Article published Feb 14, 2008

Landowners near proposed site protest rezoning decision

By KARL PUCKETT

Tribune Staff Writer

Opponents of the proposed Highwood Generating Station are attacking the county's recent rezoning decision on several fronts.

A group of 45 landowners in the area of the proposed plant east of Great Falls are collecting the signatures required to file a formal protest of the rezoning, while Citizens for Clean Energy, a group formed to oppose the plant, has mounted a countywide petition drive of its own to show displeasure with the two commissioners who voted for the rezoning — Joe Briggs and Lance Olson. Peggy Beltrone voted against the rezoning.

But Cascade County officials say the neighbors don't have legal standing to protest a pending decision that's critical to the controversial plant's future.

County commissioners earlier this month passed a resolution of intent to rezone farmland east of Great Falls, which is the proposed site for the coal-fired power plant, to heavy industrial. The deadline to file protests is March 3.

Only residents who live within the 680 acres that's proposed for rezoning are legally entitled to submit protests, said Brian Hopkins, the county's chief civil attorney.

Under that interpretation of the law, the only residents eligible to protest are Red and Mary Urquhart and Scott and Linda Urquhart, who are requesting the rezoning on behalf of Southern Montana Electric Generation & Transmission.

SME is planning to construct the $720 million coal-fired power plant. To proceed, it needs a favorable final decision on the rezoning question.

Neighbors are upset over the county's stance that they have no standing.

"The county attorney has refused to give a definition of a district," said J.C. Kantorowicz, who lives in the area. "The only thing he's really said is the Urquharts are the district."

The county is taking its direction from the Montana Supreme Court, Hopkins said.

The court, in a decision in Little v. Board of County Commissioners of Flathead County, stated that only those who own land in a proposed zoning area can protest a rezoning decision.

"The Supreme Court has never ruled to the contrary, so we believe that's still a good law," Hopkins said.

Ann Hedges of the Montana Environmental Information Center, which opposes the Highwood plant, said spot zoning was the focus of the '81 Supreme Court case, not who could protest.

"The county is twisting a case from 1981 to try to fit the circumstance," she said.

Hedges argues the district should be defined as land that's designated A-2 — large tracts of agricultural property — not just the area being rezoned.

By state law, rezoning decisions can be delayed if successfully protested by 40 percent of the landowners in a district, or by landowners owning 50 percent of the agricultural or forested property in a district.

The 45 landowners who live near the proposed Highwood plant don't agree with the county's definition of a district, so they are gathering signatures in the tax levy district surrounding the Urquharts' property.

"I think we'll get 90 percent," Kantorowicz said.

Signatures also are being gathered from the 250 people on the tax rolls in Cascade County who own forested land, Kantorowicz said.

The landowners consider allowing a coal-fired power plant in an agricultural setting to be spot zoning, which occurs when a small area of land is singled out for the benefit of a few and placed in a different zone than neighboring property.

"We are concerned about the impacts this plant will have on our way of life, our health, our crops and our property values," said Daryl Lassila, an organic farmer with property adjacent to the proposed Highwood plant site.

County officials argue the rezoning doesn't represent spot zoning. Utility plants are allowed in A-2 zones under the county's zoning rules, Hopkins said. The area proposed for rezoning is currently zoned A-2.

The reason SME is seeking a heavy industrial zoning, as opposed to a special-use permit needed to build the plant in A-2, is to qualify for tax-increment financing assistance.

In regards to the spot-zoning concern, Hopkins said the rezoning involves a large tract of land and does not single out a tiny portion for a different use.

County officials also argue that the project doesn't benefit just a few people, but rather 60,000 utility customers served by SME. In addition, Hopkins said, the rezoning benefits the county as a whole because it encourages economic growth, which is consistent with the county's growth policy.

Hedges said only a limited number of landowners would benefit from the plant, which would be a detriment to neighbors.

Reach Tribune Staff Writer Karl Puckett at 791-1471, 800-438-6600 or kpuckett@greatfallstribune.com.