Baker 80 Subdivision Approved Despite Public Access Concerns

Flathead County Planning Board approved subdivision for second time over objections of neighbors, sending it to county commission

By Micah Drew
The sun shines past the tower of the historic Flathead County Courthouse building on Main Street in downtown Kalispell. Beacon File Photo

The Flathead County Planning Board voted on Jan. 13 to forward a positive recommendation to the county commissioners for the preliminary plat application of a controversial new 16-lot subdivision between Kalispell and Whitefish.

It was the second time the board approved the preliminary plat, having initially voted in favor of the development in September.

During a public hearing that stretched on for several hours at the Flathead County Fairgrounds — requiring two separate breaks in order to reheat the County Fair Kitchen building to tolerable levels — the board heard from lawyers, the project’s developer and many residents of a neighboring subdivision who spoke en masse in opposition.

The proposed development, Baker 80, is a 16-lot subdivision on 80 acres of land owned by Scott Baker, who purchased the property from Don ‘K’ Kaltschmidt last year. The property is located west of U.S. Highway 93 and north of KM Ranch Road.

To the north of the proposed development is Whitefish Hills Village subdivision, a five-phase development that began in 2016, and the source of opposition to Baker 80.

Access to the new subdivision is proposed on a public, albeit privately maintained, road that runs throughout Whitefish Village Hills. Baker has repeatedly claimed that because the existing roads have a public access easement, it doesn’t matter that they are privately maintained.

“This whole thing from day one has been a nightmare. This has cost me a fortune in legal fees,” Baker told the board and assembled crowd. “I have tried to bend over backwards to try and placate these people that are upset about me using that road. I have every legal right in the world to use that road.”

Opponents to the development argued the proposed neighborhood should be accessed from the south via Prairie View Drive, an unpaved road branching off of KM Ranch Road, arguing that their subdivision streets, as privately maintained roads, did not qualify as publicly accessible roadways.

To use Prairie View from the south as the primary access would require the paving of nearly 2,500 feet of road, a drastically heavier financial burden than using an existing roadway from the north.

Baker expressed frustration at having received “zero cooperation” or explanations of the county’s public access definitions from Flathead County Planning and Zoning Director Mark Mussman.

When the planning board first considered the subdivision application in September, it approved it with the intent of punting the question over legal public access to the county commissioners. In October, the commissioners demurred, sending the application back to the planning board.

Rich DeJana, Baker’s attorney, explained that Prairie View Drive, which runs north to south along the Baker 80 property, used to connect to Brady Way. In 2019, at the behest of the Whitefish Hills Village developer, the county abandoned a portion of Brady Way and allowed Whitefish Village Drive to replace it, effectively realigning the public access from Brady Way.

When a publicly accessible road is abandoned, DeJana said Montana law requires equal access to be maintained through another location. According to documents for the Whitefish Village Hills subdivision, all internal roads are designated as public access easements.

“I know what ‘public’ means, I know what ‘access’ means, and I know what ‘easement’ means,” DeJana said. “Yet now we’re being told for some reason we can’t use it.”

Members of the board expressed their frustration at having to hear the proposal a second time.

“It’s been unbelievably painful. When we saw that this was coming back to us, it wasn’t great news,” board member Sandra Nogal said. “We can argue legalities and everything that’s vague about this forever, because that’s what the county has given us … but I’m forced to look at this from a practical standpoint.”

Nogal said that from the perspective of being a neighbor, Baker was creating a lot of headache by fighting over public access to the north rather than amending his proposal to use a southern approach where his legal access was not in question. Nogal was the lone dissenting member in the board’s 5-1 vote.

Board chair Jeff Larsen countered that the legal question was the most important point.

“I totally understand how people feel about this; I’m an engineer,” Larsen said, citing a previous development he’d worked on in Lakeside that had the same issue arise. “Yes, it’s a private road, yes, it’s private money, but that doesn’t trump the public easement.”

The board’s second approval of the plat using Whitefish Hills Drive as primary access will once again force the Flathead County Commission to make a judgment on the legal-access conflict.

In other business, the planning board unanimously voted to send positive recommendations to the commissioners for the preliminary plat of Wild Bill Reserve and for a rezoning proposal along 14 acres of U.S. Highway 93 between Kalispell and Whitefish to allow for light industrial use.

The Wild Bill Reserve, proposed by developer Paul Wachholz with technical assistance from Sands Surveying, would create six residential lots on 160 acres near Kila. The board also approved a requested variance to remove a requirement that the developer pave the access road, after hearing the unified opinion of neighbors that it would create a safety hazard.

Donovan Bergeson, who owns an RV dealership along Highway 93, made the rezoning request, which would allow the addition of fencing and storage units to the property. Citing the proximity of the property to the county landfill, Bergeson argued the property was more suited for industrial business use than suburban development.

The board also approved a zoning text amendment request from the Middle Canyon Land Use Advisory Committee to add “Work Camp” as a minor land use to give West Glacier businesses more flexibility in providing low-cost employee housing for seasonal workers.

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