Group takes legal action to stop density map, zoning regs

POLSON - A group of local land owners has temporarily halted the approval process of the county's proposed density map and related zoning regulations, and the county planning board must show cause in district court Dec. 17 why the approval process should be allowed to continue.

The Petitioner Land Owners' Alliance, L.L.C. filed a petition for writ of prohibition seeking to halt the implementation of the county's proposed density map and resulting zoning regulations, claiming the public did not receive sufficient notice of public hearings and that the public notices that were published failed to meet the necessary legal requirements.

Lake County District Court Judge C.B. McNeil upheld that writ Tuesday morning, negating the Dec. 18 public comment deadline and Dec. 23 meeting to formally approve the density map - at least temporarily.

In court documents filed Monday afternoon, the Petitioner Land Owners' Alliance, L.L.C. is listed as a group whose purpose "is to protect property rights of landowners in Lake County, Montana." Ronan rancher Joe Brooks is the group's president.

The writ was filed against the county and its commissioners, and seeks to prevent them from "exercising functions which are without or in excess of its jurisdiction" - specifically, adopting the proposed density map and regulations associated with it.

"What this means is that if a board is acting without jurisdiction, whether it's a state, city or county board, then this writ seeks to stop this proceeding (density map approval process)," said Polson attorney Douglas Wold, who is representing the group.

According to the writ, the county commissioners failed to give legal notice that it intended to conduct a public hearing on adoption of the density map and proposed zoning regulations at its Oct. 21 and Nov. 10, 2004 meetings. The writ cites state law that requires publication of such notice once a week for two weeks in a local newspaper.

The writ also says public notice of the hearing held before the county planning board on Oct. 13 was also invalid because state law requires the public hearing to be held before the county commissioners, not the planning board.

"Our contention is that the planning board meeting is the public hearing, and then the commissioners' meeting is the public meeting," county commissioner Dave Stipe said. "It's just the difference in the two words (hearing versus meeting) - the commissioners' meetings are open to the public but don't necessarily need to be advertised as public hearings. Public hearings are the ones that need to be (legal) notices, and we do that at the planning board stage."

The writ says those public notices that were published also failed to meet the letter of the law regarding proposed zoning regulations because the notices were too vague regarding the zoning district's boundaries, the "general character" of the regulations and the time and place of the public hearings, as specified in Montana Code Annotated 76-2-205(1).

The writ says the public notices "fail to inform the intended reader that the Density Map and Regulations are zoning documents, which, if adopted, will impose restrictions on their (landowners') property which do not presently exist, and which restrictions could materially and adversely affect the value and use of their property."

"I think we are within the spirit of the law. These allegations are largely procedural," said Dave DeGrandpre, the county's director of planning. "This is part of the process. People have a right to do this - they are exercising that right."

The writ goes on to say that most of the public notices fail to use the word "zoning" - another violation of state law.

Finally, the writ claims the proposed density map and resulting regulations fail to give "reasonable consideration" to the "character of the district," and don't "encourage the most appropriate use of the land." Specifically, it cites the proposed density level of one housing unit for every 20 acres throughout much of the density map as an example of that.

"This issue is, are these conditions reasonable for the circumstances? When I consider that the most highly developed areas often lie along golf courses and water areas, and I see that all the areas along the one golf course and local water areas are zoned one for 20 (one house per 20 acres), I don't think they gave reasonable consideration," Wold said.

Wold said much of the public is unable to understand the language used in the proposed regulations and density map. He said once the map is approved, it would create a tremendous burden on developers and property owners to comply with it.

"Once this becomes adopted, to change it would be very difficult," Wold said. "What we have here is a red-flag issue without having given the public notice that it's entitled to."

The writ also seeks reimbursement for attorney's fees for the Petitioner Land Owners' Alliance, as allowed by state law.

Upholding the writ and preventing the county commissioners and planning board from continuing with the density map approval process will not prevent them from starting the process all over again, Wold noted.

"The object of this isn't to stop zoning. The object is to say, 'Don't zone us without giving us proper notice,'" said Wold.

DeGrandpre said that if the planning board fails to convince McNeil at the show-cause hearing, and the density map and zoning regulations are therefore temporarily scrapped, the decision to re-start the process would be left up the county commissioners.

"If they feel this is the right course of action (implementation of the density map and zoning regulations), then they will probably continue on with it," said DeGrandpre.

The show-cause hearing is scheduled for 9 a.m. at the Lake County courthouse on Dec. 17, one day before the public comment period was slated to end.