Lawsuit filed over Sapphire Valley Estates subdivision

by Michael Howell 

The Bitterroot River Protection Association and two neighboring landowners filed a lawsuit last week challenging the Ravalli County Board of Commissioners’ approval of the Sapphire Valley Estates Major Subdivision preliminary plat. The lawsuit alleges that the commissioners violated both the Montana Subdivision and Platting Act and the county’s own subdivision regulations by not analyzing the potential impacts of the 33 proposed domestic wells and septics on nearby Eight Mile Creek or on the underlying aquifer and the Bitterroot River, among other things.

The commissioners held a public hearing regarding the subdivision on February 22, 2024 with a continuance on March 4, 2024 and issued a written preliminary plat approval on April 8, 2024. Members of the public, including plaintiffs, attended these meetings and provided comments in opposition, citing both an incomplete record and failures to adequately assess the subdivision’s potential impacts. The lawsuit challenging the decision was filed in Ravalli County District Court on May 7, 2024.

The 49.22-acre subdivision is divided into 33 lots ranging in size from 1.25 to 2.5 acres. Each lot is allotted a residential water supply of 250 gallons per day, or .28 acre-feet of water per year. The total proposed residential water use for the subdivision is 9.80 ac-ft per year. In addition, each lot is proposed to have its own individual water supply for irrigation demand, with such water to be provided by the 49 irrigation shares the developer holds with the Eight Mile Water Company.

The plaintiffs allege that neither the applicant’s EA or Community Impact Report, or the county’s staff report or commission’s written approval, evaluate the specific, documentable, and clearly defined impacts of the subdivision on the local aquifer, the water table, or adjacent Eight Mile Creek. They also allege that the county failed to evaluate the impacts of subdivision stormwater pollution or offsite flooding related to impervious development of an agricultural property, which could carry fertilizers, pesticides, herbicides, and other household materials into local groundwater, onto neighboring properties causing damage, or affect surface water quality in Eight Mile Creek, instead relegating such review to state natural resource agencies. They allege the county similarly failed to evaluate the potential for surface or groundwater pollution impacts related to the creation 

of 33 new septic systems, and application materials failed to provide sufficient water resource data required under the law.

Plantiffs are asking the Court for an order declaring void ab initio Ravalli County’s approval of the Sapphire Valley Estates preliminary plat and remanding for reconsideration in light of its lawful mandates as well as a determination and declaration that the approval of the preliminary plat was illegal, arbitrary and capricious, and violates the Montana Subdivision and Platting Act as well as a determination and declaration that it failed to satisfy its own subdivision regulations.

Plaintiffs are also seeking determinations and declarations:

– that the county’s approval of the preliminary plat violated citizens’ fundamental rights to meaningful public participation, to a clean and healthful environment, and to adequate remedies of law, because failing to assure compilation of a sufficient application or publication of all application materials harms the public’s ability to be informed of a decision’s impacts or meaningfully participate, and because the county’s failure to perform mandatory impact analyses threatens unreasonable depletion and degradation.

– that the county’s subdivision regulations do not comply with §76-3-501(i) of Montana Code Annotated because they do not provide for the “avoidance of subdivisions that would involve unnecessary environmental degradation” by failing to account for the cumulative impacts of individual wells and septic systems.

– that the Montana Constitution and state law require a county to review the cumulative impacts of a proposed subdivision in conjunction with other existing and pending subdivisions.

In a recent District Court decision in Broadwater County in favor of litigants against Broadwater County and the Department of Natural Resources and Conservation (Upper Missouri Water Keepers, et al versus Broadwater County & DNRC), District Court Judge Michael McMahon ruled the county’s approval of that subdivision arbitrary and capricious. In that case McMahon concluded, “The environmental assessment includes only the barest information about water resources; omits necessary information about waters’ health and interaction; fails to consider the impact of exempt wells; and arbitrarily limits its analysis to only the property itself and not neighboring landowners and waters. The County failed to review numerous specific, documentable, and clearly defined impacts to ‘agriculture… the natural environment, wildlife, wildlife habitat, and public health and safety’ raised by citizens, employees and even Commissioners. Although ultimate entitlement to an exempt well is determined by DNRC, the County’s failure to analyze the factual existence and legal appropriability of water for a proposed subdivision abrogates its statutory duty to ‘adopt and provide for the enforcement and administration of subdivision regulations reasonably providing for… the provision of adequate… water… [and] the avoidance of subdivisions that would… lack of water’.”

This recent court decision was a recurring theme throughout the discussions concerning the Sapphire Valley Estates Subdivision.

Ravalli County Commissioner Greg Chilcott stated on the final day of discussions, “This District Court Decision out of Broadwater County has really thrown a whole new level into the middle of the process in the way that we are expected to do a review. It puts the landowner and his contractors in a tough spot and it puts neighbors in a new position. But it’s in mid-stream and that’s where we are really struggling up here. How do we change gears mid-stream on a court decision 160 miles away from us that may or may not be an impact or may or may not be upheld by our court and affect the way we do business? Heretofore we have had Department of Environmental Quality as our reviewing entity or agency with the expertise, the knowledge and the broad base of studies to review consistently and without being arbitrary and capricious across the state of Montana and made those determinations. Now all of a sudden, some judge in Broadwater County decides to turn all that on its ear and say that we are going to throw local government under the bus to do some higher level of analysis that, quite frankly, many local governments don’t have the capacity or staff to do that analysis. That puts us in a position where…” 

Chilcott’s statement, 25 minutes into a five-and-a-half-hour discussion, was suddenly cut short for those listening and participating on-line on Ravalli County’s Granicus live-streaming website. The video record is silent for the remaining five hours. The meeting was simultaneously being conducted on the Zoom live streaming platform, but no record of that Zoom meeting was recorded. The County Administrator’s minutes do not include any of the public comments made during that five-hour discussion.

Michael Howell, Executive Director of the Bitterroot River Protection Association, who participated on both the Granicus and Zoom platforms, said he was disappointed that his comments and questions cannot be found in the public record.

“No one is being thrown under the bus here in Ravalli County,” said Howell. “The commissioners got themselves into this position by shirking their duty to analyze these potential impacts before approving the subdivision, and consistently foisting that responsibility on state agencies after the fact. When DEQ approves these permits based solely on the declaration that they are legally exempt from review, it means that the subdivision and the permits were approved and built out without any environmental analysis of the potential impacts on the aquifer or nearby streams. 

“If the commissioners continue down this path, the cumulative impacts upon the river could be disastrous and potentially impact the entire river and the entire population of Ravalli County. Montanans have a constitutional right to a clean and healthy environment, and so, too, county government has a responsibility to fully analyze the potential impacts of a new subdivision and base its decision-making on facts.”

For further information contact Michael Howell at bitterrootriverprotection@gmail.com or phone (406) 239-4838.