Judge gives county deadline for decision on Egan Slough zoning

December 18, 2018 GMT

Flathead County officials have until Dec. 31 to decide whether Montana Artesian Water Co. is in violation of the Egan Slough Zoning District regulations for operating its Creston water bottling plant, according to an order issued Friday by Flathead District Judge Robert Allison.

In March, Allison sided with Egan Slough area landowners in their attempt to expand the zoning district. The judge ruled that the county commissioners had given insufficient heed to concerns raised by public commenters.

“The Board [of commissioners] did not meaningfully address the various issues the public had cited in support of expansion and why expansion would not benefit the public on these issues,” Allison wrote in his ruling. “Since the Board failed to sufficiently consider the public comments, their decision [to reject the expansion] was unreasonable and an abuse of discretion.”

Allison proceeded to give instances where the commissioners appeared to sidestep or overlook the issues raised in the comments. When concerns were raised about water quality, he noted, they had deferred the matter to state agencies and “made no findings of fact whatsoever.” In some cases, the judge found that they had dismissed expert reports “without providing any factual basis for doing so.”

The ruling also challenged the commissioners’ reasons for denying the petition. Those reasons included Montana Artesian founder Lew Weaver’s rights as a property owner.

In his latest court order Allison noted the delay by the commissioners to render a decision is “unreasonable.” By the end of the month, the county must declare a position on two issues: the legality of the Initiative and whether or not the county will enforce the initiative against the company.

Following the judge’s ruling, the commissioners reviewed the audiotapes of the proceedings related to the Egan Slough zoning issue, but did not take any further action.

Yes! For Flathead Farms and Water, the citizens group that spearheaded a petition drive to create a ballot issue for the zoning district expansion, stated in a press release issued Friday the county has “refused without explanation” to enforce a ballot initiative passed earlier this year that expanded the agricultural zone to include the bottling plant land.

Yes! For Flathead Farms and Water and others sued the county and the company after 70 percent of Flathead County voters passed the initiative in June. Egan Slough Zoning District restricts industrial and commercial activities within the outlined district, a tight regulation many Flathead County voters hoped would curb the Montana Artesian’s plant development.

“We are pleased that the court is forcing the county to address this matter, or provide reasons why it cannot do so,” Amy Waller with Yes! For Flathead Farms and Water said in a prepared statement. “The county has had months to address this matter. The will of voters needs to be heard.”

The county is required to investigate reports of zoning violations under the Egan Slough Zoning District regulations. Egan Slough area residents filed a zoning violation complaint with the county after the initiative passed, alleging the bottling plant was preparing to operate in violation of the initiative, according to Yes! For Flathead Farms and Water.

Montana Artesian began bottling water for local distributors over the summer while county planning officials continued their probe of whether or not the plant’s legal status within the expanded zoning district allows production. Planning Director Mark Mussman told the Daily Inter Lake in late August his department was “trying to figure out how it works.

Mussman said the county received a complaint on Montana Artesian’s bottling operation, and “on its face, it appears that the operation may violate the Egan Slough Zoning District regulations, but there are non-conforming issues that we are trying to figure out and trying to determine whether or not that operation would be a legal nonconforming use.”

Mussman further said that typically, a company’s nonconforming legal status, or grandfathering in, means it can “maintain the activity that they had prior to the zoning becoming official.”

Reporter Kianna Gardner may be reached at 758-4439 or kgardner@dailyinterlake.com.