Common ground 

Developers and farmland advocates have disagreed over how best to preserve Missoula's remaining prime soil, but now they seek solutions both can dig.

If there's one spot from which to view the impact of Missoula's Community Food & Agriculture Coalition (CFAC), it's the dirt parking lot at the end of Lavoie Lane. Here, where the Grass Valley meets the Clark Fork River, lay two pastoral parcels of flat ground primed for development. Indeed, reflecting the fate of so many former farms and ranches in the area, the Missoula Board of County Commissioners approved subdivisions on both.

But unlike so many other subdivisions, this land will sprout houses—and food. CFAC, a group sanctioned by the city and county in 2005 to implement a comprehensive food policy, collaborated with the developers of each parcel to cluster the lots and leave the remaining land for agriculture. To the south, the 317-acre Trout Meadows River Ranch subdivision permanently protects 160 acres of prime farmland from development. The adjacent 75-acre Blue Heron Estates subdivision, approved in February, protects 32 acres.

"It's good to walk out here because you can see what a huge chunk of property this is," says Jim Cusker, a retired farmer and farmland preservation advocate who serves on CFAC's Land Use and Agricultural Viability Committee.

As Cusker strides along the slough that bisects the two properties he points to the tall grass, an indication, he says, of how good the soil is here. And he looks into the trees edging the slough because this, he says, is "tremendously important bird habitat," and a couple days ago he saw his first robins and killdeer of the season.

Ron Ewart accompanies Cusker on the walk. They're a somewhat unlikely pair considering Ewart, of the Missoula-based civil engineering firm Eli & Associates, Inc., serves as a developer's representative. But they've been working together nearly six months, ever since Ewart submitted the second Blue Heron Estates subdivision proposal to the county.

The first proposal, submitted in 2008, represented what's considered the status quo subdivision pattern. Fifteen five-acre lots were spaced fairly evenly over these 75 acres. CFAC, which reviews subdivision applications and offers recommendations based on their impacts on agriculture, recommended denial of Blue Heron Estates early last year because the impacts were, as CFAC wrote, "significant and entirely unmitigated." Blue Heron sits on soil termed "prime if irrigated" by the U.S. Department of Agriculture's Natural Resource Conservation Service, meaning it's soil that constitutes less than two percent of Missoula County.

So Ewart, with the support of an amenable landowner, redesigned the plan, creating a 25-acre common area encompassing the slough to satisfy the Audobon Society, and enlarging one lot to protect about 13 acres of agricultural land to satisfy CFAC.

"But that still wasn't really enough, as far as CFAC was concerned," Ewart says. "And I agree with them."

Ewart, after consulting with Cusker and other CFAC members, came back with a third plan, this time shrinking most of the lots down to about 1.4 acres, leaving the common area, as well as keeping 32 acres—more than 40 percent of the land—protected for perpetuity as farmland.

"Frankly," Ewart explains, holding a large map of Blue Heron Estates as he walks alongside Cusker, "we did not want to get a denial, and it kind of looked like, based on some other subdivisions we worked on in the recent past, that had we not made the changes we would have at least gotten a recommendation of denial from OPG (Missoula County Office of Planning and Grants), and probably a denial from the commissioners. And once you get a denial you have to start over and start the process again."

The commissioners approved the third plan on Feb. 3, and it stands out as perhaps the best example yet of CFAC's influence on new development in Missoula.

"We could get up [at the commissioners' hearing] and say, 'This is a marvelous plan as far as CFAC is concerned,'" Cusker says. "Undoubtedly, the largest amount of ag land that could be protected under these circumstances was protected, and that's crucial."

Blue Heron Estates serves as an example of successful collaboration, but also as an anomaly. For every landowner or developer eager to preserve their land's agricultural character, dozens more believe preserving that character should be paid for by the entire community, not by down-sized or clustered developments. And as CFAC has come to influence the subdivison review process over the last two years, the community has struggled more than it's succeeded in answering the question CFAC, with every subdivision it reviews, poses: How do we mitigate for the loss of agricultural land?

"That's the big question...," says Ewart. "The tricky part about it is that there are really no hard and fast rules as far as how much land you need to set aside for agriculture."

This year, Missoula will start digging for an answer.

In early 2008, after City Council rejected a subdivision proposal for the first time because of its impacts on agriculture, CFAC was invited to the subdivision review table to help the city and county navigate this new ground. Since then, CFAC has provided comments and recommendations on about 25 subdivision applications, just as other local agencies do to evaluate impacts on public health and safety, wildlife, and so on.

CFAC's involvement, says Bob Wagner, American Farmland Trust's senior director for farmland protection programs, "represents a very growing trend around the country of communities that are really recognizing that in addition to the cultural heritage and open space values of farmland, that there is this real strong connection with local food and food security and economic development opportunities."

CFAC may be relatively new to the scene, but the laws it works within are not. The 1973 Montana Subdivision and Platting Act (and more recent local subdivision regulations and growth policies) require that local governments review a proposed subdivision's impacts on agricultural land. But the law is vague, and local decision makers have generally accepted the loss of prime soil.

"What's happened," says Neva Hassanein, CFAC board member and associate professor of Environmental Studies at the University of Montana, "is that for every single subdivision that's come in, any potential impacts to agriculture are written off as incremental. Literally, that's the word they use. It's an 'incremental loss.' And those incremental losses have added up."

To wit, since 1986 in Missoula County, according to Montana Department of Revenue data compiled by CFAC, almost 29,000 acres of farm and ranchlands have been converted from agriculture uses to non-agricultural uses, or 1,443 acres per year on average.

As the case of Blue Heron Estates illustrates, CFAC works to stem the tide. And the group's had mixed success. CFAC reports that in 2008 and 2009 all 13 of the subdivision proposals it recommended denying were ultimately approved, and for every six acres of exceptional farmland converted to residential uses, just one acre was left for agricultural production. Despite its few tangible results, the group has fostered a community-wide conversation about how best to preserve the little prime soil remaining in the valley.

"I think CFAC has clout," says Tim Worley of OPG, who's worked on Blue Heron Estates, "but I think there's also a general discussion in the community about agricultural land preservation that sort of heightens that clout. It's not in a vacuum. I think there's a groundswell of, 'Well, do we want to lose this very small percentage of prime farmland that we have left in the valley bottom?'...CFAC brings it to the fore and crystallizes the issues in a way that wasn't done before.

click to enlarge Jim Cusker, left, of the Community Food & Agriculture Coalition (CFAC), and Ron Ewart, a developer’s representative with Eli & Associates, Inc., collaborated to preserve 32 acres of farmland within the recently approved 75-acre Blue Heron Estates subdivision in the Grass Valley. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Jim Cusker, left, of the Community Food & Agriculture Coalition (CFAC), and Ron Ewart, a developer’s representative with Eli & Associates, Inc., collaborated to preserve 32 acres of farmland within the recently approved 75-acre Blue Heron Estates subdivision in the Grass Valley.

"We, too," Worley continues, "have felt that the provision in state law for addressing impacts to agriculture is something that was probably inadequately addressed for a long time, and through all kinds of different circumstances converging at once, we have now started to address that."

But CFAC's attempts to preserve agricultural land have also sparked controversy. With the subdivision review process lacking guidelines on what it means to mitigate for the loss of agricultural land, local decision makers have subjectively decided, from proposal to proposal, how much loss is acceptable.

Take the contentious 10-acre Chickasaw Place development in Missoula's Orchard Homes neighborhood. Per CFAC's recommendation, City Council last year told the landowner, George Lake, that he'd have to set aside three acres of agricultural land to mitigate for the loss of the other seven. Lake complied, but then, after hearing from neighbors who didn't like the higher density of homes the preservation of ag land required, the city amended the plan by moving the ag parcel and reconfiguring some lots. No one–including CFAC–was satisfied with the rearrangement. When the annexation came up for a vote last March, the council voted 7-5 in favor of the plan, one vote short of the super-majority needed to pass. Ward 2 Councilwoman Pam Walzer cast the decisive 'no' vote. "When do we say enough is enough?" Walzer told the Independent the next day. "I guess last night, I said, 'Enough.'"

But Walzer reconsidered and two weeks later reversed her vote, approving the subdivision. She says she realized that denying Chickasaw Place wouldn't actually save agricultural land, because the landowner could turn to the county, where there would be no guarantee that even three acres would be saved.

"The whole process of Chickasaw," Walzer says now, "really pointed out that we don't have a policy in place to figure out how to deal with that."

Another example involves the Red Dog subdivision in Frenchtown, which, when initially proposed, was considered the best test of how far the County Commission would go to preserve agricultural land. CFAC recommended denying the development of Buzz Alexander's 46-acre farm with an irrigation ditch and prime soils, and so did the Missoula County Planning Board. But early last year the commissioners voted 2-1 to approve it, deciding that the 11 acres Alexander planned to save was sufficient. Commissioner Michele Landquist, who cast the dissenting vote, told the Indy: "Once ag land is gone, it's gone. We have to recognize that in a really big way."

Commissioner Bill Carey, at the time an appointed CFAC member, told the Indy he voted "yes" in part because of legal ambiguities.

"Under state law," he said, "it's pretty difficult to deny a subdivision on preservation of agricultural land alone...What would the judge eventually say?"

The lack of clear guidelines has left decision makers tentative, and landowners and developers infuriated.

Roger Millar, director of OPG, says developers are warming up to the community's desire to preserve agricultural land.

"Initially," Millar says, "it was kind of a surprise: 'Where the heck did this come from?' But folks are learning to live with it, learning to actually incorporate it into what they're proposing, and make it something that adds value to their development, which I think is a real positive thing."

But members of the development community aren't quite as effusive. Even Ron Ewart, the developer's representative for Blue Heron Estates, sometimes questions the wisdom of asking a landowner to preserve part of his or her land for agriculture.

click to enlarge Missoulian George Lake planned for his 10 acres in the Orchard Homes area to become a subdivision called Chickasaw Place, but instead it’s become mired in controversy. City Council mandated that Lake set aside three acres to preserve prime soil, which he claims wiped out his profit margin. “It pushed the cost per lot up to where you can’t make it come out,” he says. Now he’s selling the land. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • Missoulian George Lake planned for his 10 acres in the Orchard Homes area to become a subdivision called Chickasaw Place, but instead it’s become mired in controversy. City Council mandated that Lake set aside three acres to preserve prime soil, which he claims wiped out his profit margin. “It pushed the cost per lot up to where you can’t make it come out,” he says. Now he’s selling the land.

"I don't know that it's appropriate for every situation," he says, "especially as you get closer into town. Let's say you're in the urban area. The urban area is where people should live, and I don't know that there's such a need to save ag right in town, let's say the Target Range or River Road area, or somewhere like that."

Generally, developers don't dispute the importance of agricultural land. They do, however, dispute who ought to pay for its preservation.

Some developers we spoke with declined to speak on the record about agricultural land preservation through the subdivision review process, deferring to a forthcoming report on the issue funded by the Missoula Organization of Realtors (MOR) and Missoula Building Industry Association (MBIA). But the developers presented an argument that goes something like this:

A landowner decides he wants to subdivide and develop his 10 acres in, say, the Orchard Homes area, where there's established infrastructure like roads, sewer and schools. The city tells him—like they told George Lake—that he must set aside 30 percent of the land because it holds prime soils, and somebody, someday, might farm on it. Who's paying to preserve the ag land? The landowner is. He's giving up land without compensation. That means new housing is subsidizing the preservation of agricultural land.

"If your concern is the effects on agriculture and losing agricultural land," says Andy Short of the Missoula-based firm Territorial Landworks, Inc., "that's an issue for the entire community, not for John Developer who wants to make eight lots in the Orchard Homes area."

Instead, Short and others argue that the community should spend open space bond money to buy conservation easements on the land, or vote on a new fund specifically for agricultural land.

Short refers to Chickasaw place as a perfect example. "That's City Council saying, 'That's what we want—we want to save farmland,'" he says. "But they're not using the open space bond money to purchase it. They're putting it on the back of the developer."

And doing so, Lake claims, is largely why the only thing standing on his 10 acres today is a "For Sale" sign.

"It pushed the cost per lot up to where you can't make it come out," he says.

"I'm all for farming," he adds. "I grew up on a ranch and spent most of my life chasing cows and working in spud fields and stuff...You can't take a little tiny acre and make it productive in the middle of town."

Deliberations over Chickasaw Place and other subdivision proposals have raised a number of legal questions. Zane Sullivan, an attorney with Missoula-based law firm Sullivan, Tabaracci & Rhoades, P.C., says a case can be made that requiring a landowner to set aside land for agriculture use constitutes a taking of personal property without just compensation.

"There's an argument that it may be," Sullivan says. "There's certainly an equal argument that it isn't. But until...a developer is prepared to fund litigation and see what the courts are going to do, it remains an unknown. And very few developers are willing to go through the multiyear litigation process to determine whether or not the city [and county] have the power to do what they're doing."

Another legal question centers on the Legislature's intent back in 1973, when it decided subdivision proposals in Montana must consider impacts to agriculture.

"What is it that the Legislature was thinking about when it used the term 'agriculture'?" Sullivan asks. "Was it thinking about hundreds of acres of grain crops being grown over by Great Falls? Or, to the contrary, was it thinking about a garden plot in Orchard Homes? That's where I think the developers' side versus the other side—whatever the other side may be—starts to encounter some problems. There's a lack of a definition."

CFAC takes issue with a couple of the development community's arguments. It says an acre of ground in the middle of town can be productive, and dozens of area farmers prove it. It also disputes the notion that developers shouldn't shoulder any responsibility in preserving prime soils. Because farms and ranches generate more in tax revenue than they require for government services, CFAC says residential development costs local governments—and therefore taxpayers—more than it costs to leave the land in agriculture.

More than that, though, Hassanein says the community should value soil in the same way that it values, for example, riparian areas, which developers have to plan around.

"Soil is also a really important resource," she says. "In fact, it's as important, in my view. So the idea that the public always has to pay doesn't sit well with me, when in fact it's the developers that profit from these subdivisions."

click to enlarge The Blue Heron Estates subdivision proposal evolved before the Missoula County Commissioners approved it in February. The  (CFAC) recommended denial of the first two proposals shown at top and middle, respectively. CFAC eventually supported the final plan, bottom, because it protected 32 acres of prime farm land.
  • The Blue Heron Estates subdivision proposal evolved before the Missoula County Commissioners approved it in February. The (CFAC) recommended denial of the first two proposals shown at top and middle, respectively. CFAC eventually supported the final plan, bottom, because it protected 32 acres of prime farm land.

Despite the differences in opinion on how best to save agricultural land, farmland preservation advocates and developers at least agree that the subdivision review process needs, above all else, defined standards.

"There's no larger comprehensive policy guiding the protection of farmland, and that has been a challenge for both CFAC as well as for developers and landowners," Hassanein says. "And I think we all respect the interests of landowners and the equity they have built in their lands. So if there is common ground it's that everyone wants predictability in the process, and fairness in the process."

OPG's Worley agrees, and says the answer clearly lies with tighter guidelines.

"We don't really have—and this is a general problem at the state level and at the local level, both county and city—clear regulations and statues to work with," he says.

By chance, now turns out to be the perfect time to address the problem. City Councilwoman Lyn Hellegaard, who describes the current process as "shooting in the dark," says the current economy offers an opportunity to seek guidelines.

"We're not seeing the development that we were seeing two or three years ago," Hellegaard says. "So it gives us time to do the work, to come up with good policies hopefully before it starts up again so that everybody knows what the expectations are."

To help inform the discussion, CFAC released a report on April 7 titled, "Losing Ground: The Future of Farms and Food in Missoula County," authored primarily by CFAC Land Use Program Coordinator Paul Hubbard. The report offers the most complete assessment Missoula has of the state of agriculture in the county, where the best soil is found, and the pace at which, and the pattern by which, the county's losing it.

Most importantly, the report details recommendations to answer the mitigation question. It recommends identifying "Agricultural Cornerstone Areas" that are priorities for farm and ranchland protection in the city and county; enacting "Agriculture Resource Standards" in local zoning ordinances and subdivision regulations; bringing to bear incentives to encourage and reward farmland conservation; assisting beginning farmers and ranchers in securing land and establishing viable operations; and expanding the capacity of Missoula's markets to source locally produced foods and assisting producers in accessing those markets.

"This idea of creating agricultural cornerstones," Hassanein says, "is to decide as a community, 'Where do we want to protect agricultural land? Where are the priorities?'"

The purpose of mitigation, she explains, is to minimize losses by permanently protecting lands of equal agricultural value. So, for instance, if a development proposal comes in and it's going to impact agricultural land, that impact might be mitigated by protecting land within a cornerstone area with a conservation easement. It might also be mitigated by protecting land on the site if the developer prefers that option. Or, in some cases, a developer might pay a fee into a fund that would eventually be used to purchase development rights, ideally in a cornerstone area.

CFAC's report will be soon followed by the MOR and MBIA-funded report, which, in response to the heightened agricultural awareness CFAC has cultivated over the past two years, aims to bring balance to the discussion. MOR spokeswoman Ruth Link says the report, expected by May, was commissioned last summer.

"If you're going to make a policy on something, if you're going to make a decision on something, have it be based in science," Link says. "It's not for or against. It's just, 'Let's make the decisions based on facts.'"

Adds Andy Short: "The commissioners and City Council are now making decisions based on a group that's pro-agriculture. And so what we wanted was a study that says, 'Hey, let's look at it from a balanced point of view.'"

The CFAC and MOR/MBIA reports will serve as the introductions to a broader community-wide discussion slated to begin, according to OPG Director Roger Millar, in the coming weeks.

"With the economy slowed and subdivision development not happening," Millar says, "it's a good time to have that conversation."

click to enlarge According to the U.S. Department of Agriculture’s Natural Resource Conservation Service, important agricultural soils in Missoula County account for just 7.8 percent of the land. Only 1.8 percent is considered “prime” and “prime if irrigated.” Much of the land has already been developed. - PHOTO BY CATHRINE L. WALTERS
  • Photo by Cathrine L. Walters
  • According to the U.S. Department of Agriculture’s Natural Resource Conservation Service, important agricultural soils in Missoula County account for just 7.8 percent of the land. Only 1.8 percent is considered “prime” and “prime if irrigated.” Much of the land has already been developed.

If consensus is to be found between farmland preservation advocates and the development community, it might grow from the collaboration achieved over Blue Heron Estates.

Perhaps the most salient lesson to be drawn from Blue Heron Estates, says OPG's Worley, is that the more developers can be flexible, the better the chances of a positive result.

"If you dig your heels in and say, 'This is exactly the outcome I want and I'm not taking no for an answer,' that always leads to difficulties for everybody," he says, "and nobody's happy at the end."

Blue Heron Estates also serves as a microcosm of the agricultural cornerstone areas farmland preservation advocates hope to establish.

"The Blue Heron piece is right next to the Trout Meadows piece," Hassanein says, "and so you're going to end up with this contiguous agricultural area. Well, on a larger scale, that's what we need to do. We need to identify the areas we want to protect as a community. And then we need to figure out how to really target protection into those areas through a mitigation process so the incremental losses aren't just adding up."

It's a long row to hoe, but unlikely collaborators Jim Cusker and Ron Ewart make it seem less daunting. As their recent walk reaches the end of the Blue Heron Estates property, where the slough passes beneath a culvert, Ewart says he's spotted otters here. Cusker raises his hand to shield the sun from his eyes, and looks back to the dirt parking lot at the end of Lavoie Lane.

"From about here all the way over, see," he says, pointing back toward the road, "that's the ag lot, and that's a sizable acreage. When you're farming it's nice to have this length. It's not chopped up much. It's really a beautiful agricultural acreage...and it's going to stay that way."

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