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Wednesday, December 13, 2006

Page One News at a Glance

Obscenity petition circulating

Plans afoot to replace Kootenai Creek Bridge

Hamilton City Council nixes elected treasurer position

Flat Iron Ranch subdivision annexation to be considered

Hamilton mayor comments on Schwan investigation

County Attorney clarifies interim zoning regulation

Stevi School Board holds more closed sessions

Obscenity petition circulating

By Michael Howell

Following Ravalli County District Court Judge Jeffrey Langton's ruling in October that the proposed petition for an Obscenity Ordinance in the county was valid and constitutional, petition proponents launched a petition drive to place the issue on the 2008 ballot by hitting the polls at the November 2007 elections in an effort to gather the required number of signatures.

In that ruling Langton found 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.

The petitioners need 15 percent of the voters or 4,328 valid signatures in order to place the Obscenity Ordinance on the next general ballot, November 4, 2008. Petition organizer Dallas Erickson said that about 2,700 signatures were gathered at the polls this past November. He says they are shooting for 5,000 signatures by the January 9th deadline, which he also says is legally questionable.

The County is appealing Langton's ruling on the Obscenity Ordinance, but Erickson said that it was important for the petition process to proceed to keep the pressure on the court system to make a ruling.

In the same decision last October, Langton struck down a companion ordinance, Displaying or Disseminating Material Harmful to a Minor. In his analysis of the second ordinance, Langton concluded 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 wrote.

Erickson said that, instead of appealing that decision in court, his group was seeking legislative relief by asking the legislature to pass a law that would allow local communities to pass more restrictive laws than the state. He is confident that the bill will be supported in the legislature.

State law allows adults, over the age of 18, to purchase material defined as "obscene." But it prohibits the display or distribution of obscene material to minors. The proposed Obscenity Ordinance would make it illegal to display or distribute that material to anyone in Ravalli County, regardless of age.

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Plans afoot to replace Kootenai Creek Bridge

By Michael Howell

Plans are progressing on two fronts, according to Ravalli County Road and Bridge Department Supervisor David Ohnstad, to provide a total replacement for the Kootenai Creek bridge which was washed out by high water during an unusual flooding event in the first week of November. Ohnstad said that a temporary structure has been installed over the compromised area which currently provides full access to the 15 or so residences located up the road beyond the bridge. The temporary replacement only allows one-lane traffic, but has no weight restriction that would stop use by emergency vehicles.

On Monday, December 4, the County Commissioners determined that there was not enough money in the Road and Bridge Department's reserve fund to meet the estimated costs of replacing the bridge so an intense effort was made, according to Ohnstad, to search out alternative funding sources. A few options were ruled out. The U.S. Forest Service has funds for such things but it has to be on a forest road. Funds are also available through the Federal Bridge Replacement Program. The Kootenai Creek bridge meets the requirements, but the program is years out in its funding. Even if the funds were approved, according to Ohnstad, the project would still be years down the road.

This leaves only two avenues of funding. One involves enacting a 2-mill emergency levy and simultaneously receiving emergency funds by petition from the Governor's Office. The other involves funding available through the Montana Department of Transportation Emergency Replacement Fund. The county is currently pursuing both, although if either one comes through, the other would not be required.

On Wednesday, December 6, the County Commissioners passed a disaster declaration as the first step in applying for emergency funds from the Governor's Office. That petition for funds, according to Disaster and Emergency Services Director Ron Nicholas, requires the county to put up whatever funds it can as part of the process. That means the county would pass a 2-mill levy to raise about $105,166. It would also contribute the $38,208 currently in its emergency fund (left over from the fires of 2000, according to Nicholas). The state, through the Governor's Office, would then contribute the remaining $95,626 to complete the full funding of the project.

The second alternative is to seek full funding for the project through the Montana Department of Transportation Emergency Replacement Fund. Ohnstad said that the last he had heard, DOT officials in Helena were looking favorably upon the request, but no decision had been made yet. "If the DOT money is realized," said Ohnstad, "we can forego the other option involving the mill levy. But with a December 7 deadline for filing for those emergency funds we felt it was necessary to pursue both angles at this time."

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Hamilton City Council nixes elected treasurer position

By Michael Howell

In a split vote decided by the mayor, the Hamilton City Council essentially killed a proposed resolution "correcting an error in the status of the City of Hamilton Treasurer from an appointed position to an elected position." Councilor DeAnn Harbaugh explained the resolution to the council, pointing to the Local Government Study Review Commission's finding that the city's plan of government calls for an elected treasurer and has never been amended to allow for an appointed treasurer. Despite that fact, the City Treasurer position has been filled by appointment for decades.

"We should have an elected treasurer," said Harbaugh.

But before any motion was made in that regard, Councilor Jerry Steele made a motion to "postpone indefinitely" the resolution to have an elected treasurer. He called it a "motion to kill the motion," and said that it was a part of parliamentary procedure. Mayor Jessica Randazzo read the relevant text to the council.

Commissioner Mike LaSalle responded that the Council had already decided to conduct a "straw poll" in the spring to ask city residents about the issue.

Councilor Hendrickson concurred with LaSalle, saying that since a straw poll was already scheduled she saw no problem in postponing the resolution.

Councilor Bob Scott disagreed, saying, "If you vote for this, you are agreeing to continue operating contrary to the law."

LaSalle countered that "with a $6 million budget you want it overseen by someone with the appropriate education, rather than have someone appointed from a popularity contest."

Mayor Randazzo said she regretted that the Local Government Study Review Committee identified this as a concern but did not place it on the November ballot.

"I'm not comfortable with the fact that the voters of Hamilton have not had a chance to weigh in on this issue and I will stand firm on the need for citizens to be aware of this requirement and make a decision about what they would like to see happen," said Randazzo.

Hendrickson, LaSalle, and Steele voted to indefinitely postpone the resolution. Scott, Harbaugh and Sutherland voted against postponing it. Mayor Randazzo broke the tie, voting in favor and essentially killing any motion to pass the resolution.

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Flat Iron Ranch subdivision annexation to be considered

By Michael Howell

In response to a request from the developer of the Flat Iron Ranch subdivision, located southeast of Hamilton, as to whether or not the City had any interest in annexing and zoning the property, newly hired City Planner Dennis Stranger approached the City Council for direction in the matter at the last council meeting.

The subdivider has made an application to the County for approval of a 622 dwelling unit development on the 494-acre parcel. That proposal may be put on hold, however, since it does not meet the requirements of the newly passed Interim Zoning Initiative that limits development to one dwelling unit per two acres.

Stranger told the Council that there are generally advantages and disadvantages involved in any annexation of new property into the city. But, without doing more inquiry into this particular case, he could not say now what those advantages or disadvantages would be. He said the property was not contiguous to the city limits, presenting some problem in supplying services. He said that a fiscal impact analysis would need to be conducted. He said that his office did not have the expertise to do the analysis of infrastructure requirements, fiscal impacts, and traffic impacts that would be needed to evaluate the proposal, but that the developer may be willing to fund such efforts if the Council was willing to pursue it.

"It's a way to identify the issues," said Stranger.

In a lengthy discussion, Council members were split over the issue. Some saw it as a waste of city time and resources. Others thought it was worth looking into. Hendrickson finally made a motion to direct the City Planner to move forward with developing an Annexation Policy for the City and to look further into the feasibility of annexing the Flat Iron Ranch Subdivision.

Councilor Scott proposed an amendment to the motion making the examination of the Flat Iron Ranch annexation a "low priority."

The vote split over Scott's amendment with Scott, Sutherland and Harbaugh voting in favor of it and Steele, LaSalle, and Hendrickson voting against it. Mayor Randazzo, despite stating earlier that she found the scope of the proposal and its 15-year time frame "beyond (her) comprehension," and that she could not see it as a high priority due to the city's limited resources, broke the tie and voted down the amendment without explanation. She then broke another tie between the same councilors in favor of passing the motion to direct the City Planner to devise an Annexation Policy and pursue the potential annexation request.

In other business the council approved a contract between the City of Hamilton and the Montana Department of Transportation for selective traffic enforcement around the holidays. DOT would provide funds to pay city officers overtime for enforcing DUI and seat belt laws around certain holidays.

The Council also approved a request from the Committee on Arts to allow the use of the community room at no charge from May 8 to 11, 2007 by the Communities for Art in Our Schools program's annual art sale.

The council also approved a $4,748 contract with Trindera Engineering/HDR for engineering designs in the Wastewater Generator Project.

In other business, it was noted that the City spent $8,700 last year advertising in the Ravalli Republic and the Missoulian at the open rate. It was agreed to enter into a contract with Lee Enterprises, which owns both papers, that could reduce costs by 50 to 60 percent. The contract rate would require a minimum expenditure of $1,500. The council voted unanimously to enter into a contract with the publishing company.

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Hamilton mayor comments on Schwan investigation

By Michael Howell

Mayor Jessica Randazzo stated at the beginning of the December 5, Hamilton City Council meeting that she had received word that day that Carol Schwan is being investigated by the State Department of Justice "for her efforts to create a tree lined downtown."

Schwan, a member of the City of Hamilton Park Board, was an active and outspoken leader in the recently failed effort to recall Councilor Bob Scott. That recall campaign cited, as an example of official misconduct, a request by Scott to be reimbursed for travel expenses to a government study seminar in Bozeman as reason to recall him. Petitioners claim that it was an illegal request. The request was questioned by council members at the time and Scott withdrew his request. He never received any money.

During that campaign, however, information emerged suggesting that Schwan, herself, may have committed official misconduct when she voted for the city to pay for a tree and plaque knowing that it had been donated to the city by her and her husband. She then received reimbursement for it totaling $937.50. But the plaque stating that it was donated by the Schwans remained on the tree.

Subsequently, Councilors Scott and Sutherland filed a complaint with the Ravalli County Sheriff's Department over the matter. On October 19, 2006, they were informed by Sheriff Chris Hoffman that the matter had been turned over to the Montana Department of Justice, Division of Criminal Investigation (DCI).

Lorraine Crotty, a member of Bitterroot Democracy Watch, who was involved on the group's behalf at the time, said that the group received word at one point that the DCI had returned the file to Hoffman stating that a one year statute of limitations had run out. She said, at that point, that Hoffman was calling it a civil matter.

"But if funds were taken illegally," said Crotty, "it's not a civil matter, it's criminal."

On November 11, Bitterroot Democracy Watch submitted what it called "additional information" concerning complaints against Schwan. It states their concern as "residents and taxpayers" and characterizes the group as one "that advocates accountability and transparency in local government." The letter to John Stendell, Chief of DCI, accuses Schwan of spending public funds without authorization from the City, and then submitting a "claim voucher" for reimbursement. It accuses her of possible Official Misconduct, Ethics Violation, and Theft and calls for an investigation of the matter.

The letter includes several legal references countering the notion that the "statute of limitations" may have run out, indicating, in fact, that it has not. The group argues that the clock starts running on the statute of limitations not from the time the act is committed, but from the time that it is "discovered" that a crime was committed. They note that theft of public funds has a limitation of five years. They ask the DCI to investigate the matter and bring criminal action if the law was violated.

Mayor Randazzo, in her defense of Schwan at the City Council meeting, said, "I want to address by name Councilor Scott, Councilor Sutherland, as well as Mr. Olson, and members of the Democratic Watch group, or any other citizen who is actively promoting this behavior, I'm publicly requesting that you stop fueling this inappropriate and destructive behavior. Citizens who make contributions to enhance the city should be honored, not prosecuted."

Randazzo called their efforts "politically motivated" and urged the Council and citizens to support the City's boards and board members, to turn their attention to more constructive efforts, and stop attacking individuals.

Later in the meeting Scott stated that he did not hear the Mayor making any public remarks in his defense when he was suffering from politically motivated attacks. Scott said later that he does not hold any grudges. He said that he did file a complaint against Schwan last summer but that he is not actively pursuing any action in relation to the charges.

Justice Department officials in Helena could not confirm on Monday whether or not the DCI is currently pursuing an active investigation of Schwan.

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County Attorney clarifies interim zoning regulation

By Michael Howell

Although many questions remain to be answered in regards to implementation of the Interim Zoning Regulation passed by voters in November, County Attorney George Corn has answered one of the most pressing questions about the new law limiting subdivisions to a density of one residence per two acres. That question is, how will it affect subdivisions that are already in the application process. The answer, according to Corn, is that any subdivision that has not already received conditional approval by the County Commissioners must comply with the density requirement of the interim zoning regulation.

In a memo received by the County Commissioners on December 11, Corn states that, in general, proposed subdivisions that do not meet the requirements of the new interim zoning regulation can only proceed through review if a developer's rights have "vested."

"In most jurisdictions," writes Corn, "vesting does not occur until after the final discretionary act by the board of county commissioners."

He quotes case law to the effect that a person's right in any particular subdivision does not vest merely by filing an application, nor does filing of a plat or preliminary work on a subdivision.

Corn does note, however, that there is a variance procedure outlined in the interim zoning petition itself. But the County Commissioners must appoint a Board of Adjustments first to consider zoning variance requests.

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Stevi School Board holds more closed sessions

By Michael Howell

The latest in an unprecedented number of closed meetings by the Stevensville School Board was held on December 6, on short notice. The meeting, noticed on November 30, too late for publication in the Bitterroot Star, contained no agenda and no agenda of the meeting was ever made available. The public notice stated only the time and place of the special meeting "to discuss administrative review."

According to unofficial minutes of the meeting, it was called to order by Chairman Jim Cloud and then immediately adjourned into closed session due to a "right of privacy." It was stated that the involved employees would be given an opportunity when they enter the closed meeting to waive their right to privacy.

When the meeting was reopened, the floor was turned over to Vice Principal Robert DoBell. Minutes state that DoBell explained to the Board the reason why he went into teaching and why he is here at Stevensville. He thanked the Board for the opportunity given him to serve in an administration internship last year.

Afterward, Cloud told the Board that the next matter before the Board also involved a right to privacy. The meeting was closed again. Upon reopening, the public meeting was adjourned with no further comment.

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