October 3, 2008
Barbs fly in hearing over Highwood zoning By KARL PUCKETT Tribune Staff Writer
A Cascade County courtroom was jammed with observers Thursday as attorneys sparred over a motion to dismiss a lawsuit on zoning for a proposed coal-fired power plant east of town.
"Their plan here is delay, delay, delay," charged attorney Gary Zadick, who represents developer Southern Montana Electric Generation and Transmission.
He accused opponents of filing lawsuits Ñ four in all Ñ to stall the start of construction, which must begin by Nov. 30 under its air quality permit.
"That simply is impugning us," countered Roger Sullivan, an attorney representing the Helena-based Montana Environmental Information Center and some 40 landowners who oppose the project. "We have exercised our rights here."
MEIC and the landowners, who live or farm near the proposed building site eight miles east of Great Falls, are suing Cascade County over the Jan. 31 rezoning of the land from farmland to heavy industrial, which they allege was illegal "spot zoning" Ñ a charge denied by Cascade County.
SME needs the industrial zoning in order to build the 250-megawatt Highwood Generating Station, which would provide electricity to 50,000 customers in a rural stretch from Great Falls to the Billings area.
The coal-fired power plant, the source of heated debate for the past three years, drew a packed house to the Cascade County District courtroom, with the overflow directed to sit in the empty jury box.
"We require a lot of decorum in these hearings so you're not allowed to speak out," District Judge Wayne Phillips, who traveled from Lewistown to preside over the case, warned at the start.
The merits of the rezoning lawsuit were not the focus but rather a motion, filed by SME, to dismiss the case. SME has intervened on behalf of the county.
Zadick, the SME attorney, cited recent Montana Supreme Court decisions in arguing the case is moot because the Highwood property had been sold since the lawsuit was originally filed in April Ñ and sold as industrial zoned property.
"The sale cannot be undone, the rezoning was granted months ago and the plaintiffs sat on their hands," Zadick argued in his motion. SME bought the property in August from the Urquhart family, which originally sought the rezoning.
If the opponents wanted to block the rezoning, Zadick said, by law they needed to post a bond and ask the court for a stay of the decision. Such bonds are required to protect a builder from increased costs caused by litigation delays, he said. "When you play poker, you have to ante up to play the game," he explained after the hearing.
"There is not a single Montana case that stands for that absurd proposition," said Sullivan, the attorney for MEIC and the landowners, in countering the "moot" argument.
SME is no "innocent third party," he said, alleging that SME, as much as the Urquharts, applied for the industrial rezoning.
But Zadick, insisting the Urquharts were the sole applicant, called Sullivan's charge a "red herring."
"Why haven't you sought a stay," Phillips quizzed Sullivan.
The landowners, who are facing the possibility of having land taken by eminent domain for rail, power and water and sewer corridors for the power plant, should be able to seek judicial relief without putting up a bond, Sullivan said. "This is a right of citizenship," he said.
SME has agreed to negotiate rights-of-way with landowners, Zadick said.
After the hearing, MEIC's Anne Hedges disputed the charge lawsuits have been filed just to delay the project. "We think every single lawsuit has merit," she said.
Four have been filed but two remain pending. Besides the rezoning case, MEIC and the Great Falls-based Citizens for Clean Energy are suing the state Department of Environmental Quality for not requiring controls on carbon dioxide emissions in SME's air permit.
"This, folks, is called the full weight of the law," said Phillips, his arms full of motions filed by both sides, as he sat down at the bench to begin the hearing. An hour later, he said he would have a decision on SME's motion to dismiss the case by November. If he rejects SME's argument, the case would proceed.