Interim zoning is not spot zoning, and that's one reason why there won't be a gravel and asphalt operation north of Lolo.

The Montana Supreme Court found that Missoula County was justified in its 2008 decision to place interim zoning restrictions on land targeted for the operation.

The court filed that opinion last week after landowner Ken Allen of Liberty Cove Inc. appealed a District Court decision that upheld the county's move, which effectively stalled Allen's plans to develop the land.

"It's bittersweet for me, personally, because I feel for the owner," said Michele Landquist of Lolo, the newest county commissioner. "But I also believe the property would be better suited keeping it in some sort of agricultural operation. I'd hate to see tons of houses in there, and us being swallowed up in one big sprawling city."

But Allen said Tuesday he may have no other choice but to build up to 262 condominium units and homes on the land. He has talked with Landquist and Pat O'Herren of the county's Rural Initiatives office about a conservation easement, and just this week discussed that option with Five Valleys Land Trust.

"There's a chance, but it's probably a slim one that they could get it unless the county comes up with a big chunk of money," Allen said.

It's the latest twist in a saga that began more than eight years ago, when Allen bought the roughly 126 acres on the west side of U.S. Highway 93. Most was traditional agricultural land, and none of it was zoned.

Allen's original application to subdivide the acreage failed. The gravel/asphalt operation was Plan B, and it was first approved by the county. Allen said he would develop a lake and houses around it once the company now known as Knife River finished using it for road construction.

A groundswell of opposition from neighbors in late 2007 prompted the county to look into interim zoning to address public health and safety concerns. Among the issues was the chance that Knife River would receive a mining permit without any substantive environmental review by an overburdened Montana Department of Environmental Quality.

Allen sued in June 2008 after the interim zoning was enacted. Missoula District Court decided against him on March 3, 2009, whereupon Allen appealed to the state's highest court.

Allen contended that he'd received only two days' notice of the public hearing in which the decision was made, not the two weeks as required by law. He also maintained there was no emergency to justify interim zoning, and that the zoning was illegal "reverse spot zoning" - that is, forbidding a property owner from using property in a certain way when adjoining neighbors aren't subject to the same restriction.

On the latter point, Chief Justice Mike McGrath wrote in the court opinion filed on Monday of last week, "Our review of (a) well-developed precedent yields two important conclusions: This Court has never considered or adopted a ‘reverse' spot zoning analysis, and this Court has never applied its spot zoning analysis to interim zoning. We decline to do so here."

The court upheld Missoula County's stance and District Court's conclusion that the situation constituted an emergency. That's because because "recent legal decisions in the State of Montana may compel DEQ to issue a permit without the review that is normally carried out by DEQ." It also said that the Montana Department of Transportation "will not be able to require traffic control measures during the operation of the pit that will adequately protect public health and safety."

Landquist said the county's next step is "to start working with the people in that general area to find out what kind of zoning they would like to see."

She hopes that will include at least a couple of public meetings in small-group formats "where people seem to be more comfortable speaking their minds."

What's next for Allen?

"When the economy picks up we will start building the 212 (condominium units) we have filed," he said.

There's also room for another 50 or 60 homes on parcels not approved for duplexes. Allen changed his original development design to include the two-unit condos and to be hooked up with the Lolo sewer and water districts.

"It's been eight years on this," he said. "What could have been a very nice rural subdivision has cost me a lot of time, a lot of money, and because of the cost, I went to the condominium theory. There's a lot of value there to get back."

Reporter Kim Briggeman can be reached at 523-5266 or at kbriggeman@missoulian.com.