'Subdivision by litigation…'

Growing pains or chronic migraine?

From now on, major subdivisions proposed in Lake County will most likely end up in the courtroom.

That's what Lake County Commissioners Dave Stipe and Mike Hutchin said during a recent interview.

"That's because the easy stuff is already done," Hutchin added.

Two prime examples are the contentious 26-lot Northridge major subdivision that Mike Maddy is developing along the shore of Lake Mary Ronan, and the Forman Road Estates project in Valley View west of Polson.

Subdivisions being decided in courtrooms are not necessarily good news for the environment, according to the commissioners.

For example, Chief Cliff Estates, being developed along Highway 28 near Elmo, is a court-ordered subdivision, Hutchin pointed out.

About two years ago, developer Judy Cook went to court after county officials turned down her subdivision proposal, he explained. In a civil suit, the judge ruled in her favor.

What happens in a case like that is that the court just orders a 'yes' on the subdivision, and the judge's ruling does not include specific conditions the developer must meet such as road requirements, housing density, pet control, and impacts on neighbors.

"The court is supposed to solicit local governmental comment," Hutchin said. "Most of the time that has been ignored."

Lake County Planner Dave DeGrandpre calls the entire issue of subdivisions a severe case of growing pains.

"We're between a rock and a hard place here," he said. "The county is right in the middle, between the developer and the public, walking a tightrope and making sure that both sides' rights are upheld."

In the case of the Northridge subdivision, Degrandpre said that the main factor that went into his decision to recommend preliminary approval was compliance with the law.

"We are following the law, but eventually it's a judgment call," the planner commented. "This was not a decided issue before that public meeting on June 15. The decision had not been made, I am certain of that.

"This subdivision is an eye opener in terms of us being very careful. I have been writing my reports with law books in one hand, looking at legal points the whole way.

"We've been working on Northridge for going on six months now," he added. "I have a 10-inch-thick file and plat drawings, for Northridge."

His staff report on the Northridge project is 25 pages long. "It's the longest one we've ever done," he said. "We need to document the reasons for every decision. I have put in loads of time, extra time…which means I can't do anything else. I have lots of other work that needs to be done, but…"

For the Northridge project, county officials have been "going the extra mile to give voice to the public," DeGrandpre said. "This has been a totally open, transparent process."

The Friends of Lake Mary Ronan have appealed the commissioners' preliminary approval of the Northridge subdivision on two tracks.

One track is appealing the officials' decision that the Lake Mary Ronan zoning regulations allow density "averaging." The second track is an appeal of the commissioners' decision to approve the Northridge subdivision.

The zoning appeal is tentatively scheduled to be heard by the Board of Adjustments on Sept. 8, DeGrandpre said. "Although it could happen in August," he added.

"This is new ground," he pointed out. "If the Board of Adjustments overturns my decision that the proposal complies with zoning regulations in the Lake Mary Ronan district, then - since the commissioners have already approved it - does the Board of Adjustments decision supersede the commissioners' decision?" DeGrandpre admits that he's not sure.

"There is no legal precedent for this in the state of Montana," he said. "Typically with zoning issues, there's not a subdivision going on at the same time. This is a very unusual circumstance."

County Attorney Bob Long and Myra Shults, an attorney from the Montana Association of Counties, are working with county officials on the Northridge issue.

According to the commissioners, Lake County could very easily get sued by both Northridge opponents and the developer.

"Say the opponents sue," Stipe said, "then the ruling is against the county. Then the developer can sue the county, even though the commissioners gave him approval."

Hutchin pointed out that if Maddy had not set aside an additional 45 acres - which includes 1,000 feet of lakefront plus 800 feet on Frieland Creek on the southwest corner of Lake Mary Ronan - then "our consensus seemed to be that they (developers) would not have met the density requirement under the zoning regulations."

According to Stipe, it all boils down to legal interpretation.

"The county's position is that Northridge met all the legal requirements," he said. "State law doesn't allow us to do things just because people want us to do them. The law says that we must listen to the public, but we cannot use the public's opinion or input as a reason to refuse a subdivision. Until 1993 we could have. But in '93, the Montana legislature removed that part of the law."

Furthermore, Stipe said, "We don't want subdivisions. The county doesn't promote subdivisions. The county doesn't benefit. Rural subdivisions don't pay their way, in terms of property taxes, compared to the cost of providing services.

"Our job is to make developers comply with the law. We're not pro-development. We make sure developers get a chance to develop, and make sure neighbors have their legal rights protected."

Stipe pointed out that "every time they've gone to the legislature, subdivision laws have gotten more complicated, and more difficult to apply as a local government. I have never seen subdivision laws get better, just more confusing and more litigious. Nobody has a handle on it."

Then there's the question of economics.

According to Hutchin, during the past 10 years, more and more people have been making their living either building homes, subdividing land, or selling land.

"We have probably more than 30 contractors here, 65 licensed backhoe operators, and 54 or more realtors," he said. "There's pressure from them to do developments. This is major industry."

Hutchin feels that the Montana legislature is behind the curve in providing money to acquire sensitive private lands for public use. In fact, he says the undeveloped Lake Mary Ronan shoreline is a great example of such land.

The state doesn't have enough money to buy something like the Lake Mary Ronan property, he said.

If (or when) Maddy develops future phases of his Lake Mary Ronan project, DeGrandpre said those phases "need to be environmentally sensitive, to protect water quality."

It would be really nice to see a bike/pedestrian path around the lake, and a public access park with sanitary facilities, he said.

"We have to recognize that growth is inevitable," commissioner Paddy Trusler said. "Our job is to make sure it's done right."

He and others hope that the Northridge subdivision will end up bringing people together to deal with the existing pollution in Lake Mary Ronan, as well as to prevent any future pollution there.