According to this article, SME/Cascade County are now arguing that the issue is legally dead and the case moot, because the county issued new zoning regulations in August.
November 19, 2009
High court hears Highwood zoning suit
By KARL PUCKETT
Tribune Staff Writer
HELENA — Attorneys for Cascade County and a group of landowners locked horns once more Wednesday over a 2-1 vote last year by the County Commission, which allowed construction of a power plant east of Great Falls. This time the clash came before the Montana Supreme Court.
In a surprise twist, Gary Zadick, an attorney for developer Southern Montana Electric Generation and Transmission Cooperative, and attorney Alan McCormick, hired to represent Cascade County, told justices the disputed rezoning case is legally dead because the commission passed new countywide zoning regulations in August.
As a result, McCormick said, a Supreme Court decision would be "academic" because the lawsuit is challenging old regulations, under which the land rezoning for Highwood Generating Station was processed.
"This case is now moot," McCormick said.
The new argument, which was never raised during state District Court hearings last year because the new regulations had yet to pass, prompted immediate questions from justices.
Justice James Nelson asked that if the updated regulations render the current challenge moot, couldn't local governments always keep ahead of people who challenge rezoning requests by simply changing the zoning rules?
Justice Brian Morris questioned McCormick on why the court wasn't informed sooner about the new zoning regulations argument if it renders the case moot. McCormick said he had just learned last week that the new regulations had taken effect.
McCormick cited a Flathead County zoning case as precedent in making the argument.
The argument was flatly rejected by Roger Sullivan, the attorney for the plaintiffs — 60 landowners and the Montana Environmental Information Center.
"This controversy is still very much alive," Sullivan said.
Additionally, SME has replaced its original plans for a coal-fired power plant with a smaller, cleaner-burning natural gas facility, but Sullivan said that doesn't change the arguments. The county still erred in allowing an industrial facility — gas or coal — amidst farmland, with the decision amounting to spot zoning and special legislation for SME, he said.
MEIC and the landowners living in the vicinity of the proposed plant are asking the Supreme Court to reverse District Judge Wayne Phillips' decision upholding the county's action. Such a decision would declare the rezoning unlawful.
Landowners say their quality of life and agricultural operations are at stake in the case.
After the hearing, Kent Holtz, a plaintiff and farmer who listened from the second row, said he didn't understand all of the technical arguments, but wants farmland protected from the power plant.
"There are so many other places in the state it could be put that would not destroy productive land," Holtz said.
SME officials say a reliable source of electricity for its customers is at stake in the case.
SME, which has sunk $40 million into the power plant, purchased the property on which the plant would sit for $3 million, said Zadick. SME intervened in the case on the side of the county.
Located in a rural setting, with just seven homes within 3 miles, the site is ideal for a power plant, Zadick said, with the electricity benefiting the general public.
"Where do generating plants get built?" he asked.
SME, which provides power to five rural electric cooperatives and the city of Great Falls' utility arm, is proposing to construct a 120-megawatt, $210 million facility powered by natural gas to replace electricity it's losing as a result of canceled power contracts.
If the court overturns the county's decision to rezone, the Highwood project could be returned to county commissioners or the District Court, said Brian Hopkins, an attorney with Cascade County.
At the conclusion of Wednesday's hearing, the seven justices quickly exited without comment. A decision could take months, Hopkins said, noting the court could still ask for additional written briefs.
The courtroom was packed Wednesday with residents from Great Falls and SME representatives, who sat on opposite sides of the courtroom.
The case stems back to March 2008, when Cascade County commissioners Joe Briggs and Peggy Beltrone and then-commissioner Lance Olson voted 2-1 to rezone 668 acres of land east of Great Falls from farmland to heavy industrial. Beltrone was the sole no vote.
MEIC and the landowners later sued, with Phillips siding with the county in a decision handed down in November 2008, prompting the appeal to the Supreme Court.
In the liveliest moment of a hearing fraught with zoning jargon, Sullivan, the attorney for the landowners and MEIC, left the designated podium and moved closer to the justices, pacing before them and theatrically holding up thick binders of technical zoning information and sometimes pointing to his clients in the audience.
"This is a classic case of the county making up its regulations on the fly," he said, his voice rising.
Sullivan took aim at the way in which 11 conditions proposed by SME were added to the rezoning approval. The conditions themselves are not the issue, he said, but he is concerned that they were submitted to the county two days before a public hearing in the rezoning request, not affording the public a chance to comment.
SME's Zadick countered that the 11 conditions actually benefit the general public, dding they were based on public feedback. For example, one of the conditions is that roads be maintained.
Sullivan also charged that SME submitted hundreds of pages of technical information in the 11th hour. In addition, Sullivan said, no guarantees exist in the zoning regulations, ensuring enforcement of the attached conditions.
That amounts to illegal "special legislation" for SME, Sullivan said.
Wondering aloud whether such conditions aren't just "part and parcel" of any rezoning proceeding, District Judge Jeffrey Sherlock, sitting in for the retiring Justice John Warner, who recused himself from the case, questioned the special legislation assertion.
Sullivan also said Judge Phillips erroneously concluded that a coal-fired power plant already is permitted in an agriculturally zoned area if a special use permit is granted.
Sullivan said a special use permit, while allowing wind farms and electrical generation facilities, would prohibit a coal-fired power plant.
Zadick disagreed, saying special use permits allow a broad range of uses from garbage dumps to hospitals to generation facilities.
But if that were the case, a justice asked Zadick, why didn't SME just ask for a special use permit in the first place instead of seeking rezoning. Zadick said that rezoning was preferred because of the type of financing the developer sought at the time.
Facing the seven justices and a digital time clock that allowed each side 30 minutes to make its case, the attorneys raised many of the same arguments Wednesday that they did at the District Court level.
"We'll just have to wait and see how the court decides," SME General Manager Tim Gregori said after the hearing. "At this time, the property we purchased is zoned appropriately for what we have planned."