Bitterroot Star Masthead

Volume XX, Number 28

Page One News

Wednesday, February 9, 2005

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Page One News at a Glance

Ground Hog Day at the refuge

Commissioners consider pro rata changes

The Pro Rata Paradox

Hatchery Bend in court again

Neighbors sue developer over water problems

Bitterroot group supports science in the schools

Planning Board approves two subdivisions

Ground Hog Day at the refuge

By Michael Howell

According to reports from the Associated Press, Punxsutawney Phil was hauled out of his home on Ground Hog Day by his top hatted keeper. The famous ground hog saw his shadow and promptly ran back into his den. Surrounding witnesses moaned at the thought of six more weeks of winter.

Too bad for those people in Pennsylvania. Things are looking a little bit brighter here in the Bitterroot. But then, we do things differently out here.

For one thing, we don't have any ground hogs. For another, if we did have any, we would treat them with the same respect and civility that we do his cousin, the marmot, who does live here. We would never haul our hairy friend, Bitterroot Bill, out of his den by the scruff of his neck and force some sort of prognostication. Imagine being hauled out of a dark bedroom from a sound slumber and forced to look at your own shadow. If I was Phil, the second they let go of me I'd duck back down in the burrow in a flash, whether I saw my shadow or not. It's almost like those people in Pennsylvania were looking for bad weather, if you ask me.

Out west, here in the Bitterroot Valley, if Bitterroot Bill wants to sleep in, well, that's his business.

This was the case, it seems, at the Lee Metcalf National Wildlife Refuge north of Stevensville last Wednesday when about 50 people showed up for the spring forecast. Bill was a 'no show.' But being the self-reliant sort, as we Bitterrooters seem to be, and not wanting to wait all day on some lazy marmot, we did what any good blooded bunch of Americans would do, we took a vote. I'm pleased to report that, here in the Bitterroot anyway, the forecast is quite positive, unanimous in fact. We are headed into an early spring!

The first official Groundhog Day took place in Punxsutawney, Pennsylvania on February 2, 1886. The day falls halfway between the first day of winter and the first day of spring. The first official Ground Hog Day celebration at the Metcalf Wildlife Refuge was last week, but Refuge staff plan on making it an annual event.

Young and old alike enjoyed themselves at the event. There were refreshments and good conversation. There were exhibits, including an array of animal pelts to be seen and touched. There was even some singing.

Participants also had the chance to learn a lot about marmots, the Western ground hog, from the Refuge's Outdoor Recreation Planner Bob Danley. There were tape recordings of the sounds made by the "whistling pig" as groundhogs are sometime called. There was also plenty of information about the furry creatures and their habits, including a recipe for those who might consider eating these cute little forecasters.

For more information about marmots, other creatures, or other events planned at the Lee Metcalf Wildlife Refuge, call 777-5552.

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Commissioners consider pro rata changes

By Michael Howell

Last Thursday, February 3, the Ravalli County Commissioners considered a proposal introduced by Commissioner Betty Lund at a previous meeting to calculate pro rata share for upcoming subdivisions that were applied for within a certain time frame based upon the average pro rata estimates of a former Road Supervisor.

The question of pro rata costs has been a sore point for the commissioners ever since the new Road Supervisor David Ohnstad established the basic cost of a county road at about $317,000 per mile. This does not include the costs related to changes of curve radius or grade, or costs of bridges and any necessary right-of-way purchases. These "extra" costs, referred to in the subdivision regulations under table 542, are also required to be used in calculating pro rata share on top of the average cost of road per mile.

Deputy County Attorney James McCubbin began the discussion by calling the proposal to base pro rata calculations on how things have been done in the past a "recipe for legal disaster." He said that the best route would be to change the regulations. He also suggested that the Commissioners might consider tying the calculation of pro rata to the final plat approval rather than the time of initial application to address some of their concerns about effects upon applications already submitted.

Asked for his opinion, County Road and Bridge Department Supervisor Dave Ohnstad said, "I have an opinion," and he referred to a memo which he had recently delivered to the commissioners. "Ultimately it is going to be the good judgment of the commissioners that decides," said Ohnstad. He also reminded the Commissioners that new road standards were being developed that would affect the costs in the pro rata share calculations.

McCubbin noted that a change in regulations would require an advertised public hearing with certain time constraints. He said the commissioners could adopt the new guidelines for use by the Road Department immediately as an administrative act but the change in the subdivision regulations would still require a public hearing. He said some work was still needed to be done to mesh the new road standards with Fire Code. He said a quick stop gap measure the Board could take would be to simply remove the requirement of using table 542 from the regulations but he also recommended against doing it.

Ohnstad has recommended adopting road standards based upon the national standards of the American Association of State Highway and Transportation Officials (AASHTO). These standards differentiate between high use roads and other levels of use and set different standards for each, unlike Ravalli County's current regulations which place the same high standards on every road regardless of how much use it gets.

Commissioner Alan Thompson agreed that the County should adopt the national standards for road department use as an administrative matter and move forward, but he disagreed with idea of not allowing the use of past pro rata numbers from previous supervisors, saying, "For us to say past ones were wrong is okay, but to say Dave's (Ohnstad) are okay, I don't agree with that."

Ohnstad defended his figure and insisted that it is, in fact, "very conservative."

McCubbin noted that there was no way to be sure how accurate past estimates have been, but that commissioners could ask Ohnstad how he arrived at his.

"The greater failure of the county," said McCubbin, "was in not taking the costs under table 542 into account. These are significant costs and we are currently not applying these to the pro rata."

Ohnstad reiterated that he was using widely accepted and approved standards in his calculations. "If you want to use a different standard, you need the information to justify it," he said.

McCubbin agreed and said that there should be an engineering study to justify any differences.

"I think national standards are best, but in the meantime, we need to follow our current regulations," said McCubbin.

Commissioners discussed the possibility of some sort of "quick fix" while going through the necessary public hearing process to change the subdivision regulations. The County Planner and Deputy County Attorney dissuaded them due to the complications involved in using interim rules for such a short period of time. They estimated it would take at least 17 days to get any "quick fix" in place while the entire change of regulations might be finished in close to 47 days.

"The real 'quick fix'," said Ohnstad, "is for the developers to wait until March 21."

The commissioners decided to adopt the national standards administratively for use by the road department and begin the process of amending the subdivision regulations to adopt similar standards for that process which is projected to lead to a public hearing by March 21.

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The Pro Rata Paradox

By Michael Howell

In a memorandum to the County Commissioners, Planning Director, and Deputy County Attorney, written on January 25, 2005, County Road and Bridge Department Supervisor David Ohnstad, offers his "observations and assessments" about "the pro rata paradox."

Although the memo states that it "is intended to be an internal and confidential communication," it is, in fact, a public document and a copy of the memo was obtained easily upon request.

Ohnstad offers his comments "given the considerable confusion and controversy surrounding the issue of Roadway Design Standards and Pro Rata Calculations." He states that his primary objective is to "operate Ravalli County transportation systems in an open, effective, ethical and accountable manner." He states that it is not his intent to "sustain current levels of degradation of the structural integrity of the county roadway system, the natural environment or of the integrity of the Road and Bridge Department, but to create improvements to these through the diligent pursuit of reasonable proactive performance(s)."

Ohnstad calls the pro rata concept, on the surface, an "equitable and effective means" to assess the impacts to the public infrastructure from the construction of private developments and to obtain from those developments the resources necessary to sustain a certain level of service for that infrastructure.

"As I have stated in the past," writes Ohnstad, "it is not the function, nor the intent, of the Road and Bridge Department to control, restrict or otherwise compromise development. Neither should the management of these programs result in the subsidization of that development."

"Whatever the system(s) the county ultimately elects to pursue," states the memo, "the essential function(s) of the system ought to be to ensure that development occurs in an orderly fashion, in a manner that reasonably reflects the values and the history of the county, that effectively mitigates the financial and life-style impacts to county residents from private developments, that facilitates environmental protection and that equitably assesses the cost of those impacts to project owners."

Ohnstad argues against replacing the pro rata system with an impact fee average based upon a county-wide analysis of the costs of development, as some have suggested. He argues that an "appropriately managed" pro rata system is the best. He sees a fee per lot charge as inherently less fair than the pro rata calculation and presents the arguments to back it up.

At the same time he admits that the pro rata system has not been managed appropriately enough in the past. In fact he calls it so "poorly developed, so poorly administered and so poorly communicated, internally and externally, since its inception, that it may now complicate if not preclude the effective management of the current system with regard to those subdivision applications initiated prior to the current (04-05) fiscal year."

Rather than dwell on past errors and omissions, he suggests "we would be far better advised to accept the reality of the present, and to plan for the future, with an understanding and acceptance of the nature and consequence of that past performance, however challenging that may be."

"Also, attempting to reconcile that past performance with current reality, absent a full understanding of the consequence of that reconciliation is, in my opinion, likely only to result in further confusion and argument. Attempting to mitigate the impact to individual projects by compromising current standards, or current realities, will likely only provide 'cause' for others to make the claim of exclusive or parochial exception," states the memo.

Finally, Ohnstad addresses the issue of the consistent variances being granted concerning road standards.

"It is commonly accepted," writes Ohnstad, "that if variance becomes the standard, there becomes no standard to vary from. The system that is developed must be efficient, effective, equitable, accountable and transparent, and must be clearly and consistently communicated to the extent that variance from that system ultimately becomes unnecessary, and very rare."

Ohnstad goes on to remark that currently the Road and Bridge Department has no officially adopted standards and calls the design standards currently found in the subdivision regulations "conflicted to the extent of being impracticable." He urges the commissioners to adopt national design standards embodied in the Manual On Uniform Traffic Control Devices (MUTCD) and two publications of AASHTO.

He states that the county's consulting engineer is currently charged with the evaluation of the low-volume design standards involved and is in the process of reconciling them with the Uniform Fire Code and other guidelines. He recommends upon completion of this effort that the subdivision regulations be revised to reflect the new standards. Target dates are set for various stages of the process culminating in Public Hearings before the County Commissioners in March.

It is noted that, under the proposed regulations, the Ravalli County road system would be reviewed and roads would be divided into "functional classifications" that would allow for different levels of service and design criteria. An analysis is currently underway and scheduled to be complete by March 1, 2005.

As far as the effects of adopting these rules on the county's existing road system and improvement plans, Ohnstad quotes from AASHTO to the effect that it does not imply that existing road designs are unsafe, nor does it mandate the initiation of any new projects. "Where major revisions to horizontal or vertical curvature are not necessary or practical, existing design values may be retained," he quotes from AASHTO.

He goes on to quote that changes to roadway or roadside geometrics of low-volume roads during reconstruction projects "are generally recommended only when there is a documented site-specific safety problem." He states that existing bridges can be left in place without widening unless a specific safety problem is identified. He states that there is similar language in the rules about horizontal and vertical curvature.

Ohnstad recommends that these roadway design, roadway improvement and pro rata calculation programs, as may be amended, be implemented retroactive to July 1, 2004 "and provide that project owners that were assessed pro rata under the existing program since that date may appeal for a return of the difference between calculations of the existing and amended programs."

Ohnstad recommends that the Commissioners strike the definition of "standard" county road from the subdivision regulations because it actually only mentions three of the criteria for determining a standard road and thus the definition is not factual.

Concerning the actual collection of pro rata shares from developers, Ohnstad points out that no accounts were ever set up to hold those funds even though Resolution 1349, passed on August, 28, 2003, would require five separate accounts to be established matching the county's grader districts. Ohnstad recommends that instead the money be placed in three accounts to be set up corresponding to the three commissioner's election districts.

In the end Ohnstad defends his estimated cost schedule amount of an average of $317,000 per mile for roadway construction in Ravalli County. He notes that an independent analysis and review of that by an engineer is currently in progress, but he believes that his figure is conservative, accurate and arrived at in a reasonable manner.

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Hatchery Bend in court again

A small four-lot subdivision along Fish Hatchery Road east of Hamilton, called Hatchery Bend Subdivision, has found its way into court for the third time since first being proposed by Joseph and Denise Galbraith in 1997.

This time neighbors to the proposed subdivision, Scott Koppes and Dan and Becky Brandborg, have filed suit challenging the Ravalli County Commissioners' recent decision to conditionally approve the subdivision. They are asking District Judge Jeffrey Langton to find the decision arbitrary and capricious and in violation of the county's subdivision regulations. They accuse the Commissioners of ignoring the consistent recommendations of the Planning Board to deny the subdivision request.

The Planning Board has now consistently recommended denial of the subdivision on three separate occasions.

It recommended denial of the proposal in 1997 and the Commissioners agreed. But the developers sued and got the decision nullified and remanded back to the Commissioners for further consideration. In 2001 the Planning Board again recommended denial, citing specifically inadequate water data. However, this time the Commissioners approved the subdivision. But neighboring landowners were able to get that decision annulled and the subdivision was once again returned to the County Commissioners for review.

In the latest review the Planning Board recommended denial of the subdivision in September primarily due to the loss of prime farmland and concerns about water. But on December 30, 2004 the Commissioners approved it.

The neighboring landowners argue that with 75 percent of the land designated prime farmland according to U.S. Department of Agriculture soil maps, it constitutes a significant effect upon agriculture which was not mitigated by any conditions. They point to the fact that the Commissioners found in a previous decision that the subdivision would have a significant effect upon agriculture due to the loss of prime farmland.

They also argued that the Commissioners failed to find that neighboring farms would not be significantly adversely affected by groundwater contamination and road dust. Associated with these claims is a claim that the decision violates the plaintiffs' constitutional rights to a clean and healthy environment.

The plaintiffs also claim that the Commissioners did nothing to mitigate the effect upon local services such as the Sheriff's department, despite receiving notice that the department would be seriously affected.

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Neighbors sue developer over water problems

by Michael Howell

Two homeowners next to Creekside Meadows, a large subdivision along Logan Lane located on land recently annexed into the Town of Stevensville, have each filed separate lawsuits against the developer, Ellison Development, LLC, Professional Consultants, Inc. and L.S. Jensen, a local contractor.

The neighboring landowners, Melvin and Kathleen Cook and John Dietz, claim that installation of a sewer and water line in the subdivision has caused recurrent flooding in their homes resulting in property damage. They also claim to have suffered physical and mental pain and suffering and mental anguish, past and future loss of earning capacity, disruption of life and loss of enjoyment of living.

They charge the defendants with negligence and lack of oversight in the construction of the trench for the water and sewer lines and claim that it was not done according to standards. They accuse the defendants of creating a nuisance and trespassing by flooding. Both neighbors are seeking damages and attorney's fees.

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Bitterroot group supports science in the schools

by Michael Howell

Following a successful battle in the Darby School District against adoption of the Objective Origins policy, a group calling itself Montana Citizens for Quality Science Education has headed to Helena to lobby for legislation in support of a science curricula based upon sound scientific principles and the separation of church and state.

Proponents of the Objective Origin policy are critical of Darwin's theory of evolution and advocate a theory of creation be taught alongside or in place of the theory of evolution. The issue became the focal point of a vote by residents in the district and was defeated by a vote of two to one against the district trustees who were in support of the policy change.

"A serious look at this new creationism called Objective Origins or Intelligent Design will reveal that both the National Academy of Sciences and the American Association for the Advancement of Science representing hundreds of thousands of scientists in the relevant fields of biology, genetics, paleontology, etc. have clearly stated that the Theory of Evolution is well supported and integral and that Intelligent Design is not science," the group stated in a press release.

They point out that the courts have consistently ruled against this neo-creationism and that it violates the Montana State Constitution's prohibition against sectarian doctrines in public schools. They argue that passage of Senate Joint Resolution 8 will "support good science and local school districts, help local communities focus on education and not on lawsuits, and will send a message to well funded political organizations that public school science class is not the place for their religious agenda."

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Planning Board approves two subdivisions

Big one on the horizon

by Michael Howell

The Ravalli County Planning Board is recommending approval of two subdivisions to the County Commissioners. At its meeting last Wednesday, the Board gave the nod of approval to a small four-lot subdivision with five variances near Florence, called Hidden Valley Estates, and a 17-lot subdivision with one variance, called Park Place Subdivision, located near Stevensville. The Board also heard a preliminary plat proposal for a 127-lot development near Stevensville at the site of the current project called Horizon Development. Although the planning staff recommended approval of only one of the variance requests on Hidden Valley Estates and denial of the rest, the Planning Board recommended approval of all five variances.

Neither of the two subdivision proposals approved by the Board drew any public comment in opposition.

The new proposal presented for 127 lots on the westside of Highway 93 just south of the Stevensville Junction did bring out a few neighboring landowners with questions about the development.

The project was originally approved as St. Mary's Horizon Park Village in 1978. The Department of Environmental Quality approved that project for 90 one-bedroom apartments and a shopping center involving 10 acres in residential, 15 acres in commercial and a two-acre common area.

Then, in 1998, it was redesignated for 90 one-bedroom condominiums, 38 apartments, one office, a nursing home, a health club and a health clinic. Some of the condominiums were built.

Since then, the developer, Tom Horat, has acquired 17 additional acres adjoining the development and has changed his plans. He now proposes to convert the 24 existing condominiums into townhouses, which means the land underneath them will be sold, the creation of an additional 103 single family residential lots, a clubhouse, and 17 acres of common area.

Now covering over 40 acres, the development would involve individual septics linked to a common treatment facility and drainfield. The developer is also requesting four variances from lot design standards, road standards, from the requirement to improve interior roads, and from curve radius standards on one of the roads.

Neighbors to the proposed development had many questions and all expressed some concern about the density of the proposed development.

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