Some developers and planners have interpreted a Montana law to mean such plans cannot be enforced. In the Flathead County lawsuit, however, the high court said neighborhood plans can be regulatory documents.
“I think the message from the Supreme Court that neighborhood plans must be given credence in land use decisions is an important pronouncement,” said Jack Tuholske, a lawyer who represented Flathead Citizens for Quality Growth in the dispute.
“It's probably going to generate litigation across the state,” Nugent said.
Neighborhood plans have been at the heart of land use disagreements in Missoula before. Last week's high court opinion in the lawsuit against the Flathead County Board of Adjustment sheds some light on neighborhood plans, but raises questions about them, too. It also sets a standard for officials considering such documents.
Said Tuholske: “It sets the bar appropriately high for local government officials in assessing land use applications.”
The case involved a controversial gravel pit. A company called the Tutvedt Family Partnership applied to the Board of Adjustment to operate a gravel pit and asphalt plant in an area called West Valley. The board granted the company a permit to run only the gravel pit.
The Tutvedt Family Partnership faulted the board for limiting its operations. Citizens, on the other hand, said the board should not have granted the permit at all. They argued that their adopted neighborhood plan allowed homes and farmland, but not a commercial gravel operation. Both citizens and the partnership sued.
As part of its defense, the Board of Adjustment argued that zoning regulations allowed gravel extraction in some cases. And it asserted that a 2003 state statute gives force to those regulations - but not to the neighborhood plan, a growth policy.
The Montana Supreme Court disagreed: “Contrary to the Board's contention, this statute does not prohibit the enforcement of growth policies in all circumstances, but simply states that a growth policy or master plan only acquires legal force by virtue of another law or regulation.”
And the zoning regulations in Flathead County did give legal force to the neighborhood plan, the court said. In fact, they gave it a lot of weight. The court quoted part of the regulation:
“ ‘Where a neighborhood plan ... contains aspects related to zoning ... the provisions that are more restrictive shall control.' ”
And the plan did restrict gravel pits. It focused on housing development and called for a livable residential area, the court said.
So the Supreme Court told a District Court judge to reconsider whether the Board of Adjustment should have issued the permit. The justices agreed with the lower court's ruling that the board had the authority to prohibit the asphalt plant.
City Attorney Nugent said people who helped develop neighborhood plans will want to rely on this case in other land use disputes and give growth policies more weight in the future.
That's how Dave Harmon views the Supreme Court's decision. Harmon serves as president of the North Duncan Drive Neighborhood Association, which recently opposed an upper Rattlesnake Valley development called Sonata Park.
Residents used their adopted neighborhood plan to argue the Sonata Park proposal was too dense. They were not successful then, but Harmon said the Montana Supreme Court's decision might force people to follow such plans more closely.
“It sounds like it's going to be revolutionary,” he said.
But Nugent said it isn't clear how the issues in a lawsuit against a Board of Adjustment would carry over to a municipal case. For starters, property owners still have the opportunity to protest zoning. The Flathead case, though, didn't deal with protest provisions at all.
“It's going to make for some real interesting litigation,” Nugent said.
It has in the past, too. Several years ago, a neighborhood plan served as the linchpin for another Missoula case that made its way to the state Supreme Court.
A group of citizens opposed zoning that allowed a larger Safeway on West Broadway. They argued the big store didn't “substantially comply” with the Northside/Westside Neighborhood Plan.
Though neither side relied on the 2003 statute, the court pointed out that the statute diminished the force of neighborhood plans: “From its plain reading, it may be assumed that the 2003 legislation was intended to reduce in some fashion the reliance which local governing bodies are required to place upon growth policies when making land use decisions.”
The court said government officials had properly considered the plan, as evidenced by numerous design changes to the proposed Safeway store. And it also said any given zoning proposal couldn't realistically meet every goal of a growth plan.
“To impose such a requirement would remove flexibility from a city's review of zoning proposals and make growth policies a rigid regulation,” the court said.
Nugent said the court's opinions will serve as fodder for future lawsuits. In the meantime, people charged with making decisions based on these laws won't have an easy time of it.
“It's just going to make it all the more confusing for the elected officials,” Nugent said.
For the people who spend time creating the documents, though, some consider it a win. Tuholske said it's clear that neighborhood plans are not meaningless documents: “My general view is that the Legislature would not have had local governments, through the hard work of citizens, develop growth policies and neighborhood plans if those documents are simply hollow.”
Reporter Keila Szpaller can be reached at 523-5262 or at Keila.Szpaller@missoulian.com
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