Court Sides With County in Growth Policy Dispute

Citizens for a Better Flathead group argued the policy’s 2012 updates did not comply with regulations

By Molly Priddy

A District Court judge has sided with Flathead County in a lawsuit claiming the county did not comply with rules or regulations when adopting amendments on the growth policy.

Citizens for a Better Flathead filed the lawsuit against the Flathead County Commission, specifically former Commissioner Dale Lauman and Commissioners Pam Holmquist and Cal Scott, in 2014.

The lawsuit argued that neither the county planning board’s recommendations of changes to the 2007 Flathead County Growth Policy nor the commission’s adoption of the 2012 growth policy included findings of fact supporting the changes, documentation of rationale, or addressing or incorporating the public’s concerns.

Further, the lawsuit stated that the commission failed to follow “mandatory criteria and procedures” in the growth policy-updating process, making the county’s resolution to accept the changes “arbitrary and capricious.”

CBF also alleged several of the growth policy amendments did not meet the standards of public health, safety, morals, convenience, order or general welfare, and that the property rights provision violated the Growth Policy Act and the Montana Constitution.

In her Aug. 17 decision, Judge Heidi Ulbricht struck an affidavit and report from Kathleen McMahon, a professional land-use planner who analyzed the Flathead County situation for CBF, because expert testimony was not necessary to determine whether the commission followed the law.

Both the county and CBF asked Ulbricht to issue summary judgment in the case, with the county claiming the 2012 growth policy was properly adopted after numerous public and duly-noticed meetings.

Ulbricht sided with the county in most of the arguments, replying to the allegation that the planning board and the commission failed to adequately consider and incorporate public comment into their 2012 decision with a review of all the public comments made, comments from the commission about said comments, and a reminder that the court cannot “engage in further analysis without substituting its own opinion for that of the Commissioners, which it is prohibited from doing. It is not the function of the judiciary to sit as a super-legislature.”

Many of the county’s arguments relied on the response that the growth policy is not a regulatory document, and Ulbricht agreed, especially in the case of the growth policy’s private property rights section.

Ulbricht said the clause doesn’t promote violating the right to a clean and healthful environment, as guaranteed in Article II of the Montana Constitution, because the document itself isn’t regulatory.

“The clause clearly provides that any regulation affecting property should further public health, safety, or general welfare,” Ulbricth wrote.