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Wednesday, March 3, 2010


Page One News at a Glance


Hamilton moves to zone medical marijuana dispensaries

Montana Water Trust joins Clark Fork Coalition

Taxpayers score big with Stevi school building bond

Town of Stevi may adopt road through school property

Attorney fees awarded in Board of Realtors suit

Pre-Valentine’s theft

Detective terminated for misconduct




Hamilton moves to zone medical marijuana dispensaries

By Michael Howell

At a Committee of the Whole meeting last Thursday, February 25, the Hamilton City Council agreed to place an emergency zoning ordinance on the agenda for its next council meeting scheduled for Tuesday, March 2, that would limit the location of medical marijuana dispensaries established within the city limits to business and manufacturing zones. The emergency zoning ordinance would go into effect immediately upon passage without need of a second reading.

The ordinance under consideration would be temporary and would expire in six months with the proviso that it may be extended an additional six months if desired, but not beyond that. The ordinance also directs the mayor, in the meantime, to research the issue and make recommendations about a possible permanent ordinance to better regulate the new businesses.

Montana voters on November 2, 2004 approved the Medical Marijuana Act that allows the cultivation and possession of a certain amount of medical marijuana by individuals who have registered with the state Department of Health and Human Services. It also allows caregivers to grow and dispense medical marijuana to other patients who have registered with the state but don’t or can’t grow their own. Each patient is allowed to up to six plants for their own use and possession of up to one ounce of usable marijuana.

Last Thursday the Council members heard from one individual, Dennis Palmer, who was against allowing any medical marijuana sales in the city, or anywhere else for that matter. They also heard from Rick Carter who expressed concern about potential regulations that might be based on a misunderstanding of the use of medical marijuana. A third individual, Mark Behnke, also expressed concern about the effect of any moratorium on the existing businesses. He said it would unfairly favor a few existing businesses by restricting competition.

Tim England, owner of Bitterroot’s Best Caregivers, which dispenses medical marijuana at a shop located just outside the city limits, said that the reason he opened a store front was to provide a safe place to do business and to provide information and recruit new patients to his business. He said the budding industry was providing new jobs that can replace the many jobs being lost in the area due to the latest economic downturn. He said producing medical grade marijuana takes a lot of skill, knowledge and hard work. He said it takes from 5 to 6 months to produce a crop and involves taking a lot of risk, from spider mites, to mold, to police raids.

England said that he would like to see some clarification of the laws by the legislature but he was doing the best he could to comply with the currently vague regulations.

“What I don’t want to see is a knee jerk reaction to an imagined problem,” said England.

Charmell Owens spoke for the Ravalli County Prevention Coalition, a coalition of about 60 people working in the fields of law enforcement, health services, the judiciary and the schools, that aims to reduce substance abuse amongst children. She expressed concerns about the location of dispensaries near child related services, schools and recreation areas and generally about the need for more specific legislative guidelines and regulations governing the development of the dispensary businesses.

Owens expressed support for a temporary moratorium on new dispensaries and said her group would like to see rules prohibiting any person under the age of 18 from entering a dispensary and rules prohibiting such dispensaries within 1,000 feet of a school, park or daycare facility and not closer than 300 feet to a residence. She also expressed concerns about potential secondary selling by the establishments.

City Attorney Ken Bell presented the draft ordinance for emergency zoning that he had prepared saying, “This is not a moratorium. Just because that is what is being done elsewhere does not mean it is what we need to be doing here.”

He called the proposed emergency ordinance a “control measure” that would restrict the location of any new medical marijuana dispensaries to certain zoning areas within the city limits while permanent regulations are being considered.

England answered some questions about how his business works. He said the cost of medical marijuana at his shop ranged from $200 to $400 per ounce, depending on the quality. He offers a 10 percent discount to low income people and veterans. A low income vet may receive a combined discount of 20 percent. He said that some of his patients use half an ounce per week while others might only use that much over a whole year.

England sad that his understanding of the law was that there was no age limit governing the use of medical marijuana and children could be provided the service if they had parental approval and the appropriate certification card from the state. He said that a prescription from a doctor was not required but that a doctor’s recommendation to the sate that the patient could benefit from the use of medical marijuana was enough to get state approval.

He said that to his knowledge there were at least three private and three public medical marijuana dispensaries already operating in Ravalli County.

Special Projects Director Dennis Stranger, who helped Bell draft the emergency zoning ordinance, said that there were currently 149 licensed caregivers in Ravalli County and 473 registered patients.

Bell said that these statistics indicate that there is a lot of growing going on in the county in people’s homes, outside of the storefront establishments providing the service. Stranger pointed out that the current emergency zoning would allow the cultivation and possession of medical marijuana by registered patients and caregivers in their own residences for their own personal use.

Asked if the city had the authority to go in and check the businesses to be sure they were operating within the limits of the law, City Attorney Ken Bell said that the presence of marijuana in the business and its sale was not enough to allow the police to waltz in and examine the business’s books.

“That would be an illegal search,” he said. He said that some specific and direct evidence of illegal activity establishing probable cause would need to exist before a search like that could be conducted.

England said that he would like to see more specific regulations that might define who has authority to conduct such inspections.

“Believe it or not, that would be good for my business,” he said. He said that an organization of dispensary owners, Montana Caregivers Network, was currently discussing some self-imposed regulations in that regard.

In response to concerns about potential “smoking lounges,” it was noted that under the Clean Air Act it was currently illegal to smoke in any business with employees that was open to the public.

After some discussion about the zoning areas where such businesses would be allowed, a consensus emerged to prohibit it form Professional Services zones such as those near the hospital and only allow it in B-1 and B-2 business zones and CM and MI manufacturing zones.

A vote by the Council on the proposed emergency ordinance was scheduled for Tuesday, March 2.

According to statistics on the DPHHS website, HYPERLINK "http://www.dphhs.mt.gov" www.dphhs.mt.gov, the department has registered 7,339 patients, 1,942 caregivers and 247 doctors in its Medical Marijuana program.

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Montana Water Trust joins Clark Fork Coalition

By Michael Howell

Just three days after Rankin Holmes of the Montana Water Trust (MWT) spoke to Bitterroot Valley residents at the invitation of the Bitter Root Water Forum, the Clark Fork Coalition announced in a press release that it is acquiring MWT and adding streamflow restoration to its program to better protect and restore the Clark Fork watershed. The Coalition is bringing on board all three Water Trust staff members, including Holmes, as part of an expansion that will enable the group to broker voluntary water transfers aimed at increasing the amount of water flowing in western Montana’s streams.

According to the Coalition’s executive director Karen Knudsen, adding flow restoration to its toolbox will enable the group to promote watershed health on a greater scale. The expansion will help accelerate the pace of river restoration and community revitalization in the Clark Fork basin. 

“We’re thrilled that Montana Water Trust is coming on board,” said Knudsen. “The removal of Milltown Dam two years ago really opened the door to full-scale recovery of the watershed, and in response, we’ve been scaling up our work to improve the Clark Fork’s feeder creeks and streams. With this newly-acquired expertise, now we can focus on the flow piece for a complete restoration solution.”

Barbara Hall, outgoing executive director of the now-dissolved Water Trust and incoming legal director for the Coalition, says that exploratory talks about a possible acquisition started last fall because both groups recognized they were working on different aspects of a shared challenge.

One key part of that shared challenge includes trying to keep water flowing in western Montana streams that are otherwise chronically dewatered during periods of low flow and maximum irrigation use, especially in late summer and fall.

A prime example of just such a challenge and the Montana Water Trust’s successful response is Tin Cup Creek near Darby.

In 1993 the Montana Water Trust stepped in and leased the three most senior water rights on the creek and began calling on that water to increase streamflows in the creek in late summer. A minimum desired flow rate was determined for the stream near town and when the water drops below that point the Water Trust calls for its water to elevate the streamflow. Holmes said that in late July through September, the water may be called on every few days. Their lease of the water rights was renewed in 2005 for ten years ending in 2015.

The Montana Water Trust is also helping in efforts aimed at restoring the capacity of Tin Cup Reservoir. The reservoir was created by a dam, now located within the designated wilderness on National Forest land, that furnished about 2,000 acre feet of water annually for valley irrigators. In 1998 structural flaws were detected in the dam and the reservoir holding level was cut in half.

Holmes said that they are currently trying to nail down the funding to restore the reservoir to its original 2,000-acre-feet capacity. He said they are looking to the Columbia Basin Water Transaction Program for $300,000 and Montana Department of Fish, Wildlife and Parks for another $100,000 from its Future Fisheries program. The irrigators on Tin Cup Creek are also contributing. Holmes said that his organization was still looking for more funding to help lift the burden off the irrigators. He said that the Northwest Power Conservation Council had approved a recommendation for the funding.

“The irrigators have already shouldered a significant expense, about half a million dollars, in doing the work required to stabilize the dam,” said Holmes.

MWT hopes to gain another 400 acre feet of water, approximately a 3 cfs flow in the creek, once the levels of the reservoir are increased.

The U.S. Forest Service is currently conducting an EA on the proposed reconstruction project. That analysis includes the option of using a helicopter to deliver construction materials to the site, located within the wilderness boundary.

Motorized access to the wilderness is generally prohibited, but Holmes thinks that helicopter delivery makes sense given the tremendous negative environmental impact to trails and the watershed if all the materials were hauled to the site by pack mules.

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Taxpayers score big with Stevi school building bond

Bond issued at zero percent interest

It’s not often that schools, especially during tournament time, are bragging about a score of zero. But Stevensville School District is doing just that when it comes to issuing bonds for school improvements. The big score came when the president of Rocky Mountain Bank in Stevensville stepped up and told Stevensville School Superintendent Kent Kultgen that his bank was interested in issuing the $8.9 million building bond recently approved by school district voters at zero percent interest. This could mean a savings to Stevensville School District taxpayers of an estimated $1.8 million over the 16-year life of the bond payments.

This is certainly a good deal for the taxpayers involved, but it is also a good deal for the bank, according to Rocky Mountain Bank branch president Jeff Fuller. The bank will earn some tax credits in the deal and have an opportunity to bid on the investment of the funds. One advantage of the Qualified Schools Construction Bonds (QSCB) to the school district is that the bonds do not have to be paid off until the expiration date. As a result, the school district may benefit from investing the funds in the meantime. This also reduces the overall end cost to the taxpayers as they earn a certain amount in the transaction period. These earnings/savings could total as much as $4.2 million over 15 years.

The Stevensville School Board of Trustees jumped at the idea of putting a building bond out under the new QSCB program, due to the possibility of a zero percent interest bond purchase. But their bond adviser D.A. Davidson warned that the bonds would sell at whatever percentage the market would support. The going rate at the time was estimated to be from 1 to 2 percent. And the board was warned that by the time the bonds were put on the market it could possibly be as much as 5 or even 7 percent. It was an unknown. As a result the board finally approved putting a bond on the ballot on the condition that it not be issued at more than 2 percent interest.

In fact, recent tax credit bonds issued since then have been purchased mostly at 1.3 and 1.2 percent interest. A $1.95 million bond in Flathead County and a $9.75 million bond in Yellowstone County were both issued at 1.3 percent interest. Two bonds in Lake County for $600,000 each were issued at 1.2 percent interest. The only other bond to be issued, for about $773,000 in Billings, was issued at zero percent interest by Rocky Mountain Bank in Billings.

Fuller said that what made the deal possible was “the unique business model” being practiced by the bank’s holding company, Heartland Financial USA, Inc., that allows Rocky Mountain Bank branches to make decisions locally based upon a commitment to the community in which they do business. Rocky Mountain Bank is a state-chartered banking group with nearly $470 million in assets and nine branches located in Bigfork, Billings, Bozeman, Kalispell, Plains, Plentywood, Stevensville and Whitehall. Its parent company, Heartland Financial USA, Inc., is headquartered in Dubuque, Iowa.

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Town of Stevi may adopt road through school property

By Michael Howell

When PCI Engineer Andy Medford, working for the Town of Stevensville, went to the Stevensville School Board seeking another 30 foot right-of-way along ALC Way, a road that runs across school property, for the Town of Stevensville’s water line, the school countered with a proposal that the Town consider adopting the entire roadway and incorporate it into the Town’s road system. The Town, which is under pressure to get its water system revisions done by July 1 to accommodate a county road reconstruction project on Middle Burnt Fork Road, agreed to give the school that option. The final decision will be up to the School Board.

School Superintendent Kent Kultgen is in favor of the town simply adopting the whole roadway. Kultgen said that the school district is not really in the road maintenance business and yet spends $1,100 annually on maintaining ALC Way. He said that the school was not really equipped to do the dust abatement on the road and has no way of controlling speed along the road. He said that, all things considered, it would be best if the Town simply adopted the roadway and did the maintenance and the speed control on the roadway. The road currently accesses the Clothes Closet and Pantry Partners, which are not school businesses but are located on school property. He said it made sense for it to be a public roadway maintained and policed by the Town. The adopted roadway would also be able to accommodate any future utility development.

At its meeting of February 22, the Town Council decided to inform the School Board that it would be agreeable to either option and leave it to the School Board to make the decision as to what it prefers.

In other business the Stevensville Town Council:

- accepted the bid of The Roofman to do repairs on the Town Hall building roof and the annex building at a cost of $24,750 for Town Hall roof repairs, $6,750 for repairing the annex roof and $4,300 to upgrade the roofing material to qualify for a 25-year warranty. The bid acceptance was approved on a 3 to 1 vote with Councilor Desera Towle dissenting because she did not have time to review the work history of the applicants.

- approved unanimously a contract with Rural Development and HDR Engineering for work on Phase I Wastewater Treatment Plant Project

- tabled an issue regarding the upsizing of a water line in the Twin Creeks Subdivision to accommodate changes in the Town’s water delivery system.

- approved applying for 2010 WRDA grants that would be awarded in 2011.

- approved the installation of a new electrical panel in the Fire Department hall upstairs.

- approved moving funds from an expired Sewer Replacement CD at Farmers State Bank to a consolidated CD account at Rocky Mountain Bank.

- approved Roni Kimp’s attendance at a payroll training lesson in Hamilton on Feb. 23.

- approved paying $50 per month each of Road and Water Superintendents’ cell phone bills for use on Town business and the use of one phone from the Police Department for other employee use.

- approved looking for another attorney to review the Police Policy Manual and to help Town Attorney Keithi Worthington with her workload.



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Attorney fees awarded in Board of Realtors suit

By Michael Howell

Last July, a group of real estate agents, all members of the Bitterroot Valley Board of Realtors (BVBR), sued the organization over a dispute about membership and unpaid fees and asked to inspect the BVBR’s financial records. The BVBR refused to allow inspection of the records and filed for a protective order and an order quashing the subpoenas in the case. That motion was denied in its entirety by a Court Order filed on September 15, 2009 and the agents who sued did eventually get to inspect the books. They then asked to be awarded their attorney fees of $5,173.48 which were incurred in opposing the motion for a protective order. Last month, on February 17, District Court Judge Jeffrey Langton ruled that the plaintiffs were entitled to attorney fees incurred in contesting the BVBR’s motion in the case and set a hearing for March 3 on the reasonableness of those fees.

The real estate agents claim that bylaws of the BVBR provide that if dues, fees, fines, or other assessments owed to the organization including membership in the Multiple Listing Service are not paid within three months after the due date, the nonpaying member shall automatically be terminated. They claim that between January and March 2009 a number of former members did not renew their membership because they were unable to afford it.

The agents allege that on March 26, 2009 a special Board meeting was held during which it was revealed that several member officers, including members of the Board, were delinquent in paying dues or fees and some more than 90 days. At that meeting it was decided to remind members to pay their dues in full by April 30. The litigating real estate agents allege a meeting was then held with less than 48 hours notice on April 30 and the Board voted to extend credit in the form of a payment plan to certain member officers who applied on that same day. The agents claimed that this action was voted on by members of the Board who should have already been automatically terminated. They claim that this action discriminated against the members who dropped out earlier unaware that the Board would be later “cutting special deals.” That is when one of the real estate agents wrote the Board asking to inspect the financial records of the organization.

Five days later other member real estate agents tried in person to inspect the records but were refused.

Subsequently a petition for a special meeting of the membership was circulated and signed by 75 members. At that special Board meeting, held on March 19, 2009, a request was made once again to inspect the records. It is alleged that at a subsequent special Board meeting held the following day, one Board member stated that his dues had been delinquent. The Board met again on June 10 and refused to discuss the issue. On June 17, another membership meeting was held during which a motion was approved to require the Board to open the records for inspection without redacting names as an attorney for the BVBR had suggested as a possibility. That request was also denied and by July 9 the real estate agents had filed suit in District Court over the issue, claiming that by allowing delinquent members to keep their membership in violation of the bylaws, the Board had unfairly benefitted the delinquent members and discriminated against the paying members and former members whose membership had been terminated. They claim that as long as members who are or have been more than 90 days delinquent are allowed to vote, the Board is acting unlawfully and its actions are void.

Although the Court denied the Board’s motion for a protective order it did provide the Board the opportunity for an ‘in camera’ inspection by the Judge in the event the Board reasonably believed it is in possession of any member’s private and confidential information unrelated to payment of dues, or fees. But the Board subsequently produced its records without invoking the ‘in camera’ review and without any names being redacted.

Attorney for the BVBR, James A. Bowditch of Boone and Karlberg in Missoula, said that the parties in the case had reached verbal agreement over all the issues involved and that the paperwork was being put together to finalize that.

“Nothing’s over till it’s over,” said Bowditch, “but I am confident that we will soon have an agreement signed.”

Zane Sullivan, attorney for the plaintiffs, did not return a phone call from the Bitterroot Star.



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Pre-Valentine’s theft

Did you happen to see someone on Valentine’s Day wearing a satiny red dress, sporting a new pair of clogs and, perhaps, carrying a cupid flower vase with a big red heart? You may have seen a thief or the thief’s sweetheart. Those are the items that someone lifted from Skandi Hus and the Windsor Antique Boutique in Stevensville without paying.

The theft occurred on Saturday, February 13, the day before Valentine’s, and was discovered soon after the suspect had left the store. The suspect, according to store owner Dan Porch, is a woman who lingered around the store, especially the shoe department in the Skandi Hus section, for a long time. After her departure it was discovered that two pairs of clogs were missing and in one of the shoeboxes an old pair of Crocs had been left behind. Also missing was a satiny red dress and a ceramic vase with a big red heart on it.

The two pairs of shoes that were taken were different sizes, according to Skandi Hus owner Pat Larson. They were European sizes 40 and 41, one pair being slightly smaller than the other. The odd thing about the single pair of shoes left behind is that one shoe is a sized ten and the other is a size 9.

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Detective terminated for misconduct

The Hamilton City Council, following a closed session on a personnel issue at its last meeting on February 16, terminated the employment of Hamilton Police Detective Nick Painter, stating only that it was at the recommendation of Mayor Jerry Steele and that it was unfortunate. Painter was terminated as of February 11, and will be reimbursed for sick leave and vacation time accrued.

According to Police Chief Ryan Oster, the detective was terminated due to misconduct. Oster declined to comment any further on the reasons, due to the rights of privacy involved.

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