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Wednesday, October 25, 2006

Page One News at a Glance

Local fire department benefits from film company 'prop'

Commissioners deny Aspen Springs

Decision upholding obscenity ordinance to be appealed

Judge to rule on 'Big Box' ordinance

Petition to establish Bitterroot Community College circulating

Local fire department benefits from film company 'prop'

By Michael Howell

The Three Mile Fire District has a new training vehicle that looks like a complete wreck. Mainly because it is. The vehicle was used recently by Plumm Productions, a film company that was shooting a scene for the upcoming movie, "Pretty Ugly People," up Ambrose Creek on the Bolin ranch. In the scene, a bus load of people plunges over the edge of a mountain road. The film company agreed to leave the bus behind for Three Mile Fire District volunteers to do some training.

John Schmiedeke took the initiative and organized a training scenario that involved several high school students playing accident victims and a response by the Three Mile Fire Department and the Sheriff's Department, an ambulance response from Missoula, and Lifeflight. Lifeflight was a no show due to having to respond to a real roll over elsewhere. But all the rest of the emergency responders got a chance to practice their life saving response measures. According to Colleen Schmiedeke, the film company decided to make the wrecked school bus a permanent donation.

"The Bolins have also graciously agreed to let the bus lay where it is until next spring. So at that time we are planning a valley wide training session," said Schmiedeke.

John Schmiedeke said that after the Corvallis accident two years ago that he was amazed that bus drivers were not required to carry a manifest at least listing the number of people riding on the bus, if not their names.

"I think a manifest should be required," said Schmiedeke. "The Corvallis bus wreck was a mess. Not knowing how many people were on the bus. Not knowing if someone might be trapped under it or not. A manifest on the bus, at the scene, should be required."

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Commissioners deny Aspen Springs

By Michael Howell

At the end of a marathon meeting on Monday, October 16, the Ravalli County Commissioners denied the Aspen Springs subdivision application. Developer Perry Ashby's proposal involved creating 671 homes on 393 acres in the Eight Mile area northeast of Florence over a span of 20 years. It is the largest subdivision ever proposed in the valley, but only the first in a series of "mega-developments" already in the works at the county planning office.

Monday night's meeting lasted a grueling seven hours. As the meeting approached the midnight hour, Commissioner Betty Lund began to punctuate her remarks with self-reflective comments such as, "I'm muttering," and "I can't seem to be coherent." A little after midnight, she said, "I turned into a pumpkin fifteen minutes ago." In the end, however, that is, about 1:30 in the morning, Lund did cast the lone dissenting vote in a 2 to 1 vote by the Commission to deny the subdivision.

Monday's marathon meeting was really only the last in a series of meetings devoted to review of the subdivision proposal that, taken together, constitute something like a mega-marathon. The last time the commissioners considered the subdivision and ended up remanding it back to the Planning Board, in August, the meeting actually stretched on for two days, starting on August 22 and continuing on the 23rd. The two Planning Board meetings involved, the first in early August and the second on September 27, were also marathon meetings.

The Planning Office has been keeping track of the staff time spent on processing the subdivision, but not from the beginning. It has also been estimated that the developer has spent over $38,000 in fees to the County associated with the review process.

In the final analysis, Commissioners Thompson and Chilcott both agreed that the subdivision proposal would create "significant negative impacts" in its effects on Local Services and on the Public Health and Safety, two of the state's criteria for evaluating a subdivision. They voted to deny the subdivision on those grounds. According to subdivision regulations, the Commissioners can still approve a subdivision after finding a significant negative impact, but only if those impacts can be mitigated. In this case, both Thompson and Chilcott argued that the impacts upon local services, especially the Sheriff's Department, and on the public health and safety, posed by the increased traffic at the intersection of Eight Mile Road and Eastside Highway, could not be mitigated because not enough information was available about the impacts to define any meaningful mitigation.

Developer Perry Ashby told the Commissioners that he had "tried everything humanly and professionally possible" to get the necessary information from the Montana Department of Transportation (MDOT) about effects on Highway 93 and that he had talked with the Sheriff more than once about meeting the needs of the Sheriff's Department with respect to the subdivision, but to no avail.

The Commissioners' determination that the subdivision created "significant negative impacts" on Public Health and Safety hinged mainly on a letter from Dwayne Kailey of MDOT which stated the subdivision would create "drastic" impacts on traffic safety at the intersection of the Eastside Highway and Eight Mile Road.

Both Thompson and Chilcott claimed that although it is a basis for determining that there would be significant negative impacts, it did not identify or define the impacts specifically, leaving them unable to devise any mitigation.

Ashby suggested that the subdivision might be approved on the condition that a traffic study be conducted. He also upped his original offer of $2,000 to go toward such a study to one of $20,000.

Chilcott and Thompson did not go for it. Chilcott said that a study was not truly mitigation, but would only provide the details necessary to devise appropriate mitigation.

"I don't see how accepting any amount of money can change that we don't know the impacts," said Thompson.

Lund said that accepting some amount of money was better than nothing. She agreed with accepting the condition to do the study as adequate mitigation by the developer, especially since it was a matter that neither he nor the Commissioners had authority over.

As far as effects on local services went, the focus was on the Sheriff's Department.

Ashby had previously offered to donate $100 per lot to be used by the Sheriff's Office for public health and safety issues and a spot in the subdivision to house a satellite sheriff's office as forms of mitigating the effects of the subdivision.

Sheriff Chris Hoffman's position was that even if the Sheriff's Department had a satellite office in the subdivision, it wouldn't have the people to staff it. He told the commissioners Monday night that what he really needed would be five more officers. He considered the needs far outstripping what any single developer could afford.

Late in the meeting Ashby upped his original offer and told the Commissioners that he would set up covenants under a homeowners association requiring a payment of a public health and safety fee of about $65 annually. The fee was based upon the estimated payment per household that the last public health and safety levy, which failed, would have cost per household. Ashby said that the home owners would pay the annual fee until a levy was passed, whereupon the homeowners fee would end and the home owners would simply pay the new tax levy.

Hoffman told the Commissioners that he could not agree to any sort of dollar amount when it comes to matters of mitigating the effects of the proposed subdivision.

"Frankly, I'm just a cop," he said. "I have a job to do and a service to provide to the community. I'm simply saying that, as it is, we cannot provide, quote unquote, adequate services in this area of the county now, much less anywhere else. We are stretched to our last limits. In my mind, it's not mitigable by impact fees or voluntary offers of mitigation. I simply cannot say definitively to you if I got their offer that I can provide adequate services. I'm so besieged now that my officers can hardly answer the calls they've got now. I can't say that I can provide adequate services because of those funds being offered."

Both Thompson and Chilcott refused to accept Ashby's eleventh hour offer.

Once again, Lund stated that some money was better than no money, and that the things that showed up as significant were out of the developer's control.

A last minute plea for an extension by Ashby was denied, as was the subdivision proposal itself in a final vote.

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Decision upholding obscenity ordinance to be appealed

By Michael Howell

The Ravalli County Commissioners, at the advice of County Attorney George Corn, decided on Wednesday, October 18, to appeal the recent ruling of District Court Judge Jeffrey Langton in which Langton found that the Obscenity Ordinance, proposed by Dallas Erickson in 2002, if enacted by the voters of Ravalli County, would not be invalid, unconstitutional, or unenforceable. Langton took a contrary stand toward the second ordinance proposed by Erickson on Displaying or Disseminating Material Harmful to Minors, concluding that this ordinance would indeed be unconstitutional. Erickson said that he would have to consult his attorney, but that it was likely that he would be filing an appeal of the decision regarding the second ordinance.

Developments leading to the present case began locally back in 1994. The County Commissioners balked at enacting three ordinances proposed by Erickson at the time concerning Distribution of Obscenity, Public Indecency and Displaying Material Harmful to a Minor. Erickson succeeded in getting the ordinances placed on the ballot by petition and they were adopted by the voters. Following a subsequent court challenge, however, those ordinances were found by Langton to be unconstitutional. In April of 2002, Erickson again filed petitions to place the two new ordinances on the ballot, Obscenity and Displaying or Disseminating Material Harmful to a Minor.

Both Erickson and the County agreed to the Commissioners filing the present lawsuit to seek a judicial determination as to the constitutionality of the proposed ordinances this time before placing them on the ballot.

Legal developments leading to consideration of the current case go a lot farther back than 1994. As Langton points out in what both sides have characterized as an "extremely well researched opinion," obscene conduct has been a subject of English case law since The King v. Sir Charles Sedley was reported in 1663. The first pornography statute on American soil, he writes, was enacted in the Massachusetts Bay colony in 1711. Modern day obscenity law has been shaped by several decisions issued by the United States Supreme Court in the latter half of the twentieth century. The case history has produced certain classic judicial "tests" for determining if material or acts are legally "obscene." The court has tied it to the term "community standards," a term which sponsored its own set of law cases.

So what does it all mean in this case? The answer is complex and different for the different ordinances.

Langton, following a remark first made by Justice Harlan, calls it "the intractable obscenity problem," and refers to it as "the most problematic of criminal offenses as a result of its subjective rather than objective standard of proof."

In short, the County asked for a Summary Judgement to the effect that the Proposed Ordinances are invalid, unconstitutional and unenforceable. The County claimed that the Obscenity Ordinance was overbroad, would impermissibly burden intrastate exercise of free expression, would impermissibly impose a different standard of criminal conduct and corresponding criminal penalties inconsistent with existing state law, is unconstitutionally vague, and would violate a right of privacy guaranteed in the Montana Constitution.

Langton ruled against the County on every point, even departing from a previous conclusion of his own in finding the 1994 obscenity ordinance unconstitutional. This time Langton reasons that Ravalli County voters "may, within constitutional guidelines, adopt obscenity ordinances which impose more restrictions than state law without offending the state obscenity law." He also found that the proposed ordinance met the constitutional guidelines.

In his analysis of the second ordinance, Displaying or Disseminating Material Harmful to Minors, Langton concludes that it is "illegal and invalid" based on the definitions of "obscene material" versus material "harmful to minors."

"The proposed ordinance's use of the impermissible definition 'harmful to minors' for material that is obscene is fatal to the Harmful to Minors ordinance," he writes.

In a letter to the Commissioners, County Attorney George Corn urged them to appeal Langton's ruling on the obscenity ordinance to the Montana Supreme Court.

"This is because no matter how well reasoned Judge Langton's Opinion, the Supreme Court necessarily has the final say in this matter," writes Corn. "Thus the only way to ensure the validity or invalidity of the ordinance is to have a decision by the Supreme Court." He reminded them of the $75,000 spent in paying opposing attorney's fees in "the last round." He said that the Commissioners should proceed in appealing the Obscenity Ordinance irrespective of what Erickson may or may not do.

Erickson said in a telephone interview on Monday that he is leaning toward an appeal of Langton's decision concerning the second ordinance but no decision had been made as some attorneys were still reviewing the decision. He also said that he may also have to start circulating the petition in order to qualify for Supreme Court review, according to what happened in a recent Yellowstone County case.

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Judge to rule on 'Big Box' ordinance

By Michael Howell

Ravalli County District Court Judge James Haynes heard oral arguments on Monday, October 23, in the case of Ravalli County and the Good Neighbors Coalition, Inc. against Citizens for Economic Development (CEO) and Dallas Erickson. The case involves Resolution 1844, passed in April, which established interim zoning in the county limiting the size of large retail stores to 60,000 square feet and setting design standards for those between 25,000 and 60,000 square feet.

CEO, using primarily funds from Wal-Mart, ran a successful petition campaign to place the resolution on the November ballot. In doing so, CEO garnered enough signatures that, according to their reading of state law, the Resolution should be suspended until voters make their will known on November 7.

The County Attorney and the Good Neighbors Coalition argue that suspending the Resolution until the vote in November will allow Wal-Mart to circumvent the intent of the Resolution regardless of the outcome of the vote. County Attorney George Corn told Haynes that Wal-Mart's application to the state in March for a building permit to construct a 153,000 square foot Super Center near Hamilton was one of the main impetuses for enactment of the emergency zoning resolution. By withdrawing that application and submitting a new application for the same size store in the same place following the success of the petition, he argued, Wal-Mart is trying to grandfather the Super Center in by claiming a window of opportunity while the resolution was suspended.

The plaintiffs argue that the law provides for suspension of an "Ordinance" pending a public referendum if 15 percent of the electorate signs the petition, but does not apply to a "Resolution." They also argue that a suspension would render the November vote moot, allowing a minority to veto any potential majority vote in favor of the resolution. Corn told Haynes that the law allowing for suspension of a state ordinance does not apply to local resolutions passed as emergency measures under the state's land use regulations.

Attorney for the Good Neighbors Coalition, Jack Tuholske, argued that suspension of the resolution would violate the right of the citizens to a clean and healthy environment. He said that the resolution could not be suspended without a compelling interest on the part of the state because "it is an essential piece of the Commissioners' compliance with their duty to protect the environment and citizens' rights. He also agreed with Corn that the CEO petition did not adequately inform the signers about the potential suspension of the resolution pending the vote.

The attorney for CEO basically argued that the difference between ordinances and resolutions is that ordinances generally involve passage of some regulation or local law while resolutions do not. He argued that because this interim zoning resolution includes regulations that it is essentially an ordinance being passed under another name. He said that the intent of the law was to allow the people the power to suspend by petition an act of government such as a law or regulation until it is approved or defeated in a referendum. He questioned whether the county could evade this intent simply by calling their act a "resolution" as opposed to an "ordinance." He pointed out that the Clerk and Recorder actually used the word ordinance in her description of the act. Haynes said that he hoped to make a decision in the case by the end of the week.

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Petition to establish Bitterroot Community College circulating

By Michael Howell

Supporters of a proposed Bitterroot Valley Community College have begun circulating a petition to establish a local community college district in Ravalli County. If successful, the petition drive would place the establishment of a community college district on the November ballot.

The state Board of Regents is currently entertaining the idea of establishing a University of Montana related College of Technology in Hamilton. The current petition effort is, in part, a reaction to that potential development. Petitioners believe that the benefits of establishing a full blown community college rather than simply a college of technology are worth pursuing.

Driving the effort is the Bitterroot Valley Community College (BVCC) Exploratory Committee, established in February 2006 and comprised of individuals associated with the Bitterroot Workforce System, an organization including over 20 countywide partners and under the leadership of the Bitterroot Job Service and the Hamilton Resource Council. The committee is dedicated to educating Ravalli County residents about the functions and features of a public community college and the processes involved in establishing and funding a public community college.

According to Committee literature, the mission of a college of technology is to offer vocational-technical classes that would prepare students for employment in vocational-technical careers. Examples would be calibration technology for the local laboratories and computer information technology for various businesses. Establishing a College of Technology depends on the Board of Regents' approval, legislative approval and a one time funding appropriation of $18 million for a COT in Missoula with $4 million of that earmarked for construction of a Hamilton facility. It would also call for a 4- to 10-acre land donation from Ravalli County for the new facility.

The mission of a community college, on the other hand, is to offer general classes that will transfer to a four-year institution, vocational-technical classes, continuing education, and developmental education, including adult literacy services, GED instruction and college preparatory classwork. Community colleges, according to the literature, are flexible institutions which seek to meet the lifelong learning needs and interests of all community residents. The mission to provide a wide array of programs and courses geared to the diverse concerns of Bitterroot Valley residents is one of the committee's fundamental selling points.

Proposed community college districts must meet three state requirements. The proposed district must fall within pre-existing, contiguous elementary school districts. In this case the district would not include the Florence-Carlton School District because that district straddles the county line with Missoula. The proposed district must also have a taxable value of at least $10 million and at least 700 pupils must be regularly enrolled in public and private high schools located within the proposed district. The petition to establish the district must be made to the Board of Regents and signed by at least 20 percent of the proposed district's registered voters.

Montana community colleges are funded through student tuition and fees, state appropriations based upon full-time equivalent student enrollment, and local property taxes. A locally elected, seven-member board would manage and control the college. But the Board of Regents would maintain supervisory and coordinating powers over the college. The college would be housed at a location decided upon by the board.

Community college tuition is mandated by the Board of Regents to be the least expensive public higher education option in the state. As a comparison, according to advocates, full-time in-district students at Flathead Valley Community College currently pay $1,174 per semester, while full-time students at Missoula's College of Technology pay $1,584 per semester and full-time students (freshmen and sophomores) at the University of Montana pay $2,489 per semester.

At the current level of state funding and the current mandatory mill levy average, a student body of 175 full-time students (a number projected by the UM for its proposed Hamilton College of Technology branch campus) would require 3.88 mills, costing the owner of a home valued at $100,000 about $.71 per month or $8.50 per year.

More information about the proposed community college district is on the committee's web site at or e-mail or call 821-1682.

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