Neighbors' fragile win

Sonata Park plaintiffs wonder what's next



Deer graze in the valley below Kathy and John Heffernan's Upper Rattlesnake home. Horses meander in a neighbor's yard. The couple lives in one of the few Missoula neighborhoods that retains a rural feel. After investing more than three years and thousands of dollars in attorney fees to stop a subdivision from being built next door to their pastoral property, the Heffernans aim to keep it that way. "You're kind of putting yourself, your reputation, and your money at risk," Kathy says.

The couple mobilized in 2007 to stop developer Muth-Hillberry from building 37 homes on 34 acres next to their un-zoned property just off Duncan Drive near the North Hills. Upper Rattlesnake residents voiced concern about the project's effect on wildlife habitat, water quality, and traffic congestion. Plus, residents told the Missoula City Council as it deliberated approving the subdivision, locals had already charted their vision for growth. In fact, they'd spelled it out in a neighborhood plan crafted more than a decade before.

The Rattlesnake Valley Comprehensive Plan is like a handful of others across the city that reflect grassroots efforts to shape growth. The Rattlesnake plan specifically stipulates that the area slated to become the Sonata Park subdivision accommodate no more than one home per five-acre parcel. That's a far cry from the 1.1-acre-per-home development Missoula's City Council approved for the area in 2007 by a vote of 10 to 2.

The approval prompted the Heffernans to join Dave Harmon, Robin Carey, and the North Duncan Drive Neighborhood Association in a lawsuit to stop the subdivision, arguing that the council blatantly disregarded their growth plan. They garnered a significant victory this month when the Montana Supreme Court found that the council erred in giving Muth-Hillberry permission to go ahead. "It is a resounding decision," Kathy says.

The weight city officials must place on neighborhood plans like that crafted by Rattlesnake residents was at the center of the legal dispute. Arguing for the city, Missoula Attorney Jim Nugent pointed to a law passed in 2003 by the state legislature. He interpreted it to mean that neighborhood plans are advisory only—that, in essence, they don't have any teeth.

Kathy Heffernan is fighting to keep the Upper Rattlesnake rural. - PHOTO BY CHAD HARDER

The Montana Supreme Court found otherwise. A panel of five judges unanimously agreed that the city didn't give enough credence to the community plan. Governing bodies must "substantially comply" with bottom-up blueprints for growth like that crafted by the local residents, the court said.

The decision faulted the city council and planning board members for disregarding the Rattlesnake plan. "Indeed, many of the city officials involved in approving Muth-Hillberry's application were openly contemptuous of the plan," the decision states. "Some second-guessed its goals and recommendations, others downplayed its relevance, and one bluntly characterized growth policies in general as a 'waste of time.'"

"It's good that the court system is there for the little guy," says Carey, the president of the North Duncan Drive Neighborhood Association.

The victory could be short lived, however. Nugent and the city are now considering the Supreme Court's decision. If the courts intend to treat neighborhood plans as more than advisory documents, the city might have to tweak those plans, Nugent says. "There are several instances where the [Rattlesnake Valley] growth policy needs to be revisited," he says. "It's impossible to come to grips with." For instance, he points out that when neighbors oppose zoning regulations, the city council must muster a supermajority of eight votes to make a regulation law despite opposition. Neighborhood plans, on the other hand, require a simple majority of six votes to be incorporated in planning documents.

"There's a growing disconnect between growth policies and zoning," Nugent says. "As long as that disconnect exists, there are going to be problems with this."

Nugent is also taken aback by the court's emphasis on city viewsheds in its Sonata Park findings. Judges cited the growth plan's directive to protect views as further evidence that Sonata Park doesn't fit in with the character of the Upper Rattlesnake neighborhood. That finding alone, Nugent says, sets Missoula officials up for a whole new round of lawsuits. "If we don't let them use their land, it's a taking. We can't prevent people from using their own private land."

Muth-Hillberry attorney Don Snavely agrees. He also points to the court's finding that the Sonata Park development could disrupt areas frequented by wildlife. From where he sits that puts an awful lot of land off limits. "Where the hell are we supposed to build?" he asks. "Where do you go? In the middle of the street?"

Snavely says growth plans are inherently flawed: "There's a bunch of neighbors that get together and tell a bunch of other neighbors what to do with their property.

Snavely says his client is debating whether to ask the city council to amend the Upper Rattlesnake growth plan. If Muth-Hillberry persuades the council to change the policy, it could still make the development fly.

The Heffernans say they're troubled as they watch the city and developers try to skirt the citizens' will. "To me, this seems more about finding a way around the Supreme Court decision than creating a balanced process for considering all viewpoints," Kathy says.

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