Bitterroot considers streamside setback regulations for development
By PERRY BACKUS of the Missoulian
HAMILTON – Courts don’t like to micromanage decisions made by communities and local governments.
If a community decides it needs to develop zoning to protect its residents’ health, safety and welfare and it follows reasonable guidelines in developing that zoning, the legal system will likely support the zoning.
In a nutshell, that’s the message Michelle Bryan Mudd brought to more than 100 people gathered at Hamilton Middle School during a meeting of the Ravalli County Streamside Setback Committee earlier this week.
Mudd is director of the University of Montana Law School’s Land Use Clinic. Before joining the faculty, her private practice specialized in land use, real estate and water law. She was asked to explain the issue of takings as it relates to streamside setbacks.
The courts have upheld the legality of zoning and a community’s right to develop regulations that protect the health, safety and welfare since 1926, Mudd said.
“It’s been up to people opposing those regulations to show the community acted in an arbitrary way,” she said.
On the other hand, it’s fairly easy for communities to show they’ve acted to protect the health, safety and welfare of residents. Because of that, the courts have traditionally given deference to communities over zoning, Mudd said.
Landowners also face an uphill battle when it comes to proving a community’s action amounts to a regulatory taking, she said.
Mudd defined a regulatory taking as an instance when a landowner still physically owns a piece of property, but the government’s action has taken nearly all of its value away.
In general, Mudd said land use regulations can result in lower property values and still not be considered a taking. The courts recognize a taking only when the government’s action deprives the landowner of all economic use of the property, she said.
She pointed to a case in Flathead County where a woman wasn’t allowed to build a four-bedroom retirement home because of a setback requirement for a septic tank. The new regulations dropped the value of her property by $50,000.
The courts ruled the government’s action wasn’t a taking because she could still build on the property – even though the house had to be smaller, Mudd said.
“Reduction in value is not a taking,” she said.
That may have been news to many of the folks gathered for Tuesday night’s meeting, many of whom were concerned about potential losses created by new regulations being considered in Ravalli County.
Streamside setbacks have been a hot button issue in Ravalli County since last summer, when the Ravalli County commissioners formed a 17-member committee to write a proposed streamside setback zoning regulation.
In August, the commission asked the committee to draft an emergency interim zoning measure.
The committee’s first draft created a stir on a variety of fronts.
After hearing the community’s concerns, the committee sat down and put together a second draft, which has since been forwarded to the commission.
“The committee took all of the public comments and reworked the draft,” said Vanessa Perry, Ravalli County’s rural and natural resources planner. “They simplified it quite a bit.”
The newest draft for interim zoning focuses on new construction. It allows for reconstruction should a structure be destroyed, as well as repair or limited expansion of structures already in place when the interim zoning measure is approved.
The interim zoning measure won’t impact agricultural or recreational uses and establishes a variance process for landowners who don’t have reasonable alternatives on their properties for new construction outside the setback.
The draft proposes a 200-foot development setback on the main stem of the Bitterroot River. On the east and west forks of the Bitterroot, the setback would extend 150 feet.
On 33 streams the draft identifies as Class 3 water bodies, the setback would be 100 feet. The setback on perennial streams is recommended to be 75 feet, and 50 feet on intermittent streams and wetlands or natural ponds.
The draft of the interim zoning document is currently in limbo.
“The commission hasn’t made a decision on what it will do yet,” Perry said.
The streamside setback committee is forging forward. By July, the committee is required to present the commission with a proposed final streamside setback ordinance.
Their progress will be watched closely.
Many landowners in Ravalli County question the need for an additional layer of regulation.
At this week’s meeting, Bill Grasser wanted to know why the county needed more regulation for private lands. People already aren’t allowed to place a septic tank within 100 feet of any body of water.
“Isn’t that quite sufficient?” Grasser asked. “Keeping people from building 100 feet from any water – period – seems like that would be sufficient without all this new regulation.”
Roger DeHaan, a streamside setback committee member, said there were four reasons the county is taking a look at streamside setbacks.
There’s the water quality issue, he said. If people develop their lawns and gardens right on the edge of rivers and streams, there is potential for contamination from pesticides and fertilizers.
Even more important is the issue of erosion and structural damage to active waterways, DeHann said.
Rivers and streams constantly move inside the floodplain. If people build too close to the waterway and it threatens their home, they’ll take measures to ensure it doesn’t come closer.
That can have ramifications for their upstream and downstream neighbors, DeHann said.
Fish and wildlife are another issue the committee considers.
“Fish do better with colder water and it’s also pretty clear that a high percentage of those areas are prime wildlife habitat,” DeHann said.
The last issue is the most elusive, he said.
“The value of the whole community rises if it’s just a beautiful place to live,” he said.
To read Ravalli County’s proposed streamside setback regulations, click here.
