When the Carbon County Commissioners acted last Thursday to rescind their motion to go forward on the Silvertip Zone because of landowner protests, they chose to ignore a recent Montana Supreme Court decision that clearly makes such protests illegal.
You can watch the proceedings yourself. The audio is a little low, so make sure you turn the volume up to the highest level or use headphones. The video begins at 0:56.
You will note at 18:30, Commissioner John Prinkki claims that the Commissioners have no choice but to disallow the zone because of the protest:
Prinkki: Regarding this petition and the vote we’re about to take, the petition fails. As you know, under Section 5, because of the protest, we couldn’t move forward with this if we wanted to. It fails for that fact alone.
What Commissioner Prinkki is referring to is MCA 76-2-101(5), which states, “If real property owners representing 50% of the titled property ownership in the district protest the establishment of the district within 30 days of its creation, the board of county commissioners may not create the district. An area included in a district protested under this subsection may not be included in a zoning district petition under this section for a period of 1 year. ”
However, in August, 2013, in the case of Williams v Board of Commissioners of Missoula County, the Montana Supreme Court affirmed that the “protest provision” was an unconstitutional delegation of legislative power because it failed to provide “standards or guidelines to inform the exercise of the delegated power” and contained no legislative bypass. Since there was no mechanism whereby a County Commission could override the protest, the Court found that it could give “a small number of agricultural or forest landowners, or even a single landowner . . . absolute discretion to make the ultimate determination concerning the public’s best interests with no opportunity for review.”
That, of course, is exactly what happened in Belfry. A single landowner who owns a very large piece of land was essentially able to undercut the will of 68% of the landowners in the zone to determine what should happen on their own land.
What the Commissioners did is not only illegal, it is undemocratic.
You can read an excellent analysis of the Williams case written in layman’s terms by Ross Keogh of the University of Montana School of Law by clicking here.