Lawyer makes case for bridge's permit revocation
First, looking at the “big picture,” the Lakeshore Protection Act, § 75-7-201, et seq., MCA (the “Act”), recognizes the importance of Montana’s lakes for their scenic, recreational, environmental and other values. Section 75-7-201, MCA.
There is no doubt as to the importance of our lakes, not only to Flathead County, but to the entire state and beyond. The area of Flathead Lake around Dockstader Island is scenic and it is popular. It would not surprise me if the northeast corner of the lake, the Flathead delta east of the river mouth to Bigfork – the area from which this bridge will be most visible – is its busiest water. Even without consideration of the impacts on the environment, navigation, recreation, etc., the visual impacts of such a large elevated structure in this largely undeveloped area of the lakeshore spanning the lake from the mainland to Dockstader Island will be substantial.
To ensure the objectives of the Act were implemented, the legislature gave regulatory authority to the counties and armed them with the tools they would need to protect the scenic, environmental, recreational, economic and other values of our lakes. Section 75-7-201, MCA. Stated another way, Montanans through their legislature insisted that the lakeshores of this state be rigorously protected from inappropriate development and they charged the counties with the task, making them the stewards of these critical riparian areas. Regulations adopted by the counties to carry out that stewardship can be no less stringent than the requirements of the Act. Section 75-7-207(5), MCA. In furtherance of its charge, Flathead County adopted the Flathead County Lake and Lakeshore Protection Regulations, the stated purpose of which is, to “protect the fragile, pristine character of Flathead County’s lakes ... conserve and protect natural lakes because of their high scenic and resource value ... and conserve and protect the value of the lakes for the State’s residents and visitors who use and enjoy them.”
The application should have been referred to the planning board. The Act provides that local planning boards are to be utilized to give guidance to the counties in making decisions about projects that come within the Act’s purview. Planning board involvement is not an option – it is mandatory. Section 75-7-211(1), MCA. The only exception is § 75-7-207(3), MCA, which allows counties to utilize a summary review procedure for proposed projects for which the potential impact is “minimal or insignificant.” Stated another way, it is only for projects the impacts of which would be “minimal or insignificant” that a permit may be issued without planning board review.
Finding that the impact on the lakeshore from this elevated 400-plus foot long vehicular bridge would be “minimal or insignificant” defies common sense, clearly frustrates the objectives of the Act, and is at odds with the Regulations. While I don’t know this for certain, I believe that the longest dock in existence on the lake today is less than 300 feet long. Assuming this is true, this proposed bridge would be longer by a substantial margin than the longest dock on the Flathead Lake – and, unlike a dock, it would carry vehicles. How can such a project be considered insignificant? Obviously, it can’t.
There is a strong public interest component to the Lakeshore Protection Act, and it is clear the public has a significant interest in this project. Without belaboring the matter with more argument, that this proposal should have been referred to the planning board – a vital step in the permit process that provides the only real opportunity for public involvement – is not reasonably debatable. As noted above, the only instance in which planning board review of a proposed project is not required is if the impact of the proposed project would be minimal or insignificant. Section 75-7-207(3), MCA. Only in such cases may a project be considered under the summary procedure, bypassing the planning board. Granting this permit under that summary procedure is by necessary implication a determination that the project, both in the construction phase and as a permanent structure, would have no significant impact on the scenic (and other) values of the lakeshore. Such a finding is neither logical nor reasonable and cannot be supported. The permit was granted in error; the application should have been vetted by the planning board.
A bridge by any other name is a road; prohibited in the lakeshore protection zone.
Likewise, finding that the project constituted an “access bridge” and thus was neither a “road” nor a “driveway” (both of which are prohibited in the LPZ) is neither logical nor reasonable. As a practical matter, the only difference between a more traditional road or driveway and a bridge for motor vehicles is that the bridge is elevated.
The Regulations clearly recognize the increased visual impacts of elevated structures; see, e.g., footnote 5. How does one reconcile the Regulations, which prohibit the placement of roads – even a few feet of road – in the LPZ, with the authorization of over 400 feet of bridge in the same LPZ, finding the impact to be insignificant. If the impact of any road in the LPZ is unacceptable, how can the impact of 400 feet of elevated bridge be insignificant? If roads and driveways are prohibited, ostensibly because of their impacts on the LPZ, how can a bridge in the LPZ be okay? This structure is a constructed, impervious linear surface designed specifically to carry vehicular traffic and is, by pretty much any reasonable definition, a road. Roads and driveways are specifically prohibited in the LPZ (which this proposed bridge crosses in two places). If the bridge is a road, which clearly it is, then the permit was granted in violation of the Act and its implementing Regulations.
The permit should have been denied; it should now be revoked.
While these two conclusions – first, that the application should have been referred to the planning board, and second, that the bridge is a prohibited “road” in the LPZ.
The Act is very clear that the issuance of a permit does not bestow upon the permittee any vested right other than to the actual project materials (in this case, the bridge pilings). Section 75-7-206, MCA, provides:
Nature of property rights under part. Work or development authorized or approved under this part shall not create a vested property right in the permitted development other than in the physical structure, if any, so developed.
Why the legislature saw fit to specifically provide that no vested right would arise from a permit erroneously granted is pretty clear – so projects inappropriately authorized can be enjoined, and so a permit erroneously granted can be revoked. Moreover, the public has been accorded potent enforcement rights to ensure compliance with the Act’s protections.
The Act makes specific provision for actions by the public (“an interested person”) to enjoin unauthorized or inappropriate projects, and to obtain “review of a final action of a governing body upon an application for a permit.”
Even though the public enjoys broad enforcement rights under the Act, including the right to judicially challenge the issuance of a permit, it isn’t fair to make the public initiate litigation to invalidate a permit the county should not have granted in the first place. The county should do the right thing and revoke this permit. If the applicant elects to continue, the county should then either deny the application out of hand because it constitutes a prohibited road or driveway in the LPZ, or refer it to the planning board. There is always the possibility of litigation as a result of such a change of position, however, that is not justification for not doing the right thing when that path is clear and the revocation option is available.
Don Murray is an attorney in Kalispell.