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.

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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."

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