Whether or not a citizen-initiated Flathead County zoning district precludes a controversial water bottling plant from operating near Creston is set to be decided by the Montana Supreme Court following oral arguments presented Jan. 19.
The ascension of the embattled bottling plant’s fate to the state’s high court is the latest development in a years-long legal battle between the Montana Artesian Water Company (MAWC) and advocacy groups formed by neighboring landowners, who say the industrial operation disrupts the area’s rural character and violates zoning regulations.
Over the past half-decade, the stem-winding legal odyssey has spanned multiple jurisdictions while raising a host of contested issues, including whether or not state agencies improperly issued a wastewater discharge permit as well as a water right permit allowing MAWC to pump up to 710 acre-feet, or 191.6 million gallons of water annually, from an underground aquifer near Egan Slough along the Flathead River. The case currently on appeal before the high court, which a clerk said could take months to decide, focuses on whether or not MAWC’s non-agricultural uses are precluded by the Egan Slough Zoning District, which was first created two decades ago to protect and preserve agricultural land in the area, but was expanded to include the MAWC property in 2018.
The land-use controversy began brewing in 2014 when Creston landowner Lew Weaver incorporated MAWC to produce bottled water on his farmland near Egan Slough, applying for permits from the state Department of Environmental Quality (DEQ) and Department of Natural Resources and Conservation (DNRC) that would allow his company to annually produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week, equaling roughly 1.2 billion 20-ounce water bottles.
In separate rulings, district judges in Flathead and Lewis and Clark counties have said the state agencies erred in issuing those permits, which have been tied up in litigation for years and are now under agency review.
But last week’s arguments before the high court centered on the ballot initiative, which was expanded in June 2018 when 70% of Flathead County voters approved adding 530 acres to the existing Egan Slough Zoning District, including MAWC’s commercial operation, which opponents of the bottling plant say violates the district’s regulations.
Litigation over the validity of the initiative has been wending through the lower court since 2018, when the groups Egan Slough Community and Yes! For Flathead Farms and Water, along with resident Amy Waller, filed suit against the Flathead County Commission, the Flathead County Planning Department, the Flathead City-County Health Department, and MAWC.
Over the course of the litigation, MAWC argued the ballot initiative and the new zoning district were illegal on several fronts, including because they constitute spot zoning, adversely impact landowners within the district and failed to comply with statutory requirements.
In response, Flathead County District Judge Robert Allison upheld the ballot initiative and the expansion of the zoning district as legal, but also ruled that MAWC could continue to operate within the zoning district’s boundaries as a pre-existing, non-conforming use that is effectively grandfathered in.
On appeal to the high court, the appellants are seeking to overturn Allison’s ruling, arguing the scope of MAWC’s operations at the time of the zoning district’s expansion did not include producing, selling or shipping commercial quantities of bottled water, and therefore cannot be deemed “pre-existing.”
“According to the controlling regulations and the clear record of the extent to which MAWC was actually making lawful use of its facility prior to June 21, 2018 [when the initiative passed], MAWC may only ‘continue in the manner and to the extent that it existed or was being used at the time of the adoption of these regulations’,” according to the appelants’ brief to the Montana Supreme Court. “And that does not include operation of a commercial bottling plant.”
MAWC has cross-appealed and argues that the lower court erred in ruling that the Egan Slough Zoning District expansion is lawful.
Attorneys for the appellants, Roger Sullivan and Dustin Leftridge of McGarvey Law in Kalispell and David Wilson of Morrison, Sherwood, Wilson & Deola. Billings attorneys Vicki Marquis and Shane Coleman are representing MAWC.
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