Questions persist about how county should count petitions

The protest period ended Tuesday for four zoning districts to regulate gravel operations across the Gallatin Valley, but it's unclear how the issue will shake out.

The Gallatin County Clerk and Recorder's office has tallied protests for the Southern Valley Zoning District around Gallatin Gateway, but counts for the other three districts were not finished as of press time Thursday, recording supervisor Eric Semerad said. Protests from the planning jurisdictions of Belgrade and Manhattan along with the Amsterdam-Churchill neighborhood plan area are still being counted.

In the Southern Valley district, owners of the 15,508 acres taxed as agricultural filed protests, Semerad said. With 22,354 acres taxed as ag in the proposed district, the protest number exceeds the 50 percent threshold needed to kill the measure.

The Gallatin County Commission laid out the ground rules for the protest process April 5, two weeks after voting to create the zoning districts. During the rule hearing, commissioners said they would base the success of protests on the acreage involved instead of the number of land owners, despite advice from County Attorney Marty Lambert. At the time, Lambert said the owners of the ag land, not the land itself, should be counted.

Since then, Lambert has shored up that argument. On Monday, a day before the protest deadline, he issued an opinion that cited an opinion written by Montana Attorney General Joe Mazurek in 1996. Under state law, governments must follow attorney general's opinions unless they have been overruled by a district court, the Supreme Court or subsequent legislation.

Citing Mazurek's opinion, Lambert said agricultural land does carry weight, but ag ground must be 50 percent of the total land area in the proposed zoning district.

State law "enlarges 'protest rights' for freeholders whose property is classified for real property tax purposes as agricultural or forest land, where their combined title ownership represents 50 percent of the total property ownership within the proposed or revised zoning district," Lambert wrote.

"You've got to go with what the attorney general says unless a court tells you otherwise," he said. "That's the state of the law from my perspective and that's what I'm going to advise the commission. I do understand they went ahead on April 5 and made a decision. That was a commission decision ... and we'll see which way they want to go."

The commission's acreage-based decision was shored up by an opinion issued by former Gallatin County Attorney Mike Salvagni in 1990 over a zoning protest issue, according to county records. His opinion has been how the county has been doing business since then, Lambert said.

But the commission has long said that petitions can also fall under a policy decision. And that policy decision is if protests are close to the 50 percent minimum, commissioners would favor the protesters.

The problem is what qualifies as "close," particularly with such a hotbed topic, Commissioner Bill Murdock said.

"What's close? Ten percent?" he said. "There's some subjectivity there. If it's 21,992 acres out of 22,000, that's close and I'm not going there even if they don't make it. But if it's 18,000 to 22,000, that's not close enough to be splitting hairs because that didn't make it. Now, the problem is going to be the in between."

Murdock wasn't present during the April 5 policy meeting and didn't say which way he was leaning on the legal opinion issue.

"We have some confusion here and some tough decisions to make," he said.

Commissioners Joe Skinner and Steve White said they will stand by the April 5 decision.

"As far as I'm concerned, we decided three weeks ago how we were going to count them and unless (Lambert) comes in and says it's illegal, I'm still going to, in my discretion, stick to that standard," Skinner said.

White agreed.

"I'm not going to change this midstream, but I don't make any decisions by myself," he said.

David Loseff , a leading opponent of the Southern Valley Zoning District, said changing rules would be unacceptable "when the ball is on the one-yard line." He wants the commission to keep its word. He also said he has concerns regarding the petition tally for Southern Valley.

Loseff said he and a paid assistant have been keeping records of the protested acreage and his tally shows 76,600 acres affected by protest, 2,092 more than the Clerk and Recorder's total.

"I don't want this to turn into something like the southern Florida hanging chad issue," he said.

But all three commissioners said they will honor all protests if the problem lies merely with administrative issues like signing the wrong pagem for example.

The commission will hear the matter at 9 a.m. Tuesday, May 5 at the County Courthouse.