Digging in 

County seeks ways to save farmland

Architect Don MacArthur has served on the Missoula Planning Board for more than a decade. State law requires that governing bodies such as MacArthur's consider impacts to agriculture. Yet the losses are generally written off, MacArthur says—and they're adding up. Several years ago, he was reviewing yet another subdivision proposal that contributed to the creeping loss of farmland, he recalls, when he finally asked himself, "How much is enough?"

That question has been hotly debated over the last few years, but Missoula still doesn't have an answer, as evidenced by the recent debate over Alexandra Estates, which will sit on 116 acres of high-quality agricultural soil between Missoula and Lolo. Last week, the Board of County Commissioners voted unanimously to approve the subdivision, three weeks after MacArthur and the rest of the planning board had unanimously recommended denial, largely because the proposal's 23 five-acre lots would carve up fertile acres. Such high-quality loam is found on just two percent of county land.

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"I think [planning board members] were going more on the fear of the loss of the farmland," says Commissioner Jean Curtiss, "and we just felt like we hadn't put in place enough guidance and policy to justify more mitigation."

Now, in the wake of Alexandra Estates, Curtiss and her fellow commissioners say they're finally committed to doing exactly that: amending the county growth policy to include regulations to stem the loss of farmland.

The move is welcomed by both farmland preservation advocates, who passionately opposed Alexandra Estates, and the development community, which has aggressively pushed back against agricultural impacts as a decisive subdivision review criterion, to the point of attempting a fruitless legislative end-around earlier in the year. If the two camps can agree on anything, it's the need for predictability.

On Monday, the commissioners stated in a letter that the Alexandra Estates debate brings "an opportunity to talk about the relationship between agricultural land and future development in Missoula County.

"We have long been concerned about the ongoing loss of agricultural land in Missoula County," they wrote. "That loss adversely affects agricultural operations, including food production, as well as county residents' rural way of life. However, we are also cautious in our approach to considering potential methods for mitigation of agricultural land because many agricultural operators have their savings and livelihood invested in those lands."

Months ago, the commissioners asked the Missoula County Open Lands Citizen Advisory Committee to figure out what a mitigation policy might look like. The committee's starting point was to review two recent reports, one written by the Community Food and Agriculture Coalition, a quasi-governmental group charged with developing a county food policy, and another by the Missoula Organization of Realtors and Missoula Building Industries Association.

The reports are hardly reconcilable. CFAC, in Losing Ground, recommended several mitigation strategies, including identifying areas that are priorities for farm and ranchland protection and implementing farmland conservation incentives. The MOR and MBIA, in A Place to Grow, flatly rebuked CFAC. It said that the state's subdivision laws were never intended to interfere with development, and that using the subdivision review process to force a landowner to protect farmland infringes on private property rights. "There is certainly no doubt that requiring that land may either be farmed or left fallow and nothing else is un-American and, most likely, unconstitutional," wrote local attorney Bill VanCanagan.

Still, the Open Lands Committee has looked at how other growing communities have protected ag land and is nearly finished compiling guidelines and principles to offset agricultural impacts. A central component is a mitigation ratio. "The overlying principle is that for every acre that's developed, at least one acre must be preserved," whether on-site or off-site, says Jim Cusker, a Grass Valley farmer who serves on the Open Lands Committee and CFAC's board of directors.

The committee is also drafting conservation incentives. It will give the commissioners final versions of both documents later this winter.

"I do feel—even though I was disheartened by the commissioners' decision [on Alexandra Estates]—a strong commitment on their part for wanting to have these principles and standards in place so that they have something concrete on which they can evaluate subdivisions and their possible impacts on agricultural land," Cusker says.

The question is whether the commissioners can come up with meaningful standards that developers will support. "Any proposed regulations should not impact the value of the land or its highest and best use," says Amy Fisher of the Missoula Organization of Realtors.

The commissioners also have asked the University of Montana School of Law's Land Use Clinic for legal guidance on how the county can protect agricultural lands while also respecting private property rights. Its report is forthcoming.

Land Use Clinic director Michelle Bryan Mudd has already conducted a legal review on the topic. That report, Defining and Protecting Agriculture in Montana Subdivision Review, released in June, concludes that "Montana local governments are both required and empowered by state law to mitigate impacts to agriculture during subdivision review." It suggests that, even though the county's specific mitigation policies aren't in place yet, the commissioners could have rejected Alexandra Estates and withstood a legal challenge.

MacArthur, among others, says he wishes they would have, instead of operating as usual and "waving people through" until a policy's in place.

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