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081909 clarkfork terraces
A sign advertising the Clark Fork Terrace II development stands in a field east of Deer Creek Road. Photo by LINDA THOMPSON/Missoulian

The Missoula City Council trampled on private property rights when it required the Clark Fork Terrace developer to grant a trail and public access easements, a judge ruled in an opinion filed Monday.

"Why the City Council desires the trail easement imposed by Condition No. 15 is understandable," wrote 4th Judicial District Judge Ed McLean. "Yet, desire does not equate to authority ... to impose conditions."

Clark Fork Terrace II is a residential project of 33 homes on 47.38 acres east of Deer Creek Road. The property owner is Bob Brugh, and his Neighborhoods by Design is the developer.

The council approved the project with a list of 36 conditions, and Neighborhoods by Design challenged four of those in a lawsuit against the council and city of Missoula. In his decision, the judge ruled in favor of the developer on three of the four conditions.

The case drew interest both from people who wanted to see the Kim Williams Trail extended and lawyers who wanted to see the court's decision on the proper way to process subdivision applications.

On Monday during a Committee of the Whole meeting, Mayor John Engen said the city likely would not appeal the decision. Office of Planning and Grants director Roger Millar hadn't reviewed the opinion in depth earlier in the day but he commented on further court proceedings.

"When you appeal something, you say that something was flawed in the reasoning," Millar said. "Sometimes these things just have to happen to sort things out."


The condition that drew the most public attention was a requirement that the developer provide a 20-foot-wide public access easement along the Clark Fork River. At public meetings, some trail fans had urged the city to fight for such access for the good of the community.

Lawyer Alan McCormick, though, argued on behalf of the plaintiff that the council has a right to place conditions on a subdivision only if the conditions directly mitigate an impact of the development.

McCormick, of Garlington Lohn and Robinson, said the requirement for a trail came because the council wanted it and not because the pathway would address an impact of the subdivision. The judge agreed.

"For the city of Missoula to arbitrarily decide that it wants an easement along the Clark Fork Riverbank ... is a taking of the most valuable land in the subdivision," reads the court decision. "There are provisions in the law for the exercise of eminent domain when the government can establish such a need. However, such laws also provide for the compensation to the owner(s) for the deprivation of such property."

McCormick said Monday the decision is a reminder to the city to respect the lawful limits on conditions of subdivisions. For some time, he said the city had exceeded its authority.

"Statute and the constitutional provisions do not allow that, and that's the point of this lawsuit, and that's frankly the result we expected," McCormick said.


Another requirement the judge struck down was one that common areas include public access easements. The order said the city did so based on a recommendation from the city engineer because "doing so might be beneficial in the future." But the property owner has a fundamental "right to exclude others."

"This is inadequate to justify any condition, much less one that converts private property to public use," says the court decision.

In another condition, the council required that the subdivision allow an easement on its southern border for a shorter connection to the Kim Williams Trail if another nearby easement couldn't be secured. The developer had made a similar offer in its application.

The court rejected the city's version, which asked the developer to build the trail and said the easement would become permanent two years after the final plat was filed if the city hadn't acquired the other easement, one along the Old Milwaukee.

The judge said the condition should reflect the language offered by the developer instead. All told, the order ruled the above conditions are "arbitrary and capricious and a taking of NBD's property without just compensation."

The final contested condition was that houses go up inside designated lines, or "building envelopes," and not spill outside them - and that outside the lines, accessory structures are allowed on all lots but one.

Here, the court said the developer is free to designate "building envelopes of any shape and size within the particular lots," but it must obtain administrative approval. That's to ensure the environment and natural terrain are protected.

The court will take up damages to the plaintiff down the road.

Reporter Keila Szpaller can be reached at 523-5262, or on


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