A Flathead County District Judge has ruled that county officials did not abuse their discretion in determining that a controversial water bottling plant in Creston was a legal or “grandfathered” use, despite the enactment of a new zoning district designed to preclude such operations.
The lawsuit — filed by the Egan Slough Community, Yes! For Flathead Farms and Water, and resident Amy Waller — was originally filed in 2018 in Flathead County District Court against the Flathead County Commission, the Flathead County Planning Department, the Flathead City-County Health Department, and the Montana Artesian Water Company (MAWC).
Flathead County District Judge Robert Allison on Nov. 12 heard oral arguments from attorneys on both sides of the wide-ranging issue, with counsel for plaintiffs seeking to resolve the lawsuit through summary judgment based on their contention that a ballot initiative, which passed in June 2018 with 70 percent of the vote, prohibits industrial operations like MAWC.
In ruling against opponents of MAWC, Allison disagreed with plaintiffs’ attorneys who say the zoning district’s exceptions for “pre-existing non-conforming uses” occurring prior to passage of the ballot initiative don’t apply to MAWC.
“The Court finds insufficient evidence to allow it to conclude the [Flathead County Planning and Zoning] office abused its discretion in determining MAWC’s land use as a water bottling facility is a legal, nonconforming use pursuant to” the initiative’s regulations.
MAWC’s basic contention is that the county was correct in determining that it is a legal nonconforming use that may continue to operate in accordance with the initiative. Attorneys for MAWC pointed out that its septic system, its public water supply well, commercial building, and water right were all being used in a lawful manner prior to the initiative’s passage. Therefore, attorneys say, it is “grandfathered” into the zoning district.
Controversy over MAWC began as soon as the company’s owner, Creston landowner Lew Weaver, applied for permits from the state Department of Environmental Quality (DEQ) and Department of Natural Resources and Conservation (DNRC). The validity of the DNRC permit is now under consideration by the Montana Supreme Court after a separate legal challenge resulted in the district court overturning the DNRC’s decision to issue the permit.
The permit would have allowed Weaver’s company to receive 710 acre feet of water annually while producing up to 140,000 water bottles per hour, 24 hours a day, seven days a week — or roughly 1.2 billion 20-ounce water bottles.
Weaver maintains the facility is grandfathered into the newly expanded zoning district and that it may operate to an extent consistent with its permits, even though it hadn’t begun full-scale commercial production at the time of the zoning district’s expansion.
“Here, a commercial water bottling operation existed on the property beginning in 2014. The extent of its existence included all essential property necessary to operate a commercial water bottling facility,” according to attorneys for MAWC. Therefore, MAWC is also protected under the Egan Slough Zoning District regulations.
According to a Facebook post by members of Yes! For Flathead Farms and Water, plaintiffs’ attorneys will continue to explore legal remedies, including a possible appeal of Allison’s decision.
“We disagree with the judge’s decision and we will be evaluating our options with our lawyers, including an appeal to the Montana Supreme Court,” according to the social media post.