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Wednesday, March 7, 2007

Page One News at a Glance

County attorney clarifies interim zoning density restrictions

Wal-Mart traffic, road plans discussed

Stevensville School Board selects superintendent finalists

Local community college makes the ballot

County zoning meetings scheduled

Realtors' consultant addresses streamside setbacks

Creamery Picnic to move off of Main Street

County attorney clarifies interim zoning density restrictions

By Michael Howell

County Attorney George Corn set the Planning Department and the County Commissioners straight last week when he issued his opinion regarding the question of whether the Interim Zoning Regulation's restriction on development that limits density to one dwelling per 2 acres applies to lot size or average density. Contrary to both the Planning Department and County Commissioners' interpretation that it meant "average density," Corn came down heavy last week on the side of "minimum lot size."

"The interpretation of the 1 per 2 Regulation which establishes a density control of a 2-acre minimum lot size is the only logical and reasonable meaning under the relevant statutes that will make the regulation effective. Any other interpretation would frustrate the voter's intent and the stated purpose of the interim zoning statute in protecting public health, welfare and safety while permanent zoning is considered. Therefore, it is my opinion that the 1 per 2 Regulation establishes a temporary minimum lot size of 1 residence per 2 acres and should be strictly enforced," wrote Corn in a memo to County Planner Karen Hughes on February 28.

The Planning Department has been operating, according to Hughes, since passage of the Interim Zoning Regulations, under the assumption that the 1 per 2 acre restriction applied to the "average density" of a subdivision as a whole, and was not a "minimum lot size." According to this notion, a subdivision could have dwellings on lots smaller than two acres so long as the overall average size of combined lots was not less than the 1 per 2 acre restriction.

The matter came to a head when the Sunnyside Orchard subdivision came up for approval on the last possible day. It contained two lots smaller than two acres. The Planning Department recommended approval because the average density of the lots in the subdivision was greater than 1 per 2 acres. The commissioners and the consultant for the developer agreed with the department that the Interim Zoning restriction of 1 per 2 applied to the average density. But in lieu of a ruling from the county attorney, the subdivision was approved on the condition that the developer abide by the county attorney's decision on the matter.

The Planning Department evidently got some feedback from the public even before the county attorney responded. A day before Corn issued his opinion, Planning Department Director Karen Hughes issued a five-page memorandum of her own defending the notion that the interim zoning regulation applied to "average density."

"After receiving a significant volume of citizens comments on the issue, Planning staff felt it appropriate to articulate the rationale behind our interpretation of this regulation," states an e-mail from the Planning Department containing the five-page memo. In the memo Hughes argues that the department's interpretation is derived from and consistent with standard planning practices and terminology as well as the definitions used by the American Planning Association.

Corn refers in his memo to the clear intentions of the restriction, as voiced by the regulation's drafters, to be a minimum lot size limit to prevent subdivision into smaller lots while long-term zoning was considered.

He cautioned against relying too much on professional technical distinctions, stating, "it must be kept in mind that this Regulation was not drafted by planning department professionals, but by citizen advocates during an initiative process addressing an emergency situation."

"Further," he states, "to interpret the Regulation as establishing overall or average density would make the '1 per 2 acre' restriction effectively meaningless; effectively, subdivision into lots smaller than 2 acres would be allowed to continue even while the interim zoning is in effect, negating the stated purpose of addressing an emergency situation."

Corn also points out that, technically, the term "density" has a broad meaning which embodies all restrictions on the number of persons or buildings permitted in a particular zone. "'Density zoning,' which is often used synonymously with 'cluster housing’' is a more specific term used by professionals when zoning establishes an average residential density over an entire parcel with no restrictions on lot size.

"To interpret, as some have suggested, the term 'density' to establish 'density zoning' without further qualification language such as 'overall’' 'maximum’' or 'average’' would be to insert terms that are not included in the express wording of the Regulation itself."

Phil Taylor, author of the Interim Zoning initiative, said that he informed the Planning Department from the beginning that it was in error in interpreting the 1 per 2 acre restriction as an "average density," but that his insistent protests were ignored. He accuses the Planning Department of intentionally trying to end run the Interim Zoning Regulation by attempting to enforce its own "stretched" interpretation, one that would effectively nullify the intent of the regulation as it had been proposed. He believes it shows a real bias in favor of developers on the part of the County Commissioners and the Planning Department staff.

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Wal-Mart traffic, road plans discussed

By Michael Howell

Frustration and cynicism were palpable last week when Bitterrooters went looking for solutions to the county's growth problems at a meeting held to discuss Wal-Mart's traffic and road plans for its proposed super store north of Hamilton.

The 100 or so people who showed up to hear how Wal-Mart plans to route traffic to its planned store near Donaldson's on Highway 93 peppered state and county road officials with questions specific to road issues, but also often broader in scope and more centered on land use planning. If it sounded at times that the speakers, Dwane Kailey, district administrator for the Montana Department of Transportation, and Dave Ohnstad, county road supervisor, were in over their heads, it was because the crowd was seeking answers to land use problems outside their realm of responsibility and expertise.

Kailey could only offer what he knew for sure and what might be expected down the road. Wal-Mart, he said, has informally requested an access permit from Highway 93 to its site, but has not formally done so. The requested access would be off the highway, which poses a bureaucratic problem for the company, and possibly major traffic headaches for Bitterroot drivers. A Highway 93 widening project from Hamilton to Lolo has been underway for a decade. The final Environmental Impact Statement was signed off in 1997 and identifies the stretch of highway in front of the proposed store as restrictive, which means what it says: access is eliminated, reduced or limited at that spot. If the company formally seeks an access at that restrictive spot, it would trigger a reevaluation of the final EIS to determine the significance of the impacts. If MDOT finds that the traffic impacts are out of harmony with the EIS, the state will seek public comment and involvement.

A separate traffic routing issue centers on Orchard Drive, a windy, narrow and steep lane through a rural residential area west of Donaldson's the company may want to use as an alternative route. County road supervisor Ohnstad said the county has limited authority over that plan, which he called "pure speculation" and nothing more than "a loose proposal at this time. There's not a lot the road and bridge department can do."

If the Orchard Drive access plan conflicts with county road policy, or if the company cannot or will not mitigate the negative impacts, the county can deny access. If the company mitigates the impacts, the county could allow access.

It seems county officials have little authority over Wal-Mart. Since the proposed site is more than 20 acres, the company is exempt from local subdivision review. Highway and environmental health officials can say little at this point because the company has not submitted any formal requests, either for new highway access or for sewer treatment and water supply. The state Department of Environmental Quality has authority over the project's sewer and water plans, though no proposals have been submitted yet.

Missoula's two Wal-Marts have generated many 911 calls in the past year, according to one man who spoke at last week's meetings. According to 911 logs he obtained, there were 641 calls made to Missoula 911 between April 2004 and April 2006 at the Mullan Road site; and there were 400 responses to 911 calls made to Highway 93 in front of the Wal-Mart there. Kailey conceded that lack of coordination between land use and infrastructure planners created traffic problems at Mullan and Reserve, but he said Wal-Mart was not solely to blame. That led some in the crowd to ask how MDOT could guarantee that the same traffic problems that have plagued Mullan and Reserve won't occur in Hamilton.

The frustration over the county's lack of zoning ordinances spilled over into the questions of land use planning that neither Kailey nor Ohnstad were able to answer. That led Kierstin Lange, who is associated with Bitterroot Good Neighbors, the group fighting Wal-Mart, to tactfully remind people to keep their questions specific to traffic issues.

There was a whisper campaign going on in the back of the room, meanwhile, with several people wondering whether the Orchard Drive access issue was nothing more than a trial balloon, from which Wal-Mart could gain some public feedback.

Other road questions - the potential impacts to roads such as Knik, Freedom and Harmony, and the impacts to the dangerous intersection of Bowman Road and Ricketts Road - could not be answered.

What the two officials did say, in so many words, was that their job is to engineer and maintain roads; the citizens' job is to decide what kind of land use rules they want to guide growth in the future.

That, too, was left unanswered.

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Stevensville School Board selects superintendent finalists

By Michael Howell

The Stevensville School Board has selected three finalists for the position of Superintendent of Stevensville Public Schools. The finalists who will be interviewed include (in alphabetical order):

Kent Kultgen - Kent Kultgen is currently employed by the Choteau School District as the School Superintendent. He has served in that position for the past five years and served eight years as their High School Social Studies teacher. Kent also taught for three years in Hinsdale, Montana. He received his Masters degree from Montana State University and is currently working towards his Doctorate in Bozeman.

Neil Terhune - Neil Terhune is currently completing his fifth year as Superintendent for the Harlem School District in Harlem, Montana. Prior to Harlem, Neil served as a Principal in Poplar, Montana and in Polo and Poplar Bluff High School in Missouri. Neil also worked as the JROTC Instructor for the Poplar Bluff High School in Missouri. He holds a Doctorate in Education Leadership from Montana State University in Bozeman. He earned his Bachelors, Masters, and Specialist in Education degrees from Southeast Missouri State University.

Bruce Wallace - Bruce Wallace currently serves as Superintendent in Darby, Montana and previously served as Superintendent for the Sun River Valley School District in Simms, Montana. He served as High School Principal of Simms High School, Assistant High School Principal and Activities Director for Poplar Schools, and a Vocational Agriculture Teacher at Whitehall and Peerless, Montana. He earned his Superintendent's Endorsement from the University of Montana at Missoula, holds a Masters in School Administration from MSU-Bozeman, and his Bachelors Degree in Ag-Ed also from MSU-Bozeman.

"We were impressed with the quality of the applications we reviewed," said Jim Cloud, Stevensville Board Chair. "We looked closely at 19 applicants and are now looking forward to having the opportunity of talking further to these finalists. The key will be finding the person who best fits the needs of Stevensville's students, staff, and the community."

The interviews for the position of Superintendent of Schools will be held on Monday, March 12 and are open to the public. The schedule for finalists will include the formal public interviews followed by a community and staff reception.

Monday, March 12

12:30-1:30 p.m. - Formal Interview, Neil Terhune
1:45-2:45 p.m. - Formal Interview, Kent Kultgen
3-4 p.m. - Formal Interview, Bruce Wallace
4-5 p.m. - Community and Staff Reception
5-5:30 p.m. - Board Meeting: The Board may convene in an executive session to discuss information in which the Board Chair determines that individual privacy rights clearly exceed the merits of public disclosure. The Board anticipates a final decision and will provide a press release following the meeting.

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Local community college makes the ballot

By Michael Howell

Last Thursday the state Board of Regents unanimously verified a petition containing 5,188 signatures supporting the creation of a Bitterroot Valley Community College district in Ravalli County. The board's action effectively placed the matter up for public vote and, according to Ravalli County Clerk and Recorder Regina Pettenberg, the issue has been placed on the May 8 ballot.

But Ravalli County voter approval is only one step in an ongoing process. According to a recent Attorney General Opinion, the state legislature has the final say in the formation of community college districts. If Ravalli County voters approve the proposition at the polls, the regents must then recommend adoption of the new community college district to the legislature where the final determination will be made.

The proposed Bitterroot Valley Community College district includes all of the school districts in Ravalli County, except the Florence-Carlton School District which straddles the county line and is partly located in Missoula County.

Supporters of the community college district, the organized force being the Bitterroot Valley Community College Exploratory Committee, propose a district funded by a combination of local taxes, state educational funds, student tuition, grants and private donations. The local tax cost, given the current level of state funding and a mandatory local mill levy average, to fund a student body of 175 full-time students, would require 3.88 mills, and amount to about $8.50 per year for a residential property valued at $100,000.

According to the committee's web site (, Montana currently has three existing community colleges: Miles Community College, established in Miles City in 1939; Dawson Community College, established in Glendive in 1940; and Flathead Valley Community College, established in Kalispell in 1967. Flathead Valley Community College subsequently established a satellite campus in Libby in 1984.

Supporters tout the advantages of a community college over a College of Technology, which the University of Montana has been considering establishing in the county (those plans have been put on hold), including local control by a locally elected board, and a greater array of continuing education classes.

Sarah Munson, a member of the exploratory committee, said, "It makes me feel like the cold days spent in the K-mart parking lot collecting signatures were worth it." She said that over 45 local businesses and 60 volunteers helped in the signature gathering. Now that the issue has made it onto the ballot, she said that the committee is planning a meeting at the Bedford Building (City Hall) in Hamilton on April 24, to provide information to the community about the proposed community college. One meeting is scheduled from 1 to 3 p.m. and another from 5:30 to 7:30 p.m. on the same day. A benefit concert is also being planned to help fund the educational campaign leading up to the election.

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County zoning meetings scheduled

By Michael Howell

The county Planning Department and Planning Board have scheduled public meetings on the countywide zoning process. The first public informational meeting will be held on Wednesday, March 7, at 7 p.m. in the Florence School gym. This meeting is the first of three informational meetings, the purpose of which is to distribute information regarding zoning in general and the countywide zoning process specifically. The next meeting will be held in the Darby Clubhouse on Wednesday, March 14, at 7 p.m., and in Hamilton, at the First Interstate Building at the county fairgrounds on Wednesday, March 21 at 7 p.m. Additionally, staff and/or Planning Board members will be available upon request to give the same presentation to interested citizen groups.

At the meetings, planning staff and planning board members will deliver a short presentation profiling completed and anticipated objectives of the countywide zoning process. A question and answer period will follow the presentation. Planning Department staff and Planning Board members will be available for further discussion at the conclusion of the Q and A session. Take-home information will also be available at these meetings.

The intent of the planning process is to provide each individual a forum to express their views regarding the countywide zoning process. The Board of County Commissioners, Planning Board, Planning Department encourages the public to attend.

To view information relating to the first round of meetings on March 7, March 14, and March 21, visit the Planning Department's website at or request it by calling 375-6530 or at 215 S. 4th Street, Suite F, Hamilton, MT 59840. Other information will be distributed as it is made available.

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Realtors' consultant addresses streamside setbacks

By Michael Howell

The Bitterroot Water Forum sponsored a presentation last Wednesday, February 28, by Clint Brown, of H2O Design Group, LLC. Brown is currently working for the Bitterroot Valley Board of Realtors on a digital mapping project designed to be used in the implementation of a Streamside Setback Ordinance being composed by the local realtors organization.

Brown told the audience that there were two ways to develop streamside setback ordinances. There is the "one size fits all" way that just sets some limit, measured in feet, for major rivers and tributaries, like the bill being considered by the legislature.

"Or, you take a more rigorous, site specific approach," said Brown.

He said that his clients, the Board of Realtors, got some funding and have moved ahead with the second approach. That approach involves developing regional hydrologic information across the whole valley. It involves analysis of bank-full discharge, a cross sectional view of streambeds, and classification of stream types according to Rosgen's theory. The Rosgen types are a series of stream types ranging from the straight and narrow to the most widely meandering sort.

Brown's theory of streamside setbacks relies on geomorphic and hydrologic measurements and topographical elevations and aims at describing an area, required by each stream, for migration over time. The setback line would be a line drawn indicating the potential "migration zone" of the stream as it moves over time.

He reasons that smaller streams need a smaller Stream Protection Zone (SPZ). Larger streams need a larger one. In part because the calculations are based on the bank-full width of the stream. He also reasons that "straight streams’ need less SPZ than "meandering streams," which are prone to migrate.

Brown did say that his model did not take into account such values as water quality, fisheries and wildlife, but that he was working with Fish, Wildlife and Parks fisheries biologist Chris Clancy on trying to incorporate those values into the equation.

"Chris and I have been working since December on modifying these tables to address those concerns," said Brown.

Brown characterized his approach compared to Clancy's as more of a "hard science" approach. He said that his approach did not address questions about the "health of the stream." But he said that those considerations get very complex and, in his view, less precise, than the empirical information his approach is based upon, such as meander width ratios.

"Health is a different issue," said Brown, and he deferred to Clancy in questions concerning the health of the fisheries and the associated riparian habitat.

Brown explained that the setback line being considered by his clients would include an inner "no touch" zone, a middle zone where such things as paths, fire rings, and picnic tables would be allowed, and an outer zone where lawn would be allowed but no residential structures. He showed the group slides based upon aerial photos that illustrated the proposed setbacks on the lower Skalkaho Creek.

Brown said that the initial estimation of completion of the project was in July 2007, but that the project was now jeopardized by the process currently being put forward by the Planning Board to establish a Streamside Setback Committee. By considering the establishment of such a committee, Brown said, "the county has basically put me out of control of the timeline and eliminated our grant funding."

Brown said that the original grant for the project was awarded "assuming that an ordinance would be in place and the mapping would be a tool for its implementation."

Despite claims at past public meetings that a grant had been received, Terri Polumsky, of the Board of Realtors, now claims that the original grant was predicated upon a Resolution of Intent from the County Commissioners to pass the Board of Realtors' proposed setback ordinance. When that did not happen by the end of the year, the grant application expired, according to Polumsky. She said that the local Board of Realtors has funded Brown's work to date to the tune of $50,000 without any grant. She said that future funding has also been jeopardized by the possible establishment of a Streamside Setback Committee that could well take some other approach and render the work on their mapping project useless.

Brown said that he had been given notice that no more money may be forthcoming for his project.

Audience member Sonny LaSalle said that he was in attendance when the County Commissioners approved writing a letter of support for the Board of Realtors' grant seeking efforts. He said that, at the time, it was made explicit by Commissioner Alan Thompson that endorsement of the grant application did not commit the county to any action regarding the work.

Minutes of the meeting bear out LaSalle's claim. The commissioners agreed to write a letter of support for the grant application but it was to be a "free gift" of data for the county to consider in future deliberations, with no commitment to adopting any setback regulations.

FWP fisheries biologist Chris Clancy, who has presented an analysis of setback limits based on "buffer zones protecting various values such as water quality, fisheries and wildlife," was critical of Brown's presentation. He said that Brown had failed to adequately reveal in his presentation the actual distances from the stream that his setback proposal would allow. He also expressed frustration at trying to work with Brown on incorporating some of the biological values involved in the setback considerations. He said he is not sure that Brown's approach will actually lead to valid and effective setback designations.

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Creamery Picnic to move off of Main Street

By Michael Howell

For nearly 95 years now, the annual Creamery Picnic celebration in Stevensville has filled the Main Street of town on the first weekend of August with vendors and celebrants. But no more. At least not on Main Street. The Stevensville Town Council voted last week to move the traditional celebration off of Main Street over to the Lewis and Clark Park instead.

The annual celebration, honoring the rebuilding of the local Creamery following a catastrophic fire in 1911, was creating a traffic nightmare for the town due to the extended closures of Main Street.

Tim Schreiber and Mark Anderson, representing the Stevensville Civic Club (which sponsors and organizes the Creamery Picnic) suggested the move to Town Council members and presented a plot of the proposed plan. It generated a lot of discussion ranging from questions regarding parking, installation of electrical pedals to serve the various vendors, the Micro-Brew Fest, handicap accessibility, road closures, a temporary stage, emergency access, the barbecue parking and camping facilities, the open container law, booth placement, children in the park, a new road to access the sewer plant, security and numerous other issues pertaining to the change.

It was decided that the council should have a representative available to meet with the planning committee and Ed Sutherlin volunteered. A motion to proceed with the Creamery Picnic at Lewis and Clark Park was made by Paul Ludington and seconded by Tom Brown. The motion was approved unanimously.

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