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Artesian

The sun rises over the Swan Range and Flathead River just south of Kalispell.

Montana Artesian Water Company’s bottling plant can keep operating despite a zoning-district expansion, Flathead County authorities have determined.

Their decision, released Thursday by the county’s Planning and Zoning Department, clashes with a hard-fought campaign to keep Montana Artesian from bottling local groundwater.

This past spring, a group called Yes! For Flathead Farms and Water organized a ballot initiative to expand the Egan Slough Zoning District to cover the facility, vowing that it would “protect our river, lakes, fish and wells from the bottling plant.” Flathead County voters overwhelmingly approved the measure in June.

The Planning and Zoning Department soon began investigating this expansion’s bearing on the bottling plant. After three months passed with no conclusion, a coalition of bottling-plant opponents sued Montana Artesian and the county, asking Flathead County District Court Judge Robert Allison to find the plant in violation of the regulations and order the county to enforce those rules against it.

A core dispute in this case was whether the plant should be grandfathered in to the expanded zoning district even if it didn’t necessarily fit its regulations.

“My clients’ bottom-line position is that commercial production of bottled water is not grandfathered in to a pre-existing condition because there was no commercial production that could or did occur the day the initiative [expanding the district] became law,” said Missoula attorney Jack Tuholske. He and Helena attorney Kim Wilson are representing Yes! For Flathead Farms and Water, the Egan Slough Community and resident Amy Waller in their lawsuit.

The county investigators indeed found that “as of June 21, 2018 [when the zoning district expansion was certified] Montana Artesian had not begun commercial production or sold any bottled water produced at the facility.”

But when the lawsuit was filed, Montana Artesian spokesperson Darryl James held that because the company held a building permit before the June expansion, it should have been permitted.

Last month, Judge Allison concluded that he lacked sufficient information to rule on the case. On Dec. 27, the defendants informed him that “the Planning and Zoning Department expects to issue its report on or before January 4, 2019 at which time the County will determine the appropriate course of action.”

That 8-page report, accompanied by over 200 pages of exhibits, favors Montana Artesian.

The agency found that “Montana Artesian’s water bottling facility is not a permitted primary, accessory or Conditional Use in the Egan Slough Zoning District.” But it wrote that the plant could nonetheless be grandfathered in.

“The regulations state that any structure which had obtained a building permit prior to the expansion of the Zoning District ‘is a nonconforming use.’ Not only had Montana Artesian obtained a building permit, but the facility was completed and capable of producing commercial levels of water bottling prior to the expansion of the Egan Slough Zoning District,” the report states.

“Therefore,” it continues, “”the water bottling facility is a legal, nonconforming land use and Montana Artesian may conduct operations in the manner described in its various permits.”

“I think it’s all pretty straightforward and we certainly appreciate the county’s dispassionate review of the facts and their report today,” James said.

But Tuholske disagrees. “I believe that the planning department is in error, that this commercial operation is not grandfathered in,” he said, arguing that Montana case law bolstered this stance.

While Flathead County has staked out its position, a ruling has yet to arrive in the lawsuit. “The report adds an element that didn’t exist when the claim was filed,” Tuholske said, “...and so it will need to be addressed, but I can’t tell you today procedurally how we will proceed.”

James, however, was firmer in his assessment of the situation. “The report should satisfy the judge’s request for additional information,” he said, predicting that “he’s simply going to go back and look at the facts in this case and what the county has decided to do."

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