Great Falls Tribune
November 1, 2008
Attorneys argue power plant zoning By KARL PUCKETT Tribune Staff Writer
Attorneys argued in court Friday over whether Cascade County's rezoning of land on which a coal-fired power plant is being constructed was illegal spot zoning.
Earth-moving work began 2 1/2 weeks ago at the 250-megawatt Highwood Generation Station. Whether the ground it sits on remains zoned industrial Ñ needed for a coal-fired power plant Ñ is at the heart of the case.
"The test here really indicates this is, I think, a classic case of spot zoning," said Roger Sullivan, who represents the plaintiffs.
The industrial complex would be out of place in the agricultural setting, and the rezoning is "special legislation" for SME's benefit, at the expense of neighboring farmers and ranchers, said Sullivan, adding that landowners risk having land condemned for utility corridors.
"It will be for the greater good," argued SME attorney Gary Zadick.
The project, he said, would benefit thousands of Montanans because it would generate needed electricity, especially during an energy crunch.
The area is not just agricultural, he added, noting the nuclear mission at Malmstrom Air Force base, Missouri River hydro-electric dams and oil and gas pipelines all are nearby.
During the three-hour hearing, District Judge Wayne Phillips of Lewistown, who didn't issue an immediate decision, interrupted attorneys to ask questions or cut them short.
"I think you're just beating a dead horse," he told the plaintiffs' Sullivan at one point.
At another junction, he told Alan McCormick, the attorney for Cascade County, that he was "still dancing around" an issue.
About 50 people attended, including landowners who are plaintiffs and SME representatives.
Landowners and the Montana Environmental Information Center are suing Cascade County for rezoning farmland to heavy industrial for Highwood Generating, which is planned eight miles east of Great Falls. SME has intervened on the side of the county.
A hearing was scheduled Monday but plaintiffs, citing the start of construction, sought to expedite the case, prompting Friday's hearing.
Besides spot zoning, the attorneys sparred over public participation.
Sullivan said commissioners attached conditions to the rezoning "whole cloth," and that those conditions were spelled out by SME in an 11th-hour letter submitted to the county. The conditions included, among other items, that SME post a bond to make sure Salem Road is maintained but Sullivan said access to the conditions was the fundamental issue.
The public, he argued, didn't have a reasonable opportunity to review or comment on the conditions, which he called a "fatal flaw" that should automatically void the rezoning.
The plaintiffs, McCormick said, were being "hypertechnical." He and Zadick argued the conditions were a result of a long legislative process that included hearings of 9 and 11 hours, and were a response to concerns raised by the public. By law, only the original zoning application has to be filed in all of the appropriate county offices, they said. Elected officials, McCormick said, need flexibility to respond to the public input and create conditions later if necessary.
Before the hearing, Phillips asked for and received apologies from Zadick and Sullivan for their behavior during a hearing earlier in the week conducted by phone. Phillips, who is based in Lewistown, had to remind the arguing attorneys during that hearing he was in charge. "You showed lack of respect for the court," Phillips said in court Friday.