muddled process leaves all sides baffled

Board Approves Zoning for Rock Creek Area, But Will it Stand?

By Matthew Frank, 1-24-07

The Missoula County Planning and Zoning Board voted 4-1 Wednesday afternoon to approve a density of one house per 15 acres in a newly created zoning district near Rock Creek, but the confusion and uncertainty surrounding the debate remain: It is unclear, to the dismay of all parties, whether the County Commissioners must now approve the Board’s decision, or if the decision can stand on its own.

Also unclear is whether developer Michael Barnes’ 36-lot subdivision application will be considered independent of zoning requirements. If it is not, there are more questions about which zoning standards the proposal would have to adhere to.

It was a bizarre day in the Missoula County Courthouse.

The three County Commissioners, who also sit on the Planning and Zoning Board, each voted differently, meaning there’s no consensus should they need to vote again on the action taken by the planning board. Commissioner Jean Curtiss voted in favor of the one-house-per-15-acre zoning density, Bill Carey voted against it, and Barbara Evans abstained.

“It’s an odd, odd situation,” said Mike Sehestedt, the chief civil deputy county attorney. While Sehestedt has not formed a formal opinion on what the ruling means, he believes that based on past practice County Commissioners’ approval is necessary to give the Planning and Zoning Board’s decision merit. But if the County Commission is split on the issue, that raises even more questions.

In the end, both sides were confounded by the outcome—or lack thereof.  John Menson, the president of the RCPA, took solace in the fact that there is a zoning district in place, even if its standards are yet to be determined. And if one house per 15 acres becomes the standard for his neighborhood, “We’d be OK with that,” Menson said.

Despite Evans’ abstaining from the vote, she was the most vocal during Wednesday’s meeting. She said the Rock Creek Protective Association’s (RCPA) citizen initiated zoning proposal, which originally called for a density of one house per 40 acres, is “patently unfair” because the group wanted to “zone their neighbors but not themselves.” She added, “I am not unpersuaded that Rock Creek is special,” but to zone Barnes’ land, with 11 of the 14 other plots that make up the 500-acre district not in compliance with the new regulations, makes no sense.

Carey said Rock Creek deserves unique consideration. “We’re talking about a very, very special place here,” he said, adding, “once you put houses in…you destroy the nature of the place.” He cited letters the commission has received from people around the country urging protection of the blue-ribbon trout stream. “This requires some extra effort.”

This “extra effort” refers to the need to sort out a compromise. And it seemed the Commissioners threw the ball back in the disputing parties’ court Wednesday to figure it out.

Alan McCormick, legal representative for the developer, said, “Our expression of wanting a compromise is sincere.” His counterpart for the Rock Creek Protective Association, Jack Tuholske, conveyed the same sentiment.

Ironing out a compromise might involve a number of things, McCormick said, including employing conservations easements, selling the property or development rights, or hiring a professional facilitator. Tuholske said hiring a facilitator at this point wouldn’t work since the subdivision application is already “in the hopper.”

“But ultimately,” Sehestedt said after the meeting, “it’s the policy makers that need to make a decision.”

McCormick, skeptical of the legitimacy of the Board’s conclusion, remarked, “I don’t think they adopted zoning regulations today. But the message is clear: Sit down and work out a compromise.”

That was the only clear message Wednesday.

The next step is for Deputy Attorney Mike Sehestedt to issue his opinion, and no one seems to know where it will go from there. 

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