Bitterrooters for Planning awarded $70,000 in legal fees in Legacy case

By Michael Howell

On Wednesday morning, May 4, the Ravalli County Commissioners voted unanimously to approve a $70,000 settlement agreement for legal fees incurred by Bitterrooters for Planning in its successful challenge of the Commissioners’ approval of the Legacy Ranch subdivision.  The District Court overturned the approval and awarded legal fees to BfP. The county challenged the initial fee proposal and BfP attorney Jack Tuholske, working with the legal committee of the BfP board of directors, drew up a settlement agreement which called for the county to pay $70,000 to BfP within 14 days, which the Commissioners accepted. The Ravalli County Commissioners held two public meetings on the proposed $70,000 settlement agreement before accepting it.
The Legacy Ranch subdivision, proposed by Donald and Alexandria Morton, Sunnyside Orchards LLC, was the largest ever proposed in the county. The 659-unit subdivision proposal included 504 single family homes, 135 residential condominiums and 20 commercial condominiums to be built on 368 acres located along the Eastside Highway north of Stevensville and adjacent to the Lee Metcalf national Wildlife Refuge. The subdivision was to be developed in 15 phases over thirty years. The first phase was scheduled for completion about five and half years after preliminary plat approval and the final phase was scheduled for completion on January 31, 2049.
The subdivision application was submitted to the county in 2006 including a Traffic Impact Study and Environmental Analysis. The application took a long time to reach the “sufficiency” stage for review purposes. The Commissioners finally approved a preliminary plat in July 2013.
BfP appealed that decision and District Court Judge James Haynes found in their favor and voided the subdivision decision in an order issued on July 31, 2015. Haynes found that the Commissioners had violated state law limiting the approval of a preliminary plat to three years. He notes that the first phase of the subdivision is not even projected to be complete until six years following the approval. Haynes also rejected the county’s argument that because they are permitted to renew and extend the approval at the end of three years and that there is no limit on the number of times that this extension can be granted, that they should be able to make a preliminary plat approval covering thirty years.
Haynes judged the language of the law to be simple, clear, unambiguous, and the commissioners’ arguments to be “perplexing” and ultimately “absurd.”
“In this context, the BCC’s proposed interpretation yields an absurd result,” wrote Haynes, “[that] 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.” He illustrated this in the case of the Traffic Impact Analysis and the potential impacts on wildlife and wildlife habitat.
Haynes also found that the Commissioners had not taken a “hard look” at the potential environmental impacts of the subdivision as required by law. He focused on the effects on public health and safety and the effects on wildlife and wildlife habitat.
Haynes noted that the Traffic Impact Study that the commissioners were basing their decision on was already outdated and contained inaccurate information. He declined to accept the commissioners’ attempt to address this by making the approval “conditional” on a new study being done at some point. Haynes found that according to Ravalli County’s regulations, for the new traffic study to be entered as evidence in the future it would have to meet a higher standard and represent a “critical” threat to public health and safety. He also notes that the word “critical” is not used in the Montana code.
“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,” wrote Haynes.
Concerning wildlife and wildlife habitat, Haynes noted that there was no evidence in the public record that the commissioners ever considered the evidence offered by experts and the public concerning the potential effects on wildlife and wildlife habitat. This included comments from biologists concerned about disruption of migration corridors and a detailed scientific report by professional wildlife biologist Skip Kowalski which identified a wildlife corridor running through the area connecting the Sapphire Mountain range, across the Bitterroot River and the Metcalf Refuge, to the Bitterroot Mountain range on the west. Haynes found that “the BCC neither compiled a complete record nor analyzed the existing record reasonably with respect to Biologist Kowalski’s report.”
Haynes noted that these failures are each significant enough alone to void the subdivision but he found that by deferring 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,” it had violated the public’s constitutional right to participate in that process.
The Court issued rulings on the merits of the litigation and awarded attorney fees to BfP in February 9, 2016. The Commissioners objected to the amount of attorney fees and requested an evidentiary hearing. The parties then engaged in negotiations to resolve the matter and the result was a settlement agreement in which the County will pay $70,000. The Board of County Commissioners must approve the settlement agreement for it to take effect.
At last Wednesday’s meeting to consider the matter, James Rokosch, Executive Director of BfP and a former county commissioner, read a letter on behalf of BfP President Skip Kowalski stating that the Legacy Ranch lawsuit was unnecessary and a waste of valuable time and resources on everyone’s part, “especially the taxpayers.”
“Had the commission given due weight and equal consideration to public input this lawsuit would not have been filed and time and resources would not have been wasted,” stated the letter. “The Court also agreed with BfP that ‘the commissioners should pay for their own failure to prepare an adequate EA’ and for ‘approving a near four decade buildout in direct violation of Montana law.”
It stated in the letter that BfP wanted to work with the local government as partners and not as adversaries.
“In Montana citizens have the constitutional rights and responsibilities to participate in every level of government decision making process, and to maintain and improve a clean and healthy environment… BfP seriously respects these rights and responsibilities and we implore the commission to do likewise in the future,” stated Rokosch.
Commissioner Greg Chilcott said that he was “troubled by the court’s suggestion that the commissioners did not take the public’s comments seriously.” He accused Rokosch of being on the commission when a subdivision with a phasing plan that exceeded the statutory requirement was approved.
“I find the hypocrisy of some of the rhetoric that is being thrown out there disturbing,” said Chilcott. “Had it not been for that element of the law I would have been for appealing certain assertions made by BfP and the court because I don’t think they are correct. They do not represent the care, the courtesy and the very serious effort by this body to take public comments and consider it carefully in this decision matrix.”
He said that “many people took many bites from the apple in public comment and I think we considered the comments.” He said that it wasn’t fair for the court to find that the commission didn’t consider the public’s comments just because they didn’t state it on the record. He called the “hard look” standard “a completely new law applied to subdivisions that we have not seen or heard before anywhere in Montana.”
Chilcott said if they had denied the subdivision the developer would have sued and “that lawsuit would have had a couple of commas and a lot of zeros added.”
He admitted that the phasing plan did not meet the standard of the law but, he said, there were a number of subdivisions in the county and around the state that exceeded the legal phasing limits.
“That’s something we have to address with the legislature,” said Chilcott. He also argued that by denying the subdivision it still left 35 to 40 parcels already created that would be developed haphazardly instead of in an orderly and phased development.
“I don’t think this is a win for the county,” he said.
Commissioner J. R. Iman agreed, saying all the ten-acre tracts in existence could be developed with undeveloped roads, no water system, no sewer system, no plan for the schools and no plan for the refuge. He said the commissioners made “a legitimate effort” to consider all the comments but that the standards that were part of the process were “applied… not necessarily according to the law, and we were called on that. There’s no question about that,” he said.
Iman called the “hard look” issue “a game where there are no rules.” He said the “hard look” standard had not been vetted yet. He said there were two ways to handle the issue, “the backwards way to say you did it wrong and we are going to penalize you or in a positive way and that is to go to the legislature and clarify the law.”
The first public meeting on the legal fee settlement agreement was continued to Wednesday, May 4. “We will take public comment at that time and then go ahead and sign the agreement,” said Commission Chair Ray Hawk, and that is just what they did.