Bitterrooters for Planning, a local non-profit organization that promotes planned development, has filed a lawsuit in District Court challenging the Ravalli County Commissioners’ recent decision to grant a third extension to development timelines for the Morado Mountain Estates Subdivision located six miles east of Florence.
The subdivision was first proposed in or around 2006. The subdivision application included a variance request from the developer, which, in 2008, was denied by the Commissioners. The variance requested to utilize a 50-foot easement on Eight Mile Creek Road, which did not meet county road standards requiring a 60-foot easement. The developer, along with an adjacent subdivision, Sandhill Ridge, sued the Commissioners for their failure to approve the variance. A court remanded the variance request back to the Commissioners for a new hearing and the Commissioners subsequently approved the variance request. Additionally, the Commissioners settled with the developer in the amount of $300,000 in exchange for the developer’s dismissal of their lawsuit.
The Commissioners eventually approved a preliminary plat for the 58-lot subdivision in July of 2011, initiating the developer’s proposed phasing plan that was scheduled to be completed in three phases. Phase 1, the first eleven lots, was to be completed by July 26, 2013; Phase 2, an additional 8 lots, was to be completed by July 26, 2015; and Phase 3, the last 49 lots, was to be completed by July 26, 2019. An extension of this deadline granted in December 2012 pushed the phasing deadlines out to 2016, 2018, and 2022, respectively. Then in February of 2016, a second extension was granted, pushing the deadlines out to 2019, 2021, and 2025, respectively. In approving this third extension the Commissioners have pushed the deadlines out to 2022, 2024, and 2028, respectively.
In developer Stacey Dykeman’s request for commission action, she cites the cost of the development and the current market prices as the reason for the requested delay. It also states under Board of County Commissioner findings that the commissioners discussed that a third extension would be consistent with other extension approvals, but that they indicated to the developer “that it would be difficult to justify granting any further extensions.” It notes the BCC decided to grant a 3-year extension to the first and second phase, but only a 1-year extension to the third phase “so that the final phase would need to be completed within 15 years of the original approval date.”
Bitterrooters for Planning entered objections to the extension request during the public process, noting specifically that the developer cites the failure of local real estate sales to rebound enough to warrant further improvements. But BfP states, “As the Commission undoubtedly knows, county variance requests as they pertain to land development do not allow for financial hardship as a reason to approve a variance. An extension request to a preliminary plat decision is nothing more than a variance and should be judged as such.”
The group also noted that the Montana Association of Counties issued some suggested guidelines for counties to follow in bringing local county regulations into compliance with the law established in the Legacy Ranch lawsuit. The suggestions from MACo recognize that “The information regarding impacts of the subdivision – and mitigation of those impacts – becomes increasingly stale and meaningless after approval of the preliminary plat, denying the public it’s constitutional right to know and participate in local government decision-making.”
MACo’s guidelines also state that counties need to consider “changes to the primary criteria impacts identified in the original subdivision approval or any new information not previously considered exists that creates any new potentially significant adverse impacts that would support denial of the subdivision extension request. Additional conditions may not be imposed as a condition of subdivision extension.”BfP noted in its public comment to the extension request that a lot of data on wildlife has emerged since the subdivision was first considered and approved that indicates additional mitigation may be required. They asked that this new data be considered in the extension request. They also stated that the traffic data used in the original approval is now stale, noting that in the Legacy Ranch court ruling it was established that traffic data was stale after seven years. They requested new traffic data be considered.
Concerning impacts on wildlife, the group points out in its lawsuit that “…while the Developer acknowledged the subdivision was located within elk and mule deer winter range, the Preliminary Plat approval was based on Ecosystem Research Group’s findings that “while it’s conceivable that a few elk might wander onto the proposed project, its value as elk winter range was lost decades ago.”
They claim the information was inaccurate at the time and stale now and point out that Montana Fish, Wildlife and Parks has updated elk migration and mule deer data, which shows this area is a significant wildlife corridor linking habitat and public lands along an elevational and seasonal gradient.
“This information is new and was unavailable at the time the subdivision was approved,” states the organization.
They also point out that since the subdivision was approved in 2011 no work has been done at all to meet any of the “conditions of approval.” They argue that the reasons given in every case for the extensions so far all have to do with the state of the economy which they claim is not adequate grounds for granting an extension.
They quote from the record of the recent approval:
“Commissioner Chilcott: ‘So, what work has been done out there? I mean, what efforts have been made to get this project underway?’
Developer: ‘Well, it’s been real hard to start something with the market, the way it crashed when we first started this, these size lots were going for a lot more than what they are marketable for now. Phase l, which includes updates [to] Granite Creek Road and the first phase cul-de-sac puts us … pretty much at cost … so hard to pull the trigger on that when it’s going to cost us more or pretty much the same to get it up and running… so we’ve been holding off on that because of the market.’
Commissioner Chilcott: ‘So, I guess my question is, has anything been done?’
BfP’s attorneys have lodged five counts against the commissioners, alleging two counts of violation of the public’s right to participate in the government’s decision-making process; one count of violating the Montana Subdivision and Platting Act; and one count of violating the Ravalli County Subdivision regulations. In the final count, the plaintiffs ask the court for a determination of the issues in the first four counts “as well as a declaration of the rights of the plaintiffs under the Montana Subdivision and Platting Act, the Montana Constitution, the Ravalli County subdivision regulations, and any other provisions of the governing law.”
The organization claims they were denied adequate notice of a public hearing on the issue and denied the chance to submit new data for consideration. They claim the Commissioners failed to comply with their own regulations by failing to deny the extension request after learning that the developer had failed to state in her written request that she had not started the subdivision and had not been working in good faith to complete the subdivision. Additionally, they claim the Commissioners unlawfully based their approval of the extension request on the conclusory recommendations of the Planning Department which also failed to evaluate the extension request as required by law.
Plaintiffs also claim that the developer’s reasoning for asking for the extension request was both inadequate and inaccurate.
“No provision of the RCSR allows the Commissioners to grant an extension request based solely on a Developer’s failure to accurately predict real estate market conditions. A developer’s bad or miscalculated business decisions are not the responsibility of the Commissioners to correct,” states the lawsuit.
Besides asking the court to void the approval of the extension, they ask for an order enjoining the Commissioners from granting another one.
Carlotta Grandstaff, coordinator for BfP, said that BfP and the Montana Smart Growth Coalition worked in the 2017 and 2019 legislative sessions to amend the Montana Subdivision and Platting Act to limit the number of extensions undeveloped, unsold subdivisions can receive from local governments.
“Our efforts were unsuccessful,” she said.
She said their efforts to persuade the Ravalli County planning department to recommend adoption of the MACo guidelines to the board of county commissioners were also unsuccessful.
“Meanwhile,” Grandstaff said, “developers can apply for, and receive, an infinite number of extensions even when they cannot meet the basic conditions necessary for their developments to receive final approval.” She said this renders the original data detailing the impacts developments will have on the land, on neighborhoods, on schools, on fire departments, on roads, on wildlife and wildlife migration corridors and habitats, stale and invalid. Likewise, the mitigation measures developers must develop to offset these impacts also become stale and invalid over time.
“BfP has worked long and hard to protect neighborhoods and wildlife, wildlife habitat and wildlife migration corridors from unrestrained growth. We believe it was important to file this lawsuit seeking justice for landowners and wildlife,” said Grandstaff.