Zoning-law interpretation not an exact science


zoningboardIn the world of county zoning laws, not everything is black and white.

Flathead County’s zoning regulations are laid out in a 233-page document that covers a wide breadth about what property owners can and can’t do with their land — if their property is zoned, that is.

Many tracts of land throughout the county are unzoned, with even less regulatory oversight.

There are plenty of times when an interpretation of zoning regulations is needed, though, and that’s when Planning Director BJ Grieve wears his other hat, so to speak, as zoning administrator for the county. Ultimately he’s the one who sorts out those scenarios in which one neighbor is sure another neighbor is doing something that’s believed to be a zoning violation.

Sometimes zoning laws are being broken; other times they’re not.

“I take a lot of lashings from white-hot neighbors if there’s no evidence of a zoning violation,” Grieve said.

The Planning Office routinely investigates complaints of possible zoning violations, but often there’s no evidence of a violation even if a resident’s use of his property is negatively impacting neighbors. Keep in mind, Grieve noted, that Flathead County has no noise ordinance that governs things such as chain saws buzzing loudly in the early morning hours or car engines revving at all hours.

“This is not lost on me,” he said. “I get that there are things people do on their property that neighbors can hear and even feel, but you can only do so much with zoning.”

Take the car engines revving, for example.

Someone may be convinced that his neighbor is illegally operating an auto repair business and wants the county to issue a zoning violation. If a formal complaint is made, the Planning Office’s enforcement officer investigates to determine if there’s any evidence — advertising, signs or other tangible signs — of a commercial business operating in a zone that doesn’t allow auto repair shops.

“We investigate and what we find is a guy who likes to work on cars,” Grieve said.

“Our enforcement is better than it’s ever been. If I have evidence, I will pursue it,” he added. “If we have something where a 50-50 interpretation is needed, I have to interpret [the county zoning regulations]. In those situations I err on the side of conservative interpretation … A more liberal interpretation of the responsibility of the zoning administrator is to protect the general welfare of the neighborhood. I draw a distinction between the ways and things people do on their property. Some constitute land use; some do not.”

Grieve said the Planning Office strives to give property owners the benefit of the doubt in cases of alleged zoning violations. The department’s compliance officer works part time and not on weekends.

“If it’s a Saturday and Sunday we will ask the complainant to supply evidence,” Grieve said. “We don’t do stakeouts or send in a SWAT team to shut people down. I think sometimes the public has an expectation that law enforcement is instant, as if it were a violent crime.

“Land-use violations are very different,” he said. “There are a lot of rules and regulations out there that aren’t instantly enforced.”

A good case in point about the nuances of county zoning laws is the Ten Arrows Ranch near Bigfork.

A commercial wedding facility operated by ranch owners Bill and Alana Myers was shut down last fall amid complaints from numerous neighbors because their property isn’t zoned to hold weddings.

In this case there was plenty of tangible evidence on the Ten Arrows Ranch’s website that clearly showed the owners were being paid for their wedding services.

The Myerses intended to get approval to operate a high-impact recreation facility and accessory caretaker’s residence to allow them to continue staging weddings at the ranch. However, they pulled their permit application in November.

The neighborhood opposition, along with costly improvements to make their property meet state regulations regarding building and environmental-health issues for commercial event venues, prompted them to withdraw the application, according to Grieve.

However, the Myerses are allowed to keep hosting weddings at their ranch for family members and friends if they don’t charge money for their services. In other words, if money changes hands it’s a commercial facility that violates the zoning for that property. If the Myerses simply host a wedding on their property, it’s essentially a party.

“A party is not a use” in zoning terms, Grieve said. “It’s just something that occurs on the property.”

That interpretation doesn’t sit well with the neighbors around Ten Arrows Ranch who feel that weddings for family and friends potentially could produce the same level of noise and disruption as when the facility was deemed a commercial use.

Kalispell attorney Ken Kalvig, who represents one of the Ten Arrows neighbors, told the Planning Board recently that his client is skeptical and doesn’t “feel quite right” with the owners’ promise that they’ll only hold weddings for family and friends without getting paid for their wedding services.

“If the same type of activity is going on — loud music, drinking, intoxicated people, trespassing, firecrackers — is all of that now OK because money is not changing hands?” Kalvig asked. “The response I heard was yes, and that didn’t make sense to me … the whole idea of friends and family is problematic. How do you define friends?”

Kalvig said he questions Grieve’s interpretation of the zoning regulations and believes boiling the matter down to commercial use versus private use “is a test that’s too narrow, that other legal factors need to be taken into consideration.”

The challenge of interpreting zoning laws is a broad issue; weddings are just one example, Grieve said.

Shooting ranges also have caused neighborhood strife, but even though the sounds of guns firing may be deafening, if the zoning allows shooting ranges — or if the land is unzoned — there’s nothing the Planning Office can do.

“If I have five people shooting in my backyard and they’re friends of mine who have come over to shoot,” it’s different than charging those friends a fee to shoot, he explained. The noise and traffic are there with both scenarios, but “one is a bunch of buddies; the other is a commercial use.”

Property owners cited for zoning violations can appeal the zoning administrator’s decision to the Flathead County Board of Adjustment.

ONE zoning case that ended up before the Board of Adjustment was the Dairyland MX motocross facility in the West Valley area.

About three years ago neighbors began complaining about the noise disturbance, so the Planning Office began investigating whether the track was a zoning violation.

The track initially straddled two zoning districts — the West Valley district that doesn’t allow commercial motocross tracks and the agriculture-80 overlay in the Westside Zoning District where such a facility may be allowable as a low-impact recreation facility if it meets certain criteria and has a conditional-use permit from the Board of Adjustment.

After property owner Cindy Marvin and her sons who use the track, Tanner and Cade, changed the configuration so the track is now located in the ag-80 zone, the Board of Adjustment approved an administrative conditional-use permit in June 2012 for a one-day temporary use for racing, with conditions stipulated for dust control, portable toilets and potable water onsite.

That permit was required each time the Marvins planned to host a race event. In June 2013, however, the operators began advertising online for a day of racing for which there was a $10-per-person entry fee. A local TV station also publicized the race.

Once again, the dilemma was the difference between a commercial motocross track and a track for personal use. Since the Marvins had not obtained the required permit and there was clear evidence of commercial use, Tanner and Cade Marvin were cited for a zoning violation and charged with misdemeanor offenses.

Tanner Marvin was convicted and fined; Cade’s case still is pending.

Cindy Marvin said she hopes the zoning eventually will be changed to accommodate a commercial motocross track.

“I think it’s a good facility and I think it’s stupid when they prevent people from making money on their land,” she said. “It would be better to organize and run it as a business.”

Neighbors have been unhappy about the motocross noise from the get-go. The West Valley Pines Homeowners Association in 2011 filed for an appeal of Grieve’s interpretation of zoning regulations. The Board of Adjustment denied the appeal and ruled the zoning administrator did not err in his interpretation of zoning regulations.

“I lose a lot of skin off my back about what I should be doing,” Grieve said. “I make the choice to not do things unless there’s evidence … The county growth policy says over and over, you will respect personal property rights. I have to balance [the interpretation of zoning regulations] with respect for everyone’s personal property rights.”

Citing a section of the zoning regulations that calls for Grieve to refer to the Planning Board for questions about interpreting zoning laws, he asked board members last month for feedback.

The board’s consensus aligned with Grieve’s assertion that physical evidence of a zoning violation must be clear before a citation is issued. One board member told Grieve to “keep doing what you’re doing.”

By LYNNETTE HINTZE/The Daily Inter Lake


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