Calf Creek Subdivision proposal denied

by Michael Howell

The Ravalli County Commissioners rejected the controversial Calf Creek Subdivision proposed in the Hamilton Heights area following three full days of public hearing, the last of which was held on September 30. The four-lot subdivision proposal was presented by WGM Group engineering on behalf of developers Gary Chilcott and John Giuliani and would have split an 84.3 acre parcel owned by members of the Foley family into four lots each just a little over 20 acres in size. Based on his brother’s involvement in the business venture, Commissioner Greg Chilcott recused himself from the deliberations and the decision was made by only two commissioners, Dan Huls and Jeff Burrows.

Being a Minor Subdivision, the proposal came to the commissioners without previous consideration by the Ravalli County Planning Board. It also came as a revised and reduced version of the Sapphire Heights Subdivision, a twelve-lot proposal covering 120 acres including this 80+ acre parcel owned by the Foleys. That proposal was withdrawn during the Planning Board’s review process when it was found that the negative impacts on wildlife, including the reduction of wintering grounds for a large herd of elk using the area, were unmitigable.

By reducing the acreage and providing private covenants to establish a No-Build Zone and a 150 foot wide No-Fencing Zone along the Willow Creek Low Ditch as well as limiting the future use of each lot to one single-family residential dwelling unit per lot along with one accessory dwelling within the same building envelope, in the Calf Creek proposal, the developers were able to convince the Commissioners that the negative impacts on wildlife and wildlife habitat would be “sufficiently mitigated.”

Despite extensive and passionate public comment pleading with the Commissioners to stop the loss of agricultural land in the valley and preserve the valley’s heritage of farming and ranching, the Commissioners cited proposed covenants allowing for a reasonable and low number of domestic animals such as horses, 4-H calves, or sheep on each lot within the subdivision, and requiring notification to future lot owners of potential conflicts with adjacent agricultural operations and for control of noxious weeds as being adequate mitigation measures. They also quoted state law preventing any consideration of the loss of agricultural soils during the review of subdivisions and found that all negative impacts on agriculture would be “sufficiently mitigated.”

Consideration of the criteria concerning effects on agricultural water user facilities, however, became a stumbling block in approving the subdivision. Based on public comment from Alan Maki and other water users in the area, the Commissioners found that potentially transferring the water rights on the property to another location as proposed and losing property that uses Gleason Lake reduces the number of acres that are charged with maintaining the lake and this, in turn, would increase the cost of maintenance for the remaining users who use Gleason Lake to maintain the lake infrastructure.

They also found, based on public comment from Bradley Paulson and others, that changing the use of a water right in an area that has been historically flood irrigated will have un-mitigatable impacts to downstream water users who rely on waste-water because others’ waste-water serves many purposes such as aquifer recharge, loss of habitat, and recharge into other irrigation infrastructure. In addition, they found, based on public comment from the Makis and other ranchers in the areas, changing the use of irrigation water on the subject property will have unknown, and therefore un-mitigatable, effects on water users in the area because they rely on historic irrigation practices.

The vote on a motion to approve this criteria as mitigated was split with Commissioner Burrows voting yes and Commissioner Huls voting no. Because it was a split vote, the motion to find the mitigation sufficient failed and it was determined that the measures proposed were not sufficient to mitigate the negative impacts to water user facilities.

Although proposed mitigation for effects on Public Health & Safety were found sufficient in terms of addressing problems with traffic safety and emergency vehicle access and response time, the subdivision proposal foundered over issues concerning water and wastewater and considerations of Natural and Man-Made Hazards.

Commissioner Huls noted that multiple landowners in the area have had wells going dry and issues with declining yield and recovery times. They have had to drill new wells and install cisterns. Written testimony was referenced from Jim Rummell, Kathy Matranga, Megan Barber, Kathy Warner, and Brien and Gayle Weber. Verbal testimony was provided by Albert Gardner, Bill and Faith Kemp, Felice Fausto and Dolores Foley. 

“All of these citizens live adjacent to the proposed project or have active knowledge of the area’s groundwater resources,” said Huls. Summarizing the proposed mitigation and the findings of fact, he stated, “The proposed mitigation is not sufficient because it does not address lack of water and declining trends of water yield. Adding more wells cannot be mitigated.”

Commissioner Burrows noted the analysis presented in the application was not sufficient because it does not perform individual pumping tests to look at impacts to adjacent owners and relied on equations, not physical pumping measurements.

“The equations contain assumptions and do not truly define impacts on adjacent wells because equations do not look at individual wells and their available yield,” said Burrows.

Commissioner Huls also summarized public comment, specifically from Paris and Donelly, that naturally occurring arsenic has the potential to harm residents of the area. The proposed mitigation of requiring new lot owners to filter water does not mitigate the impact, as it only applies to the residents on the subject property and does not address adjacent owners. 

“The development and disturbance of soil and rock on the property may affect offsite residents and the mitigation is not sufficient as proposed,” said Huls.

The motion to approve the Preliminary Plat for the Calf Creek Subdivision was subsequently denied by both Burrows and Huls. But Burrows cautioned those present that denial of this subdivision proposal did not prevent future development of the property in ways that would not come under subdivision review, such as family transfer or other means of property division and use such as for storage sheds, cell towers, or other uses.

Alan Maki, neighboring landowner and member of the Sapphire Coalition which was formed to stop the Sapphire Heights Subdivision, the Calf Creek Subdivision and the nearby Rolling Ranch Estates “Family Transfer” subdivision, said that Montana law prevents using family transfer as a means to evade subdivision review.

He said to Commissioner Burrows, “Two wrongs don’t make a right.”