MEIC Zoning Lawsuit

MEIC and Farmers Sue Cascade County for Illegal Spot Zoning—Again

MEIC has joined with 61 farmers, ranchers, and homeowners to sue the Cascade County Commission for its decision to rezone agricultural land in order to site the Highwood Generating Station. Last year, MEIC and 47 area landowners filed a similar suit. The County had to settle that lawsuit and rescind its previous zoning decision. When the Commission made the same decision again this year, even more area landowners were willing to participate in a lawsuit.

On March 11th, 2008, the Commission voted 2-1 to approve rezoning 668 acres of farmland in Cascade County from “agricultural” to “heavy industrial.” The stated purpose of the zone change was to allow the construction of the Highwood Generating Station, a 250-megawatt coal-fired power plant.

Map showing proposed site for the Highwood Generating Station (“The Salem Site”). Outlined shaded area delineates the Lewis & Clark Portage Historic Site. From the project’s final environmental impact statement. (Click on map for larger version.)

The plant would radically change the agricultural and rural character of the area. “Over 80% of the landowners for many miles around the proposed site have joined this suit. We don’t want a coal plant for a neighbor. Zoning is supposed to protect our agricultural operations and the rural character of our community. Unfortunately, the Commissioners ignored the law and illegally spot-zoned the property. Our only recourse is to go back to court,” said Tammie Lynne Smith, one of the plaintiffs.

MEIC and the landowners believe that the County erred in approving this rezoning. Most significantly, the rezoning constitutes spot zoning, which is illegal. Spot zoning is defined in law by a three-part test that boils down to a zone change that benefits a very small number of landowners to the detriment of all the surrounding property owners.

Many of the landowners near the rezoned parcel are extremely concerned about the effect rezoning will have on their private property. “By rezoning this land the Commissioners have opened the floodgates for condemnation of private property. SME will condemn my property to build a rail line across my land. They will condemn my neighbors’ property for water and sewer lines, road expansions, and transmission lines. That will have a real impact on our farming operations. The County Commission was supposed to protect our property, not allow it to be taken away,” said J.C. Kantorowicz, a nearby dryland wheat farmer.

Another element of the legal challenge against the County is that the applicant and the coal plant developer (SME) submitted a thick notebook of new material to the County Commission at the hearing on the rezoning application. The hearing lasted until 2:30 AM but was then closed to further public comment. The public was never given the opportunity to see and respond to this new information. Such a denial violates the public’s Constitutional right to participate meaningfully in government decisions. All of this material was supposed to be submitted at the time of the initial application. The Planning Board was supposed to review it. The public was supposed to have a chance to critique it. Instead, it was presented at the last minute in an apparent attempt to keep the information from the public.

Much of this last-minute information was inaccurate or incorrect, and could have been refuted. For example, SME hired an appraiser who said that the coal plant would have no impact on neighboring property values. But much of the information relied upon by the appraiser was incorrect or irrelevant. The Commission never heard the “rest of the story.”

These flaws, and many others, should help the court justify overturning the decision by the County to rezone this property. The suit was filed in Cascade County. The neighboring landowners and MEIC are once again fortunate to be represented by Kalispell attorney Roger Sullivan.

Read the full complaint (1.9 MB pdf)

Background Information

MEIC Sues over Highwood Zoning Change
Highwood Generating Station Asks for Zoning Change (November 2006)

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	You are here: Home → Energy → Power Plant Watch → Highwood → Zoning Document Actions MEIC Zoning Lawsuit MEIC and Farmers Sue Cascade County for Illegal Spot Zoning—Again MEIC has joined with 61 farmers, ranchers, and homeowners to sue the Cascade County Commission for its decision to rezone agricultural land in order to site the Highwood Generating Station. Last year, MEIC and 47 area landowners filed a similar suit. The County had to settle that lawsuit and rescind its previous zoning decision. When the Commission made the same decision again this year, even more area landowners were willing to participate in a lawsuit. On March 11th, 2008, the Commission voted 2-1 to approve rezoning 668 acres of farmland in Cascade County from “agricultural” to “heavy industrial.” The stated purpose of the zone change was to allow the construction of the Highwood Generating Station, a 250-megawatt coal-fired power plant. Map showing proposed site for the Highwood Generating Station (“The Salem Site”). Outlined shaded area delineates the Lewis & Clark Portage Historic Site. From the project’s final environmental impact statement. (Click on map for larger version.) The plant would radically change the agricultural and rural character of the area. “Over 80% of the landowners for many miles around the proposed site have joined this suit. We don’t want a coal plant for a neighbor. Zoning is supposed to protect our agricultural operations and the rural character of our community. Unfortunately, the Commissioners ignored the law and illegally spot-zoned the property. Our only recourse is to go back to court,” said Tammie Lynne Smith, one of the plaintiffs. MEIC and the landowners believe that the County erred in approving this rezoning. Most significantly, the rezoning constitutes spot zoning, which is illegal. Spot zoning is defined in law by a three-part test that boils down to a zone change that benefits a very small number of landowners to the detriment of all the surrounding property owners. Many of the landowners near the rezoned parcel are extremely concerned about the effect rezoning will have on their private property. “By rezoning this land the Commissioners have opened the floodgates for condemnation of private property. SME will condemn my property to build a rail line across my land. They will condemn my neighbors’ property for water and sewer lines, road expansions, and transmission lines. That will have a real impact on our farming operations. The County Commission was supposed to protect our property, not allow it to be taken away,” said J.C. Kantorowicz, a nearby dryland wheat farmer. Another element of the legal challenge against the County is that the applicant and the coal plant developer (SME) submitted a thick notebook of new material to the County Commission at the hearing on the rezoning application. The hearing lasted until 2:30 AM but was then closed to further public comment. The public was never given the opportunity to see and respond to this new information. Such a denial violates the public’s Constitutional right to participate meaningfully in government decisions. All of this material was supposed to be submitted at the time of the initial application. The Planning Board was supposed to review it. The public was supposed to have a chance to critique it. Instead, it was presented at the last minute in an apparent attempt to keep the information from the public. Much of this last-minute information was inaccurate or incorrect, and could have been refuted. For example, SME hired an appraiser who said that the coal plant would have no impact on neighboring property values. But much of the information relied upon by the appraiser was incorrect or irrelevant. The Commission never heard the “rest of the story.” These flaws, and many others, should help the court justify overturning the decision by the County to rezone this property. The suit was filed in Cascade County. The neighboring landowners and MEIC are once again fortunate to be represented by Kalispell attorney Roger Sullivan. Read the full complaint (1.9 MB pdf) Background Information MEIC Sues over Highwood Zoning Change Highwood Generating Station Asks for Zoning Change (November 2006) Montana Environmental Information Center Street Address: 107 W Lawrence St. #N-10, Helena, MT 59601 Mailing Address: P.O. Box 1184 Helena, MT 59624 Phone: (406) 443-2520, Fax: (406) 443-2507, meic@meic.org	Also See Judith Gap Wind Project Montana Climate Change Advisory Council Montana Smart Growth Coalition

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MEIC Zoning Lawsuit

MEIC and Farmers Sue Cascade County for Illegal Spot Zoning—Again

Background Information