WILL PARK COUNTY BE PARADISE LOST OR FOUND?

A County Near Yellowstone Falls Apart Over Planning

By David Nolt of the Livingston Weekly, 1-14-07

Four years ago, the Park County Planning Office and the Park County Commissioners began working to create the county’s first comprehensive growth policy. This document, the Park County Growth Policy, was eventually adopted by the county commissioners on July 26, 2006, but a recent citizen petition effectively suspended the document until it goes to an up or down public vote in 2008. Over the past four years the Park County Commissioners, the Planning Office, the Park County Planning Board, citizen task forces and citizens at large have attempted to address the county’s steady growth by creating a visionary document outlining how citizens want Park County to grow. All parties involved engaged in often-heated debates and discussions about zoning, subdivision regulations, private property rights, environmental issues, community aesthetics and even the process used to create the policy. A growth policy is only a visionary document. It does not regulate subdivision regulations or zoning but serves as an over-arching guide of how the county wants to grow.

So why all the fuss?

	Park County planning office. All photos by David Nolt, senior editor of the Livingston Weekly

Growth policies serve as a basis and a reference counties can use to build and adapt to the relative certainty of growth and the inevitable uncertainties involved. A growth policy also surveys existing land use and makes recommendations for future planning. New subdivision regulations may be formed from the growth policy, and zoning can also be shaped to reflect the intentions of the growth policy. A growth policy is supposed to be a democratically formed reference point for the wishes of the people as well as a tool public officials can use to adequately plan for new neighbors and new infrastructure.

The controversy over Park County’s policy comes down to a few issues that have loom large across the Rocky Mountain West: 1) Whether or not zoning should be citizen- or county-initiated or a mix of both; 2) Whether to refer to rivers and other bodies of moving water as “rivers” or “watercourses”; 3) Whether the county commissioners alone should have the ability to amend the growth policy, as per Montana law, or whether the planning board should have a more involved role; 4) Lastly, whether or not the suspended growth policy accurately reflects the will of the communities and growth policy task forces involved, and if placing the policy on the ballot will make the process more democratic and complete.

As Park County citizens watch neighboring Bozeman and Gallatin County struggle to maintain community identities, open spaces, property rights and quality of life, the need to plan for these issues in Park County becomes all the more urgent. Everyone agrees adequate planning is a necessity, but opinions begin to splinter over what this planning should come to resemble and how much control county offices should have in shaping growth. Park County’s growing pains are not unique, but they do serve as good examples of the many tough issues facing the new West and how the West’s changing populations will adapt to the growth. Round One In January 2004 the Park County Commissioners hired the Park City, Montana-based Cossitt Consulting firm to begin forming a Park County Growth policy. Cossitt Consulting built from the Park County 1998 Comprehensive Plan, which was no longer in accordance with state law.

During many public meetings, citizens of Livingston, Clyde Park, Wilsall, Springdale, Emigrant, Gardiner and Cooke City expressed their visions for growth in their community, amenities they would like to see preserved and the ways with which they would like to see their communities grow.

The communities formed goals, integrated them with the 1998 plan and eventually incorporated the goals into the Cossitt document. Meanwhile, a county zoning change at the interchange where Highway 10 meets Interstate 90 east of town by then-commissioners Dan Gutebier, Ed Schilling and Ed Carroll sparked a lawsuit from the City of Livingston, the Park County Environmental Council and the Greater Yellowstone Coalition. This marked the beginning of the struggle over the Park County Growth Policy. The commissioners rezoned roughly 300 acres to commercial zoning classification.

The plaintiffs claimed the commissioners acted beyond their authority in “spot zoning” the district, and they also feared too much commercial development at the interchange could create a “McDonald’s exit” where visitors could get on and off the freeway without ever coming into Livingston. The parties eventually entered into a settlement agreement in April 2003. Under the terms of the agreement the commissioners were to make a “good faith effort” to complete a growth policy by December 16, 2004, though the court eventually gave the county until October 1, 2006. Under the agreement the court also mandated Park County to “appoint a citizen task force which includes citizens from across Park County who have a wide array of interests in planning the future of Park County,” with the task forces’ main goal being the development of a draft growth policy for the commissioners. This growth policy would only be for the “donut,” the 4.5-mile piece of land surrounding the City of Livingston. Finally, the agreement required the county to revise zoning regulations in the donut “provided a growth policy has been adopted or approved.”

The county then formed the seven-member Livingston Area Task Force, and the group began the process of developing recommendations for the gateway areas of Livingston, how and if these areas would be zoned, and what they could look like in the future. Park County Environmental Council Director Jim Barrett sat on the board and he and other board members compiled several examples of what other communities developed for their gateway districts. The board then submitted the “Example of Plan, Guideline and Ordinance for the Gateway Overlay District” to the planning board and county commissioners as a reference point from which to begin forming plans for Livingston’s gateway districts.

Though the document was merely an example, the timing of the submission proved to be confusing as many citizens assumed the document was part of the Cossitt Growth Policy. Because most of the particulars of the example document only applied directly to other communities, many citizens worried the growth policy would not resemble or reflect Park County’s character or values. “It got conflated that it [the gateway example plan] was part of the growth policy, which it wasn’t,” Barrett explains. “This created unneeded animosity.”

Chuck Donovan, who helped gather signatures for the growth policy petition, says there was a line in the Cossitt document to adopt the example plan as part of the growth policy. He says this created bad blood between citizens and the county offices, much of which still exists today. County Planner Jackie Robbins says the example document was never related to the Cossitt document. “People got it all mixed up,” Robbins says. “They thought the documents were the same thing…It was never part of the growth policy, and I don’t think it was ever explained to the people. I think this group of people used this to deliberately confuse a lot of people." The group of people Robbins refers to includes Donovan and Ted and Tim Watson who quickly organized a large group of citizens and property rights advocates to challenge the commissioners on the growth policy.

On December 16, 2004—a day many say will live on in infamy in this county—Park County Commissioners Ed Schilling, Ed Carroll and Jim Durgan gathered at the Livingston City/County Complex for a hearing on the growth policy, which was now near completion. The community room proved to be much too small to hold the spirited crowd, and the commissioners decided to move the entire meeting to the fairgrounds. According to estimates, around 300 people gathered at the fairgrounds. Property rights advocates made up the majority of the crowd, and in an atmosphere some attendees refer to as hostile and intimidating, the commissioners began the process of reviewing the growth policy. “It was so intimidating that it stifled civil dialogue,” Jim Barrett recalls. “We sat there watching the growth policy be just gutted…anything related or even just vaguely related to planning was gutted.” “People were very upset,” Commissioner Durgan remembers. “They went through the growth policy page by page and tried to nullify or take out any sort of language of anything that had to deal with property rights. Anything that had to deal with property rights was stricken, and by the end the growth policy was not a growth policy because it wasn’t a vision for the future anymore.”

Tim Watson agrees the meeting was initially very heated, but he says the commissioners fueled the fire by not creating the proper atmosphere from the outset. Instead of the commissioners recognizing the large group of people out in the hall and relocating the meeting, citizens were ignored until they essentially forced a move to the larger facility at the fairgrounds.

“There wasn’t an atmosphere of letting people in to hear what the heck was going on,” Watson says. “The crowd was upset, there’s no doubt about that…By the time we broke for lunch and came back people were a lot calmer. I wouldn’t say it was intimidating, but there was still confusion over the east interchange. It was not explained well by the plaintiffs and it was certainly not explained by the defendants.” Twelve hours later the commissioners closed the meeting. They soon adopted the Cossitt growth policy but just as soon repealed it because it did not comply with state law. One year later and somewhere around $50,000 poorer ($35,000 to Cossitt Consulting plus county commissioner and planning office staff time) Park County officials and citizens surveyed the fallout from the unsuccessful struggle to form their first growth policy.

Round Two

	Park County Commissioner Larry Lahren.

In February 2005 the Park County Commissioners began soliciting applications for 12 Citizen Task Force Focus Groups in a renewed effort to form a Park County Growth Policy. According to the Settlement Agreement from April 2004, each group was to be comprised of “individuals living in a distinct area of Park County” and also “include citizens from across Park County who have a wide array of interests in planning the future of Park County.”

The commissioners accepted every one of around 120 applications received, and on March 16, 2005 the members of the groups met with Commissioner Larry Lahren and developed 12 geographic task forces: Livingston; Livingston “Donut”; Livingston West; Clyde Park; Sheep Mountain to Clyde Park; Springdale to Sheep Mountain; Yellowstone (Paradise) Valley; Wilsall; Mission/West Boulder; Joe Brown to Gardiner, including Jardine; Gardiner (Town), and Cooke City. The county also hired two additional planning staff to help with the process. The task forces organized public meetings in their respective areas to hear the concerns and visions of citizens, which the task forces and the Park County Planning Board compiled and submitted in reports to the Park County Planning Office by August 2005.

The planning office organized the reports and presented them to the public along with the results of other public comment prioritized according to the level of response garnered for each issue. The county commissioner-appointed Park County Planning Board is seven-members strong and serves as an advisory board to the county commissioners concerning subdivisions and plats within the county. The board also served an integral role in developing the growth policy by facilitating public discussions and work sessions with the public and task forces. In June 2006 the planning board submitted their final draft of the growth policy to the county commissioners. On July 5, 2006 the commissioners held a technical changes meeting for the growth policy.

During the meeting the commissioners made three changes to the policy, which became the catalysts for the second round of gridlock over the growth policy. In Chapter 3, “Community Goals, Objectives and Implementation Measures,” under the section NR 7, a goal states, “Encourage the protection of Park County’s natural amenities.” To reflect Montana state law, the commissioners changed the word “river” to “watercourse” to read in Objective NR 7.1, “Encourage the protection of watercourses in Park County.” In Chapter 8, “The Amendment Process,” commissioners, as per state law, reserved the sole right to amend the growth policy by stating, “The Planning Board may make recommendations, if requested by the county commission, for approval or denial for each amendment to the county commission. The county commission is the final decision making authority for amendments to the growth policy.” Finally, and pursuant to state law, the commissioners also reserved their right to county-imposed zoning, which raised the hackles of many property rights advocates. That's when tensions really began to build.

In a July 2006 letter to the Park County Commissioners, six of the seven planning board members requested the commissioners revert to the final growth policy draft the planning board submitted claiming the changes the commissioners made were material not technical and that they did so “under the guise of legal compliance.” In the letter the board stood firm in their position that the only zoning in the county and donut should be citizen-initiated. They also stated the term “watercourse” is confusing and raises concerns over water rights. Finally, the members requested further involvement instead of “a back seat role” in regards to the growth policy amendment process. “The fact that they could change part of or the whole thing [the growth policy] without consulting the planning board,” is what concerns Park County Planning Board Chair Chloris Zimmerman. “…I think the public needs to have input. In order to have a good community, everybody needs to have a say.”

The planning board also claims the commissioners and planning office did not give the planning board a chance to review the subdivision regulations before they were approved on October 1, 2006. Zimmerman says the planning board learned the subdivision regulations were to be adopted when someone read an article in the Livingston Enterprise during a break at a planning board meeting. Park County Planner Jackie Robbins says the planning office approached the planning board to work on the regulations one year ago, but the planning board requested subdivision regulations be put on hold until the commissioners adopted the growth policy. This essentially gave the planning office one month to complete the updated regulations because of the time needed for public comment and hearings and for the commissioners to compile and review the comments.

According to state law the draft regulations need to be public 10 days prior to a public hearing, and subdivision regulations adjustments were due to be completed by October 1 due to changes in state legislature laws. Chuck Donovan and Chloris Zimmerman disagree with Robbin’s assessment of the efforts the county offices put forth. “As soon as they passed the growth policy on the 26th of July it had to be recorded in the Clerk and Recorder’s office,” Donovan explains. “Well, it took them 11 days to walk it from the commissioners’ office to the Clerk and Recorder’s office…In the meantime, they passed new subdivision regulations. They went ahead and adopted the subdivision regulations even before we were able to go gather signatures on the growth policy because they had an October 1 deadline.”

“They kind of drug their feet getting the growth policy approved and getting it on the internet,” Zimmerman says. “They waited long enough that the people who wanted to petition against it would not have time to get it on the 2006 ballot.”

The county commissioners maintain by granting the planning board their wish to finish the growth policy before working on subdivision regulations, rushing the regulations was the only choice the county was left with because of time needed to submit the regulations for public review. They also adamantly maintain the timing of the growth policy and subdivision regulations adoptions had nothing to do with preventing anyone from attempting to place the growth policy on the 2006 ballot. Regardless, all of this served to further frustrate involved parties and convolute a process with a history already rife with infighting.

Civil Attorney Tara DePuy is one of the most controversial figures in the county offices. In June 2006, Tim Watson, Howard Carter, Mike Adkins, Charles Donovan and the Upper Yellowstone Builders Association filed a lawsuit against DePuy requesting her to return any money received by her for her services as civil attorney and for her to resign from her position due to alleged violations of Sections 2-2-105(3) and 2-2-121(5) of the Montana Code Annotated. Both laws deal with preventing conflicts of interests for public officials or employees. The Plaintiffs—made up primarily of real estate agents, contractors and developers, and all of which either collected signatures or signed the petition to put the growth policy to a vote—had their claims against DePuy denied.

	Tim Watson

The plaintiffs plan to appeal the decision to the Montana Supreme Court. This troubled relationship appears to be carrying over to the current debate about the growth policy with the planning board and citizens like Tim Watson claiming DePuy is undermining the democratic process under the guise of legal conformity. DePuy asserts the commissioners made no material changes to the goals of the growth policy, and that the commissioners are within their authority to reserve the right to zone and amend the growth policy.

“The commissioners did not make any changes to the meat of the growth policy,” Depuy says. “The watercourse definition does not affect water rights…and the commissioners have the absolute right to change the growth policy. The planning board serves at the pleasure of the commissioners.” DePuy also thinks the planning board’s complaints about the subdivision regulations ignore the planning office granting the planning board’s request to wait on updating the regulations until the growth policy passed.

“The county released a draft of the subdivision regulations in August 2005,” DePuy asserts. “The planning board, at the request of the task forces, asked to hold off until the growth policy was done, so the planning office shelved the regulations. Because of the time needed for public comment and hearings, it essentially gave us one month to finish the regulations. We really had to crank just to get them done on time.”

Subdivision regulation concerns aside, Watson says the commissioner’s choice to retain the right to zone is an affront to private property rights. He admits zoning can be a tool to protect public health and safety, but he says the zoning must be initiated by the citizen whose property is affected. “The commissioners had the full right to do what they did, but it wasn’t good public policy,” Watson argues. “Zoning is a double-edged sword. The biggest problem is you have three commissioners making land decisions where they don’t live. If they’re going to Wilsall and telling people how to run their land, they should probably be from that area.”

When discussing zoning, Watson uses the example of a struggling farmer who might be forced to sell off part of the family farm to get by. A county-imposed zone could potentially prevent the farmer from selling off fewer than 160 acres, and if this was all the land the farmer had, he might be forced to sell off the entire farm. Watson asserts the government must not have the right to negatively impact what may be a person’s greatest financial holding.

County Planner Jackie Robbins sees it in a different light. “The county needs to retain its right to zone,” Robbins says. “There are public health and safety issues that cover a lot of zoning.” She uses the example of the Burlington Northern Santa Fe Superfund site in Livingston. If a person bought property nearby they would want to know whether or not their well would be affected by the diesel plume, and zoning could help protect the person’s health and investment, Robbins says.

Park County’s rural setting also comes into play, Robbins says. “We are an undeveloped county, and there are a lot of places people could live that might not be the best for them,” Robbins explains, using the example of citizens building in wildfire-prone areas. “I don’t think zoning has changed significantly at all. It’s something that has always been there. Park County Commissioners haven’t used their zoning right since the mid-seventies. Why would they take that away?”

Park County Commission Chair Jim Durgan says the commissioners only reserve the right to zone for emergency situations. “It would never be imposed capriciously,” Durgan says. “It would be as the result of a county-wide concern.” Jim Barrett of the Park County Environmental Council also contends zoning provides another function in a community. “Zoning…would provide predictability and security for investments in addition to zoning areas that are, for example, particularly important for wildlife.”

In the end, Watson says the decision to petition to put the growth policy to a vote came down to a commitment to private property rights and the right of citizens to have the final say on the document. He also mentions the Sheep Mountain to Springdale Task Force’s complaint that their report to the planning board was altered. Tony Steffen, of the Park County Sheriff’s Department, would not comment on the investigation, but did say the case is currently at the Criminal Investigation Department in Helena.

Though Watson admits he does not feel anyone was shut out of the process of forming the growth policy, he says this participation is essentially moot if the policy is not put to a vote. “It always boils down to property rights,” Watson says. “I think if the commissioners had been more understanding we wouldn’t have had this snafu. They’re full in their state right to do what they did. So are we.”

With this in mind, Watson, Donovan and others took the matter into their own hands and began collecting signatures to put the growth policy on the ballot. According to Mike Adkins, a signature gatherer, the petitioners posed the issue to citizens like this: “Would you like to have this decided for you or would you like to decide for yourself?” On October 13, 2006 Park County Clerk and Recorder Denise Nelson verified the petitioners collected more than the 938 signatures needed to place the issue on the 2008 general election. Until then, the Park County Growth Policy is effectively suspended.

A Vision Suspended

Despite differences over the endgame of placing the growth policy on the ballot, all sides agree the current suspension of the growth policy hurts Park County in one way or the other. Though the policy is a non-regulatory document, the suspension does have immediate impacts on the county.

One of the biggest issues in public comment for the growth policy was the expansion of trails, greenways and parkland in Livingston and the county. The growth policy had provisions which subdivision regulations could be built around to encourage trails and parks within development, but now this is not an option.

Several items within the Park County Subdivision Regulations will not be administered because of their reference to the suspended growth policy. There are also options within the subdivision regulations that compliment the growth policy and give the county the right to waive certain portions of an environmental assessment if the county already performed a comparable assessment on nearby land. Now the county cannot waive these assessments, which means the process could become redundant and thus more time-consuming and expensive. Zoning within the donut is also frozen as long as the county does not have a growth policy. The east interchange lawsuit required zoning to be redone in the donut because it is outdated, but this will have to wait.

For example, if a landowner within the donut has agriculturally zoned land, the land cannot be rezoned to develop smaller lots for more dense development near Livingston, something expressed as a goal within the growth policy. Also, if the Yellowstone Preserve Major Subdivison is annexed into the city, several businesses operating on that property will lose their lease and be forced to relocate. The county will not be able to rezone an industrial area for the businesses, which means they will likely be forced to relocate outside the donut if the annexation is approved.

For Chuck Donovan, who wanted to rezone and develop land within the donut but now is unable to do so for the next two or more years, the zoning freeze is a hard pill to swallow. “I live with it [the growth policy suspension],” Donovan says, “but I don’t regret petitioning. Tim Watson, whose family owns around 800 acres recently annexed into the east end of the City of Livingston, maintains that while the suspension hurts some, it comes down to principle.

“I’m sorry for what it affects, for the people that live in the county and the monetary effect it will have on land and land owners, but it should go to a vote of the people,” Watson says. “You bet it hurts people. We did it to ourselves and we are more than willing to admit that. We felt it should go to a vote of the people for something that could affect the most valuable thing in their lives.”

Because the land the Watsons plan to develop is now within the city, it is subject to city, not county regulations. When asked if this affects his position on the growth policy Watson replies, “Absolutely not.” Another catch in the growth policy suspension is Montana Code Annotated 7-5-137, which states, “If an ordinance is repealed or enacted pursuant to a proposal initiated by the electors of a local government, the governing body may not for 2 years reenact or repeal the ordinance. If during the 2-year period the governing body enacts an ordinance similar to the one repealed pursuant to a referendum of the electors, a suit may be brought to determine whether the new ordinance is a reenactment without material change of the repealed ordinance. This section shall not prevent exercise of the initiative at any time to procure a reenactment of an ordinance repealed pursuant to referendum of the electors.”

Tara DePuy says this sounds confusing only because it is, but she says it essentially means the county cannot enact another policy until 2010 if the policy is voted down. “Who will determine whether those changes are material?” DePuy posits. “There is no case law determining how to define a material change. It’s an open invitation for somebody to sue the county for claiming the change wasn’t material. No county would logically try to subject themselves to the liability in those two years to try and change it.”

Tim Watson contends the issue is not so cut and dry, and, in an ironic twist, says he is researching if the commissioners could effect a material change to the growth policy and then re-approve the document if it is voted down in 2008. DePuy insists if the policy is voted down the county would be forced to start from scratch to meet the legal requirements of public participation and planning board involvement. There is also the issue of educating voters.

Many voters may not know the particulars or ramifications of the growth policy. Watson agrees this is a concern and says it is up to citizens and the county to educate the public. The county is then left with the decision of whether or not to expend staff time and taxpayer money to get their word out before 2008. Until then, Park County citizens have some collective soul searching to do.

Does the growth policy reflect the vision of the people for the community, and if not, what is that vision?

If the policy is voted down, what is Plan B?

	Jim Barrett

Jim Barrett argues that while the growth policy may not be a perfect document, it still reflects the time, energy, money and wishes of many people. “To put the entire vision document in cold storage and postpone implementing the vision of the larger community I just believe is wrong,” Barrett says. “The growth policy process is the only state-sanctioned opportunity for citizens in a community to articulate a vision for the future. This group [the petitioners] is trying to protect an ideology that is not as pervasive as they think.” Jackie Robbins says the growth policy is a chance for Park County’s citizens to prepare for the expected influx of more and more outsiders. “Eventually we’re going to be outnumbered by people moving here from somewhere else if we aren’t already,” Robbins says. “If we don’t state what our values are and what we want as a community we might not have it.”

For County Commissioner Larry Lahren, besides putting the county’s vision on ice, a defeat of the policy in the election would mean a waste of taxpayer money. “We were mandated to do a growth policy,” Lahren says. “It was probably the most democratic and participated process in Park County. This group overrode what the people of Park County did. If it is voted down it will be a huge waste of taxpayer money to rewrite it.” The county commissioners estimate the growth policy process to date cost Park County taxpayers over $150,000: $66,000 in consulting plus what they say is an underestimated $84,000 in county staff time and salaries. Park County Land Use Planner Mike Spencer says the county would then be saddled with the costs of creating a new growth policy. “The county would have to spend tens of thousands of dollars to start a new process,” Spencer says. “As it stands now, the county cannot update the zoning in the donut, which is severely outdated. But the big thing is the community will not have an overriding goal or policy of what they want their community to look like in the future.”

Craig Kenworthy, Associate Director of the Greater Yellowstone Coalition, says Park County’s woes are a matter of communication. While he would have liked to see the policy reflect a more dedicated desire to protect critical wildlife habitat, he sat in on several Paradise Valley Task Force meetings and says the geographic groups worked very hard together and were a good step toward forming a democratic document. “In order to maintain public support of the document, the commissioners needed to be more clear on why they made the changes they did,” Kenworthy says. “This is a situation where I think some people didn’t like the way the commissioners handled this in the end…and now it leaves everyone in limbo.”

Tim Watson agrees poor communication hindered the entire process from the beginning.

“A growth policy is very important,” Watson explains. “It gives the public the opportunity to say how they want to grow and enables the public to have the opportunity to stay involved with future growth…As a community we need to have some open and honest dialogue about it. In this case, it was a cumulative effect of many hard feelings and communication problems over other issues…Now the public actually has a chance and the political fervor to read the growth policy, research it and vote from an educated perspective.”

Ultimately, whether or not Park County’s growth policy survives will be up to the people of the county. As Park County grows, its citizens try to keep up in several areas: infrastructure, emergency services, law enforcement, refuse, protecting the natural environment and, of course, land use planning. People live and move here for a reason: it is a remarkably beautiful and unique place to live, and the quality of life available here seems to be a fleeting entity all around.

Park County has a rich history and a promising future, but as far as a cohesive vision and plan for what the area will look like in the future, Park County currently has neither.

EDITOR'S NOTE: Mr. Nolt is the senior editor of The Livingston Weekly.

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