The Ravalli County Commissioners denied the request for an extension of the Preliminary Plat Approval granted to the Granstdale Addition major subdivision in 2011. One of the largest subdivisions ever approved by the county, the Grantsdale Addition proposed the creation of 181 lots on 67 acres at the intersection of Skalkaho Road and Grantsdale Cut-Off. Denial of the extension request means that the subdivision’s preliminary approval has now expired and that in order to move forward a new subdivision application would be required. Under the original proposal as it was preliminarily approved, the subdivision was only subject to the subdivision regulations at the time and cannot be subjected to new regulations, such as the new provisions concerning phased subdivisions that were recently adopted. Any new submittal would have to be reviewed under the new regulations.
Following the approval of the preliminary plat in 2011, the developer sought and was granted an extension of the time-line for phasing in the development extending the time-line for completion of each phase by three years. A wastewater discharge permit was obtained for the project in 2014. Bitterrooters for Planning (BfP) and the Bitterroot River Protection Association (BRPA), two local non-profit organizations, and the Montana Environmental Information Center challenged the issuance of that permit and in 2016 the permit was revoked by a District Court order. The court found that the Department of Environmental Quality had not examined the potential impacts of the wastewater discharge on the Bitterroot River, located a few thousand feet from the proposed subdivision.
Both BfP and BRPA objected to the recent extension request. They argued that the criteria in the county regulations requires the commissioners “to determine whether the applicant has started the subdivision and has been working in good faith to complete the subdivision.” The two organizations questioned whether that requirement had been met, since nothing in the record showed that any activity toward completion of the subdivision had been taken over the last three years until the application for an extension was filed.
BfP, which is currently involved in litigation with the county over Morado Mountain Estates, a subdivision in the Eight-Mile area, also contested the extension process in that case. They asked that the legal proceedings in that case be entered as evidence in the current request for extension for the Grantsdale Addition. They also argued that the preliminary plat decision allowing this kind of phasing under the “grandfathered” rules at the time, was in violation of the constitutional right to a clean and healthy environment, and should be required to meet the current standards for phasing as established.
There was a lot of discussion about what constitutes “a good faith effort.” A consultant for the developer from Territorial Landworks said he had never encountered the issue of “a good faith effort” in his work. He stated that a lot of work was done in-house over the time in question and that work was disrupted by the unprecedented revocation of the discharge permit. He said that had he known that some documentation of the work was necessary he would have done it. He eventually summed up the activity conducted over that time and added to the record: “July 2016 thru May 2019 – Applicant Assessed Discharge Permit with Attorney, Market Suitability and Development Feasibility Evaluations.”
The objectors noted that market conditions were explicitly excluded by the law from being considered in granting subdivision extensions. They insisted that a “good faith effort” at completing the subdivision would certainly have involved scheduling a pre-application meeting with DEQ aimed at obtaining the desired permit. The record, they argue, shows that no action was taken over the last three years to acquire any of the permits needed for completion of the subdivision.
Hours were spent in discussion of both the meaning of “a good faith effort” and the questions concerning the “grandfathered” status of the regulations. Deputy County Attorney Royce McCarty told the commissioners that, under current law, the Board of Commissioners cannot place any new mitigation requirements on the subdivision after giving Preliminary Plat approval.
In the end, in order to address the issue and move the extension request forward, the developer offered to meet the new state review requirements and subject each phase of the subdivision to further public review and potential change if it could be shown that new data makes further mitigation necessary.
Objectors noted that while the developer’s offer would address the concerns related to the need for public review, it did not address the fact that the developer had not moved forward in good faith. It was noted that this is the only criteria to be considered by the commission in relation to the extension request. It was suggested that the correct way to proceed would be to deny the extension request and have the developer re-submit his subdivision proposal, since he already expressed willingness to allow that review anyway.
It was noted that simply to make a re-application for subdivision approval without changing the proposal would cost the developer over $20,000. Objectors noted that it could cost the county money if the “good faith effort” issue was litigated.
In the discussion that followed, Commissioner Greg Chilcott said he was hesitant to make a determination that there was not a good faith effort. He said if the entire time span was considered the developer did act in good faith, “after the discharge permit was revoked, maybe less so.” He said it was a difficult thing to decide since maybe 70% of the time there was good faith action and maybe 30% of the time not so much.
Both Commissioner Jeff Burrows and Commissioner Chris Hoffman stated that they had trouble establishing that there had been a good faith effort, since nothing essential to moving the subdivision forward had been done for so long. It was also noted that the rules governing the granting of extensions does not require any reason for denying it, it only has criteria for approving one.
All three of the commissioners eventually reached a finding of fact by consensus that the developer had failed to show a good faith effort to complete the subdivision in a timely manner.
Both Hoffman and Burrows stated a reluctance to approve the extension. By denying it, they said, it means a significant new cost to the subdivider. But by approving it, the county could be open to a lawsuit that they both were unsure the county could win.
In the end, the board voted 2 to 1 to deny the extension. Chilcott cast the dissenting vote.