Bridge lawsuit ready for county

The Community Association for North Shore Conservation has prepared its complaint and petition for judicial review, through its attorney Don Murray of Kalispell. The group contends that the permit approved by the county commissioners in 2011 violated provisions of Montana’s lakeshore protection act. The act, which became law in 1975, set forth how lakes are to be protected by county governments. Under the act, county planning offices are to review applications for construction permits. However, if the permit application does not merit planning office overview, the county commissioners may grant the permit. And that is what the county did in 2011 when Jolene Dugan applied for a permit to build a bridge from her property on the north shore of Flathead Lake in Bigfork, out to her island, Dockstader Island.

In January 2011, Dugan submitted an application for a lakeshore construction permit under the Flathead County Lake and Lakeshore Protection Regulations. With her application, Dugan sought a permit from Flathead County authorizing the construction of a bridge that would span Flathead Lake from her property on the mainland east of the Flathead River delta to Dockstader Island.

The application was received by the Flathead County Planning and Zoning Office, which reviewed the application and concluded it would be appropriate to consider it under the administrative permit provisions of the regulations, an abbreviated permit review procedure also referred to as summary review.

The planning office then processed the application under the administrative, “summary review” provisions of the Regulations and recommended its approval to the Flathead County Board of County Commissioners.

The commissioners approved the application and a permit was granted to Dugan on March 16, 2011, authorizing the construction of the bridge.

The application was never referred to nor considered by the Flathead County Planning Board as required by both the Act and the Regulations, Murray said.

In April 2013 construction crews began work on the project.

In the course of constructing the bridge and performing the work authorized by her permit, Dugan deviated from the approved plans in several significant respects, Murray said. As a result, on April 22, 2014, the planning office issued a stop-work order.    

Dugan then sought an amendment to the original permit, but later withdrew that request when the county notified Dugan of another issue. Murray said Dugan had altered her property boundaries with the result that the bridge, rather than serving a single lot as initially proposed, would then cross from one lot to another, a deviation from the original permit.  Murray and the conservation group believe Dugan plans to proceed with the project by reconstructing the bridge and perhaps reconfiguring her lots to comply with the permit’s plans and specifications as initially approved.  “Accordingly, the lake is at risk of further degradation and the plaintiffs are at risk of further irreparable injury,” Murray said in the complaint.

The complaint, which has not been filed, says the Lakeshore Protection Act and the county’s lakeshore protection regulations provide that all projects requiring a permit must be reviewed by the county planning board, unless the impact of the proposed project would be minimal or insignificant. In order for Flathead County to consider a permit application under the summary review process (a process that does not include planning board review and thus affords no opportunity for public participation), a determination must be made that the impact of the proposed project, either during construction or as a finished structure, will be “minimal or insignificant.” 

The summary review procedure is appropriate only where the impact of the proposed project will be “minimal or insignificant,” the complaint says.

Flathead County determined that the proposed project, an elevated concrete bridge nearly 500 feet long, designed to allow motor vehicles to drive from the mainland over Flathead Lake to Dockstader Island, would have no significant impact on the lake, Murray said.

“This determination by the county that the applicant’s bridge project would have no significant impact is unreasonable, arbitrary and unsupportable, violates both the Act and its implementing Regulations, and constitutes an abuse of discretion and failure to properly discharge legitimate governmental responsibilities by the governing body,” according to the complaint.

The conservation group wants the permit revoked and the lake restored to its previous condition before the bridge work started last spring.

The complaint names Flathead County as the defendants. It does not name commissioners Cal Scott, Gary Krueger or Pam Holmquist.

The complaint also alleges that the commissioners violated public participation law.

The 1972 Montana Constitution secures to the people of Montana the right to meaningful participation in the decision-making processes of their government, the complaint says.

That statutory enactment requires that when “agencies” of state government undertake “agency action,” those agencies must afford the public a reasonable opportunity for meaningful participation in the process, Murray said in the complaint.

Murray was hoping to avoid a legal fight, and he contacted the county to work out an way to get the permit revoked without litigation.

“I have had a couple of conversations with the county attorney's office and one with the planning office, but no dialogue yet with the commissioners,” he said.

The original permit expires March 15, and Murray said he’s waiting to see what the landowners do before then.  He said the Community Association for North Shore Conservation is seeking legal organization status before it files suit.

“Right now the group is in the process of deciding whether to become a Montana nonprofit mutual benefit corporation under the Montana Nonprofit Corporation Act, or a limited liability company under the Montana Limited Liability Company Act,” Murray said. “Once that decision is made and the organization is officially formed, the group will file the complaint in Flathead County District Court.”

A Flathead Lake conservation group has prepared a final legal complaint against the Flathead County commission over approval of a permit for a bridge on the north shore of the lake.

The Community Association for North Shore Conservation has prepared its complaint and petition for judicial review, through its attorney Don Murray of Kalispell. The group contends that the permit approved by the county commissioners in 2011 violated provisions of Montana’s lakeshore protection act. The act, which became law in 1975, set forth how lakes are to be protected by county governments. Under the act, county planning offices are to review applications for construction permits. However, if the permit application does not merit planning office overview, the county commissioners may grant the permit. And that is what the county did in 2011 when Jolene Dugan applied for a permit to build a bridge from her property on the north shore of Flathead Lake in Bigfork, out to her island, Dockstader Island.

In January 2011, Dugan submitted an application for a lakeshore construction permit under the Flathead County Lake and Lakeshore Protection Regulations. With her application, Dugan sought a permit from Flathead County authorizing the construction of a bridge that would span Flathead Lake from her property on the mainland east of the Flathead River delta to Dockstader Island.

The application was received by the Flathead County Planning and Zoning Office, which reviewed the application and concluded it would be appropriate to consider it under the administrative permit provisions of the regulations, an abbreviated permit review procedure also referred to as summary review.

The planning office then processed the application under the administrative, “summary review” provisions of the Regulations and recommended its approval to the Flathead County Board of County Commissioners.

The commissioners approved the application and a permit was granted to Dugan on March 16, 2011, authorizing the construction of the bridge.

The application was never referred to nor considered by the Flathead County Planning Board as required by both the Act and the Regulations, Murray said.

In April 2013 construction crews began work on the project.

In the course of constructing the bridge and performing the work authorized by her permit, Dugan deviated from the approved plans in several significant respects, Murray said. As a result, on April 22, 2014, the planning office issued a stop-work order.    

Dugan then sought an amendment to the original permit, but later withdrew that request when the county notified Dugan of another issue. Murray said Dugan had altered her property boundaries with the result that the bridge, rather than serving a single lot as initially proposed, would then cross from one lot to another, a deviation from the original permit.  Murray and the conservation group believe Dugan plans to proceed with the project by reconstructing the bridge and perhaps reconfiguring her lots to comply with the permit’s plans and specifications as initially approved.  “Accordingly, the lake is at risk of further degradation and the plaintiffs are at risk of further irreparable injury,” Murray said in the complaint.

The complaint, which has not been filed, says the Lakeshore Protection Act and the county’s lakeshore protection regulations provide that all projects requiring a permit must be reviewed by the county planning board, unless the impact of the proposed project would be minimal or insignificant. In order for Flathead County to consider a permit application under the summary review process (a process that does not include planning board review and thus affords no opportunity for public participation), a determination must be made that the impact of the proposed project, either during construction or as a finished structure, will be “minimal or insignificant.” 

The summary review procedure is appropriate only where the impact of the proposed project will be “minimal or insignificant,” the complaint says.

Flathead County determined that the proposed project, an elevated concrete bridge nearly 500 feet long, designed to allow motor vehicles to drive from the mainland over Flathead Lake to Dockstader Island, would have no significant impact on the lake, Murray said.

“This determination by the county that the applicant’s bridge project would have no significant impact is unreasonable, arbitrary and unsupportable, violates both the Act and its implementing Regulations, and constitutes an abuse of discretion and failure to properly discharge legitimate governmental responsibilities by the governing body,” according to the complaint.

The conservation group wants the permit revoked and the lake restored to its previous condition before the bridge work started last spring.

The complaint names Flathead County as the defendants. It does not name commissioners Cal Scott, Gary Krueger or Pam Holmquist.

The complaint also alleges that the commissioners violated public participation law.

The 1972 Montana Constitution secures to the people of Montana the right to meaningful participation in the decision-making processes of their government, the complaint says.

That statutory enactment requires that when “agencies” of state government undertake “agency action,” those agencies must afford the public a reasonable opportunity for meaningful participation in the process, Murray said in the complaint.

Murray was hoping to avoid a legal fight, and he contacted the county to work out an way to get the permit revoked without litigation.

“I have had a couple of conversations with the county attorney's office and one with the planning office, but no dialogue yet with the commissioners,” he said.

The original permit expires March 15, and Murray said he’s waiting to see what the landowners do before then.  He said the Community Association for North Shore Conservation is seeking legal organization status before it files suit.

“Right now the group is in the process of deciding whether to become a Montana nonprofit mutual benefit corporation under the Montana Nonprofit Corporation Act, or a limited liability company under the Montana Limited Liability Company Act,” Murray said. “Once that decision is made and the organization is officially formed, the group will file the complaint in Flathead County District Court.”