Wednesday, June 30, 2010

Page One News at a Glance

Mitchell portage routes amended

Subdivision regulation changes being considered

The U.S. Constitution: Myth versus Reality

Relay for life held

Mitchell portage routes amended

Last October the Ravalli County Commissioners approved three portage routes – formal public access sites – on Mitchell Slough. The portage routes were originally requested by the Bitterroot River Protection Association in 2004. Due to ongoing litigation at the time concerning the status of the slough, that request was put on hold pending resolution of the lawsuit. Following a Montana Supreme Court ruling that Mitchell Slough was a natural branch of the river, those portage route requests were revived.

However, difficulties were encountered this spring when Montana Department of Fish, Wildlife and Parks fisheries biologist Chris Clancy went to implement the designs that were approved. As a result, the exact designs were reconsidered. New designs were proposed and approved at a Commissioners’ meeting on Wednesday, June 23 and will be implemented once the associated signage is obtained.

Subdivision regulation changes being considered

By Michael Howell

Ravalli County Subdivision regulations have been changed many times over the years. Periodically, changes must be made to meet changes in state law made by the legislature. But what is taking place now, according to Planning Director John Lavey, is a much more qualitative and substantial update of the regulations, not just to meet state law, but to better serve the majority of the people who actually use the process.

And who is that?

“It is not the ‘big developers’,” said Lavey. “The bulk of our subdivision applications are from local landowners making fairly small subdivisions.” Between 1980 and 2010, 700 subdivision applications were filed at the County Clerk and Recorder’s Office. Of those 700, two were subdivisions of over 100 lots. Two were between 50 and 100 lots. There were 10 between 20 to 50 lots. The rest were all 19 lots or less. What this means, says Lavey, is that his major customer is really the ‘small guy’.

Lavey said that the Planning Department has always had a lot of data, but it is just now beginning to do some serious analysis of that data bank, and discovering some interesting facts.

“For instance,” said Lavey, “I’ve heard a lot of people complain that the current regulations are ‘onerous’. Yet once we looked at the big picture some interesting facts came into view.” He said that in looking at how regulations had changed over the years it was noticed that the basic regulations that were in effect from 1981 through 1999 are very close to the regulations we have today, compared to anything before or after those dates.

Yet those were the years of the largest growth and the most subdivision activity in the county.

“Through those years of growth we had the same basic requirements, the same environmental analysis standards and the same pre-application requirements that we have today,” said Lavey.

Lavey said the current attempt at overhauling the regulations was not because they were unduly onerous, but because anything can be improved. He said the whole process is aimed at making the process work a little better for the bulk of the people using it. He said that basically they were looking at every part of the regulations and asking, “How can we improve it? How can we make it an easier, less complicated, faster, smoother process for everyone and still meet the requirements of protecting the public health and safety that are at the root of the process?” The last time the County took on such a major overhaul of the regulations was in 2000.

Lavey said that a lot of the time when people are upset about a certain regulation it is because they don’t know a lot about it. They don’t know the reasons for it or the history of it or the court cases that have helped form it.

A lot of our subdivision regulations are necessary simply to meet or match state law. For instance, the state’s seven criteria for subdivision review must also be considered in the county’s review. They were enacted to protect the public health and safety, agriculture, and the environment and wildlife from the negative impacts of development, by mitigating those effects.

But the regulation review going on involves more than meeting the statutes. It also means keeping up on case law and how the courts are interpreting the law. Court rulings play an enormous role in the implementation of the county’s regulations. In fact it was the landmark case of Burnt Fork Citizens Coalition against Ravalli County over a subdivision up the Burnt Fork east of Stevensville that first forced the County into using the state’s criteria for subdivision review. Since that time, over a dozen court cases in local District Court have shaped various parts of the county’s subdivision review process. In the current review process District Court cases from around the state are being reviewed as well. Also being considered are recent Attorney General Opinions, and especially the Montana Supreme Court rulings that may be relevant to our local regulations.

Lavey emphasized that the subdivision regulations are not ‘building codes’ and they are not ‘zoning’. They are simply regulations designed, not to prohibit development in any way, but simply to reduce the negative impacts of development on the public and the public resources, as much as possible. He said that no regulations can ensure the public safety, for instance, but they can reduce the risks to public safety substantially in the process.

“Since we are required to have them by the state, why not have the best set of regulations possible,” said Lavey.

One way to see what might be needing some improvement is to look at the number of times that people are asking for and being granted a variance from the regulatory requirements. It’s an indication that the regulation could be changed to simply allow the kinds of specific actions that are always being granted a variance.

For instance, the most variances being granted have to do with the requirements concerning ingress/egress to the subdivisions. If there are so many ways to meet the concerns that the regulation tries to address, why not incorporate those alternatives into the regulation as an option, rather than sending so many people through the variance request procedures, which costs money and more time?

Another part of the review process has been simply listening to people’s concerns and suggestions about the regulations. For instance, the Planning Department has heard from the people in the farm and ranch community as well as from people in the previous zoning meetings urging the county to consider some form of incentives rather than strict rules to help developers “do the right thing.”

It was such considerations that led, not to a revision of the regulations, so much as an addition to the regulations, called the “conservation subdivision” option. It is an attempt to offer incentives to developers interested in preserving open space and agriculture. It is 100 percent voluntary.

Lavey said that many other changes in the subdivision regulations are being considered in the latest draft. For instance, changes are being considered in the Flood Plain Development rules that would allow developers to use scientific data on the drainage basin size in relation to the location of their subdivision rather than simply meeting a blanket rule.

It is more responsive to the actual conditions on the ground and allows the developer to prove things out during the process rather than having to go through an extra process and pay an extra fee to receive a “waiver” from the rule.

Another change being contemplated in the current Draft amounts to re-instituting a Guest House concept, in the past often times called the “Mother-in-law-house” provision. A few years back the County Attorney’s office decided that the creation of the traditional “mother-in-law-house” technically still fell under the subdivision review process, since it could ultimately end up, after Mom’s death, as a rental or lease property. As a result, it should properly be reviewed under the subdivision review process. After all, more bedrooms, more bathrooms, etc. were being added to an existing property, increasing its effects upon the community and the environment and added traffic on the associated roads.

The current Draft includes an expedited and very much less expensive way of creating an actual guest house on a property without having to go through the more expensive, and time consuming, subdivision for rent or lease process. In this newly proposed rule a guest house, if it meets a minimum size requirement to ensure that the negative impacts of the addition are minimal, may be created through the ‘waste water exception’ process, on the conditions that it will never be leased or sold. Lavey said that he thought the proposed rule was very generous in its size limitation. He said that any home over that size could easily be creating negative impacts so large that they should enter the full review process to determine the actual extent of the impacts.

Lavey has presented the county commissioners with a list of questions that he would like them to focus upon and address in their consideration of the Draft. The focus areas represent those components of the proposed updates that would be new to the regulations, and therefore require relatively more vetting than components of the proposed regulations that have been simply updated to work better. Or they are proposed changes that received widely differing opinions from individual commissioners during their administrative review. These questions are being addressed in a series of work sessions with the commissioners.

They include:

• Conservation subdivision parent parcel size: is 9.5 acres reasonable, or should it be enlarged?

• Two trains of thought prevail on WUI standards: (A) they should be made into a supplemental, non-regulatory document that may accompany a subdivision approval but would not require any higher level of design standards, or (B) they should be included as a regulatory component of the subdivision regulations, as they have been for decades. What are your thoughts?

• Guest House provisions: should include occupancy provisions? (For instance, Guest House may only be in use less than X months per year.)

• Access to subdivisions via Forest Service roads. Does the Commission think that subdivisions should be allowed to access off of Forest Service roads? If so, how will we address the law which requires legal and physical access to subdivisions?

• Under what circumstances, if any, should the County require additional easements on subdivision road frontage to allow for planned future trails?

• Non-motorized facilities: are acreage tiers appropriate? Should there be requirements for different conditions such as proximity to municipalities or number of lots? What about specific design standards?

• Should wetland development standards be removed?

• Should there be restrictions on allowable quantities of water use?

• Should subdivisions have to have some basic level of fire protection?

The County Commissioners held a public meeting on the Draft proposal last week and another is planned for July 8 at 2 p.m. at the County Commissioners’ meeting room. The Planning Board has also been holding meetings and has plans for additional meetings on July 7 and July 21. Those meetings are open to the public and are held at the Commissioners’ meeting room as well.

The public comment period on the draft regulation changes is set to end July 30. Comments can be submitted to the Planning Department in writing until then.

The U.S. Constitution: Myth versus Reality

By Michael Howell

Close to fifty Bitterrooters of every political persuasion showed up to hear from and ask questions of the American Civil Liberties Union (ACLU) of Montana Public Policy Director Niki Zupanic last Friday at River Street Dance Studio in Hamilton. The event was sponsored by the Bitterroot Democracy Project, a newly formed non-profit organization in the valley, whose mission statement is “to promote democratic values and informed, civil discourse.” They must view Zupanic’s presentation as a success. Given the political diversity of the audience, her thirty-minute presentation and one-and-a-half hour question and answer session were remarkably civil and informed, especially considering all the ‘hot button’ issues that were discussed.

ACLU is a non-profit, non-partisan organization of over 500,000 people dedicated to defending and preserving individual liberties guaranteed in the U.S. Constitution to every person in this country. Those rights include the right of freedom of religion, the right to free speech, the right to equal protection under the law, the right to due process, the right to privacy, and the right to be free from illegal search and seizure. The ACLU appears before the U.S. Supreme Court more than any other organization except the U.S. government.

The Montana Chapter of ACLU was chartered in 1972. Its first office was established in Billings in 1980 and it did not get its first full time director until 1988. Zupanic has been working for the ACLU since 2003.

“The bedrock value of the ACLU, what we always keep coming back to,” said Zupanic, “is that if the rights of society’s most vulnerable are denied, then everybody’s rights are in peril.”

Zupanic said that the Constitution is a general, broad set of rules that is really hard to change. But it must be and is continually interpreted. Although simple and straightforward in its wording, it embodies many conflicting values making interpretation and a balancing of conflicting rights necessary.

“We like to have it both ways,” she said. “We like our privacy. But we also like security. We like liberty. But we also like order. We like to be safe. But we like to talk.”

Zupanic said that is why it is so important to discuss and debate the Constitution and all the conflicting values it embodies and the conflicting principles it sets forth.

“This is our document, yours, mine. It is to be debated. It is to be discussed. I hope that it is not to be used as a weapon or that it’s used to stifle people or to cut off debate, or to keep people from having healthy debate and dialogue,” said Zupanic.

“You don’t have to be a Constitutional expert to have an opinion about the values expressed in our Constitution. Most of us don’t go around with the Federalist Papers stuffed in our back pockets and that’s okay. It’s okay to have a conversation about the principles that are valued in our Constitution, and reach our own idea of how they all fit together,” she said.

Zupanic entertained questions from the floor after her talk. Questions ran the gamut and included questions about state sovereignty, state’s rights relative to federal powers, limitations and prohibitions placed on the federal government, whether the constitution is a “religious” document, the significance of the Interstate Commerce Clause and many others.

Executive Director of ACLU Montana Scott Crichton also attended the meeting and was available for discussion before and after the meeting. Local Senate District 40 candidate Pam Erickson was the moderator.

Relay for life held

The 13th Annual Ravalli County Relay for Life was held at the track in Corvallis last Friday, June 24. Following the opening ceremonies, cancer survivors took the traditional lap before being serenaded with a birthday song. The slogan for this year’s event was, “Blow out the candles on cancer.”

Relay for Life teams are typically comprised of friends, family members, cancer survivors, co-workers, students and active senior citizens. After the teams have registered, the members usually go out into their communities to seek donations for their efforts. The day of the event, the teams arrive at site and set up their campsites. Then, following the opening ceremonies and traditional survivors’ lap, the teams are asked to have one member walking the track throughout the course of the event. When they aren't walking, the team members can usually be found visiting other campsites, participating in any number of games or activities, listening to the music, or enjoying the many food venues.

The money raised goes to the American Cancer Society to help it continue its funding of cancer research, state and national legislative advocacy, and its many educational and patient service programs offered nationally and locally.

Relay for Life began in 1985 when Dr. Gordy Klatt, a colorectal surgeon in Tacoma, Washington, ran and walked around a track for 24 hours to raise money for the American Cancer Society. Since then, Relay has grown from a single man’s passion to fight cancer into the world’s largest movement to end the disease. Each year, more than 3.5 million people in 5,000 communities in the United States, along with additional communities in 19 other countries, gather to take part in this global phenomenon and raise much-needed funds and awareness to save lives from cancer.

“This year’s event in Corvallis was a big success,” said Robin Holcomb, who serves on the Relay for Life committee. Holcomb said that 15 teams participated in this year’s relay and helped raise $36,000.

“It was a great turnout despite a little rain in the beginning,” she said. “By evening the weather was better.” Holcomb said the event worked out well with a good turnout despite the weather and the change from their traditional location.