Lawsuit filed over permit; stop work order follows

Don Murray, attorney for the Community Association for North Shore Preservation, filed the suit Tuesday in Flathead County District Court against Flathead County for what he said was the county’s unlawful issuance of a permit for Roger Sortino and Jolene Dugan to build a bridge from their property on the north shore of Flathead Lake out to their private island.

Earlier this week, work had resumed on the bridge, as construction crews began removing the original bridge pilings that were put in last spring.

Flathead County commissioners on Jan. 25 issued a fourth permit extension to Jolene Dugan and Roger Sortino to build a 481-foot bridge from their property on the north shore of Flathead Lake to their private island, known as Dockstader Island. The permit extension is valid until June 1.

“The county issued the permit extension without so much as a courtesy call to us,” Murray said. “The county knew full well of the public’s interest in this issue but failed to notify the public of this permit extension. That’s unacceptable.”

About 85 people protested the permit extension Sunday near Dugan’s and Sortino’s property on Holt Drive in Bigfork.

Murray, along with conservation organization director Dave Hadden, addressed Flathead County commission Tuesday morning, and advised the commissioners they were filing the lawsuit after the meeting. Then, Hadden said, he and Murray visisted with Flathead County Planning director B.J. Grieve to alert him to what Hadden said was improper excavation work being done on Dockstader Island. “It looked as though the contractor had altered the shoreline in order to meet the bridge,” Hadden said Tuesday night. Hadden said Grieve sent an inspector out to the island to verify Hadden’s claims, and soon after a stop-work order was placed at the site, prohibiting any further work. 

Hadden, though, said he was not sure what the stop-work order was for. “I suspect it’s about the movement and disturbance of ground on the lakeshore,” he said. 

Hadden said he and Murray were not exactly welcomed with open arms when they told the commisioners and Grieve about the impending lawsuit. “We tried to put a good community spirit on it, but no one was very happy,” he said. “We told them we were going to do this. We gave them ample warning.”

According to Montana’s Lakeshore Protection Act, the county has enforcement jurisdiction over work performed in what is called the lakeshore protection zone — areas within 20 horizontal feet of high water marks. Under the terms of the act, the county may issue a permit without public review of a project that is deemed minimal or insignificant. Murray contends in his legal complaint that a 481-foot bridge is neither minimal nor insignificant. 

“We regret to have to file this complaint,” Murray said Monday. “This lawsuit could have been avoided, had the county acted according to the law and regulations. Lakeshore regulations clearly state that roads and driveways are not permitted in the lakeshore protection zone. The permit allows this road bridge to cross the lakeshore protection zone not just once, but twice.”

Construction crews for Dugan and Sortino last week began removing the bridge pilings that were part of his original permit. But B.J. Grieve, Flathead County planning office director, said Sortino plans to reinstall the bridge pilings in the proper location. Construction workers began taking out the original bridge structure on Feb. 11 and had installed bridge pilings along the new route as of Saturday. 

Grieve said the recently begun work in Flathead Lake’s exposed north shore is not a violation of the original permit.

“Removing and relocating the offending pilings is simply enforcement of the permit as approved,” Grieve said. “We don’t require another permit while enforcing an approved permit, we simply require that the violating structure be altered or removed and the site plan and conditions of approval of the original permit be met. The offending work that was performed outside of the terms of the permit then needs to be fixed to restore the lakebed to the condition before it was disturbed, per Section 2.2 of the Lakeshore Regulations.

“We’ll check this when we perform our standard permit inspections.”

Sortino and Dugan received a permit from the county to build the bridge in 2011. Construction started in March 2014. Soon after work started, the county filed a stop-work order on the bridge because the county found the bridge was being built about 100 feet longer than its permitted 481 feet.

Grieve said the work being performed in the lake bed still falls under the original permit. “The original permit was to place a number of pilings in a particular location to support an access bridge of a particular shape,” Grieve said. “Since that location wasn’t where they were placed the first time, he’s required to remove the offending pilings, restore that area of the lake to its pre-disturbed condition, and comply with the permit as approved.”

Dugan has received four permit extensions for the bridge project without public input, conservation organization director Dave Hadden said.

“It’s a bit discouraging when the county doesn’t have the courtesy to inform the group of citizens most concerned about this bridge of an impending decision to extend the permit,” Jeffrey Funk, vice-chair of the conservation organization, said.

Access to the bridge has become another issue for opponents of the bridge, since roads are not permitted in floodplains. Grieve said driving a vehicle across private property is not a violation of any laws, “but if he brings in fill he will need a floodplain permit for the portion of his property that is floodplain, and if he intends to do anything else in the Lakeshore Protection Zone — 20 horizontal feet back from mean high water — he’ll need a separate permit for that.”

When the county planning office filed a stop-work order on the project last spring, the county said at that time that the bridge project violated the permit because the bridge was about 100 too long for its 481-foot permitted length. Sortino then complied with his permit by saying that the bridge would be built to specifications laid out in the permit, although the bridge would not reach the island.

The legal complaint in district court seeks to have the bridge permit revoked, and have the structure completely removed from the lake. “We are choosing to serve this complaint at this time in order to ask the court to guide the county on how to proceed with this particular permit,” Murray said.  

Sortino may still be able to build the bridge according to its original permitted length. According to Grieve, at the county planning office, Sortino e-mailed him in September of last year that the surveyed distance from the high water mark on his north shore property to the high water mark on the island is 474 feet.

“If for some reason that is not true, he’ll discover that soon, and we’ll discover that during our permit inspection if not before then,” Grieve said. “Due to the significant cost that would be involved, Flathead County does not survey people’s private property when a permit application is made to verify that the lengths, widths and distances stated in their applications will be accurate. Flathead County reviewed and approved a 481-foot access bridge. If that bridge proves to be too short, then the structure won’t meet the terms of the permit.”

Just a few hours after a lawsuit was filed against Flathead County Tuesday over a permit for the Dockstader Island bridge, work came to a sudden halt.

Don Murray, attorney for the Community Association for North Shore Preservation, filed the suit Tuesday in Flathead County District Court against Flathead County for what he said was the county’s unlawful issuance of a permit for Roger Sortino and Jolene Dugan to build a bridge from their property on the north shore of Flathead Lake out to their private island.

Earlier this week, work had resumed on the bridge, as construction crews began removing the original bridge pilings that were put in last spring.

Flathead County commissioners on Jan. 25 issued a fourth permit extension to Jolene Dugan and Roger Sortino to build a 481-foot bridge from their property on the north shore of Flathead Lake to their private island, known as Dockstader Island. The permit extension is valid until June 1.

“The county issued the permit extension without so much as a courtesy call to us,” Murray said. “The county knew full well of the public’s interest in this issue but failed to notify the public of this permit extension. That’s unacceptable.”

About 85 people protested the permit extension Sunday near Dugan’s and Sortino’s property on Holt Drive in Bigfork.

Murray, along with conservation organization director Dave Hadden, addressed Flathead County commission Tuesday morning, and advised the commissioners they were filing the lawsuit after the meeting. Then, Hadden said, he and Murray visisted with Flathead County Planning director B.J. Grieve to alert him to what Hadden said was improper excavation work being done on Dockstader Island. “It looked as though the contractor had altered the shoreline in order to meet the bridge,” Hadden said Tuesday night. Hadden said Grieve sent an inspector out to the island to verify Hadden’s claims, and soon after a stop-work order was placed at the site, prohibiting any further work. 

Hadden, though, said he was not sure what the stop-work order was for. “I suspect it’s about the movement and disturbance of ground on the lakeshore,” he said. 

Hadden said he and Murray were not exactly welcomed with open arms when they told the commisioners and Grieve about the impending lawsuit. “We tried to put a good community spirit on it, but no one was very happy,” he said. “We told them we were going to do this. We gave them ample warning.”

According to Montana’s Lakeshore Protection Act, the county has enforcement jurisdiction over work performed in what is called the lakeshore protection zone — areas within 20 horizontal feet of high water marks. Under the terms of the act, the county may issue a permit without public review of a project that is deemed minimal or insignificant. Murray contends in his legal complaint that a 481-foot bridge is neither minimal nor insignificant. 

“We regret to have to file this complaint,” Murray said Monday. “This lawsuit could have been avoided, had the county acted according to the law and regulations. Lakeshore regulations clearly state that roads and driveways are not permitted in the lakeshore protection zone. The permit allows this road bridge to cross the lakeshore protection zone not just once, but twice.”

Construction crews for Dugan and Sortino last week began removing the bridge pilings that were part of his original permit. But B.J. Grieve, Flathead County planning office director, said Sortino plans to reinstall the bridge pilings in the proper location. Construction workers began taking out the original bridge structure on Feb. 11 and had installed bridge pilings along the new route as of Saturday. 

Grieve said the recently begun work in Flathead Lake’s exposed north shore is not a violation of the original permit.

“Removing and relocating the offending pilings is simply enforcement of the permit as approved,” Grieve said. “We don’t require another permit while enforcing an approved permit, we simply require that the violating structure be altered or removed and the site plan and conditions of approval of the original permit be met. The offending work that was performed outside of the terms of the permit then needs to be fixed to restore the lakebed to the condition before it was disturbed, per Section 2.2 of the Lakeshore Regulations.

“We’ll check this when we perform our standard permit inspections.”

Sortino and Dugan received a permit from the county to build the bridge in 2011. Construction started in March 2014. Soon after work started, the county filed a stop-work order on the bridge because the county found the bridge was being built about 100 feet longer than its permitted 481 feet.

Grieve said the work being performed in the lake bed still falls under the original permit. “The original permit was to place a number of pilings in a particular location to support an access bridge of a particular shape,” Grieve said. “Since that location wasn’t where they were placed the first time, he’s required to remove the offending pilings, restore that area of the lake to its pre-disturbed condition, and comply with the permit as approved.”

Dugan has received four permit extensions for the bridge project without public input, conservation organization director Dave Hadden said.

“It’s a bit discouraging when the county doesn’t have the courtesy to inform the group of citizens most concerned about this bridge of an impending decision to extend the permit,” Jeffrey Funk, vice-chair of the conservation organization, said.

Access to the bridge has become another issue for opponents of the bridge, since roads are not permitted in floodplains. Grieve said driving a vehicle across private property is not a violation of any laws, “but if he brings in fill he will need a floodplain permit for the portion of his property that is floodplain, and if he intends to do anything else in the Lakeshore Protection Zone — 20 horizontal feet back from mean high water — he’ll need a separate permit for that.”

When the county planning office filed a stop-work order on the project last spring, the county said at that time that the bridge project violated the permit because the bridge was about 100 too long for its 481-foot permitted length. Sortino then complied with his permit by saying that the bridge would be built to specifications laid out in the permit, although the bridge would not reach the island.

The legal complaint in district court seeks to have the bridge permit revoked, and have the structure completely removed from the lake. “We are choosing to serve this complaint at this time in order to ask the court to guide the county on how to proceed with this particular permit,” Murray said.  

Sortino may still be able to build the bridge according to its original permitted length. According to Grieve, at the county planning office, Sortino e-mailed him in September of last year that the surveyed distance from the high water mark on his north shore property to the high water mark on the island is 474 feet.

“If for some reason that is not true, he’ll discover that soon, and we’ll discover that during our permit inspection if not before then,” Grieve said. “Due to the significant cost that would be involved, Flathead County does not survey people’s private property when a permit application is made to verify that the lengths, widths and distances stated in their applications will be accurate. Flathead County reviewed and approved a 481-foot access bridge. If that bridge proves to be too short, then the structure won’t meet the terms of the permit.”