Murky Waters: Setback Standoff Deepens

By Beacon Staff

When it comes to the murky waters of streamside setback regulations, residents on either side of the issue aren’t backing down – even after nearly two years of revisions, heated debate and lengthy public hearings. Commissioners are set to vote on subdivision regulations as early as next week, but with various parties threatening litigation a resolution might still be a long time coming.

From road standards to flood-plain protection, the county subdivision regulations lay out what steps developers must take to get a new project approved. The new regulations, if adopted, will apply only to those choosing to subdivide land.

Subdivision regulations came to the forefront early last year because state law requires them to be in compliance with the county’s new growth policy. Prior to that, the latest subdivision regulations had been adopted in 1984 – some sections had been amended since then, but this is their first overhaul in more than 20 years.

In August, the county adopted their new regulations, but amid widespread controversy, withheld about 15 of the most contentious regulations for further review and discussion.

At a public hearing last week, though, it was clear that more than a year of workshops, research and public meetings had done little to assuage the dispute over streamside setbacks. Impassioned camps on either side of the debate made two things very plain: Flathead County residents love their rivers, and Flathead County residents love their private property rights.

And, to hear the groups tell it, both are in danger.

If passed, proposed setback widths would be measured from the high water mark to the edge of the 100-year flood plain with the following specifications: The Flathead River and its three forks, the Stillwater River, the Whitefish River and the Swan River would have 250-foot setbacks with 100-foot vegetative buffers; Ashley Creek (from Smith Lake to the Flathead River) and the Fisher River would have 200-foot setbacks with 75-foot vegetative buffers; all other streams would have 60-foot setbacks with 50-foot vegetative buffers.

Opponents of the setbacks have criticized the idea as a taking of private property and cite a Montana law that says if a local regulation is stricter than state law, the local government must provide peer-reviewed scientific studies to support the more stringent regulation.

The Flathead Building Association, the Northwest Association of Realtors, the Montana Building Industry Association, the Montana Association of Realtors and the Montana Chamber of Commerce have called the county’s regulations “overly burdensome and illegal.” And Russ Crowder, president of American Dream Montana, has threatened litigation if the document passes.

“Sixty square miles of land in Flathead County would be unusable to property owners,” he said at last week’s meeting. “They’d be denied the lawful use of their property.”

Bill Myers, the owner of Bayside Park and Marine Center in Big Fork and a longtime, vocal opponent of the setbacks, said any streamside setback measure must include fair compensation to property owners for the loss of their private property rights. He owns seven acres in Big Fork Bay, six of which are under water. The seventh acre extends only 135 feet above high water. The proposed 250-foot setback on the Swan would render his property useless, he said.

“If you want it, buy it,” he said. “I say again, ‘Where’s the check?’ It’s for sale for $9.83 million.”

Proponents of the setbacks say their opponents’ narrow-minded focus on private property rights ignores the fact that the Montana State Constitution also guarantees each citizen the right to a clean and healthful environment.

“A small minority wants us all to believe property rights are limited to the owner’s right to develop and use the land anyway they want,” Steve Rosso, a Lakeside resident, said.

Setbacks, proponents say, protect property owners from flooding, increase or maintain home values and, most importantly, preserve the environmental and economic value of the area’s rivers and lakes. Conservation groups like Ducks Unlimited, Trout Unlimited and Backcountry Hunters and Anglers as well as the Flathead Basin Commission and Flathead Biological Station have supported the setbacks.

They point to Montana counties that have already addressed streamside protection, either through zoning, subdivision regulations or by passing special ordinances, as evidence for the need – and legality – of the regulation. For example, Madison County requires a 500-foot setback from the Madison River and Chouteau County prohibits structures within three miles of the Missouri River.

Commissioners are tentatively set to vote on the subdivision regulations as early as Oct. 10.