Supreme Court backs county in zoning case over Helena gravel mine expansion

2012-12-06T06:32:00Z 2012-12-10T15:26:21Z Supreme Court backs county in zoning case over Helena gravel mine expansionBy SANJAY TALWANI Independent Record The Billings Gazette
December 06, 2012 6:32 am  • 

The Montana Supreme Court has agreed with a lower court order upholding a 2008 move by Lewis and Clark County that prohibited expanded mining by Helena Sand & Gravel in a newly created zoning district.

But the high court Nov. 30 also remanded part of the order by District Judge Kathy Seeley back to her court, so the company will be allowed to argue that the zoning decision amounted to an unconstitutional taking of property that could entitle it to compensation.

Residents near the company’s property north of East Helena initiated the creation of the zoning district, concerned about various effects of expanded operations, but the court said that did not make the zoning illegal.

“Regardless of what motivated the petitioners to initiate the … zoning process, the record demonstrates that the County heard and considered public comments from both sides at all stages of its decision-making process,” Associate Justice Beth Baker wrote for a 4-2 court majority on the zoning question. “The commissioners’ own comments indicate that they were careful to make their decision based on compliance with the growth policy and the existing uses within the district, rather than based on HSG’s proposed mine expansion.”

The zoning petition was signed by about 70 percent of the property owners within the proposed district. The county may create such a zoning district if 60 percent of the affected property owners agree to the petition, unless the owners of 50 percent of the property in the district protest it, according to the court opinion.

The Board of Commissioners approved the zoning district over the company’s argument that the petition amounted to “illegal gerrymandering.”

Helena Sand & Gravel sued the county, and Seeley granted summary judgment to the county, saying the zoning was legal and did not amount to an illegal taking of property. The company appealed.

The high court, citing an earlier case, said it would reverse such a county decision only where it is “so lacking in fact and foundation that it is clearly unreasonable.”

Associate justices Patricia Cotter, Michael E. Wheat and Brian Morris signed on to the opinion.

Associate justices Jim Rice and James C. Nelson agreed with the remand to District Court on the takings claim, but disagreed on the zoning question.

Nelson called the county’s move “illegal reverse spot zoning.”

“The record demonstrates that (the zoning district) was specifically designed to gerrymander HSG out of its ability to extend its mining operation onto its remaining property,” he wrote. “The fact that this was accomplished as a result of a petition by other landowners is beside the point. The ‘zone’ was carefully crafted to deprive HSG of the further use of its property.”

Helena Sand & Gravel President Scott Olsen said the company is pleased that the court remanded the question of takings.

“We look forward to having an opportunity to prove our position in front of the District Court,” he wrote in an email. “In the interim, Helena Sand & Gravel prides itself on being a valued part of our community, and we remain hopeful that we can find a resolution that makes sense to all the parties involved.

“In this respect, Helena Sand & Gravel has been exploring whether it is possible to participate in assisting the East Helena Schools in fulfilling its need for additional property, while at the same time fulfilling our desire to expand our mining operations in a responsible manner, without the need to seek final resolution in the court system.”

He said the company has been speaking with the East Helena School District about a possible land transfer.

Deputy Lewis and Clark County Attorney K. Paul Stahl said the county is often in the middle of such issues, facing a possible lawsuit from whichever side is unhappy with its decisions.

“The court upheld the county in its zoning decision and we thought that is what they would do,” he said

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