Supreme court upholds most of greenbelt ruling

The Montana Supreme Court has affirmed two portions of a 2013 Flathead District Court ruling that rejected the county’s greenbelt zoning classification.

The high court ruling favors Citizens for a Better Flathead and property owner Sharon DeMeester, who sued the county commissioners, alleging the greenbelt zoning for 60 acres of land along U.S. 93 North created a policy in which every highway in the county would be open to major commercial development. They further contended the county failed to follow statutory and regulatory rules in adopting the zoning test and map amendments.

While the Supreme Court opinion favors Citizens’ assertions regarding greenbelt zoning, the high court reversed the District Court’s award of attorney fees to the Citizens organization, maintaining the award of attorney fees under the Uniform Declaratory Judgment Act was improper.

The Flathead County commissioners adopted the controversial general business highway greenbelt zoning six years ago at the request of a group of U.S. 93 North landowners who wanted the new zoning for commercial development on suburban agricultural land east of the Silverbrook subdivision. The concept was to allow many of the same uses in a general business zone, but with more uses as conditional and specific provisions to mitigate impacts to the highway corridor.

The new zoning would have allowed three categories of business uses along the highway corridors throughout the county — permitted uses, conditional uses and administrative conditional uses that require country review but not a public hearing. It was intended to allow commercial uses on property served by primary and secondary highways in Flathead County as long as property owners met mitigation requirements to soften the visual impact.

Flathead District Judge David Ortley voided the greenbelt zoning in a 2013 ruling, saying it constituted spot zoning and was an “abuse of discretion.” Ortley maintained the result of the greenbelt zoning was that not only permitted uses but also conditional uses could be imposed in that zone with limited public comment.

The commissioners’ unanimous decision to create the greenbelt zoning was contrary to recommendations from both the Flathead County Planning Board and Planning Office to deny the proposal.

In affirming the District Court’s decision to invalidate the map amendment, the Supreme Court said that in light of conflict between the proposed county growth policy map amendment and the stated growth purposes expressed in Kalispell’s growth policy for property adjacent to city limits, “it was incumbent on the county to more broadly consider this issue and assess the impact of the proposed map amendment on Kalispell’s growth plans.”

The Supreme Court opinion noted the county’s traffic considerations in imposing the greenbelt zoning “were only cursorily addressed.”

“There is no evidence indicating that Flathead County consulted the Montana Department of Transportation for guidance on development along Highway 93, and the map amendment analysis did not address how the newly allowed uses, such as banks, food stores, hotels, churches, etc. — not conditional uses — would impact traffic as the property directly abutting Highway 93 was developed,” the opinion noted.

The high court also asserted the county gave little attention to considering compatible urban growth in the vicinity of cities and towns, and that county zoning “must, as nearly as possible, be made compatible with the zoning ordinances of nearby municipalities.”

Also considered by the Supreme Court was whether the District Court erred in failing to invalidate the text amendment for violating statutory obligations and public participation requirements. The District Court did not err, the high court concluded, noting that as a zoning tool its legality is hinged to the location to which it might be applied.

“Facially, the B-2HG (greenbelt) zone could appropriately be implemented in Flathead County if, for example, a landowner wished to change the zoning of his or her property from less restrictive to more restrictive ... At a minimum, areas in Flathead County already zoned for commercial or business could be rezoned to [greenbelt] without violating the growth policy.”

Mayre Flowers, executive director of Citizens for a Better Flathead, issued a prepared statement saying she “is pleased with this important precedent, which will hopefully reduce the conflict between our county and our municipalities over land-use decisions that affect both jurisdictions.”