By Michael Howell
District Judge James Haynes issued an Opinion and Order last Friday reversing and voiding the August 14, 2013 decision by Ravalli County Commissioners in which they approved the preliminary plat for Legacy Ranch subdivision, the largest subdivision ever approved in the county. Haynes found in favor of Bitterrooters for Planning (BfP), a local non-profit organization that contested the decision, on at least three counts, any one of which was sufficient grounds to void the commissioners’ approval. Haynes found in his ruling that the Commission violated the public’s right to meaningfully participate by basing its decision on information not presented to the public; for basing its decision on an inadequate Environmental Assessment (EA); for its failure to collect and analyze with a “hard look” the primary subdivision review criteria described in state law and for its initial authorization of a greater than three year period of preliminary plat decision validity. He also found the commission had violated the right of the public to participate by failing to provide meaningful review of water quality and traffic information.
Sunnyside Orchards, LLC first submitted its proposal for Legacy Ranch in February 2006. The developer proposed a 659-unit subdivision consisting of 504 single-lot family homes, as well as 135 residential condominium units, and 20 commercial condominium units. Legacy Ranch is proposed to be built on 368 acres along the Eastside Highway north of Stevensville over a 30-year, 15-phase plan, with Phase 1 scheduled to complete in January 2019, almost five years after the preliminary plat’s approval date. Full build out of Legacy Ranch at Phase 15 is projected for January 31, 2049.
The initial submission included an EA dated January 31, 2006 and a Traffic Impact Study (“2006 TIS”) dated February 1, 2006. The 2006 TIS assumed occupancy would begin in late 2006 and a “20 year (anticipated year 2025) build horizon,” which the study’s author wrote was calculated using a “conservative” estimate.
In November 2006, Ravalli County voters enacted interim zoning regulations limiting housing density to one residence per two acres. A month later, the County Planning Department denied Legacy Ranch in its sufficiency review based on the new interim zoning regulations, halting the project. Sunnyside then joined a coalition of developers who sued the County over these interim zoning regulations. In that lawsuit, known as the Lords case, the County settled in an agreement which allowed all the developer/plaintiffs to proceed without the interim zoning under either the 2006 or 2007 Ravalli County Subdivision Regulations (“RCSR”). The Lords settlement agreement provided for Legacy Ranch to have its application reviewed by an independent consultant.
Sunnyside resubmitted its application for Legacy Ranch in November 2007, and the review process continued for five more years under the 2007 county regulations. The public record demonstrates numerous deficiency letters followed by inadequate responses. Then on October 4, 2011, Sunnyside and the County entered into a written agreement under which the County would review Legacy Ranch instead of the independent consultant and the County would not be bound by any of the consultant’s previous determinations.
By letter signed and dated November 16, 2011 by County Planner Terry Nelson, the County, upon its assumption of review, informed Sunnyside’s agent of several deficiencies in its most recent sufficiency submittal and advised Sunnyside of “… new subdivision regulations which should be adopted soon… You may wish to consider reviewing the application to see if it would work better under the new proposed regulations and continuing under them once they are adopted.”
Then in a letter dated October 2012, the County again cited Legacy Ranch’s environmental documents for numerous deficiencies, even under the 2012 regulations.
The County Commissioners held several public meetings on Legacy Ranch in June and July of 2013 and subsequently voted 5-0 to conditionally approve Legacy Ranch subject to more than 130 conditions.
Haynes reordered and restated the issues that were presented by the litigants as a series of questions. He begins by noting that the Planning Department had requested that the developer provide several items of information required by the 2012 regulations but that nothing was ever added to the EA to address those concerns.
But over the issue of applying the 2012 regulations, Haynes also states that neither party addressed the real issue involved, “that the Release and Settlement Agreement in Lords states: ‘The Parties agree and acknowledge that the terms of this Release and Settlement Agreement are contractual and not a mere recital’.” This means, he notes, that the original agreement to use the 2007 regulations could only be modified by a further agreement between both parties to use the 2012 regulations and this modification may have required approval of the federal court in Lords. Neither party, he wrote, “analyzed the failure of Sunnyside and the County to implement the proper contract modification process.”
Haynes declines, however, to develop or to further address the issue since other issues have sufficiently invalidated the decision.
Haynes then asks whether there is a time limit to the period for which a preliminary plat can be valid under the Montana Subdivision Platting Act, including the “hard look standard,” established in the Clark Fork Coalition case.
Here Haynes finds squarely in favor of Bitterrooters for Planning and the claim that the commissioners violated the law in their phased-in approval process by presuming a preliminary plat to be valid for more than three years. The Commission’s preliminary plat decision allowed Sunnyside almost six years after issuance of the preliminary plat decision to complete Legacy Ranch’s phase 1 (plus a 30-year phased build out).
Haynes called the provision in the law “unambiguous” and adds, “The Commissioners’ interpretation that this language ‘is anything but clear’ is perplexing.” He notes the commission made no effort to explain how it arrived at this interpretation other than to state that the law ultimately puts no limit on the length of time a local government can provide to a preliminary plat approval.
In this context, he states, the commissioners’ proposed interpretation yields an absurd result – a subdivision could be approved for an unlimited period of time, rendering the baseline information provided at the preliminary plat stage and the “hard look” analysis meaningless.
The county claimed that its interpretation is validated by Missoula County and the City of Missoula’s phased subdivision processes. But, as Haynes writes, they argue “as if the prevalence of an unreasonable interpretation could create ambiguity in the face of clear statutory language…” and they “generically point to the Missoula County Subdivision Regulations and the City of Missoula Subdivision Regulations as proof that other local governments ‘agree’ with Ravalli County’s interpretation.”
But Haynes painstakingly goes through a hypothetical comparison of the same proposed subdivision going through the two Missoula jurisdictions and the Ravalli County process to concretely illustrate the differences.
He finds that Ravalli County’s process does not conform to the law in at least three respects. First, the phased development does not satisfy the requirement in the law that the preliminary plat approval be valid for no more than three calendar years. Second, the phased development does not satisfy the “hard look” requirement because the subdivider only provided relevant data for a five-year period but the commissioners initially approved an eight-year total build out period. Third, the phased development extension does not satisfy the “hard look” requirement because the county extends the preliminary plat approval period beyond the period for which the subdivider had previously provided it with pertinent information. He calls the county’s multiple “sequential” filing of “final plats” through phases to be inconsistent with the definition of “final plat” in the law. He notes that the issue cannot be remedied by simply limiting the preliminary plat decision to three years because the decision itself was “unreasonable” to begin with.
Haynes also resolved the “hard look” issue in relation to two categories that should have been reviewed with a “hard look,” the impacts to public health and safety and to wildlife and wildlife habitat.
He found that the county failed to compile and consider the data necessary for a complete traffic impact study, even under its own 2012 regulations. He notes that despite Planning Board recommendations and requests from MDOT, the Commissioners never required the developer to prepare a new traffic impact study. Instead, the county directed the developer to prepare a new, post-preliminary plat traffic study.
“The Court concludes that neither Sunnyside (in its EA) nor the BCC compiled and considered all relevant data: a traffic study for the full build out period, using the current version of the ITE Traffic Generation manual as required by the 2012 regulations.”
In the decision, the county claimed to reserve the authority to impose additional conditions upon each phase of the subdivision, allowing public comment at that time and imposing new conditions “if, the condition(s) are necessary to address any critical public health and safety issues.”
Haynes found this claim to deferred consideration of mitigation until the final plat stage false and unlawful for three reasons: one, because the law plainly states that “after the application and preliminary plat are approved, [the local government] may not impose any additional conditions as a prerequisite to final plat approval.” Secondly, the commissioners would be unable to change or add any mitigation unless they can show that it is “critical” to public health and safety, but provide no definition of the word nor is it used in the law.
“The Commissioners have chosen and elevated an unnecessarily high burden found nowhere in Montana law to the sole benefit of Sunnyside above the BCC’s statutory duty to protect the public interest,” he wrote.
Thirdly, he states, the decision to defer collection of hard data on traffic vitiates the public’s right to participate under Article II, Section 8 of the Constitution.
Haynes also found that neither the EA nor the County satisfied the “hard look” standard. He found the commissioners totally ignored evidence submitted by wildlife biologist Skip Kowalski about a wildlife corridor in the area and failed to do any study of their own, concluding “neither the EA nor the BCC adequately compiled a record with respect to nor analyzed the issue of wildlife migration corridors, an issue which is closely linked to the inadequacy of the 2006 Traffic Impact Study.”
The Court finally concludes, on alternate grounds, that the County violated the right of public participation when it deferred the compilation of an adequate record upon which the public could comment until after the approval of the preliminary plat decision, when any public participation with respect to the new information would be essentially meaningless in terms of the local government decision making process.
BfP’s attorney Jack Tuholske said, “The court’s thorough and well-reasoned decision shows that the Ravalli County commissioners had ample warning that Legacy Ranch had numerous legal flaws and should have been sent back to the drawing board. Montana’s subdivision laws protect the public interest and allow for responsible development. Legacy Ranch did neither.”
BfP’s president Jim Rokosch said that the commissioners’ actions with respect to the traffic impact study in this case epitomizes the entire process as it was conducted.
“The positive aspect of the ruling is that indeed, citizens have the right to participate in their own governance. But the public can’t assume that our elected officials will act in the public interest, it involves willful and active engagement,” said Rokosch. He said the commissioners showed arrogance and a disdain for meeting their statutory obligations and failed as custodians of taxpayer dollars.
“And the majority of commissioners that made this decision are still on the board,” he said.