By Russ Lawrence
District Court Judge James A. Haynes challenged attorneys on both sides of the Legacy Ranch subdivision issue in a hearing last Thursday, June 11, but Alan McCormick, representing Ravalli County, took much of the heat.
“Judge Haynes is always well-prepared, and always asks great questions,” said McCormick after the hearing.
Legacy Ranch is a proposed subdivision off the Eastside Highway between Florence and Lone Rock. It is the largest subdivision ever approved in Ravalli County, and would create up to 639 residential units, to be built in 15 phases over 30 years. The final phase wouldn’t be completed until 2049.
The proposal was first submitted to the Ravalli County Planning Department in 2006, and was re-submitted in 2007, when new subdivision regulations went into effect. A subsequent court decision held that the subdivision should be reviewed under the 2007 regulations, but final approval came only after the county enacted yet another set of regulations in 2012, and applied those rules to the proposal.
Following the Board of County Commissioners’ approval of the subdivision in 2013, Bitterrooters for Planning, a local non-profit advocacy group, sued the Commissioners, and Sunnyside Orchards, LLC, the developer.
The Thursday hearing featured competing motions for summary judgment, with Bitterrooters for Planning seeking to void the commission’s Preliminary Plat Decision to approve, and Ravalli County seeking to have the lawsuit dismissed. Based on uncontested facts contained in both sides’ briefs, and on testimony at the hearing, Judge Haynes will render a decision, though he cautioned that it may require more than 30 days to reach his conclusion.
Bitterrooters for Planning (BfP) contends, among other things, that approving the entire, 30-year phased build-out without including contingencies for further public review, defeats the “beneficient purposes” of the Montana Subdivision and Platting Act (MSPA), specifically with regard to wildlife, agriculture, public safety, and the natural environment. Further, Montana Code states, in Section 76-3-610, that approval must be in force for no less than one, and no more than three years; and that once approval of the application and preliminary plat is granted, no additional conditions may be imposed. The County, by granting approval of a 30-year project, forfeits its ability to impose new conditions based on any changes that may occur.
BfP also contends that the Environmental Analysis is deficient to begin with, and is already outdated. It points out in its brief that construction of the first phase will not even begin until 2019, thirteen years after much of the EA was written. Construction of Phase 15 will begin three decades later, with no opportunity for additional public review in all that time. It is inconceivable, argues BfP, that the baseline conditions set forth in the existing EA will not have changed considerably during that time.
Therefore, BfP asserts, approval of the subdivision was unlawful, arbitrary, and capricious.
Haynes began the hearing by addressing counsel for both sides, along with the more than 30 spectators in the Department 2 courtroom, asking rhetorically how many of them wished they had bought stock in Apple, Inc., in 1985. That was 30 years ago, and he used the question to highlight one of the key issues of the lawsuit, how difficult it is to foresee changes over long periods of time.
McCormick, an attorney with Garlington, Lohn, and Robinson and contracted by Ravalli County, conceded that the 30-year build-out envisioned in the application required “a certain amount of crystal ball gazing,” but termed the application “complete and sufficient.”
Haynes suggested that approving a project with such a long timeline undermined the “hard look” requirement that the Montana Supreme Court imposes, but McCormick responded that nothing in the law specifically precluded such approval, and that it is an issue for the legislature to define, not something for the county commission to decide.
Jack Tuholske, attorney for the plaintiffs, contended that approving the 30-year build-out was indeed contrary to law. The problem, he said, is that the commissioners “have surrendered their ability to impose any new conditions,” or to involve the public, or to require a new Environmental Analysis in light of changing conditions.
“You can’t take a ‘hard look’ at what’s going to happen in 2049,” he asserted. For an example of just how rapidly conditions change, he pointed to a letter sent by the Montana Department of Transportation to Ravalli County in 2013. He interpreted the letter to say that a 2006 traffic study used in the analysis of the proposal was already outdated, and to request a new study.
The two sides sparred over exactly what that letter meant, and its implications, when approval of the subdivision will mean an additional 9,000 vehicle trips daily on the Eastside Highway. McCormick argued that, though the additional trips would degrade the Level of Service designation for the highway, that it would be “sustainable,” and that traffic concerns and mitigation were the concern of the Department of Transportation, rather than the County Commission. Tuholske replied that consideration of impacts to “public health and safety,” and mitigation measures for such impacts, were a primary requirement for County approval, pointing out that the Eastside Highway is already one of the most dangerous roads in the state.
Judge Haynes noted that construction was not set to begin until 2019, and asked counsel to comment on the delay. McCormick replied that they needed time to resolve complications over questions of water rights. Joseph Casillas, attorney for Sunnyside LLC, noted that it was in part a matter of time needed to meet regulatory requirements and obtain state permits, and in part a business decision.
Inviting the two sides to make their cases, Haynes observed that “both parties probably came loaded for bear,” and invited Tuholske to begin.
Tuholske responded that, to begin with, Sunnyside LLC had not yet even sought Montana Department of Environmental Quality approval for septic or sewer systems, yet the Board of County Commissioners had approved the preliminary plat without the information that would be developed by a DEQ review of such an application.
Tuholske focused on the Board of County Commissioners’ failure to consider “important issues,” specifically the subdivision’s effects on traffic, wildlife, agriculture, and local services, including the need to expand Lone Rock School.
The plaintiffs, he said, had done their job, referring to a “reasoned and scientific” analysis of impacts to wildlife, prepared by professional wildlife biologist Skip Kowalski, as one example. The commissioners, in turn, failed to respond directly to that report, instead referring to a 2006 letter from another biologist stating that there were no wildlife corridors across the property, and ignoring Kowalski’s contention that the subdivision would sever a linkage area.
“That is the antithesis of a ‘hard look’,” Tuholske said. “That is putting your head in the sand and pretending there is no issue.”
“This is fundamental,” he added.
He also addressed impacts to agriculture. Montana law requires analysis of such impacts, but the subdivision regulations adopted by Ravalli County in 2012, and under which the application was approved, changed the standard to “adjacent” agriculture, a much narrower requirement.
“When a regulation is at odds with a statute, the regulation is void,” Tuholske pointed out.
The plaintiffs also provided an analysis of the negative impacts to taxpayers when agricultural land is converted to residential, with its higher demand for local services. The County never responded with its own analysis.
“The purpose of the MSPA is to protect the public,” he asserted, in concluding. “There is no constitutional right to a phased subdivision, but the County Commissioners treat it as something they were obliged to do; that’s not protecting the public. Subdividing is a privilege provided by the government, it is not a right. The bar has to be set high, here.”
McCormick responded that the theme of his response is that the courts have told government that it’s not proper to take the attitude that “it’s true because we say it’s true,” rejecting calls for the County to be held to standards that don’t exist in law. He conceded that the County didn’t consider cumulative impacts to agriculture, for example, but contended that such consideration is not part of the criteria for approval, and that the plaintiffs never cited any statute requiring such consideration.
Haynes interrupted at that point, pointing out that the County looked at effects on “adjacent” agriculture, per their own regulations, but that state law doesn’t use the “adjacent” standard.
McCormick responded that no radius was defined, and went on to note the unproductive character of the agricultural land contained within the subdivision, as characterized by the person who was working it.
When McCormick went on to examine wildlife usage, Haynes once again challenged him. While the County cited the 2006 letter prepared by consultant Joe Elliott, PhD, finding no wildlife corridors, it failed to address the Kowalski report directly, instead reporting “what the commissioners say they found” in the report.
“Does anyone else find this amusing?” Haynes wondered wryly from the bench.
McCormick moved to a new tack, crediting the Commissioners for their approach to the potential for nitrate contamination as an example of actively considering all the professional opinions and public input that was offered.
He concluded by defending the approval of a 30-year project. “Phasing is an accepted part of the statutory review process. It is not a defect of the review,” said McCormick.
On rebuttal, Tuholske pointed out the map that was included in the Kowalski report, showing a wildlife linkage corridor that “goes right through the property.” He acknowledged the County’s thorough analysis of nitrates, but pointed out that it’s not part of BfP’s suit.
“Why don’t you address the arguments we raised, instead of raising these superfluous issues?” he asked.
McCormick responded with another example of the County and the developer responding to concerns raised, referring to issues with the adjacent Lee Metcalf National Wildlife Refuge, and to elevated standards for wastewater treatment.
“They thoughtfully considered it, and then made some adjustments,” said McCormick.
Haynes adjourned the two-hour hearing at 5 p.m. and took the arguments under advisement.
Following the hearing, Tuholske said that the case raises important questions about long-term, phased development. He also criticized the County’s approach to planning and subdivision review.
“Land use planning in Ravalli County needs to catch up with the rest of the world, or at least the rest of the state,” said Tuholske. “Ravalli County is under no obligation to approve whatever the developer submits, and yet that’s what they do, time and time again.”
Tuholske said the case raises important questions about phased development, specifically a 30-year build-out that won’t be complete until 2049. “If the law allows that, then the law needs to be changed.”
Bitterrooters for Planning President (and former Ravalli County Commissioner) Jim Rokosch observed that all the issues raised are of statewide significance.
“Why did the developer not obtain the required State permits prior to submitting the preliminary plat?” said Rokosch. “It places an unfair burden on local citizens and on local government . . . without the information from State agencies, local government cannot do their lawful duty.”
McCormick noted the plaintiffs’ focus on larger issues, including statutes that they’d like to see changed, but contended that the commissioners acted within the existing statutes.
As for how the case will turn out, Tuholske declined to speculate, while McCormick simply noted that “it will turn on his [Haynes’] interpretation of the arguments.”