the 1990s the migration is coming first and the jobs are following. This is due in part to a more "footloose" economy based in information technology, etc. and a growing number of people living on non-earned income such as stocks and pensions. He said that half of the income in the Bitterroot valley is from other than work.

What increasingly counts is the quality of the community, the workforce and the surrounding environment. By protecting the environment and the other amenities the community also protects property values. If a place is being trashed out, he said, property values will drop.

All this information and more can be accessed on the internet at http://crmw.org/read/Downloads/BRLT/Parts1-4.pdf.

The county Planning Office has already produced a draft version of Ravalli County Zoning Regulations. It is available for public review. This and other information will be hashed over at a set of "Nuts and Bolts" meetings across the county. The first is scheduled for Thursday, August 16, in the Commissioners' Meeting Room in the County Administration Building, 215 S. 4th St., Hamilton.

For more information contact the Planning Department at 375-6530 or e-mail planning@ravallicounty.mt.gov.

New superintendent at Stevi

By Michael Howell

Kent Kultgen, new Superintendent of the Stevensville School District, recently moved here from Choteau, Montana, with his wife, Lyla. They have three children. The oldest is married and is a graduate student at Montana State University in Bozeman. Their two younger boys will be attending Stevensville schools, one a junior in High School, the other in the sixth grade.

This is Kultgen's seventeenth year in education. He was superintendent of schools in Choteau for the last five years.

"Born and raised in Montana, I know the challenges we face living in this great state," said Kultgen. "As superintendent I am well aware of these challenges, especially as it relates to funding education."

Kultgen graduated from Montana State University Northern in Social Studies and Education in 1991. He received his Master's degree from MSU in Bozeman in Education Leadership and is currently working on his doctorate degree.

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