Legal Saga Over Kootenai Estates Continues

By Beacon Staff

A flurry of briefs and counter-briefs in the wake of a December state Supreme Court ruling has renewed the legal wrangling over a development at the northern tip of Swan Lake. The Swan Lakers, a community group opposing the Kootenai Lodge Estates subdivision, called the recent decision a victory, but Alan F. McCormick, an attorney for Lake County said the Supreme Court’s ruling was neither a surprise nor a setback.

The Dec. 19 decision prevents the Lake County Commissioners from granting final approval to the Kootenai Lodge Estates subdivision, and rolls back that approval, granted in October. The order also prohibits Florida-based developer, the Milhous Group, from selling any property in the subdivision, which sits about eight miles from Bigfork at the mouth of Swan Lake. The Supreme Court ruling essentially preserves the status quo of the legal proceedings as they stood in October, before the development was approved.

The Swan Lakers are now proceeding with the appeal of an August Missoula District Court ruling that the group did not have standing to take legal action against Lake County. The Swan Lakers seek to pursue a case charging that Lake County Commissioners allowed Milhous to sidestep certain regulations in granting approval to the development.

McCormick is currently at work on his response brief to the Swan Lakers’ appeal, and said he will likely turn it in close to the Jan. 11 deadline. (McCormick’s law firm has represented the Beacon’s parent company.) The Swan Lakers must respond to that brief a week later. To the benefit of the Milhous Group, the Supreme Court will expedite its review of the appeal to minimize the financial damage Milhous will suffer under the injunction while the development remains vacant.

“We are pleased that the Supreme Court is taking this matter under accelerated review and we are confident that the ruling will be in our favor,” said Alana Morris, spokeswoman for Kootenai Lodge Estates.

The flurry of suits, cross-suits and counter-suits, coupled with clashing court rulings, makes for a confusing web of legal action, but the current case before the Supreme Court boils down to the ability of the Swan Lakers to convincingly argue that the group, as well as individual member Bradley Wirth, are directly harmed by the Kootenai Lodge development. The group’s appeal also questions whether Montana’s subdivision regulations are unconstitutional and prevent citizens from protesting the approval of developments by county commissioners.

McCormick will renew the argument that the Swan Lakers, as a group, do not own property that is directly harmed by the development, so the group should not have the ability to take legal action against Milhous or Lake County. Members of the Swan Lakers may feel the inevitable effect of a new subdivision in their community, McCormick said, including a slight increase in traffic, and homes where some trees once stood, but such factors fall short of the direct harm that must be demonstrated by law.

“No one has demonstrated a likelihood of material injury to their property,” McCormick said, adding that the group’s complaints about state subdivision regulations should be resolved through the Legislature – not the courts.

It’s unclear, under expedited proceedings, just how quickly the Supreme Court will rule on the current appeal. But if the decision does favor the Swan Lakers, it appears likely the original suit against Lake County and Milhous will end up before the Supreme Court as well.