November 28, 2006

Cascade County Commissioners

Cascade County Courthouse

Annex Building

Great Falls, MT 59405

Via Fax: 406-454-6945

Re: Urquharts’ request to rezone from A-2 Agricultural to I-2 Heavy Industrial

Dear Commissioners:

The Montana Environmental Information Center urges you to reject the zoning change described in the “Resolution of Intention to Amend County Zoning District Map” which proposes a change in “zoning district classification from ‘A-2’ Agricultural District to ‘I-2’ Heavy Industrial District classification for Parcels #5364100, 5364200, and 5364300 in Section 24, Parcel #5365200 in Section 25, and Parcel #5366900 in Section 26, Township 21 N, Range 5 East, P.M.M., Cascade County, Montana….”

MEIC is a member supported nonprofit organization dedicated to protecting and restoring Montana’s natural environment, with members who live in Cascade County and who would be affected by the decision to rezone which is now before you. A coal-fired power plant located in the midst of agricultural property will have significant negative impacts on surrounding and downwind properties. Cascade County should not approve this change as it fails to meet the requirements for zone changes and it constitutes spot zoning.

There are many reasons that Cascade County should reject the proposed zone change. Nearby residents will suffer the consequences of a large industrial facility in the midst of their agricultural operations. Increased noise, odor, air pollution and traffic are just a few of the reasons this proposed change is inconsistent with existing agricultural operations in the area. It is impossible to imagine a starker shift in land use than from agriculture to heavy industrial.

A. The proposal does not meet the requirements for a zone change.

The law clearly requires that zoning changes must comply with certain requirements. In Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, the court established a 12-step test that a governing body must consider in making zoning decisions. While this case applied to the municipal zoning statute, these steps are equally applicable to the similar county zoning statute, § 76-2-203, MCA. Little v. Flathead County (1981), 193 Mont. 334, 352, 631 P.2d 1282, 1292. The county has failed to comply with the requirements of these tests.[1]

1. The proposed change fails to comply with Cascade County’s newly adopted Growth Policy. The Growth Policy provides:

The prime agricultural soils resource preservation areas are intended to contain those soil areas where it is necessary and desirable, (because of their high quality, availability of water, and/or highly productive agricultural and grazing capability), to preserve, promote, maintain and enhance the use of such areas for agricultural purposes and to protect such land from encroachment by non-agricultural uses, structures or activities.

Therefore, the prime agricultural soil preservation areas of Cascade County are those areas where the soils have been classified by the Natural Resources Conservation Services (NRCS), according to the NRCS definition of prime farmland or farmland of statewide importance.

Growth Policy at p. 64. The Growth Policy’s “Cascade County Farmland Classification Map“ indicates that the area proposed for rezoning from A-2 to I-2 is “farmland of statewide importance.” The conversion of farmland of statewide importance to heavy industrial zoning to accommodate a coal-fired power plant is a blatant violation of the Growth Policy’s provisions set forth above.

Simply stated, this proposed change is intended to allow for the building of a large coal-fired power plant in a rural agricultural area. The Growth Policy emphasizes alternate methods of energy production. The Growth Policy discusses the importance of protecting agricultural heritage and the rural character of the county. The Growth Policy only anticipates this scale of development if it does not adversely affect agriculture. Furthermore, the Growth Policy clearly states that this energy supply is not needed in Cascade County because there is a “virtually unlimited supply of electricity” to the area.

2. The zone change will not lessen congestion; rather, it will increase congestion on the streets. The draft environmental impact statement found that “Salem Road is a lightly traveled, local, rural road used primarily by farmers and rural residents in the area. On an average 24-hour day, in its southern segment near Highwood Road, it is traveled 36 times – counting vehicles making trips in both directions. That is, its ADT is 36. In the north segment of Salem Road in Cascade County, toward the proposed HGS (Salem) site, its ADT is 21. (Peterson, 2005). The Highwood Road (S-228) is a paved, two-lane, state secondary road several miles south of the Salem site that would be used to access it from Great Falls both during construction and once it was placed in operation. The nearest ADT measurement taken by MDT is about seven miles (11 km) from its intersection with the Salem Road. The combined (both directions) ADT in 2004 was 549 (Combs, 2005). (Highwood Generating Station, Draft EIS, Pages 3-94, 95)

In contrast, construction of a heavy industrial facility like the Highwood Generating Station would greatly increase traffic on roadways in the area. During the construction phase of the project, “[o]n the Highwood Road (SR 228), the ADT would go from 549 to potential maximum of approximately 1850.” (Draft EIS, Page, 4-97)

3. The new zoning will not secure safety from fire, panic and other dangers. The nearest fire fighting services are many miles away and operated by a volunteer force. Volunteer fire departments likely do not have the resources necessary to address large-scale emergency situations that could arise at a plant of this magnitude.

4. It is inconceivable that the Commissioners could find that the proposed rezoning, and attendant coal-fired power plant, will promote health and general welfare. Each year the stack from this plant will place into the air over 3 million tons of carbon dioxide, 366 tons of particulate, 443 tons of sulfur dioxide, 944 tons of nitrogen oxides and 1,177 tons of carbon monoxide. It will emit mercury, arsenic, beryllium, cadmium, manganese, lead, and acid gases. A number of important health concerns are described in the comments of Cheryl M. Reichert, MD, Ph.D., which have been submitted for your consideration. In addition, noise in the area will increase. The draft environmental impact statement (EIS) indicates that noise levels differ greatly between residential areas and industrial. For example, if this area is eventually annexed into the city of Great Falls, as contemplated by the draft EIS, the noise level is allowed to increase by 50% as it changes from residential to industrial. Neighboring property owners can expect significant increases in noise pollution. As described in the Rezoning Petition:

Some increase in noise levels in the area will be unavoidable, particularly related to the periodic (twice per week) delivery of coal unit trains by locomotives. . . . Noise will also result from operation of the facility and the wind turbines; diesel engines on delivery trucks for ammonia, fuel oil, limestone (approximately four per day), and other consumables deliveries; dump trucks used for ash transfer to the monofill; and bulldozers used for coal and ash handling.

Rezoning Petition at p. 6.

5. There is no evidence to suggest that this industrial facility will provide adequate light and air. To the contrary, as indicated above, each year the stack from this plant will place into the air over 3 million tons of carbon dioxide, 366 tons of particulate, 443 tons of sulfur dioxide, 944 tons of nitrogen oxides and 1,177 tons of carbon monoxide. It will emit mercury, arsenic, beryllium, cadmium, manganese, lead, and acid gases. These emissions are significantly greater than emissions from similarly sized natural gas fired power plants, energy efficiency measures, and renewable resources like wind. In short, there is no evidence in the record that this type of facility will provide adequate light and air; in fact all evidence points to the contrary.

6. There is no evidence in the record to suggest that the proposed zone change will prevent the overcrowding of land. To the contrary, converting the sparsely populated A-2 area to I-2 to facilitate the construction of a coal-fired power plant will bring a work force of some 550 construction workers while the proposed project is being constructed, and some 70 permanent power plant staff.

7. There is no evidence to suggest that this zone change will not result in the undue concentration of population. The county’s Growth Policy clearly contemplates the development of lands adjacent to or inside of urban areas. This area is agricultural. The switch to industrial use will predictably result in power plant employees to want to live closer to their work. This will likely result in increased population in this rural area.

8. As discussed above, traffic will increase due to the industrial facility. The transportation system in the area was not designed to accommodate trucks with heavy loads and large volumes of traffic. There is insufficient evidence in the record for how this proposed zone change could impact water. The proposed industrial facility will use 1.7 million gallons of water per year. The effluent supposedly will be treated by the city. These facts need to be properly analyzed.

9. The citizens of Cascade County are proud of their agricultural heritage and the rich history of Lewis and Clark in the area. This revered heritage is jeopardized by this zone change. See, e.g., comments in opposition to zone change submitted by Dr. Aart Dolman, Chere Juisto of the Montana Preservation Alliance, and Stephanie Ambrose-Tubbs. Reasonable consideration to the character of the district would argue strongly against the requested zone change. This has not occurred. Moreover, the agricultural nature of the area could be dramatically changed if an industrial site is permitted. The draft EIS comtemplates such a scenario, described below. The consideration of such impacts should lead to the rejection of the zone change request.

"Additionally, impacts associated with air quality, noise, visual resources, and traffic would all potentially decrease the quality of life for area residents downwind of the facility or adjacent to transportation routes. Though these impacts are all discussed in their respective sections, they could potentially cumulatively affect one particular area and be perceived as adverse enough to residents that they would choose to relocate. While the relocation of any residents would not cause a land use change in of itself, land put up for sale in the area may be attractive to an industrial developer. The addition of any industry would perpetuate the impacts of decreasing the quality of life for residents of this rural agricultural area, and over time this cycle could continue and the predominant land use in the area could change from being primarily farmland to being primarily industrial land.” (DEIS, Page 404)

10. The proposed zone change could not be more drastic, nor more antithetical to the peculiar suitability of the property for its current and most appropriate use - - agriculture. The Growth Policy designates the area as “farmland of statewide importance.” It is the stated policy of Cascade County, “to preserve, promote, maintain and enhance the use of such areas for agricultural purposes and to protect such land from encroachment by non-agricultural uses, structures or activities.” (Growth Policy at p. 64.)

11. The land at issue has no buildings. However, as indicated above, the agricultural character of the land, including farm homes and rural residential homes in the area, would be negatively impacted by the industrial complex attendant to the change to I-2.

12. The currently existing scheme of land use controls, including the recently adopted Cascade County Growth Policy and the Cascade County Zoning Regulations, encourage the most appropriate use of land throughout the jurisdictional area. This proposal is in contravention of both; hence, the proposed zone change does not encourage the most appropriate use of land throughout the jurisdictional area.

In sum, the rezoning proposal fails to comply with the 12-step test required by § 76-2-203, MCA, and Lowe, supra. The Board of County Commissioners should properly deny the Rezoning Petition.

B. The proposed zone change constitutes illegal spot zoning.

The Montana Supreme Court has established a three-part test to determine whether a zone change constitutes illegal spot zoning. See, e.g., Little v. Board of County Commissioners of Flathead County (1981), 193 Mont. 334, 631 P.2d 1282; Greater Yellowstone Coalition, Inc. v. Board of County Commissioners of Gallatin County (2001), 305 Mont. 232, 25 P.3d 168.[2] Rezoning the Urquharts’ 800 acres of land from agricultural to heavy industrial fails each prong of the test. It constitutes illegal spot zoning.

1. Adjoining land use.

The first prong of the test examines whether the requested use is significantly different from the prevailing use in the area. According to the Rezoning Petition (at p. 3):

The Salem/Highwood area consists of gently rolling rangeland with deep drainage channels leading generally north to the Missouri River. Land use consists almost exclusively of grain farming and cattle ranching.

Likewise, the Staff Report (at p. 1) states:

Surrounding Zoning and Land Uses:

Direction Legal Description Zoning Classification Existing Land Use

North Parcel #5356400, 5118800 A-2 Agricultural Production

Agricultural>20

East Parcel #5120100, 5364000 A-2 Agricultural Production

Agricultural>20

South Parcel #5365100, 5365400 A-2 Agricultural Production

#5366800, 5366500 Agricultural>20

West Parcel #5366700, 5363000, A-2 Agricultural Production

#5362700, 5357500 Agricultural>20

Unarguably, the requested use is significantly different from the prevailing use in the area.

2. Size of the area.

As explained by the Montana Supreme Court in the Greater Yellowstone Coalition case, in upholding the District Court’s finding of spot zoning:

The second prong of the Little test for spot zoning focuses on the size of the area in which the requested use is to apply, but is not limited to the physical size of the parcel. It also includes analysis of how many separate landowners stand to benefit from the proposed zoning change. The District Court found that the Duck Creek parcel was small in relation to the Hebgen Lake Zoning District – the 323 acres at issue comprise a mere 2% of the District’s 13,280 acres. . . . More importantly, the Little test focuses on the number of owners who stand to benefit from the zoning change.

Greater Yellowstone Coalition, 305 Mont. at 238-39, 25 P.3d at 172.

Here, the Rezoning Petition seeks to rezone 800 acres of agricultural land presently zoned A-2 to I-2 Heavy Industrial. As stated in the Cascade County Zoning Regulations (at p. iii):

All areas of the county that were formally located outside the former City-County Jurisdictional Planning Area shall, by this action and Resolution, be designated as “A-1” or “A-2” Agricultural District, and shall be subject to the conditions of this Cascade County Zoning District, and shall also be subject to the specific regulations pertaining to “A” Agricultural Districts.

The A-2 Zoning District is approximately 1,560,000 acres. The 800 acres at issue comprise a mere .05% of the District’s acreage. In addition, the Urquhart family stands as the only immediate beneficiary of the proposed zone change, while the Southern Montana Electric Generation and Transmission Cooperative, Inc., is intended to become the sole owner who will stand to benefit from the proposed zoning change which would allow construction of its proposed coal-fired electric power generation complex. Accordingly, the second prong of the spot zoning test is met.

3. Special legislation.

As explained by the Montana Supreme Court in Greater Yellowstone Coalition:

The issue presented by the third prong is whether the zoning request is in the nature of special legislation designed to benefit one or a few landowners at the expense of surrounding landowners or the general public. Little, 193 Mont. at 346, 631 P.2d at 1289. This inquiry should include an evaluation of whether the requested use is consistent with the comprehensive land use plan for the area. Little, 193 Mont. at 347, 631 P.2d at 1290.

Id.

As set forth above in § A.1 there are numerous provisions of Cascade County’s newly adopted Growth Policy with which the proposed zone change fails to comply. To summarize, the conversion of farmland of statewide importance to heavy industrial zoning to accommodate a coal-fired power plant is a blatant violation of the Growth Policy’s provisions on preservation of such farmland. The Growth Policy emphasizes alternate methods of energy production. The Growth Policy discusses the importance of protecting the agricultural heritage and rural character of the county. The Growth Policy states that this proposed energy supply is not needed in Cascade County because there is a “virtually unlimited supply of electricity” to the area.

As also set forth above, the Urquharts will be the immediate sole beneficiaries of this dramatic zone change, which will come at the expense of the nearby property owners. This zone change is designed for one purpose - - to allow a coal-fired power plant to operate in the middle of this agricultural area, which is proposed to be constructed and run by Southern Montana Electric Generation and Transmission Cooperative, Inc. Those who live and farm nearby and downwind from this plant will suffer from the air pollution it generates. They will be forced to tolerate not only the pollution, but the nuisance of noise, light, odor and traffic. Nor will they reap any benefits from the stark visual impacts of this industrial complex. Their property values will predictably decrease as the pollution, visual and nuisance impacts are realized. In sum, the Rezoning Petition submitted by the Urquharts will inure to their financial benefit, as the sole immediate beneficiaries of this proposed zone change, with the utility corporation soon to follow. Meanwhile, numerous other citizens will have to watch as their own property values plummet. The third prong of the spot zoning test is met.

In sum, the requested zone change goes against the newly adopted Cascade County Growth Policy. Important agricultural farmland and a rural lifestyle are being forfeited for admittedly unneeded electrical generation. The important agricultural economy of the area will experience fundamental impacts from the proposed coal-fired power plant. The Urquharts’ financial benefit from this zoning change is insufficient to justify a change of this character and magnitude.

We respectfully request that you reject the request to rezone.

Sincerely,

Anne Hedges

Program Director

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[1] Unfortunately the Cascade County Zoning Regulations fail to articulate standards for a zoning amendment, such as the proposed rezoning, instead focusing on procedures for amendment. See Cascade County Zoning Regulations at § 14.

[2] The Cascade County Zoning Regulations purport to define “spot zoning” in a manner which is inconsistent with the three-part test mandated by Little and GYC, supra. See Cascade County Zoning Regulations § 2.99.184. The County cannot avoid the Supreme Court mandate by adoption of an inconsistent regulation.