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With 'townhome exemption' upheld, Hillview Crossing development proceeds

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A judge's recent ruling paves the way for a large residential development in Missoula's South Hills to proceed over objections from a local housing nonprofit.

With 68 units planned for construction off Hillview Way, Hillview Crossing was the largest housing development in Missoula to utilize a controversial shortcut known as the "townhome exemption" when it was approved by city officials in 2015. The state law, enacted in 2011, has garnered critics who see it as unfairly skirting important subdivision requirements regarding density, sidewalks, trail connections and more.

Projects declared under the townhome exemption also bypass public notice and hearing processes, and it's that component of the shortcut that formed the basis for the legal challenge filed last March by the Human Resource Council. The HRC owns a small parcel next to the undeveloped Hillview Crossing land, and claimed its property would be rendered inaccessible by the development. The group argued that the state exemption undercuts HRC's constitutional right to participate in the permitting process. HRC sued the developers and the city of Missoula to halt the project.

Missoula District Court Judge John Larson disagreed in a Jan. 30 ruling, finding against the HRC on all counts. The nonprofit's case was built on the premise that an earlier subdivision planned for the site by a different owner had included access to the HRC land, while the more densely packed Hillview Crossing plan does not. Larson ruled that because the earlier plan was only preliminary (and never recorded), the HRC does not have a valid property interest with respect to Hillview's development.

"Obviously, we're disappointed with the decision," says HRC attorney Mike O'Brien. "We have not foreclosed the idea that we might appeal."

Before an appeal could take place, Larson must first address Hillview's counterclaim that the HRC lawsuit constituted an abuse of process.

The developers were not forbidden from commencing construction during the 11-month litigation, but they nonetheless appear to have waited for the lawsuit to be resolved. Neither Dan Ermatinger, a local real estate agent and one of the development's owners, nor Hillview's attorney returned calls for comment.

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