Though a long-awaited court ruling on Missoula’s controversial infill rules may be in, the issue isn’t going anywhere. District Judge Jeffrey Langton ruled in early October that City Council correctly denied a request from Brad and Adina Roe to redraw the boundary lines of their two Evans Avenue lots so they could build a second house behind it. Langton’s summary judgement decision, which City Attorney Jim Nugent says runs counter to about 20 years of how the city’s handled such requests, addressed just one of the case issues—whether Council had followed its own rules. Attorney Tom Orr, who represented the Roes along with the seven comparable suits that were lumped into one, says an appeal is likely in the works.
“All of these plaintiffs purchased land with reliance upon what the city was telling them the rules were,” he says.
Nugent, who didn’t represent the city in the matter (Council hired Polson attorney Doug Wold because Nugent said he couldn’t defend the city’s position), says the history and evolution of boundary line adjustments and subdivision regulations help explain why a practice so controversial today was so common in the past.
When state subdivision regulations were created in 1973, he says, there were massive loopholes—for instance, every 12 months a landowner could divide a property once without going through the city’s review process. A 1993 regulations overhaul closed many such loopholes, but the city has allowed the boundary line adjustments that Langton ruled against for much of Nugent’s 30-year career with the city. As long as the owner wasn’t creating additional lots in their redesign, approval was granted.
Since the Roe case, Council changed the rules for boundary line adjustments, and controversies like the Rowe’s 636 Evans suit aren’t stewing, Nugent says. That doesn’t mean all infill controversies are dead: A separate Roe case about the same property made progress Oct. 17, Orr says. The second case concerns the city’s denial of their June request to demolish—“scrape”—the existing house and build two new ones in its place. Following their attempt, Council passed an “anti-scraping” ordinance to officially outlaw the approach, but the infill debate isn’t as easily banned.