American Dream Montana recently launched a petition to repeal Flathead County’s growth policy. That gives the pro-property rights group 90 days to gather 5,353 signatures to place the referendum on the 2012 ballot, since the deadline has already passed for the upcoming general election. If successful, it would either change the rulebook county officials use to referee land disputes or throw it out all together.
I have been following the debate and controversy over the county’s growth policy more closely than most, and I still don’t quite understand what will happen if it’s overturned. While proponents and opponents of so-called “smart growth” attempt to simplify the argument for and against land rules, the fact remains that the county’s growth policy is 166 pages and incredibly complex.
Take, for example, the debate over the proposed commercial motocross track in West Valley. Neighbors say it would be too noisy for the area and wrote a letter to the Flathead County Planning and Zoning Department alleging that it violated zoning in West Valley.
But planning staff found that the track is not located in the West Valley Zoning District, but in the West Valley Overlay District, which is zoned AG-80. That means the track could qualify for a low-impact recreational conditional use permit from the Flathead County Board of Adjustment. The track owners have applied for one, and the Board of Adjustment will consider it.
These are the traditional hoops landowners must jump through when they want to start a business or develop property next to other landowners. If the growth policy were thrown out, however, would those hoops still exist? Would AG-80 zoning still apply?
“It is a legal question that I don’t think there is an answer to,” Interim Flathead County Planning Director BJ Grieve said last week. “We will follow whatever guidance is given by the county attorney’s office.”
The Flathead County Attorney’s Office has maintained that there would still be land rules, but the county would lose its authority to create new zones and be prevented from ever changing them.
“Our position would be that existing zoning would stay in place and is enforceable,” Deputy County Attorney Tara Fugina said.
In that case, the track still must abide by zoning rules.
But Russ Crowder, the chairman of American Dream, adamantly disagrees. He argues that overturning the growth policy would eliminate all zoning and new regulations could only be adopted through emergency zoning, which lasts just two years, and using Type 1 zoning, which would require 60 percent of the citizens in an area requesting a zone.
If that’s the case, I asked Crowder what avenues neighbors could explore to settle disputes, such as the dust up over a commercial venture in which critical neighbors contend that traffic and noise would adversely affect their property values.
Crowder was blunt: “The reality is as long as they’re not harming neighbors they should be able do any damn thing they want.”
He did say landowners could settle disagreements in other ways, such as nuisance law. But if there is no growth policy, the threshold that must be met to regulate property uses will undoubtedly be much higher. The question is to what degree?
If overturning the growth policy simply limits the county from implementing new zoning laws that is quite different than scrapping them altogether.
A court will likely decide what exactly should happen if Crowder is successful. The problem is that ruling would follow the petition, which makes a complicated issue even more convoluted. Will medical marijuana dispensaries open up next to schools? What about strip clubs next to churches? How arduous is it to initiate citizen zoning?
If Crowder’s measure makes it onto the 2012 ballot, voters could be asked to take sides on an issue before its ramifications are clear – leaving Flathead zoning rules in the hands of the courts, where they don’t belong.