Under deadline, a looming lawsuit and a district court order, the Missoula County commissioners on Wednesday adopted a special zoning district in North Lolo.
"From here, it's in the court's hands," said commission chairwoman Michele Landquist, who lent her support in the 3-0 vote.
The deadline to establish the district is Sunday, at the end of a year's extension of interim zoning. "Emergency" zoning was implemented two years ago amid community outcry to prevent construction of a gravel and asphalt operation in an open field alongside U.S. Highway 93. Commissioners tacked another year onto the interim zoning last May, but can grant no more extensions.
Five landowners representing more than half the property ownership in the district protested the zoning during the 30-day period that began in mid-April.
The lawsuit was filed by another homeowner in the area, L. Reed Williams, on May 14. It claims part of the state law governing protest provisions for zoning is unconstitutional, and sought injunctions against creation of the district.
Last Friday, District Court Judge Douglas Harkin ordered the request for a preliminary injunction be granted, enjoining the county from taking any action based on the statutory protest provision pending further order of the court.
Otherwise, Harkin said, commissioners could proceed with consideration of the zoning district, which they did Wednesday.
"What we did today was adopt the zoning resolution without considering the protests," said deputy county attorney James McCubbin, the commissioners' legal expert. "At the same time, the resolution was drafted with the intent of recognizing that litigation is pending and recognizing that we could get a court order in the future telling us to go back and consider the protests."
A similar lawsuit is working its way through the courts in Gallatin County. At issue in both cases is a portion of Montana law that states that if freeholders representing 50 percent of title property ownership whose property is taxed for agricultural purposes or as forest land protest zoning, county commissioners may not adopt it.
"This provision ... is unconstitutional," Williams' suit reads in part. "Granting a special right to protest only to real property owner of property taxed as agricultural or forest land violates ... the Montana Constitution and the Fourteenth Amendment of the United States Constitution, which guarantee equal protection of law."
In its response, Missoula County said it "must agree" that the state zoning protest provisions do appear to violate state and U.S. constitutions.
Richard M. Rossignol, Norma Rossignol, Paul O. Rossignol, Ponderosa Development Inc. and Liberty Cove Inc. filed a formal protest of the North Lolo zoning district on April 20.
They claim they represent 258 of the 424 acres - or 61 percent - in the district. McCubbin said Wednesday the protesters are filing papers to join Williams in his suit against the county. The state attorney general's office told McCubbin it will not be intervening to defend the statute in either the Missoula County or Gallatin County case.
Ken Allen of Liberty Cove, Inc, whose plan to develop a gravel mining operation in the area spurred the focus on zoning, asked the commission to wait until the court case was settled to adopt zoning.
"I just think it would be a cleaner situation," he said.
But McCubbin said the court order does not extend the interim zoning deadline.
"The reason, Ken, that I believe we need to go forward is not just so we won't have to start all over," Commissioner Jean Curtiss. "There was an involved public process with lots of opportunity for the public to comment as to the intent of the resolution, and I don't think any of that has changed. I don't think that it's a good use of taxpayer dollars to go back to square one and have all those meetings over again."