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Wednesday, January 31, 2007

Page One News at a Glance

County attorney responds to rezoning request

Commissioners partially fund county zoning plan

Boxing bows out as County and City debate

FWP seeks applicants for river recreation advisory committee

Commissioners to decide on 'Plan to Plan'

County attorney responds to rezoning request

By Michael Howell

Ravalli County Attorney George Corn has recently issued memos to County Planner Karen Hughes and the Ravalli County Commissioners providing guidance in processing both rezoning requests and requests for variances from zoning regulations while the Interim Zoning Regulations are in effect. The Interim Zoning Regulations, adopted by the voters last November, limit subdivision density in the county to one dwelling per two acres. What drew the county attorney's opinion was a request for guidance from Planner Dale McCormick in handling a rezoning and subdivision request for the Hilligoss Residential Zoning District and Subdivision. The request was for rezoning the area to a density of one dwelling per one acre, twice the density allowed under the Interim Zoning Regulations.

In his memo to Hughes, Corn recommends making a preliminary distinction between requests for rezoning of district boundaries or regulations and requests for a variance from application of a zoning ordinance to a specific parcel of property. They are subject to different sections of the law and follow different procedures. Rezoning requests require an evaluation by the Planning Office as to whether or not they constitute spot zoning. A variance request from zoning regulations, however, should be processed by the Board of Adjustments.

Corn states that rezoning requests address the comprehensive plans of zoning for a particular district, as opposed to a request for a variance for a particular parcel. A rezoning request must be evaluated to ensure that it does not constitute illegal spot zoning. Spot zoning occurs when a requested use is significantly different from the prevailing use of property in the area, or the area in which the requested use is to apply is very small in comparison to the overall district, and when a requested change is in the nature of special legislation, that is, designed to benefit a few landowners at the expense of the surrounding landowners or the general public.

By contrast, states Corn, a variance is a request to grant release to a property owner against compliance with a general zoning ordinance currently in effect. The variance request should be reviewed by the Board of Adjustments. To be granted it must not be contrary to the public interest. Also, a literal enforcement of the zoning ordinance must result in unnecessary hardship owing to conditions unique to the property (such as physical topography). And, finally, the spirit of the ordinance must be observed and substantial justice done.

In relation to the specific Hilligoss request, Corn states that "it is clear on its face that the request is not for rezoning of district boundaries, but for a variance from the application of the Interim Zoning Regulation density requirement to that parcel." Corn notes that the size of the parcel, 120 acres, represents a very small area in proportion to the current zoning district, which includes all of the unincorporated areas of Ravalli County. More importantly, he states, this request is clearly designed to benefit one landowner at the expense of the surrounding landowners and the general public.

It appears that the request to rezone, if granted, would constitute an illegal case of spot zoning. But Corn suggests that it is more properly understood as a request for a variance and should be heard by the Board of Adjustment. As a result, he recommends to the commissioners that they consider sending correspondence to the major planners and developers in Ravalli County "explaining their intent not to rezone merely to allow subdivision densities greater than that set forth in the Interim Zoning Regulation, as any such rezoning on specific pieces of property would likely constitute illegal spot zoning."

Corn does appear to accept, however, that such requests could be made if submitted as variance requests to the Interim Zoning Regulation and processed by the Board of Adjustment, "pursuant to the criteria set forth in the Interim Zoning Regulation."

The Interim Zoning Regulation does provide for the establishment of a Board of Adjustment and the county commissioners plan to do just that on Thursday, February 1 at 9 a.m. Also on the agenda, immediately following creation of the Board of Adjustment, is the appointment of members to the board.

According to County Planner Renee Van Hoven, the Planning Department has not received any other formal rezoning requests, but did receive a pre-application conference request for the Stevensville River Road Subdivision that stated the applicant would pursue a rezoning request for 49 lots on 28.74 acres. The pre-application conference was held after George Corn's memo regarding rezoning requests was circulated. It was clear, according to Van Hoven, that a rezoning request is not an option for this proposal. She said the consultant was not sure how the applicant would pursue a subdivision, if at all, given the County Attorney Office's opinion.

Phil Taylor, author of the Interim Zoning Regulation, agrees that the emergency zoning regulation allows for the establishment of a Board of Adjustment. But he vehemently disagrees with the notion that this board could change the one dwelling per two acre density restriction, or grant a variance to it.

"They can create a Board of Adjustment," said Taylor, "but the board does not have a role to play until some comprehensive zoning regulations are adopted." He considers the one dwelling per two acre density restriction beyond the board's authority to change. He said any attempt to approve a variance just to allow denser development would be in violation of the law and the spirit of the law.

Taylor said that the variance criteria outlined in the Interim Zoning Regulation was specifically designed to negate any frivolous attempts at manipulating the clear intent of the interim regulations.

"If the Board of Adjustment tried to do such a thing we would ask the courts to stop it," said Taylor.

"It is utter nonsense to me," he stated in a recent e-mail, "that we give any consideration to the various efforts that continue to crop up which are bent on circumventing what the people have mandated."

He pointed to what he called another attempt to circumvent the density restrictions contained in the Interim Zoning Regulation that may come to a head next week as an example. He said the county commissioners were going to consider approval of a subdivision with dwellings on less than two-acre lots. He said that the notion being advanced there would be that homes may be clustered on less than two-acre lots in a proposed subdivision as long as the average lots per acre was still one dwelling per two acres or greater. Taylor said that this, too, would be a violation of the Interim Zoning Regulation which does not refer to "averaged acres within subdivisions" but clearly limits the lot size of a dwelling to two acres as a minimum.

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Commissioners partially fund county zoning plan

By Michael Howell

The Ravalli County Commissioners voted unanimously last Wednesday, January 24, to adopt a plan, complete with timelines, for enactment of countywide zoning regulations before the end of 2008. They also agreed to fund the effort, at least for the rest of this fiscal year which ends June 30, by committing at least $10,000 that will most likely go to overtime pay for the county planners. The bulk of the costs will fall in the next fiscal year and amount to an estimated $73,000. The commissioners, however, did not make any commitment beyond the current fiscal year.

The detailed schedule for implementing countywide zoning was unanimously recommended for adoption by the Ravalli County Planning Board. It splits the project into two phases, the first of which would address basic issues such as density while the second phase would address those issues in more detail.

The estimated $73,000 price tag would mostly go to pay a new full time planner at a cost of $50,000. Another $15,000 would go to pay for services from the county Geographical Information System department and a part-time consultant to facilitate public involvement, with the remaining $3,000 going to incidental associated costs.

Commission Chairman Greg Chilcott said, "It is clear that the public wants countywide zoning. What is not clear is how we are going to pay for it."

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Boxing bows out as County and City debate

By Michael Howell

As city and county officials debate the past event, Club Boxing has withdrawn its request for a repeat performance at the Ravalli County Fairgrounds event center. Club Boxing held a bout at the First Interstate Center at the Fairgrounds in Hamilton a few weeks ago, on January 12, and the community has not stopped talking about it since. In a letter to the Ravalli County Fairgrounds manager, club boxing officials have withdrawn their request for future use of the facility due to "adverse publicity" and uncooperativeness from the city attorney and police chief.

Club Boxing, a for-profit enterprise, rented the facility for $800 from the Ravalli County Fairgrounds. According to Fairgrounds manager Gary Wiley, about 600 people attended the event. The facility was built at no cost to taxpayers. The Fair Commission took out a loan and is hoping to pay off the loan by renting out the facility. The Fairgrounds and the event center are, however, included within the Hamilton city limits.

The event, which involved boxing matches between 14 amateur contestants, generated debate amongst the community even before it occurred and, following the event, the debate has only intensified. Both the Hamilton City Council and the Ravalli County Commissioners have held public discussions over it. Complaints center around the use of "scantily clad" ring girls, the serving of alcohol and the ethics of the boxing matches themselves. The city and county appear to be taking different tacks on the affair.

All of the Hamilton City Council members expressed some form of dissatisfaction with the way the event transpired. A few expressed dismay at the use of "scantily clad" or "half-nude" ring girls at the event. Councilor Bob Scott expressed disagreement with the serving of alcohol at such an event. He felt like it went against the time-honored ban against the sale or consumption of alcohol at the fairgrounds and was not in keeping with a "family oriented" community center.

Although there was an historical agreement banning the use or sale of alcohol on the fairgrounds, an exception was made by the Fair Board for events at the First Interstate Event Center. It was considered essential to the success of the venture, according to Wiley.

Councilor Mike LaSalle objected to the fact that neither the Fair Manager, the Fair Commission nor Club Boxing, bothered to get the required special use permit to serve alcohol at a special event within the city limits.

As a result of the discussion, the matter was sent to the Council's legislative committee for consideration. Legislative Committee chairperson DeAnne Harbaugh said that the committee considered the matter last week and was asking City Attorney Ken Bell to write an Ordinance banning Club Boxing within the city limits. The committee will recommend to the council adoption of such a ban, she said.

Harbaugh said that the issue was not just club boxing. It also involved the question of mixing violence with sexual stimulation by having "semi-nude" ring girls at the event.

Harbaugh said that her thinking on the matter was based on some years of counseling work and work with battered women.

"I don't think it is ever O.K. to connect sexual stimulation with violence," said Harbaugh. "It's not conducive to a healthy society." She said that the committee, which includes councilors Hendrickson and Steele, were in agreement to seek an ordinance that would effectively ban such events. She said that to pass such an ordinance would require two public hearings and final public approval.

"The bottom line is, what does the majority of the community think?," said Harbaugh.

The Ravalli County Commissioners, faced with similar complaints about the event at a recent meeting on Monday, declined to take any action.

Fairgrounds manager Wiley defended his and the Fair Commission's decision to allow the event. He stated that the facility was built with no taxpayer money. It was financed with a loan and loan payments depended upon rental income. He said that refusing to rent to a particular entity could generate a lawsuit over discrimination.

"My job is to rent the facility," said Wiley, "not make moral judgments."

He stressed that the activities conducted at the event were legal. He said that Club Boxing was legal and was sanctioned by the Montana Board of Athletics. He said that on any summer day at the Hamilton pool you could see women wearing less than the ring girls were wearing at the event. He said they were wearing bikinis and high heels.

Dallas Erickson objected to the notion of renting the event center for any event that was not illegal. He said that strippers could legally perform in the state and he wondered if the Fair Board was willing to rent the center for such events.

"You can do a lot that's legal, but not necessarily acceptable," said Erickson.

Amateur boxing proponent Dean Walrod was critical of the boxing event itself. He said that no training was required to enter the fights and that someone was going to get hurt.

"It's not a matter if, but when, you are going to get sued," said Walrod.

Other people complained, saying they found the use of alcohol and the "scantily clad" ring girls at the event to be inappropriate.

A few others defended the event.

Ron Toomer vigorously defended the Fair Board's decision to allow the event, arguing that it was a legal and respectable sport. He said that he had been boxing since he was little.

"It's not up to you to tell me I can't fight, or that I can't let my child fight in a boxing ring," said Toomer.

"That is everybody's Fairground, not just a few people's," he said. He said efforts to ban boxing because it is dangerous could lead to banning football and other sports that lead to injuries and possible death.

Vickie Dawson, a member of the Fair Commission, said that she spoke up about allowing the use of alcohol at the event center when it was discussed and approved over a year ago. She said that she does not use alcohol and does not condone it, but that she doesn't use guns either. She said that she would not approve banning alcohol any more than she would approve banning gun shows from the event center. She did work hard on the alcohol issue, however, to ensure that it would be as safe as possible. As a result, she said, designated driver information has been required to be made available for such events. She called that an action above and beyond what was required to ensure safety.

"We will continue to be watchful on the alcohol thing," said Dawson.

Others also echoed the notion that if an activity is legal that it should not be banned just because some other people don't like it.

Commissioner Howard Lyons stated that he was opposed to micromanagement of the Fairgrounds. He said that he was willing to accept the judgment of the Fair Board, Fairgrounds manager and Fair Commission in this matter. He said that there is an ordinance governing the management of the event center and that so long as they follow the ordinance they are doing their job.

Commissioner Alan Thompson stated that he believed boxing was a sport and many sports involve a degree of danger including sports like skiing. He said that protective measures had been taken with head gear, large gloves, and shorter rounds and less rounds per contestant.

"I'm not sure about the atmosphere," he said. He said he was "not comfortable with the scantily dressed ring girls with money being thrown at them. I would ask the Board to address that."

Commissioner Chilcott said, "I'm not really excited by the ring girl thing, especially when the only fight we had outside the ring was between two ring girls fighting over the money that was being thrown at them." But we need to make money to pay for the center, he said. Either the facility generates the money or the taxpayers do.

"I'd rather see the facility paying for it," he said.

The Commissioners declined to make any motion concerning the discussion. Only afterward did Fairgrounds manager Gary Wiley reveal that Club Boxing had withdrawn its request to use the facility again based upon "adverse publicity."

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FWP seeks applicants for river recreation advisory committee

Montana Fish, Wildlife & Parks (FWP) is seeking applicants to fill 12 to 18 volunteer positions on a Region 2 River Recreation Advisory For Tomorrow (RRAFT) Committee for west-central Montana.

The RRAFT Committee will develop recommendations for managing recreation on rivers in west-central Montana including the Blackfoot, Bitterroot, Clark Fork and Rock Creek. Recommendations from the committee, combined with other public input, will also guide the development of an updated Blackfoot River Recreation Management Plan.

Prospective committee members should have an interest in at least one of the area's rivers. Final committee selections will be made to create a diverse group that represents anglers; floaters; inner-tubers; outfitters; guides; recreation and tourism businesses; river access site visitors; and other interested public. Designated representatives from state, local and federal agencies will assist and support the committee.

Advisors will work with FWP to develop recommendations that reflect the interest of committee members, the public that recreates on area rivers, and those that are affected by management decisions on the rivers.

Members will serve in a voluntary capacity, and committee meetings will be held in the Missoula area one evening per month for approximately 12 to 18 months beginning in March 2007.

"We encourage anyone who has an interest in river recreation in west-central Montana to apply," says Lee Bastian, Region 2 State Parks Manager. "We are eager to have a diverse group to advise us on our programs and priorities and help lead us through a comprehensive recreation planning process for the Blackfoot and other area rivers."

Specifically, the committee will:

• Identify issues, constraints and opportunities for the Blackfoot and other Region 2 Rivers;
• Build upon and refine existing plans, programs, agreements and partnerships;
• Provide a forum for public participation in the river recreation planning process;
• Explore current agency management plans and mandates;
• Advise FWP on how to best implement projects.

To apply, stop by the Missoula FWP office, 3201 Spurgin Road, phone FWP at 542-5500 or email Ginny Schmautz at Interested persons will receive an application in the mail or via email. Completed applications must be returned to FWP with a postmark date no later than February 12, 2007.

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