Missoula News

PLANNING IN THE WEST

Lewis and Clark County Takes Bold Step with New Zoning Ordinance

By Bill Schneider, 9-29-06

When you drive around the Helena Valley in central Montana, it's hard to use the word "planning." Because, of course, there hasn't been any. Now, finally, after 15 years of work and frustration, Lewis and Clark Commissioners have decided to do something about it.

On September 12, the commission voted 2-1 to pass the "intent" to implement a sweeping zoning ordinance. It was sweeping in the sense it provides some land use planning in a rapidly growing community where there has been none, but county officials readily admit it's only the first step in guiding growth around Helena.

When you think about runaway growth in Montana, you're usually think of the Flathead or Bitterroot Valleys or Bozeman or Missoula, but the Helena Valley has the same issues. Local planners expect the area to grow from 57,000 to 87,000 in the next 20 years.

Zoning is the "Z Word" in Lewis and Clark County just like it is most other places in the New West. Nonetheless, confident that the majority of local residents supported the bold step forward, commissioners Ed Tinsley and Mike Murray voted for the plan; commissioner Anita Varone cast the descending vote.

Fifteen years ago, according to chief administrative officer Ron Alles, the county seriously discussed zoning, "but most residents didn't want it, so it was shot down."

Then, about eight years ago, the commission started writing a growth policy for the county, which took five years to pass and turned out to be weak-kneed. Everybody agrees that this was an important, but toothless, document. It did, however, pave the way for the zoning ordinance.

During the past 15 years, dramatic changes in the Helena Valley brought zoning back to the front burner. "Several water quality issues came up," Alles explains, "such as failing septic systems and leaking sewage lagoons. Now, we have to take a more proactive approach on protecting the watershed. One way to deal with this is zoning."

So, the commission started writing the zoning plan and about three years later, approved it, barely.

The main focus of the new zoning regs is encouraging concentrated growth in the right places. "We need to do a better job of guiding this growth to locations where it makes sense, and we can better deliver our services," Alles notes. "We can't chase the development wherever it wants to go."

One method for doing this--and the most controversial aspect of the zoning ordinance--is requiring a five-acre minimum lot size. Anything under five acres would be subject to the zoning regs; larger parcels would not.

Based on what has happened with the statewide subdivision law with its 20-acre minimum parcel proviso, there has been concern that this zoning ordinance will result in a plethora of 5.1-acre home sites, which would be counter to the goal of infilling and concentrating development close to the city limits of Helena. When the statewide law passed back in the 1970s, it created many thousands of acres of 20.1-acre subdivisions. But Alles confidently says, "I don't see that happening here."

Commissioner Ed Tinsley heartily agrees with Alles on the need and focus of the zoning plan. "We've had the benefit of watching communities that don't plan for growth," he explains, referring to the uncontrolled sprawl and absence of land use planning plaguing several Montana communities. "One only needs to look at Bozeman, Ravalli County, Missoula, Kalispell and the Flathead.

"We have a duty to future generations, for our kids and grandkids," Tinsley proclaims. "Zoning is the beginning of that charge, our challenge to ensure that Lewis and Clark County remains a place to be proud of."

But the commission chair Anita Varone has a different view and admits that this was probably the toughest decision I’ve been asked to make as a county commissioner.

"I don't object to the idea of zoning," Varone emphasizes, "just the way this was done." She points out that state law prohibits emergency or interim zoning, "and in my opinion, this is emergency zoning."

She much preferred that the commission wait for a plan being worked on by an ad hoc group of developers and environmentalists, noting how remarkable it was that both the far left and far right were working on a zoning compromise. "Now, that the other two commissioners have passed this emergency zoning, I'm afraid the people working on this committee will become disenfranchised and stop working on it."

If they do continue, though, she hopes major amendments can be made to the current plan, which is something all commissioners agree on.

Unless a judge or the people its supposed to benefit throw out the ordinance, of course.

Varone suspects the ordinance may be dragged into the courthouse and voided. "I've heard rumors of lawsuits but nothing yet."

But there probably will not be litigation until the protest process runs its course. A sufficient protest by county residents can scuttle the ordinance.

Under state law, if 40 percent of the free holders (all landowners regardless of how much land they own) or 50 percent of the title property ownership of those persons owning either agricultural or forestland (as designated by the Department of Revenue) protest, the commission can't enforce an ordinance. Varone says such petitions are already being circulated.

She also said there will be a bill in the next Montana legislature to change this law. Right now, Montana cities can pass emergency or interim zoning, but not counties. This bill, if passed, would give counties the same right.

Commissioner Tinsley would have also like to have the compromise from the working group, but he believes the process was moving too slowly. "We've been working on zoning for years," he says. "We've given the working group plenty of time, and they have not come up with anything."

If they do, he says, the commission can make amendments to the zoning plan.

As far as this ordinance being illegal emergency zoning, Tinsley vehemently disagrees. "I checked with the county attorney, and I prefer to take legal advice from lawyers, not non-lawyers."

Concerning the chance of a successful protest, Tinsley doesn't think the petition will succeed in the main growth area, the Helena Valley just north of town. "I think a lot of people out there support what we are doing."

The more remote, more undeveloped Canyon Creek-Marysville area would have a better chance of a successful protest, he speculates. "But I hope people realize that the Helena Valley once looked like Canyon Creek-Marysville area. The people out there have an opportunity to prevent that from happening. They have the opportunity to plan for the future and protect their private property rights."

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