Lawsuits Weapon of Choice in Flathead’s Growth Debate

By Beacon Staff

American Dream Montana’s recent complaint challenging county subdivision regulations is one of a string of land use related lawsuits filed against Flathead County in recent years. Most agree the litigation is yet another symptom of Flathead’s continuing growing pains, but that’s where consensus ends: Those taking the county to court say the litigation is the result of county officials’ disregard for public input and the law; while the county argues they’re stuck in a tug-of-war between two extreme parties unwilling to compromise.

Russ Crowder, chairman of American Dream Montana, said litigation is the only way to get the county’s attention. “We attended the public meetings. We gave them documents and wrote letters. We warned them that what they are doing is illegal. But they operate with a total disregard for the public’s interests or the state’s laws. They’ve disguised politics with planning.”

American Dream Montana, a pro-property rights group, alleges that restrictions to the use of private property in the county’s new subdivision regulations “have little if any basis in law.” They argue that Flathead County has exceeded state law without doing the required studies and reports to justify such actions. Contested regulations include provisions dealing with ground water, roadway design, construction standards and family transfers.

“For 10 years I’ve been trying to tell the county they can’t read some of their own regulations right, they don’t abide by them, and even if they did try to follow them they’re so poorly written they need to change them anyway,” Richard De Jana, American Dream Montana’s attorney, said.

De Jana, a local attorney who specializes in land-use law, has represented plaintiffs in several lawsuits against the county in recent years. And he’s done telling his clients to settle. “I’m at the end of my rope with this blatant disregard for the law; I’m going to start telling clients to go after damages,” he said.

“Commissioner (Joe) Brenneman thinks he can do whatever he wants, that he doesn’t have to follow the laws of the county or the state.”

Since October 2002, according to the Montana Association of Counties, there have been at least 28 lawsuits filed against Flathead County over zoning or subdivision denials or approvals. In the past year, six lawsuits were filed.

Litigation has become a choice weapon in Flathead’s growth debate, something that’s not the norm in other counties – even in some other high growth areas. MAC’s Executive Director Harold Blattie said Flathead County was “easily in the top five for this type of litigation,” and while other counties with high instances of land use lawsuits, such as Ravalli County and Park County, are high growth areas, that’s not necessarily the determining factor.

“One of the interesting things is that there are counties like Cascade and Yellowstone where there is growth and a lot of new subdivisions, yet they don’t get sued,” Blattie said. “I’m not sure why that is, if it’s the personalities in the community or better leadership, but I’d like to use whatever that silver bullet is to help these other counties that are always finding themselves in court.”

County commissioners Joe Brenneman and Gary Hall said lawsuits are partially the result of two extreme positions in Flathead County: those who aim to protect property rights at any cost and those who are opposed to all development. Brenneman said it’s groups like American Dream Montana¬ ¬– not county officials – that are interested in pushing an agenda.

“These groups don’t want to be confused by facts,” Brenneman said. “They’ve already made up their minds, and I guess been divinely given their directions for the only way things should be done, so they’re willing to sacrifice issues like water quality.”

Commissioners say they’re left stuck in the middle looking for solutions, that they know, no matter what, someone won’t agree with.

Lawsuits against the county do tend to fit one of two categories: neighbors or activist groups that favor stricter controls over growth to preserve environmental quality and open space, or property rights groups and developers that feel the county has overstepped its bounds.

In past years, the majority of lawsuits fell into the first group as residents upset with zoning changes that allowed subdivisions to pop up next door challenged the county. Most of these lawsuits challenged the process, not the law, contending in many cases that the public’s right to know and participate was violated. Other common complaints were that the county failed to follow its own subdivision and zoning regulations, were inconsistent in their growth policy or violated the right to a clean and healthful environment.

However, beginning in late 2005, a new slew of cases were notably different in that developers filed many of them. The county was hit with five gravel-pit lawsuits in a matter of months and then, in 2006, faced three developer-driven lawsuits, two of which successfully contested county requirements to pave roads.

It’s questionable, though, how effective most litigation is. Anyone contemplating a lawsuit should be ready to put up a minimum of $10,000, according to estimates from area attorneys, and litigation frequently exceeds $50,000. And, despite the onslaught from all sides, county officials point to their success record as proof they’re acting within the law; Chief Deputy Jonathan Smith, of the Flathead County Attorney’s office, said he could only remember two instances in recent years where the county had lost in court.

“We win most of our cases because we follow the law,” Hall said.

De Jana has a different idea: “They ‘win’ cases because if they’re going to lose they settle. It’s still admitting they were wrong.”

Brenneman and Hall said on the rare occasion the county has lost in court, it was simply the result of human error, not an intentional disregard for the law.

While the county and its contenders seem unlikely to agree on an explanation for land use litigation in Flathead, one thing seems certain: Litigation will continue. “I know of at least seven cases in other attorney’s hands that will be filed soon,” De Jana said.

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