Eagle's Crest lands county in court
By Jacob Doran / Of the WSN
What began as a victory for Montana Eagle Development last month, when Flathead County commissioners approved phases 5-9 of the Eagle's Crest subdivision, has become yet another chapter in the legal drama between the developer and the Flathead Lake Protection Association.
The Flathead Lake Protection Association and two individuals, Lakeside councilman and former FLPA president Bruce Young along with John Guralchuck, filed a complaint in District Court last Wednesday, challenging the Nov. 6 decision of the Board of County Commissioners of Flathead County to approve of the last six phases of the subdivision.
In spite of talk of lawsuit by opponents of the project, if phases 5-9 were approved, the commissioners voted 2-1 to approve the preliminary plat, which covers 1,353 acres and 739 lots, for as many as 821 residential and commercial units.
The plaintiffs claim the commissioners violated Flathead County Subdivision Regulations, Montana statues and even sections of the Montana Constitution, in addition to the public's right to participate in the decision making process.
The plaintiffs are requesting an order from the district judge that would declare the commissioners' decision void, as well as a judgment to establish the violations set forth in the complaint and compensation for litigations expense.
The lawsuit represents the fifth time in 30 years that the FLPA has taken the county to court over decisions they alleged to be in violation of the state and county regulations. To date, they have won every case.
The FLPA also sued the County Commissioners over their decision to approve a PUD for the Eagle's Crest Marina in 2005, which would have significantly expanded on the existing Lakeside Marina. In that case, District Court Justice Stewart E. Stadler ruled that the county commissioners failed to apply mandatory legal standards when they approved the PUD.
The plaintiff's allege that the County Commissioners ignored clear evidence of fraud in the case of Eagle's Crest Subdivision phases 5-9, as well as existing soil studies for the property on which the project would be built.
Young, who has been the most vocal opponent of the project, noted that a government soil survey of the property assigned a rating of 100, with 100 representing the worst soil to build on and 0 representing the best.
"This is the same kind of stuff that creates mudslides with housing in California," Young said. "When you build on that kind of soil, you're asking for major problems."
According to Young, the main concern of those who oppose the project pertain to its size and density, which he said are inappropriate for the proposed location, due to its drainage into Flathead Lake, its steep slopes and its poor soils.
"The soil can't handle that kind of density, especially on that kind of slope," Young said. "Even without a slope, it's not advisable on that type of soil."
One house per 20 acres, he said, would be more appropriate, although certain risks would still exist. However, that would mean no more than 67 homes, where the developer proposes to build 821 units in the last six phases alone.
Young also accused the developer of submitting soil samples for property located in Lake County, on the East Shore of Flathead Lake—an allegation that Montana Eagle Development partner Trevor Schaeffer refutes.
"That information is incorrect," Schaeffer said. "We submitted the most accurate information available for that property. "We're not going to put ourselves at risk by building where it would be dangerous to build. That doesn't pass the common sense test, and it's flat-out harassment.
"We hired the best engineers, land planners and wildlife biologists to study this property. We've done everything that we were asked that we were asked to do and more. This has been approved at every level of beurocracy."
Schaeffer added that the conditions of plat approval state clearly that any questionable soil must have a satisfactory geotechnical analysis prior to becoming a lot. If the required analysis is unfavorable, the parcel does not become a lot. Since nothing can be built on a given parcel if there is no approved lot, Schaeffer stressed that the conditions have already addressed the issue of soils and preclude building on soils or slopes deemed to be unsuitable.
Scheaffer also explained that the same conditions apply to slopes in that any lot found to have a slope that approaches 25 percent has to have a favorable geotechnical analysis or it cannot become a lot.
"It is in the conditions," Schaeffer said. "Anything found not to be suitable, you can't build on. Eagle's Crest must do the analysis prior to lot creation, not prior to plat approval, because that's jumping ahead. You can't do all of that until you know how many lots are in final plat, because it's an expensive process. This is the way that process works, and it does work, since nothing can be built until we meet the conditions."
Young asserted that the Eagle's Crest project will also contribute significantly to polluting Flathead Lake through storm water runoff. Although supporters of the project point to the fact that the storm-water management plan must be approved by the Department of Environmental Quality who are the experts in identifying anything that will adversely affect the lake, Young stressed that the pre-development runoff level allowed by DEQ is still compromised runoff and contains pollutants.
"The water that's running off of that area right now is natural," Young said. "The water, once it comes off of the impervious surfaces, fertilized lawns, ect., creates an entirely different type of situation. Their not saying what the quality of that water is going to be once those houses are up there. What's in that water will come down into Flathead Lake.
"When a developer can create an EIS for a development the size of Polson and don't even mention that Flathead Lake is drainage for it, something is seriously wrong. One has to question why the commissioners would not ask for a geotechnical report and why they would confuse the actual soil samples of that property when it had been identified to them that what was submitted was from another county."
Young accused the Flathead County Commissioners of ignoring statements made by various organizations, including individuals representing the Flathead Lakers, Fish Wildlife and Parks, Citizens for a Better Flathead, the Flathead Lake Biological Station and others, each asking the commissioners to deny the project.
"It's unfortunate when citizens have to go through the expense and pain of suing their own commissioners, when there is plenty of information out there for those commissioners to look out to make the right decision in regard to large-scale development. If the commissioners choose to violate the standards of their own regulations and disregard the issues we've talked about, they leave us no other choice."
In response, Schaeffer said that any water that reaches Flathead Lake must get down through the aquifer and that, by that time it would have been filtered.
"There is no water getting to the lake from phases 5-9 unless it's going to jump across the highway," Schaeffer said. "I don't see where any of the water from 5-9 will reach lake. Furthermore, we will meet and exceed the federal requirements for storm water.
"The DEQ is the state regulatory body for that. They will decide what is appropriate and we will comply. They are they experts. Bruce is not."
Schaeffer added that the Eagle's Crest Subdivision will work toward becoming a green community and said that the partners are encouraging bio-friendly, green development. In addition, they are asking homeowners not to spray fertilizers on their lawn.
He considered Eagle's Crest to be a model project for other developers to imitate, having set new standards in meeting everything that the county and governing state entities have required. He further believed that the project complies with all regulations, as affirmed by the appropriate governing authorities, planning office and county commissioners.
No court date has yet been set.