Commissioners grant controversial last-minute change to plan

When the Flathead County Commissioners adopted the Bigfork Neighborhood Plan last week, they made a last-second change that has some Bigfork community members in an uproar.

The commissioners were lobbied to make a switch from an agricultural designation to light industrial for three properties along Highway 82 on the plan's future land use map during the 30-day public comment period that began after they passed a resolution of intent to adopt the plan on April 23.

Normally, a change to a neighborhood plan's future land use map would qualify as a master plan amendment, according to Flathead County Planning Office Assistant Director BJ Grieve. To seek a master plan amendment, an application would have to be submitted through the planning office, and then brought to a local advisory board (in Bigfork's case, the Bigfork Land Use Advisory Committee), the Flathead County Planning Board and finally the commissioners, Grieve said.

And because such a process was avoided -— especially regarding parcels that had previously been denied a zone change from agricultural to light industrial by the commissioners — residents of Bigfork are fuming.

"I think this was an insult to the citizens of Bigfork who worked so tirelessly on the Bigfork Neighborhood Plan," said Denise Lang, a local real estate agent. "Not only is this a plan with no teeth, now it has no gums."

Edd Blackler, who has been involved with the plan throughout the process, sent a letter to the commissioners after their decision that said the decision was a "blatant show of disrespect for the legal process."

Blackler went on to write that the change was "precisely the sort of action that creates the distrust that so many citizens have for 'government' at all levels."

But according to Deputy County Attorney Jonathan Smith, the 30-day comment period is a time when any comment can be made before the commissioners. And, he said, since the plan itself was going through the public process — more than four years for the Bigfork document — that the commissioners can change, rewrite or otherwise alter the document in any way they deem fit at that stage.

BLUAC chairwoman Shelley Gonzales said she was disappointed in the last-minute change.

"Based on the commissioners' decision, it appears there really isn't any need for advisory boards, the planning board or the planning department," she said. "It would appear the county taxpayers could save a lot of money by getting rid of those layers of bureaucracy."

Joe Brenneman was outraged at the change and chided fellow commissioners Jim Dupont and Dale Lauman for what he called "a return to the good ol' boys system." Brenneman acknowledged the case might have merits, but said he could not abide by the manner in which it was brought up for their decision. Lauman and Dupont supported the change over Brenneman's objections and then all three commissioners voted to adopt the plan with that amendment, though Brenneman said he voted to adopt "with reluctance" and "in tribute to the people who worked so hard on it in the community."

Change requested

in 2007

Two of the three lots in question have a history with the county over the last two years. Mike Touris and Chuck Sneed came before BLUAC in October of 2007 requesting a zone change from SAG-5 'suburban agricultural, with 5-acre minimum lot sizes' to light industrial. United Tool Rental — which sits on Sneed's property — is able to operate as a non-conforming use because it was built before the 1993 Bigfork Neighborhood Plan was implemented, meaning it gets "grandfathered" in. Touris, however, had no such existing use on his lot, which he purchased in 2006 from Brooke Johnston, whom he said at the BLUAC hearing had a verbal commitment from county officials to get the land use designation changed.

Touris' neighbor to the east is Martel Construction, which is also operating as a non-conforming use under the same exception as United Tool. William Martel, who owns that parcel, was not involved in the zone change request, but his lot was included in the commissioners' change to the future land use map.

By the time Touris and Sneed came before BLUAC in 2007, Touris had already begun construction of a building on his property, which is adjacent to Sneed's. When asked at the meeting if the structure was for Touris' plumbing company, he said it was not, maintaining that it was a residence with 1,000 sq. feet of living space and a large garage for storage.

Members of BLUAC expressed concern that such a zone change would qualify as 'spot zoning," something they said they tried hard to avoid doing, and voted 5-1 with one member abstaining to recommend denial to the planning board. Grieve said that though neighborhood plans are not regulatory, in the case of a zoning map amendment request, an application can be denied based solely on non-compliance with the future land use map. That ability is spelled out in Montana Code 76-2-203, which states that zoning regulations must be "made in accordance with the growth policy or a master plan," of which the Bigfork Neighborhood Plan is a part.

The planning board then voted to recommend denial to the commissioners and Brenneman and then-commissioner Gary Hall voted 2-0 on Feb. 14, 2008, to deny the change. Lauman was not present for that hearing.

Following the commissioner's decision, Touris and Sneed filed a lawsuit against Flathead County on March 12 alleging negligence, misrepresentation, violations to due process and equal protection, deprivation of honest government and violations to the Constitution. BLUAC was specifically named as a defendant in portions of the suit, which is still pending.

Using the 30 days

As soon as the county commissioners voted 3-0 to adopt a resolution of intent to adopt the Bigfork Neighborhood Plan on April 23 it opened a 30-day public comment period and Touris and Sneed's professional representation snapped into action.

The commissioners office received letters from Sands Surveying planner Erica Wirtela on April 23 and from Kalispell attorney Tammi Fisher exactly one month later, encouraging the commissioners to consider making the land use map change.

Fisher, Wirtela and their clients also went before the commissioners on April 29 to plead their case. Touris, Wirtela and Fisher all called it a "common sense" issue and said the land use map should reflect what uses are actually present on the ground, according to the minutes from that meeting.

Brenneman asked Wirtela if she had made their petition to the planning board when the neighborhood plan was discussed there. According to the meeting minutes, "Wirtela states that they did not, that she felt it would have gotten dismissed; they knew they had this 30-day comment period that they could come directly to the decision makers."

Brenneman countered, saying it could appear to some that the landowners were skirting public comment because it was not heard at the local advisory board level or at the planning board.

"It appears you are going around the public process thinking there is some kind of direct connection you can make to the commissioners and don't have to worry about public input," Brenneman said, according to the minutes, "which is not a sort of strategy as a commissioner that I would embrace."

Wirtela and Touris said they had been rebuffed when they sought out meetings with BLUAC or the Bigfork Steering Committee, despite the fact that a member of those committees had extended an offer to meet after the commissioners' 2008 denial.

But BLUAC member Chuck Gough was at the April 29 meeting, and said that BLUAC didn't meet with the applicants on the advice of the county attorney because of the pending litigation, according to the minutes.

Touris also submitted a petition with 89 signatures that supported the "zone change" proposed by Touris and Sneed. Less than 30 of the signatures were from individuals with a Bigfork area address.