Realtors Challenge Public Process in Setback Debate

By Beacon Staff

The Northwest Montana Association of Realtors sent an open letter to county commissioners, the planning board and planning director last week accusing county officials of violating open meeting laws and not providing adequate public comment on riparian setback issues.

Stream and river setbacks are one of the most contentious issues included in the county’s proposed subdivision regulations, drawing large numbers to public hearings and heated debate. More than 100 people attended a planning board workshop in mid-October, where the three-hour meeting was devoted to public comment.

But, because of changes to the setback proposal made before the next workshop, the NMAR says that public comment time was insufficient.

“They took public comment based on one set of regulations, but then proposed something entirely different without giving us an opportunity to look at or even comment on the regulations,” George Culpepper, Jr., NMAR’s government affairs director, said.

NMAR is one of several groups to recently challenge the public comment process in both city and county meetings. American Dream Montana and Citizens for a Better Flathead, organizations that generally find themselves on opposite sides of issues, have recently agreed on one topic: City and county government mishandles public comment. But county officials have expressed frustration at the lawsuits and accusations of failed public comment, saying because court challenges on the issue have been successful in the past, groups now regularly rely on them when they disagree with decisions.

“To be quite honest, it seems for the most part that if people are happy about the results we don’t hear anything about problems with public comment, but if they aren’t happy with results that’s when they’ll complain,” county planning board chairman Gene Dziza said.

But, NMAR President Cal Scott said the organization’s motive isn’t to sway the decision, but to ensure everyone – for and against – the setbacks have their say. “It’s not about developing or selling properties,” Scott said. “We’re residents too and as a citizens group are saying we’ll be a public conscience and challenge this.”

At the planning board’s Nov. 1 meeting, many members of the public left upset when Gordon Cross, who was acting as board chairman in Dziza’s absence, announced that public comment wouldn’t be taken until the end of the meeting and introduced a new draft of setback regulations.

The board had decided that public comment taken at the initial October meeting was sufficient and closed public comment at the end of that meeting. However, representatives of Montana Fish, Wildlife and Parks and the U.S. Fish and Wildlife Service were allowed to make presentations at the November workshop because they couldn’t attend the October session.

Dziza said the new draft wasn’t an attempt to sneak through a “surprise topic” as NMAR suggests, but part of the usual planning process where the board adapts or revises proposals to address public concerns. “It’s not an attempt to shut people out of the process. It’s us taking those three hours of public comment into consideration and applying them to the proposal,” he said.

Dziza said several members of the public and the board at the initial meeting wanted to see site specificity included in the regulations. Cross’s revised proposal included an option for developers to submit a “riparian resource management plan” with their subdivision regulations, rather than following “one-size-fits-all” setback distances.

And, Dziza said it was he, not Cross, who made a mistake with public comment: “I made an error at our next meeting by allowing public comment when it was technically closed; it was me that made the error, not Gordon.”

NMAR is demanding the planning board hold another public comment workshop before making its recommendations to the county commissioners and asking for copies of e-mails between planning board members concerning the Nov. 1 workshop. Scott said NMAR was prepared to file its first lawsuit against the county if it didn’t feel public comment and open meeting laws were met.

As of last week, Scott and Culpepper said they hadn’t received a response from county officials to their letter, but Dziza said he expected the board to revisit riparian setbacks before making its final recommendation.

Dziza said some members of the board had requested to revisit the setbacks and with the addition of at least three new board members when terms come up in January, it’s uncertain if the board will have a consensus.

“I’m quite certain this will be something we revisit,” Dziza said.