By Patti Eldredge, Victor
I appreciate Jeff Burrows’ editorial piece in October attempting to explain the commissioners’ $675K settlement with Big Sky Development in May 2014, and their $300K settlement with Morado Mountain in 2013. But it contains some inaccurate information and misinterpretations that I’d like to address. He says that Big Sky/Sandhill Ridge had twice the number of lots as Morado. Wrong. Big Sky was 35 lots, Morado 58 lots. The Big Sky developer ended up getting $19,286 per lot in his settlement, while Morado got $5,172 per lot. A pretty big difference for being co-plaintiffs.
He states that Commissioners Driscoll, Grandstaff, and Rokosch who denied the variance in May 2008 were “anti-development at any cost.” This is not supported by the record. They approved dozens of subdivisions between taking office in January 2007 and when the real estate bubble burst in 2008 and 2009 and the applications dried up. In the Big Sky and Morado variance requests, they were following the county’s road standards for major subdivisions in effect at the time. This group of commissioners did make mistakes – such as the disastrous draft zoning plan – but the Big Sky and Morado variance denial wasn’t one of them. It was justified.
The fact remains that Commissioners Burrows, Chilcott, and Iman and their legal team are responsible for the settlements, and trying to shift that responsibility onto the earlier BCC is flat-out wrong. It would be refreshing if they would just own this decision, and stop blaming it on the previous Board.
Burrows refers to Judge Haynes’ statement in his December 2010 ruling that the BCC had been “arbitrary and capricious” in denying the variance. A closer look at the court document shows the judge was referring to the procedure they followed. Their procedure was based on a confusing set of written criteria in the county’s subdivision regulations at the time, and on requests by the developers to revisit the issue because one of the commissioners was absent when the first vote was taken. Burrows incorrectly states that the judge said there had been a “taking.” This is simply not true. In fact, the judge specifically said there had been no taking. All of the developer’s constitutional claims about due process were subsequently dismissed.
The judge ruled that the variance be remanded back to the BCC for a do-over. He said that damages were not an issue at that point, and that the variance denial actually saved the developers money, given the collapse of the real estate market late in 2008. Many others have pointed out the same thing.
It’s clear that both of these developers came late to the real estate bubble. In May 2008, the S&P 500 Index was already falling, due to the national sub-prime mortgage crisis. It hit bottom in the first quarter of 2009. Even allowing that the crisis took a while to reach Montana, if Big Sky (Sandhill Ridge) and Morado Mountain had been approved on schedule with no delays, the developers would have invested more money in their subdivisions, and would have been left with lots for which there was absolutely no market. The developers may have argued that denying the variance in 2008 caused them to miss a window of opportunity, but in reality they had already missed it.
So how these developers and their legal counsel convinced Commissioners Burrows, Chilcott, and Iman to give them all this taxpayer money remains the enduring mystery. I’ve tried to find legal justifications for it and can’t. At least the case is over – that may be about the only good thing that can be said about it.
My open letter published in September may have been a “political hit piece” as Commissioner Burrows says, but it wasn’t partisan. I wouldn’t care what party had awarded these settlements – Republicans, Democrats, or Citizens for a Poodle-Free Montana. It’s the settlements themselves and the way they were approved that are the problem.