By Michael Howell
The Ravalli County Commissioners met last week with local legislators and prospective legislators, to discuss bills being proposed in the upcoming legislative session.
Representative Ed Greef, running for re-election in the north valley, spoke about the proposed changes to the subdivision regulations that would address the county’s concerns about the “hard look” standard from the Montana Environmental Policy Act that has been invoked in recent subdivision review cases, including the Legacy Ranch case here in the Bitterroot. He said the county’s concerns about phasing in subdivisions was also being addressed.
Commissioner Greg Chilcott said that the “hard look” standard was “a moving target, not defined or that continues to be defined.” He said it takes away the commission’s discretionary power which the law gives them.
“We need to go back to the traditional ‘arbitrary and capricious’ standard,” said Chilcott.
Deputy County Attorney Howard Recht said the changes being made are “to make it clear what standards apply to the county’s decision making process and what standards the court is going to apply.” He said the words “hard look” do not appear in Montana statute or the Montana constitution. He said it was a phrase being used by the courts that makes it difficult for the County Commission when the definition is in flux and it is unclear what it applies to.
Concerning phasing problems, Recht said that the court has ruled that statutes do not allow for phasing.
“The proposal is to change the legislation to make it allowable,” said Recht. He said it would have to involve some process for public comment as the phases are being approved.
Jim Olsen, candidate for a seat in the Senate, said that the commissioners should think twice about changing the law concerning phasing subdivisions. He said, for example, what if it was determined at one point that the river was being unacceptably polluted. The county could end up with a lot of approved but not-yet-built-out subdivisions sitting on the table.
“I’d think hard about phasing,” he said.
Former Commissioner Jim Rokosch said that taking a “hardly look” instead of a “hard look” was not the answer.
“It’s not a fuzzy situation at all,” said Rokosch. He said public information needs to be put on the scales and weighed to determine if it is significant or not. It cannot be just ignored. “If you don’t take a ‘hard look’, but only a ‘hardly look’, your decisions will continue to be arbitrary and capricious, no matter how you define it.”
Rokosch noted that the problem with phasing subdivisions was that the information used at the time of approval might not apply at the time the final phases are under way.
“Resource management by litigation doesn’t serve the citizens well and doesn’t serve the developers well,” said Rokosch.
Representative Theresa Manzella said that she was supporting legislation that would raise the limit that would trip the requirement for paying prevailing wages on county contracts. She said the proposed legislation would differentiate between construction projects and non-construction or service type projects.
According to Manzella, currently if the county wants to take out a service contract from a local vendor and the project cost exceeds $25,000, then the contractor must be paying “prevailing wage rates.” She said most local vendors can’t afford to pay that much and cannot bid on the project. She would like to see the limit bumped up to $75,000 or $100,000.
Commissioner Jeff Burrows agreed. He said that local service providers can’t afford to pay those kind of wages and will simply not put in a bid. He said it could make a difference of $30,000 to $40,000 in the project, costing taxpayers even if the contractor can pay the wages. He said food service at the detention center was costing about $100,000 more than it should, simply due to the prevailing wage rate requirement.
Senator Fred Thomas suggested that if the law is changed it should probably just stick with non-construction work. He also suggested that on non-construction services a graduated system might be applied, aiming to meet the prevailing wage rate at some time.
Olsen, Thomas’s opponent in this election, agreed, saying that he understood the use of the prevailing wage requirement in construction work, “but I’d try to get a little more creative thinking for local services and just get prevailing wage out of the picture.”
Commissioner Greg Chilcott said that the legislature should also address a problem with the Public Employee Retirement System (PERS). He said right now an employee must make a choice to participate in the PERS system or not and the choice is irreversible. He used Commissioner Burrows as an example. Burrows declined to participate in PERS when he was appointed as commissioner. He thought he would wait until the election and see if he was elected. But when he was elected and thought it might be a good idea to enroll, he was denied. Representative Nancy Ballance said that she would look into the issue.
Senator Pat Connell spoke about the need to clarify the quorum requirements for county commissioners and the prohibition on ex-parte communications. He said in small rural towns it is almost impossible for commissioners to avoid meeting at social events, like football games, etc. He suggested some legislation that would expressly limit the issue of quorums to advertised public meetings. He said that public officials should not be discussing public business at a football game, but they should be allowed to discuss sports.