Judge Rules In Favor Of SME

In today's Tribune, there is this article about the judge's ruling concerning spot zoning:

Montana District Judge Wayne Phillips of Lewistown ruled Friday afternoon that the County Commission's rezoning of the plant site did not constitute spot zoning in an agricultural area.

Tim Gregori, Billings-based general manager for the Southern Montana Electric Generation & Transmission Cooperative, which is developing the project, was buoyed by the decision.

"I think that it just underscores that the county was very thorough in their process," Gregori said. "We will continue to proceed."

"Basically, he ruled against us on all counts," said Anne Hedges, program director for the Helena-based Montana Environmental Information Center, one of the plaintiffs in the suit. "It's quite likely we will appeal."

She said the group has lost before at the district court level only to prevail before the Montana Supreme Court. Some landowners near the project site also are in plaintiffs in the suit.

While Hedges was disappointed with the outcome, she praised Phillips for making a prompt decision.

"He acted expeditiously, as we asked him to do," Hedges said. "We just think he got it wrong."

Gregori praised the judge's conclusions.

Opponents of the coal-fired power plant, an $850 million, 250-megawatt facility, said in the filing that a power plant was not compatible with the area's rich agricultural nature. Phillips said the plaintiffs' best argument on spot zoning was that the rezoning would benefit one landowner at the expense of others. However, he said the project did not meet the other two criteria for spot zoning — that there was a change of land use and that the 668-acre site to be rezoned was a small part of the whole area.

Phillips said Cascade County's zoning already allowed electrical generation facilities in A-2 agriculture areas, as long as the project obtained a special-use permit.

Hedges said she believes that conclusion was reached through odd logic.

Gregori agreed with the judge's interpretation.

"We had reached the same conclusion," Gregori said.

Phillips said heavy industrial zoning was required so the project site would qualify for special tax-increment financing, where all property taxes generated by new development in the area would go into a fund to pay for new roads, water and sewer lines, as well as other improvements.

Early construction work began at the power plant site eight miles east of Great Falls along Salem Road in mid-October. Gregori said he was at the site Wednesday when concrete was poured. The state Department of Environmental Quality recently took SME to task for starting construction too soon, but added that work would be allowed beginning Wednesday. The project has until Sunday to meet construction requirements of a state air-quality permit, including poring a portion of the plant's foundation.

Phillips referred to the deadline in his ruling, noting "a serious and consequential deadline looms."

Power plant developers have taken a roller-coaster ride in obtaining permits and fighting various appeals and challenges at the court and administrative levels. Aside from those skirmishes, the project also continues to seek permanent financing.

Opponents claim the plant would pollute the air too much and contribute to climate change. Supporters say the plant would broaden the county's tax base and be one of the country's cleanest coal-fired acilities.

In his ruling, Phillips said county commissioners did not ignore public comments, but acted "clearly and convincingly."

In a series of decisions, he ruled against the landowners' and MEIC's motion for summary judgment that would have decided the case in their favor. Phillips also refused to authorize several writs, or formal documents, on the plaintiffs' behalf.