In the weeds 

Developers make legal case against ag land preservation

Missoula real estate agents and developers last week acknowledged the community's desire to protect the valley's remaining agricultural land, but said doing so through the subdivision review process—as the city and county have done the past few years—"is un-American and, most likely, unconstitutional."

The Missoula Organization of Realtors (MOR) and Missoula Building Industries Association (MBIA) presented its long-awaited report on agriculture in Missoula, titled "A Place to Grow: An Informed Discussion on Agriculture & Land Use in Western Montana," at the Holiday Inn-Downtown on July 23. The 50-page document includes an analysis of the major factors affecting agricultural production in greater Missoula and how these factors might change in the next 20 years. It also makes the legal case, quite bluntly, that zoning should guide the protection of agricultural lands, not subdivision review.

The report continues the conversation of rapid development and diminishing soils begun by the Missoula Community Food and Agriculture Coalition (CFAC). In April, CFAC released its own report, titled "Losing Ground: The Future of Farms and Food in Missoula County," which recommends ways to mitigate the loss of agricultural land. CFAC stressed soil termed "primeif irrigated" by the U.S. Department of Agriculture's Natural Resource Conservation Service constitutes less than 2 percent of Missoula County.

In response, MOR and MBIA hired agricultural economist Elon Gilbert to study local food needs. Gilbert said at the press conference the valley does not have enough agricultural land to support a diet rich in meat, but it has more than enough to support a vegetarian diet. He concluded, "Local food self-sufficiency is not a goal we should pursue, unless it is literally forced upon us."

"Missoula has a comparative advantage vis-à-vis other areas in fly-fishing, particular types of recreation and lifestyles," Gilbert said. "It does not have a comparative advantage in most types of agricultural production, in part due to the same factors in climate and topography that make this area a desirable destination for sportsmen and retirees."

click to enlarge The Missoula Organization of Realtors and Missoula Building Industries Association released a report last week on the debate over development and the preservation of agricultural lands. To download the report go to - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • The Missoula Organization of Realtors and Missoula Building Industries Association released a report last week on the debate over development and the preservation of agricultural lands. To download the report go to

While Gilbert's assessment largely compliments CFAC's earlier findings, the report's legal analysis sharply questions CFAC's approach. Since early 2008 CFAC has reviewed city and county subdivision applications and offered recommendations based on their impacts to agriculture. Its influence is based on the Montana Subdivision and Platting Act (MSPA), which states governing bodies need to consider a subdivision's "effects on agriculture." What that means, exactly, is a point of contention. The Missoula City Council and Missoula Board of County Commissioners have—to the dismay of developers—used the law's language to justify rejecting or reshaping subdivision proposals to preserve agricultural land.

Local attorney Bill VanCanagan, hired by MOR and MBIA to conduct the legal analysis, made the case last week the MSPA was never intended to interfere with development, and zoning is the appropriate tool to guide the preservation of agricultural land.

"The Montana Subdivision and Platting Act has always been designed to look at the specific locations of houses and improvements on a property rather than community-wide or global concerns such as open space preservation or food security," VanCanagan said. "Those sorts of issues are left to zoning and there's much case law nationwide that confirms that point."

Furthermore, VanCanagan said forcing a landowner to preserve land for agriculture constitutes a taking of private land and requires just compensation.

"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," he wrote.

Paul Hubbard, co-author of CFAC's report, says nothing is more American than working farms and ranches.

"Montana state law could not be more clear that subdivisions have to go through a public process to make sure one person's individual rights don't trample another person's individual rights, nor trample the community's interest," Hubbard says. "That's the whole point of subdivision review."

City Councilman Jason Wiener says both the city and county would be on firmer legal footing if they adopted regulations that spelled out expectations for impacts to agricultural resources rather than employing the existing "ad hoc" approach.

"Of course, MSPA also directs attention to impacts on natural resources like water and wildlife—grounds on which denials of subdivision in Missoula County have been upheld by courts—so [VanCanagan's] relying on his interpretation of the legislative history to say what goes for water and wildlife doesn't go for agricultural soil...In either case, clear guidelines would provide predictability for developers and governing bodies. So, adopting them is the right thing to do whether Mr. VanCanagan's interpretation is correct or not."

The CFAC and MOR/MBIA reports effectively serve as the introductions to a broader community-wide discussion involving the City Council and County Commission on how best to preserve agricultural land in the Missoula Valley. The common ground among all involved appears to be the desire for, at the very least, some predictability.

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