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Wednesday, May 9, 2007

Page One News at a Glance

Race still on for District 5 Commission seat

Condo lawsuits may be consolidated, legal issues clarified

Family transfers growing trend in county

Hamilton imposes impact fees

Race still on for District 5 Commission seat

By Michael Howell

The race for a seat representing District 5 on the newly expanded Board of County Commissioners is still on. Recently elected Commissioner Howard Lyons, only six months after taking office will have to defend his seat against Independent candidate Carlotta Grandstaff in the June 5 election. Judge John Larson of Missoula District Court ruled to that effect, without any additional hearings, last Friday, May 4, when he denied a request for a Temporary Restraining Order and a Preliminary Injunction which would have halted the election in District 5.

A group of ten Ravalli County residents, led by Stevensville resident Fred Thomas, sued the county in District Court last January challenging the validity of the successful November ballot initiatives that increased the number of commissioners to five and shortened the term lengths from six to four years. They contend that Ravalli County never legally adopted the Commissioner form of Government that would allow such a change. The plaintiffs, in an initial injunction request, asked Larson to stop the elections scheduled for June 5. Larson granted an initial temporary restraining order holding up the elections, but then lifted it, in part, in a ruling made in February.

In that February order Larson recognized a conflict between the voters' approval of an increase of members on the Board of Commissioners to five and the voters' refusal, at the same time, of concurrent terms. He stated that the Local Government Study Commissiion had not clearly explained how both results would be respected in the transition process. In an effort to do the least harm to either party until the matter was officially decided, Larson allowed the elections in three of the county districts to move forward but ruled that the "holdover commissioners" Alan Thompson and Greg Chilcott would not have to run. He ruled that newly elected commissioner Howard Lyons would have to run for office again, however. In doing so, Larson noted that, at the time, Lyons was not opposed in the election.

Following that ruling, however, Carlotta Grandstaff joined the race against Lyons as an Independent. Plaintiffs in the case then petitioned the court for a second time asking that the race in District 5 be suspended since Commissioner Lyons' seat was now being contested.

In his most recent order denying that request, Larson states that any conflict due to information provided to the voters regarding adoption of staggered terms, and the reduction in terms from six to four years, was sufficiently addressed by permitting the two holdover commissioners, Thompson and Chilcott, to retain their seats. Larson claims not to have considered Lyons a holdover commissioner in his previous ruling and states that the decision against enjoining his election was not contingent upon his remaining unopposed. The judge agreed with Ravalli County that the plaintiffs failed to articulate how irreparable injury will result to Lyons due to the change from unopposed to opposed in the election.

"Rather, permitting two holdovers and the election for the seat now held by Lyons, even if he is opposed, will not adversely impact on the form of government. Additionally, it permits the voter's voice to be heard regarding the decrease in term length from six to four years on commissioners as well as immediately increasing the commission to five members," wrote Larson.

In his brief against the injunction request County Attorney George Corn also asked the court to clarify the current or holdover commissioners' terms, and determine at what point Thompson and Chilcott will be required to run for reelection. Larson refused to offer any clarification on this matter pending submittal of a brief from Corn stating by what authority such relief could be granted.

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Condo lawsuits may be consolidated, legal issues clarified

By Michael Howell

Three lawsuits filed against the Ravalli County Clerk and Recorder for failing to register some recent condominium declarations may be consolidated and amended to seek a Declaratory Judgment from the court on several legal issues that the cases all share.

At the end of March, Ravalli County Clerk and Recorder Regina Plettenberg balked at recording a spate of condominium declarations. A few of the condominium developers, Big Sky Development Group, LLC, and Barbara Hilligoss, sued the county, asking the court to force the Clerk to record the condominium proposals which, they argued, are exempt from subdivision review and should be immediately recorded.

One of the lawsuits, filed by Big Sky Development, is over the filing of the Stonebridge and Sand Hill Ridge Condominiums in the Eight-mile area. The Stonebridge proposal would create 234 units. The Sand Hill Ridge proposal would create 35 living units. Another proposal, the Fields Condominiums, is the subject of a separate lawsuit by the same company and would create 68 condo units near Florence. The Elk Meadows proposal of Hilligoss would create another 35 units in the Florence area.

If the stipulated agreement is accepted by the court, the county agrees to file a "preliminary declaration" of the condominium proposals so long as no units are sold until an amendment to the declaration is recorded which contains the final floor plans for the units certified by an architect, engineer or surveyor. But the developers also agree not to sell any units until after any issues regarding subdivision and zoning compliance and sanitation compliance are resolved. That means waiting until after the court has answered a few questions about the whole affair, including whether or not the proposals are valid condominium proposals under the law and not in fact subdivisions. The latter question arises from the fact that many of the proposed units appear to stand alone and be surrounded by lawn.

Although the county agrees to record the declarations on the date of receipt of the newly amended declarations, it also agrees that "for the purposes of application of the laws of Montana and the regulations of Ravalli County, the condominium will be treated as if the preliminary declaration was filed on March 28, 2007, the date the proposed declaration was originally submitted."

The developers agree not to sell any units until the court rules on whether Ravalli County's Interim Zoning Regulation applies, whether the projects are exempt from subdivision review, whether the evasion criteria found in Montana law and Ravalli County Subdivision Regulations applies to the review of condominium exemptions, and finally, whether the condominium projects that propose separate, single-family dwellings qualify as valid condominium projects under the law.

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Family transfers growing trend in county

By Michael Howell

Since the passage of the Interim Zoning Regulations and the current limitation on subdivisions to a one dwelling per two-acre density, a lot of attention has been focused on the county's subdivision review process. It is the process by which the county governs the subdivision of land in order to ensure that it meets certain criteria designed to protect the general public interest. But there is a way to subdivide land that does not have to meet this criteria or undergo the subdivision review process. That is when a property owner gifts or sells a portion of a previously unsubdivided parcel of land to a spouse, a parent or a child. It is called a "family transfer."

According to unofficial statistics from the Planning Office, family transfers of land in the county have increased from a low of 29 approvals in 1996 to 157 lots being preliminarily approved in 2006. That's over a 500 percent increase in a decade. It also means that about new 915 lots were created in the last decade that did not go through subdivision review.

Officials at the Planning Office said that the only significant restriction on family transfers of land was that only one gift or sale per family member was allowed. Once this fact is determined and it is determined that the land was not previously subdivided, "there is not much ground to deny a family transfer."

The cost of making a family transfer is minimal compared to creating a so-called "mother-in-law's house." Creating a second home, or mother-in-law's house, on a single parcel of land does require going through the subdivision review process because it is considered creation of a dwelling "for rent or lease." The subdivision review process can cost thousands of dollars.

The county fee for processing a family transfer is $200. Add to this the cost of gaining DEQ approval of any septic, survey costs, and the filing fees and the total is still quite a bit less than what is required to get through subdivision review.

Family transfers are reviewed to weed out any obvious attempts at simply evading subdivision regulations. But if it is a one time gift or sale to a family member, it's legal.

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Hamilton imposes impact fees

By Michael Howell

The City of Hamilton has adopted impact fees that will be assessed on new development to recover some of the cost of capital improvement projects required to meet the needs of new growth. Hamilton is one of the first municipalities in the state to adopt such fees based on the authority granted by the legislature a few years ago, according to Hamilton Mayor Jessica Randazzo. In mid-April the council adopted water and sewer impact fees as well as impact fees aimed at funding the additional service capacity required of the city's Fire and Police Departments.

The city adopted the maximum allowable fees as determined by the firm, HDR Engineering, and recommended by the Hamilton Impact Fee Advisory Committee.

The impact fee for new water service is calculated for a three-quarter inch service line and amounts to $1,440. The charge for larger lines is calculated using a "weighting factor" and amounts to $2,578 for a one-inch line, $5,760 for a one-and-a-half inch line, $10,282 for a two-inch line, and $23,040 for a four-inch line. Larger lines are charged on the basis of anticipated use and then adjusted based upon actual use.

The wastewater impact fee was set at $3,206 per Equivalent Dwelling Unit (EDU). One EDU is equal to the use of a single family residence. Other uses, depending upon the building type and standard sewer use, are charged accordingly.

Based upon 4,500 persons served per fire station, the net impact fees on a single-family home were calculated at $365.08. Each unit of a multi-family dwelling would pay an impact fee of $289.02 for fire protection services. The cost to a commercial development would be $885.35 for every 1,000 feet of gross building area.

The impact fees related to police protection are based upon the new space required to house the required number of police officers. The costs of those improvements, about $245,642 for a population of 4,500, comes down to $54.59 per person. This yields an impact fee for a single-family residence of $137.56. A multi-family dwelling unit would pay an impact fee of $108.90. The net commercial impact fee for every 1,000 square feet of gross building space will be $268.18.

The legality of the new impact fees has been challenged by attorneys for the Montana Building Industry Association (MBIA) and the Bitterroot Building Industry Association (BBIA). They question the city's methodology and aspects of the process by which it arrived at its fees.

Although the building industry associations do not believe that the impact fees are legally sufficient, they wrote in a March 27, letter, "Neither do MBIA or BBIA believe, however, that any of the foregoing deficiencies should be fatal to the process."

The current impact fees were approved despite the associations' objections, but the city is working on a reply with HDR Engineering to address the industry's concerns.

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