Judge: Commission ‘Abused its Discretion’ in Denying Egan Slough Expansion

Creston landowners are seeking to expand a zoning district to preclude a controversial water bottling plant

By Tristan Scott
An overflow crowd listens to Flathead County commissioners discuss the Egan Slough zoning district on Nov. 21, 2016. Greg Lindstrom | Flathead Beacon

Determined to prevent the construction of a water-bottling plant near their bucolic farmland near Creston, property owners notched a significant legal victory last week when a judge ruled in favor of their lawsuit, writing that the Flathead County Board of Commissioners “abused its discretion” by denying a petition to expand a special zoning district.

In granting the landowners summary judgment in their case, Flathead County District Judge Robert Allison ordered the Flathead County Board of Commissioners to reconsider a petition to expand the Egan Slough Zoning District, which would add 530 acres to the existing 1,150-acre district and preclude the controversial bottling facility.

At the heart of the dispute is the Montana Artesian Water Company, a water-bottling plant proposed by Egan Slough landowner Lew Weaver. Weaver received a permit with the Department of Natural Resources and Conservation that would allow his company to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week. The water right would allow Weaver’s company to receive 710 acre feet of water annually, equaling roughly 1.2 billion 20-ounce water bottles.

Neighbors to the proposed bottling facility have publicly raised concerns, and in 2016 asked the Flathead County Commission to expand the Egan Slough Zoning District, a designation created in 2002 to preserve the land’s agricultural character. The zoning district prohibits some industrial use and limits new parcels to no less than 80 acres.

Despite hearing testimony from dozens of residents who supported the zoning expansion, the commission rejected their request, prompting the landowners to sue the county. The lawsuit argued that the commissioners didn’t adequately respond to public comment when considering the district’s expansion.

By ruling in favor of the landowners, Judge Allison agreed, remanding the request back to the commissioners to “meaningfully address each topic/issue raised by the public in its rationale,” the order states.

“The public’s comments, which were overwhelmingly in favor of the petition, addressed many different topics including preservation of agricultural land, water quality and quantity, open space, wildlife, general environmental concerns, tourism, Flathead County’s Growth Policy, and property values,” according to the order. “Some members of the public attempted to address why they believed the Weavers’ water bottling plant would be detrimental to the area and why the Egan Slough Zoning District should be expanded to protect the area from industrial uses. However, the Board cut off many of these comments. Yet the Board then used the property rights of the Weavers to use their land as they see fit as part of the basis for their rationale … It is an abuse of discretion to consider the property rights of one landowner to the exclusion of other landowners and the county overall.”

The order states that commissioners Gary Krueger, Phil Mitchell and Pam Holmquist appeared to rebuff public comment and expert testimony “without providing any factual basis for doing so.”

“At least one member of the Board seemed to dismiss the reports simply because he did not believe them; yet there is no evidence in the record to dispute the reports’ findings or to provide any evidence whatsoever to the contrary,” the order states. “While the Board has discretion to weigh the comments and evidence before them, complete dismissal of expert reports without any evidence to dispute those reports lacks fact and foundation, is unreasonable, and is an abuse of discretion.”

Amy Waller, a Creston-area landowner who supports the zoning expansion, said the hard-won legal victory was an important step in the community’s years-long effort to derail the bottling facility, but that residents were shifting their efforts to a June 5 ballot initiative to expand the district.

“This is a great day for farms and water in the Flathead,” Waller said.

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