the new west conference

Panelists Scrap Over Streamside Setbacks

By Peter Metcalf, 10-25-08

	A panel discusses the pros and cons of streamside setbacks at the 3rd annual Real Estate and Development in the Northern Rockies conference on Friday afternoon in Missoula. Photo by Anne Medley.

When it comes to the muddy waters of streamside setback proposals, this much is clear: Montanans love their rivers, and Montanans love their private property rights. Yet as more people move into the state and new development crowds the river corridors, this raises a dilemma. Protecting one may come at the cost of the other. 

“People are loving these rivers and streams to death,” said Hal Harper, Chief Policy Advisor to Governor Brian Schweitzer. “They are holding them and hugging them too closely. It’s like a loving relationship where a person smothers a new spouse.”

Harper spoke in favor of some form of statewide stream setback standards during a panel discussion during New West’s 3rd annual Real Estate and Development in the Northern Rockies in Missoula, Mont. on Friday. He argued that science-based uniform statewide standards with proper variance procedures to evaluate individual pieces of property are necessary to protect the health of a river, public health and safety, the quality of life that attracts so many people to Montana and personal privacy from river users. 

“The public has a right to the resources, not just aesthetics, but clean water, flood control, the right not to be damaged by other people’s property,” Harper said. 

Bill Myers, the owner of Bayside Park and Marine Center in Big Fork, Mont., vociferously objected to any streamside setback measure that did not include fair compensation to property owners for the loss of their private property rights. He owns seven acres in Big Fork Bay, six of which is under water. The seventh acre extends only 135 feet above high water. Yet Flathead County wants establish a 250-foot setback on new development from major rivers, including the Swan.

“That would constitute a complete taking of our private property,” Myers said. “I don’t see any form of compensation. No one is talking about compensation. That is what I find most egregious in this discussion.”

The possibility that he could apply for a variance for his property that would permit him to continue with his development plans he found “offensive,” and called “the unregulatory, uncompensatory taking of private property one of the classic definitions of communism.”

“The old values of Montana were that if you didn’t like what your neighbor was doing, you either ignored it, moved away or bought them out,” Myers said.

William VanCanagan, an attorney with Datsopoulos MacDonald & Lind, agreed with Harper that any regulatory action that limited an owner’s use of his or her property justified a taking of private property under both the Montana state constitution and the U.S. Constitution. The Supreme Court recently ruled that even a partial taking could be compensatory, VanCanagan said.

Furthermore, VanCanagan argued, streamside setbacks established at the state level instead of the local level deprived property owners of due process, including the right to protest, the right to a notice, the right to a hearing and the right to vote, by usurping the regulatory authority of local governments. Setbacks should be determined at the local level under existing zoning laws and building permit regulations on a site specific basis.

Yet in the almost quarter century since Montana’s first streamside setback was established in Choteau County, not one regulatory takings has been declared in Montana, said Janet Ellis of Montana Audobon. 

“Land use planning is a constitutional thing, not a communist thing,” she said. 

The myopic focus on private property rights ignores the fact that the Montana State Constitution guarantees each citizen the right to a clean and healthful environment, said Karen Knudsen, executive director of the Clark Fork Coalition, the Missoula-based watershed advocacy group that has long been in favor of streamside protections.

Streamside setbacks protect water quality for municipalities, agriculture and fisheries. They provide flood protection that serves to protect private property values, and they provide essential wildlife habitat, that once lost to development is mostly gone forever. 

“Our rivers are our ribbons of life,” Knudsen said. “They are our economic engine and what protect our communities” and they urgently need protection from future development. 

Knudsen argued in favor of setbacks on a site specific basis instead of a standard countywide or statewide regulation. She suggested that while it is a resource intensive approach, counties could use overlays of scientific maps on flood plains, slopes, soil and vegetation types, and wildlife habitat to establish a setback for each individual piece of property. 

Knudsen asked for the state legislature to provide governments options, not just a one-size fits all number like the 250 feet proposed in one bill of the last state legislature.

“Make it a big package, make it a tool kit,” she said.

But the Audobon’s Ellis disagreed. Statewide standards are necessary to arrive at a ballpark figure from which local adjustments can be made based on proper scientific criteria and because local governments cannot fund all the necessary scientific studies involved in a site specific regulation. Members of the last legislature favored statewide standards in part because rivers cross jurisdictional boundaries. 

The Governor’s office will continue to push counties and state legislators to work on this issue, Harper said. In the meantime, he encouraged people to keep talking to each other and educating themselves on the importance of protecting rivers to protecting the habitat, the state economy and private property values. Ultimately, Harper said, the discussion around streamside setbacks is about what will Montana look like in the future.

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