Plum position 

Seeley plan vulnerable to timber company protest

In the Seeley Lake Elementary School gym on Feb. 4, a few dozen people came to the podium and told the Missoula County Commissioners what they think about the proposed Seeley Lake Regional Plan. But one voice resonated more than all the others, and it belonged to Kathleen Sims, the director of real estate law for Plum Creek Timber Co., who said her company—the largest private landowner in the planning region (and, in fact, the country)—cannot support the plan as written.

"It is your hard job," Sims told the commissioners, "to figure out a compromise between the legitimate interests of landowners and the economic benefits of reasonable development on the one hand, and against the fierce desires by some residents to see no change at all in the valley. The draft that you have before you does not create that balance."

Sims argued for the plan to include, in part, higher zoning densities on Plum Creek land, ostensibly so it can build more houses around Placid Lake. And there's reason to believe the company can get what it wants. Montana law allows landowners owning 50 percent or more of private lands in a planning area to protest—or essentially veto—a zoning proposal, meaning county commissioners can't adopt the proposal nor entertain another proposal for a year.

click to enlarge Plum Creek Timber Co. owns the lands colored solid pink, more than half of the private land in the Seeley Lake Planning Region. The company’s ownership ensures veto power over any zoning in the area.
  • Plum Creek Timber Co. owns the lands colored solid pink, more than half of the private land in the Seeley Lake Planning Region. The company’s ownership ensures veto power over any zoning in the area.

(The Seeley Lake Regional Plan, more than three years in the making, wouldn't implement zoning, but it is a prerequisite for, and sets the limits for, future zoning.)

Plum Creek owns about 35 percent, or about 83,000 acres, of the 235,535-acre planning region, located mostly within the Clearwater River watershed. It owns about 52 percent of the private land. Before selling more than 300,000 acres across western Montana to The Nature Conservancy and The Trust for Public Land as part of the Montana Legacy Project, Plum Creek owned about 79 percent of the private land in the Seeley Lake planning area. The company appears to have carefully calculated how many acres to sell in order to maintain its veto power in planning discussions.

Plum Creek cares about planning and zoning because its business model has shifted in recent years. As the housing market crash has pushed down demand for lumber, the company has found its land to be more valuable as real estate. In this case, Plum Creek seeks to develop on the rolling hills around Placid Lake, and it's lobbying for higher and more flexible land use densities to accommodate its development goals.

"We worked with [Plum Creek] and got virtually unanimous support for the first six chapters of the plan," says Jon Haufler, chairman of the Seeley Lake Community Council. "We just did not come to complete agreement on Chapter 7, which, of course, is the most important one—addressing land use densities."

That discrepancy proved evident two weeks ago. Sims outlined Plum Creek's proposed changes to the plan. In the four "Resource Protection" zones, in which Plum Creek owns 86 percent of the land, Sims called for higher densities across the board. For the lands where the proposed dwelling-unit-to-acre ratio is 1:640, Sims requested 1:160. Where it's 1:160, she requested 1:80. Where it's 1:80, she requested 1:40. And where it's 1:40, she requested 1:20.

In an interview with the Independent, Sims insisted that her company's case for higher zoning densities does not necessarily mean it aims to build as many homes as the plan would allow.

"I have to completely disagree with that underlying assumption," she said. "I think the possibility for increased density allows for flexibility." She added that the subdivision review process will ultimately decide where development is or is not appropriate.

Others at the meeting, though, argued that if Plum Creek gets what it wants, Placid Lake would effectively be "sacrificed."

"I think most of us around the lake would prefer that that not happen," Jim Moose, a Placid Lake landowner and California-based land-use planning attorney, told the commissioners. "And it may be for selfish reasons, but by sheer coincidence, even if we are selfish, we're living where our backyard is one of the most magnificent and ecologically sensitive landscapes in the nation. And even if you think we have impure motives, I would ask you, especially, to look beyond that and look at the actual value of the area, and try to preserve it."

Moose, who describes himself as a pro bono attorney representing Placid Lake, believes Plum Creek is using its veto authority to strong-arm the planning process.

"Everyone I've ever talked to," Moose says, "has had the understanding that the threat is on the table and therefore you have to come up with a plan that they're okay with. Otherwise, they'll veto the zoning and you'll have no planning and it will be a big free-for-all and there's no regulation at all."

Moose also maintains that state law doesn't guarantee Plum Creek the right to use its lands for residential uses. And he makes the case that the protest provision is unconstitutional, and therefore the county should ignore it and let any dispute be settled in court.

"Not only are these provisions grossly unfair and undemocratic," he wrote in a letter to the commissioners in January, "they are unconstitutional because they represent a wholesale grant of legislative power to a private enterprise in a manner that is unchecked by standards or appeal procedures."

During the 2009 Legislature, Missoula Rep. Michele Reinhart, with the Seeley Lake Regional Plan in mind, introduced a bill allowing county commissioners to schedule an election following the protest of a zoning regulation. After a hearing during which an attorney for Plum Creek argued against the bill, it was tabled in committee.

Sims says Plum Creek has never used its protest authority, and hasn't discussed whether or not it would if the commissioners fail to arrive at a consensus.

"If we were going to take the attitude that it's our way or the highway," she says, "we would not have spent three-and-a-half years trying to come up with a community consensus plan."

The commissioners scheduled the second hearing on the Seeley Lake Regional Plan for Feb. 24 at 6 p.m. at the Missoula County Courthouse, Room 201.

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