Faced with a handful of potential problems, the Missoula County commissioners decided Tuesday not to zone about 500 acres of land targeted by a citizen-initiated zoning effort.
That district includes 14 parcels of land, one of which is owned by Oregon developer Michael Barnes, who angered many of his neighbors last year when he started digging a pond-sized hole on his property and cutting down trees.
Eventually that district was created, but in January the commissioners decided not to implement a zoning recommendation of one house per 15 acres made by the county planning board. That, in the opinion of Chief Deputy Missoula County Attorney Mike Sehestedt, left the district with no zoning at all.
On Wednesday, the commissioners held a hearing to reconsider their previous action on the zoning district. Over the course of the hearing, however, it became clear that zoning the district raised far more problems than it solved.
For one, Sehestedt said the zoning was clearly targeted at Barnes' proposed development, which would build 36 homes on 80 acres, with 112 acres of property left as open space.
Targeted zoning is illegal, he said, and would open the county to a legal challenge - which would be a likely outcome, according to Barnes' attorney, Alan McCormick.
“This is targeted,” McCormick said. “It's that simple. And targeted zoning is illegal.”
Besides, McCormick, Sehestedt and the commissioners all agree that even if the district were zoned, the zoning designation would have no effect on Barnes' subdivision plan, which was submitted before the zoning district was enacted.
“This zoning won't affect that subdivision,” Sehestedt said.
The subdivision, called The Ranch, finally makes its way to the planning board in May and should be before the commissioners by early June.
The fact that housing density isn't regulated by zoning doesn't mean it won't be considered during subdivision review; it will, as will the proposal's effect on county services and water quality.
Other problems doomed the zoning district as well. The district includes two businesses, the Fisherman's Mercantile and Ekstrom's Stage Station, which includes a restaurant and RV park.
The district would have been zoned residential, which meant that the businesses would be considered nonconforming uses. With that designation, the business owners couldn't rebuild if their businesses were, for instance, destroyed by fire.
No one on the commission would want that, Commissioner Barbara Evans said. But if the commissioners gave those properties an exemption from the zoning, they opened themselves even more egregiously to a charge that the zoning district was targeted solely toward Barnes' property, Sehestedt said.
The consensus that emerged from Wednesday's meeting was that if Rock Creek residents want zoning, they ought to do it in a more comprehensive, less piecemeal fashion. John Menson, president of the Rock Creek Protective Association, agreed that a valleywide approach would be better, but he was concerned about what sort of development might take place before such zoning could be enacted.
Even so, Menson said he would begin discussions quickly with county planners about how residents might best deal with development issues along the blue-ribbon trout stream.
That decision seemed to leave everyone somewhat satisfied.
“I like the idea of trying to do something more holistic with this,” Commissioner Bill Carey said.
Reporter Michael Moore can be reached at 523-5252 or at mmoore@missoulian.com.
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