Ravalli County Commissioners approved the Moiese Meadows Subdivision last week with at least one caveat, that the decision could possibly be annulled by an upcoming District Court ruling.

The subdivision proposal is one of eleven involved in what Deputy County Attorney Alex Beal called "multiple venue litigation." The developers are suing the county in federal court, arguing their rights were violated in the subdivision review process. The Moiese Meadows proposal is being reviewed under the terms of a settlement agreement reached in that case, which allows the developers to skirt the Interim Zoning restrictions of one dwelling per two acres. But Bitterrooters for Planning and Phillip Taylor, architect of the Interim Zoning Initiative, have challenged that settlement agreement in District Court, arguing that the public was excluded from making meaningful comment upon the settlement agreement.

If District Court Judge Jeffrey Langton should rule in favor of BFP and Taylor and grant a temporary restraining order preventing the county from implementing the settlement agreement, "we would get in a little bit of a procedural morass," said Beal. "It might prohibit filing a final plat and could invalidate today's decision."

In the end a "conclusion of law" was included in the Commissioners' findings to the effect that their decision on the subdivision may be invalidated by the court decision expected near the end of the month.

The Moiese Meadows Subdivision proposal would create 33 lots on 34.66 acres, a density that would not meet the current Interim Zoning restriction of one dwelling per two acres. It is located about four miles northeast of Stevensville along the Eastside Highway near the Lee Metcalf National Wildlife Refuge. The proposal calls for a community sewage treatment system, but with separate water wells for each dwelling.

The proposal was put through the ringer of the six criteria governing the subdivision review process over a grueling five-hour period.

A letter from the Department of Natural Resources and Conservation, the agency governing water rights, generated some debate. Some Commissioners interpreted the letter as recommending a community water system instead of the proposed individual wells. Commission Chairman Jim Rokosch noted that a water right would be required on a community system to serve 33 homes and a lot of potential impacts would be examined in that process. Since individual wells would not require that kind of evaluation, he wondered if this was a way to skirt water rights law. He expressed concerns about the right of senior water users in the area and the effects the wells might have on surface water in the area in the light of a recent court ruling on the Smith River.

Nathan Lucke of Landworks Consulting and Design, working for developer Rebecka Lords, said that DNRC was going outside its jurisdiction in commenting on the issue. But he also stated that the proposed development would require lot owners to put a casing seal designed to prevent surface pollution from entering the system, and also require the wells to be placed into a deeper aquifer, one less vulnerable to surface pollution. He said that those requirements met the concerns that DNRC expressed when the agency suggested a community water system, but it met it on an individual basis.

Commissioner Grandstaff agreed.

But Grandstaff also took the lead in squeezing the developer over other issues in the proposal such as the proposed $296 per lot donation to the Sheriff's Department to mitigate the effects of the subdivision on those services. Grandstaff said that according to her calculations, based on the current $4.8 million budget divided among the number of lots served, about 4,868, current expenditures per lot would amount to about $957 per lot. A compromise proposal from the developer to pay $500 per lot was accepted. The developer had already committed to $500 per lot for the Three Mile Fire District and $500 to the Stevensville School District. Under last minute questioning the developer also agreed to make those payments upon filing the final plat, rather than upon sale of the lots.

Under grilling from the Commissioners about other criteria such as public health and safety, the developer agreed to establish a park complete with a shelter for school students to await the bus, and sidewalks, on one side of the streets at least, to lead to the shelter.

The developer also offered to ban the use of firewood burning stoves in the subdivision to address concerns about the effects on air quality. This offer was debated extensively before it was accepted by the commission as adequate mitigation.

The question also arose as to whether the information provided by the developer in the course of the deliberations constituted new information which, by law, if deemed credible and relevant to the decision, would require remanding it back to the Planning Board for review.

Commissioner Greg Chilcott said that he found the information credible but not relevant to the decision. He said the information worked to clarify other information already on the record and the decision would be based on the evidence in the record. The board apparently concurred and the decision process continued.

In the end, Rokosch abstained from voting due to concerns about the legitimacy of the process in the face of the pending lawsuits. Commissioner Alan Thompson, who expressed an interest in voting but left to attend another engagement, was called for a telephone vote but could not be reached. Commissioners Chilcott, Kathleen Driscoll and Grandstaff all voted to approve the subdivision with the newly set conditions. The measure passed 3 to 0.

Hamilton City Attorney takes oath of office

By Michael Howell

Almost four months after being appointed to a two-year term as Hamilton City Attorney, Ken Bell was quietly sworn into office on June 11, 2007.

Oops.

Montana statute (7-1-4137) defining oath of office states that, "Every elected and appointed municipal officer shall take the oath of office prescribed in Article III, section 3, of the Montana constitution. Before the officer performs any official duties, the oath of office, certified by the official before whom the oath was taken, must be filed. An elected officer shall file the oath with the county election administrator. Except as provided in subsection (2), an appointed officer shall file the oath with the city clerk."

Hamilton Mayor Jessica Randazzo called the belated oath taking "an oversight." She said that, prior to Bell, the City employed Jim Haynes under contract. Haynes quit when he was elected District Court Judge. Bell was then hired in January, 2003, under Mayor Joe Petrusaitis' administration. Then, said Randazzo, the Government Study Commission raised questions about statutes actually requiring that a city attorney be appointed for a two-year term.

This led to the appointment of Bell to a two-year term on March 20, 2007 after serving as the de facto city attorney for over four years. Randazzo called the statute requiring the oath of office "obscure" compared to the reams of statutes about employee status that had the administration's attention.

She also notes a recent study regarding the employment status of Montana's City Attorneys prepared by the Local Government Center, at Montana State University in which a survey revealed, among other things, that only half of Montana's cities are following the law that requires them to appoint or reappoint a city attorney every two years.

"Some things I can't defend," said Randazzo. "Somehow the issue just got lost. I believe it was just honest oversight."

As a result of this convoluted history and legal oversights, Bell did not take the oath of office until July 11.

City Attorney Ken Bell said that he was first hired as a full-time employee of the city and there was no concern about an oath of office.

"Then I got wind of the fact that a defense attorney was looking for a way to invalidate my prosecution of his client," said Bell. "Rather than argue an extra hearing in court I decided to prepare an oath and had the Mayor administer it."

David Stenerson, managing attorney at the Hamilton Public Defender Office, said that he was aware of the issue and that his office was looking into it. He said that another attorney in the office had been looking at it as a possible invalidation of Bell's prosecution.

"It's an issue we are looking at in general," said Stenerson. "Whether it will affect any case? We don't know."

Stenerson said that it could just be a technical issue that won't really affect anything. Then again, he said that there are cases in which a judge's warrant from the bench has been invalidated because the judge had not taken the required oath of office.

"It may or may not affect some of our cases," said Stenerson. "We are looking into it."

Eckert survives rollover

By Michael Howell

Conrad "Connie" Eckert, Sr., owner of Eckert's Septic Service of Stevensville, is a lucky man, according to his wife, Carolyn. And not just because he married her, but because he was lucky enough to survive the single vehicle accident that ruined their large septic pumping truck last week.

According to information from the Highway Patrol at the scene, Eckert's vehicle apparently drifted off the roadway to the right as it was headed north towards Stevensville. The vehicle then swerved back across the road and ran off into a ditch on the west side of the road before tipping over in an alfalfa field.

The top of the truck's cab collapsed and one bystander said that it took about 45 minutes to remove the driver from the wreck. He was then taken to the hospital by ambulance.

"He's been in this septic pumping business for forty years," said Carolyn. "He's driven millions of miles in that time and this is his first accident. I guess he decided if he was going to finally do it, he would do it big."

She said that actually he was in remarkably good shape for what he went through. He has a couple of broken ribs, a few broken fingers, and lots of stitches.

"He's wearing his Halloween costume early," she said and laughed.

She said he was banged up, though, and would be out of commission for a while. But the septic pumping business will go on.

She said that it was really quite a blow for an almost 64-year-old man. "But the main thing is he's still here, and we're still pumping." She also expressed gratitude for all the caring people who have contacted them since the accident.

Tester keeps in touch

By Michael Howell

In an effort to keep in touch with constituents throughout the state, Senator Jon Tester has instituted, on a somewhat regular basis, a telephone press conference with small newspapers from around the state. The aim is to give those small Montana newspapers without the resources for a Washington D.C. correspondent the chance to be informed about U.S. Senate actions affecting the state as well as the chance to ask questions on any topic.

In his initial comments to reporters last week, Tester emphasized the work he and Senator Max Baucus were doing to bring federal funds to the state for various projects. He noted that the Agriculture Appropriations Sub-committee had recently approved several million dollars for projects in Montana, one of which is the $1.6 million appropriation for the Montana State University Bioscience Research Facility. Tester called it "a first step, but an important step" in securing some vital funding for the state.

The Senate Appropriations Committee, he said, has also approved several million for what he calls "critical projects" in Montana, including $6 million for the Kalispell Bypass to alleviate downtown traffic problems, $1 million for Homeward, an affordable housing program in Missoula, and $450,000 for the purchase of food delivery trucks for the Missoula Food Bank. All these funding measures still require full Senate approval.

Tester mentioned the all night session of the Senate, recently held in an effort to debate the Defense Authorization Bill.

"A minority has continued to block a bi-partisan effort to change the direction of the war in Iraq," said Tester.

Tester said he has fairly well staked his ground on the issue of the war in Iraq and referred to his own "three-point plan" to address the war. The plan includes, first, dealing with the immediate physical and mental health needs of the troops. Tester supported a recent bill addressing the issue that would have increased the time spent at home by troops between tours of duty. But that bill was defeated, he said.

The second point would be to "re-double our efforts in Afghanistan," according to Tester. He believes that Afghanistan is the real front line in the battle against al-Qaeda, not Iraq.

The third point in his plan would be to de-authorize the use of force in Iraq, thus bringing an end to the funding for the misguided policy. This is the bill that is being stalled over procedural disputes in the Senate.

In the meantime, said Tester, we are spending about $3 billion per week, over 3,600 American lives have been lost and ten times that injured, defending a failed policy.

"We want to see this war change direction, in my case, see it brought to a close, so we can get our troops home," said Tester. "But we are still being held up on procedural motions instead of actually voting on the policies that are going to impact what I believe is the failed policy in Iraq."

Tester also mentioned that he and Senator Max Baucus, as well as Senator Ken Salazar (D-Colorado), a former member of the Senate Veterans Administration Committee, would be attending a field hearing in Great Falls. The focus, he said, would be the needs of veterans in Montana, especially rural Montana.

"My top priority is to make sure that all veterans have access to the quality, affordable health care they deserve," said Tester.

That field hearing was conducted on Saturday, July 21.

In response to questions from reporters in last week's telephone conference, Tester said that he was following closely the movement of the Farm Bill through the Senate and working closely with Senator Tom Harkin (D-Iowa), who is chairing the Senate Agriculture Committee.

Tester said that he was working along with Senator Baucus to try and fund the Conservation Security Program, a program designed to provide money and technical assistance to farmers and ranchers for conservation efforts aimed at protecting water quality and wildlife habitat and other environmental values.

He said that he is also working on including some provisions in the bill to increase spending for certain food and nutrition programs, like the food stamp program. He noted that the current average food stamp supplement amounted to about $1 per meal.

"A dollar doesn't buy much," he said.

He is also working on adding provisions for small farmers, still working on the land, to save their land from development in the face of rising land values. He said that his main concern was that the money gets to the people who really need it, the people working on the land, "not the hobby farmers and others, such as the mega-agribusiness companies."

The Senate is not expected to take up the proposed Farm Bill until September.

Tester responded to several questions and comments about this year's fire season. He said that he and Senator Baucus were working to create a Trust Fund for Firefighting. That way, instead of drawing from general management funds to fight fires, the Agriculture Department could be sure that its management funds went into management, as planned, and not into firefighting, which would then have its own designated funds.

"So we don't get caught in a 'swirling situation'," Tester said, in which we spend money that should be spent on management of the forests to fight fires and then, due to lack of management, we face more and more fires.

Tester also noted that something must be done to address the problem of diseased killed trees, a problem likely being exacerbated by the effects of global warming. He said the real key to arriving at a solution was in bringing all sides to the table for a thorough discussion of the complex problems.

Tester addressed the notion that Mineral County has two main economic drivers, logging and tourism. He said that a good forest management policy could make a win/win situation for the whole economy. If a forest is burnt down, he said, or logged improperly, it will most probably have a negative effect upon tourism.

Any Bitterroot Star readers who have specific questions they would like presented to Tester during a future telephone conference should send them to Bitterroot Star, P.O. Box 8, Stevensville, MT 59870 or fax 777-4265 or e-mail them to thestar@bitterroot.net.

County won't stop Lost Horse Quarry mining proposal

By Michael Howell

On Monday, July 23, the Ravalli County Commissioners considered a motion to direct the Road and Bridge Department to withdraw its request to the U.S. Forest Service to re-activate the Lost Horse Quarry. The Darby Ranger District is considering a proposal from the Ravalli County Road and Bridge Department to re-open the Lost Horse Quarry located about 4.5 miles up Lost Horse Road, just across the road from the bridge that crosses Lost Horse Creek.

The 4.9-acre site is expected to yield about 10,000 to 15,000 cubic yards of material a year over a ten-year period for a total of 125,000 to 150,000 cubic yards over the course of the entire project. It will occur in a seven-month period from mid-October to mid-April. The plan is to crush the rock on site and then transport the result to another site for further processing. Cost to the county is estimated at from $7 to $10 per ton compared to the going price of $14 per ton. This cost estimate is up from the initial estimates of $2 to $3 per ton due to addition of other costs.

County Road Supervisor Dave Ohnstad told the Commissioners that the gravel pit has been in existence for 50 years and never been abandoned. He said that there has never been any blasting at the Lost Horse Quarry and none is planned. He said that no gate was going up on Lost Horse Road. He said a sprinkling system is planned for the rock crusher to mitigate the dust. He said that abrasion tests had been done and the quarry has very utilizable material. He said the project would yield enough aggregate to resurface over 500 miles of Ravalli County roads and provide base rock for 30 miles of Forest Service road upstream.

Darby District Ranger Chuck Oliver said that his agency was considering a proposal from the county that it considers a legitimate proposal. He said that the Forest Service is using the NEPA process to examine the potential impacts of the proposal and that the Forest Service has no interest in the project itself. He said a lot of misinformation had been bandied around and that he was there to answer questions if needed.

Then the Commissioners heard from a standing-room-only crowd. Out of around 32 members of the public who spoke, only one spoke in favor of the project.

The Commissioners heard the entire spectrum of complaints about the proposal. How it would destroy the peace and quiet of the local residents and expose them to unsafe traffic conditions with large trucks moving on the narrow and winding road. How it runs counter to the many years of recreational development in the area. How it runs counter to the Forest Service Plan for the area. The many costs, some very hard to calculate, that nonetheless need to be figured into the cost benefit analysis. The potential loss of a premier rock climbing site that is on the verge of gaining national recognition.

Right off the bat Commissioners were told that this is not a NIMBY issue. Out of 63 letters so far received in comment by the Forest Service, said one member of the public, 15 were from residents against the project and 42 were from non-residents that were against the project. He said that only 6 letters supported the project and they were all from non-residents.

One speaker submitted a petition to stop the project with 250 signatures.

Dale Burk complained that there was no comparative cost analysis, no analysis of any alternative sites, and no accounting for the potential cost of an accident on the road.

The lone person speaking in favor of the project said that he thought operating the gravel pit would increase recreation in the long run by the road improvements involved. He said there would be less dust from the road, fewer potholes and better conditions in general for horse trailers.

Comments made by the out-of-state owner of the Lost Horse Creek Lodge to the commissioners earlier were also read into the record. He also favored the project and thought that the road improvements included in the proposal would be good for business and work on the road up to Twin Lakes would increase tourism.

Commissioner Kathleen Driscoll said that in her visit to the site she was very impressed by the huge impact that recreational development has had on the area compared to when she visited as a child. She said that those negative effects of recreation, increased noise, increased traffic, etc. would have to be a part of her considerations. She said that she would need more time to think the issue through.

Commissioner Alan Thompson said that he was disappointed in the people trying to inject politics into the situation. He noted potential dust problems but thought they might be mitigated. He said the project would also result in a better road conditions and would provide a high quality rock for chip sealing. He expressed surprise at the number o f rock climbers extolling the quality of the Lost Horse Creek area. He said he had done a lot of shoe repairs for rock climbers over the years and didn't ever hear much talk about Lost Horse.

Commissioner Greg Chilcott said he understands that rock of this quality is in limited supply. He said that neighbors will always complain about a gravel operation in their neighborhood. He said that removing rock at the base could make access for climbing easier.

"We need quality material for our roads and we need to get it from somewhere," said Chilcott.

Commissioner Carlotta Grandstaff said, "I don't like the plan at all." She said it was incompatible with recreational use of the area, that the safety problems with the road were severe, calling it an "accident waiting to happen." She said the costs were unclear and it was also unclear what alternatives may exist.

Commissioner Jim Rokosch said that he had serious concerns about public safety and was also concerned that the economic analysis was deficient.

Grandstaff moved to direct the Road and Bridge Department to withdraw the project request. Rokosch seconded it. Grandstaff and Rokosch voted to end the project, Thompson and Chilcott voted against it. Driscoll abstained. The motion failed due to the tie.

Rokosch mentioned that the Commission could take up the matter again after the Forest Service had completed its NEPA process and take advantage of the entire record of public response in their future considerations.

The Forest Service is still accepting public comments on the proposal. Written, facsimile, hand-delivered, oral, and electronic comments will be accepted until July 31, 2007. Written comments must be submitted to Chuck Oliver, District Ranger at Darby, P.O. Box 388, Darby MT 59829. For more information, contact Elizabeth Ballard at 777-7421.

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