A final decision on a tentative settlement between Flathead County and the developers of the North Shore Ranch Subdivision was put on hold until March 8 after the county commissioners heard two hours of public testimony against the terms of the agreement.
The proposed settlement comes almost two years after the commissioners voted 2-1 to reject the 367-acre subdivision plan over flooding and seismic activity concerns, as well as the development’s proximity to the Flathead Waterfowl Production Area. The developers sued the county after the commissioners’ denial.
The general overtone of the March 1 hearing was one of confusion over the agreement and concerns about the transparency of the settlement process.
As the county’s legal representation from the Montana Association of Counties, Alan McCormick explained the terms of the settlement to the crowd as “risk management.”
Several claims in the case could be taken to a jury, McCormick said, and taking the case to court could result in up to $15 million in damages.
By settling the case, the county could eliminate the possibility that it may get a judgment against it for more, he said.
Many audience members said the information released to the public gave no indication as to why the county would settle the suit.
Kalispell attorney Roger Sullivan said he could find no evidence in public record for the commissioners to agree to a settlement. The settlement would be “unsupportable by the compelling factual record and is in violation of the public trust,” Sullivan said.
Valley resident Donna Thornton said the public should have access to all the depositions and settlement documentation so that it could form fully informed opinions on the matter.
She also noted that many of the people at the hearing agreed about transparency issues, despite historically being on opposite ends of the ideological spectrum on planning issues.
“The one thing that’s finally managed to be done is to bring all sides together in consensus that something shouldn’t be done, which is this settlement,” Thornton said.
In the proposed settlement, Flathead County would pay the developers $600,000 to open up 150 acres for public access, which would be paid back to the county if the developers decide to sell the land.
A representative from Montana Fish, Wildlife and Parks read a letter from FWP Regional Supervisor James Satterfield, which cited several concerns with the settlement, particularly with the 150-acre easement. The proposed settlement doesn’t adequately address wildlife concerns, Satterfield wrote, because the designated open space is not permanent.
“Because the development is permanent, the mitigation for the development must be permanent,” Satterfield wrote. The letter concluded that the settlement should be reworked before a final decision is made.
The proposed settlement also includes the county agreeing to pay $400,000 in restitution, as well as the cost of the linear footage of roads laid out in an earlier, smaller version of the subdivision.
McCormick also said the cost of the subdivision’s roads would not come in one lump sum if the settlement were finalized. Instead, the county would pay for the roads as the subdivision’s phases are built, which means the total cost could be paid out over 30 years, McCormick said.
He also noted that a perceived lack of transparency was the result of attorney-client privilege during the settlement proceedings. If all the documentation were public, the opposing counsel would have access to the defense’s strategies, McCormick said, which would make a trial very difficult if the commissioners decide to reject the settlement and take the case to court.
Another stipulation of the proposed settlement would be approval of the development’s revised preliminary plat. The original plan called for 290 housing units on 367 acres.
The new plat would increase open space by 100 acres, McCormick said. The revised plat includes acreage for single-family residences, condominiums, storage, commercial and assisted living lots, totaling 289 units. There would also be a 150-foot buffer between the development and the waterfowl production area.
But many audience members said they were worried about approving a preliminary plat without going through the planning process.
Flathead County Planning Board member Charles Lapp said he was wary of approving the new plan without going through the usual steps.
“The planning board has never seen this subdivision,” Lapp said of the revised plat. “This is a completely different subdivision. Send it through the process.”
Several audience members were also worried the settlement would set a precedent that would prohibit the county from rejecting any future subdivisions. Others said the commission made the right decision to deny the development and should stand by it.
After considering public comment, the county commissioners agreed to take all the information on advisement and make a decision on March 8.
The proposed settlement must get approval from the county commissioners and a judge before it becomes final.
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