By Michael Howell
The Montana Association of Counties is seeking legislative changes to clarify the “Hard Look Standard” as it was applied in the recent lawsuit over the Legacy Ranch subdivision in Ravalli County. In that case, which was decided in favor of Bitterrooters for Planning, the court invoked the “hard look standard” relating to environmental review and found that the commissioners had not taken a “hard look” at the potential negative effects of the subdivision on wildlife. Specifically, they had ignored the submission of a report about wildlife use of the property done by Skip Kowalski, a wildlife biologist by profession. Kowalski found in his analysis that the subdivision could negatively impact a crucial wildlife corridor stretching from the Sapphire Mountains on the east through the proposed subdivision across the river to the west side of the Bitterroot Valley. The Commissioners failed to consider the report in its decision making process.
The policy statement adopted by MACo claims that the hard look standard “lacks definition and clarification in state law.” It claims that local governments lack the standards needed to design and apply the rules in order to apply them in subdivision review. MACo states it will seek to amend the Subdivision and Platting Act to define the Hard Look Standard.
Commissioner Greg Chilcott said that the term was not used in the Subdivision Platting Act but was being used by the courts in relation to subdivision review as in the Legacy Ranch case. Chilcott said that case law can apply but not necessarily in all cases. He said the legislature should be able to revise the standard without using the term “hard look” and define when and how it would apply. He called it an effort to wrap the “hard look” back into the “arbitrary and capricious” standard now being used in subdivision review.
“Our intent is to keep court review of our authority consistent with the High Court’s review of our discretion,” he said.