Landowner Ken Allen is back in court arguing his right to develop an open field along U.S. Highway 93 south of Missoula. It's where Knife River Corp., formerly known as JTL Group Inc., proposed to dig a gravel pit, much to the neighbors' dismay.
Allen - who sticks to the notion that the gravel pit is just a means of creating a 30-acre lake around which development could go - has been wrangling with nearby residents and pleading his case to judges, even the state Supreme Court, for the past five years.
“My attorney feels what they did was illegal,” said Allen, who said he's tired of judicial proceedings. “People live next to gravel pits all the time. It's not a problem.”
The county maintains that it acted within its legal authority when it adopted emergency zoning.
“I don't think there's any merit to the litigation and I think the zoning is legally valid and defensible,” said Deputy County Attorney James McCubbin, who has not officially been served the complaint but has read a copy of it.
Liberty Cove Inc., a local company that holds titles to real estate and for whom Allen is the primary agent, filed an appeal last week in U.S. District Court in Missoula, asking the judge to lift the zoning.
The land was not previously zoned, paving the way for the proposed industrial operation. Knife River planned to use the gravel for future development projects in the Bitterroot and a state highway project that's nearly complete. Allen was set to profit $1 million from the deal, according to the complaint.
At an emergency meeting called in May, the county, in accordance with the local growth plan, voted to zone the area residential.
Liberty Cove's lawsuit is an example of a true ripple effect.
Allen sued the county because of its interim zoning. The county zoned because Knife River sued the state. The state agency charged with reviewing mining permit applications didn't meet the statutory deadline and then got hit with a handful of lawsuits from companies statewide that want to extract gravel.
In the Liberty Cove's lawsuit, filed June 26, the plaintiff argues several points:
- First, property other than Allen's included in the zoning district was not threatened by anything to justify an emergency, which is necessary for interim zoning.
- If that property was then removed from the zoning district, the county allegedly “spot zoned.” This is illegal under state law.
- Third, Allen's attorney Cory Gangle argues that the county's actions conflict with the state high court's 2006 ruling regarding the same property. The result constitutes an illegal taking of Allen's property, according to the court document.
- Last, Gangle argues that the county had no reason to impose interim zoning because an emergency didn't exist, and that the county failed to give proper notice to affected landowners before it zoned.
The county was prepared for future litigation involving Knife River. To have Liberty Cove sue - that was less predictable, McCubbin said. At the same time, when it comes to land use regulations, lawsuits filed by angry landowners hardly come as a surprise to anyone at the County Attorney's Office.
Meanwhile, Knife River and the state are still in a legal battle over whether to issue a permit that allows the company to begin digging. That lawsuit was filed in District Court in Helena.
On Monday, both parties submitted supplemental arguments as to whether Missoula County's zoning of the area should influence District Judge Jeffrey Sherlock's decision. Each party now has time to respond.
No hearing is set in either case at this time.
Reporter Chelsi Moy can be reached at 523-5260 or at chelsi.moy@missoulian.com.
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