In a narrow ruling that demonstrates how government at all levels conspires to deprive small landowners of their rights, Judge Blair Jones ruled last week that:
- The Silvertip Zone petition did not meet Carbon County standards that had been established by the Commissioners in 2009, and
- The Carbon County Commissioners actions in waiving their own requirements were illegal.
The practical result of these rulings is that all actions with regard to this petition are void, the suit is dismissed, and the petitioners need to either appeal the decision or start over once again and file new petitions that meet the County standards.
In addition, the legal aspects of the Commissioners’ original ruling that the petitioners hoped to clarify, particularly the Commissioners’ rejection of the zone because of what the petitioners believe was an illegal protest, were not part of Judge Jones’ ruling and will need to be decided in another courtroom on another day.
To understand why it is practically impossible for landowners to establish a citizen initiated zone, let’s take a look at Carbon County Resolution 2009-16, signed by current Commissioner John Prinkki on November 30, 2009. The resolution establishes “the approved process for the certification of “Part One” zoning petitions submitted in Carbon County, Montana, pursuant to §76-2-101, Mont. Code Ann.”
Here are the major requirements for citizen initiated zoning petitions detailed in the resolution:
- a map prepared by a certified land surveyor indicating the boundaries of the areas of land to be included in the district, and marking the names of the landowners
- signature pages that included a legal description of the signator’s real property
- an ownership report from a title company, setting forth the status of a title to a parcel of real property
- an affidavit by all persons circulating petition signature pages attesting they collected those signatures, or each signature must be notarized
So what did the petitioners do wrong?
Now let’s go back and look at the entire history of this zoning petition, and see why the petitioners are in this position.
The items below have all been documented on this site, so you can click on the links below to go through all the gory details for verification.
1. On August 18, 2014, Silvertip landowners submitted petitions to the Carbon County Commissioners to establish a citizen initiated zone in the Belfry area. The petitions were verified and accepted by the Commissioners. It is important to note that both the Commissioners and the petitioners were aware of Carbon County Resolution 2009-16, and the petitioners were specifically told that the petitions were acceptable to the County. The petitions were certified by the County.
2. There were several public meetings and opportunities for everyone involved to have a chance to present a case regarding the proposed zone. You can read about these meetings and watch video here, here, here and here.
3. On September 18, 2014, Carbon County Attorney Alex Nixon provided feedback to the Commissioners. He advised them not to take action on the petition for one primary reason: the law requires that the land in a citizen-initiated zone be contiguous, and the Silvertip Zone defined in the petition was not a single contiguous parcel.
4. Undeterred, the petitioners went back and redefined the boundaries of the zone to answer Nixon’s objection, and resubmitted the petitions on November 20. The petitions were signed by all but one of the original landowners within the boundaries of the zone. Again, the petitioners were told by Carbon County that the petitions met County standards, and they were certified.
5. On December 15, at a meeting in Red Lodge, Carbon County Commissioners voted to move forward to create the Silvertip Zone in Belfry. The Commissioners agreed that the zone was “in the public interest and convenience for public health, safety and welfare, and for the public infrastructure.”
6. On January 15, 2015, in a stunning reversal that ignored the will of the majority for the opinion of a small minority, the Commissioners withdrew their motion to accept the petitions to form the Silvertip Zone. Commissioner John Prinkki explained the move by saying, “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.” The rejection is clearly illegal, based on a recent Montana Supreme Court ruling. It is important to note that the County did not hold the protestors to any of the standards of 2009-16. Protests were allowed by email, with no certification required.
7. Stymied at every step, on February 13 Silvertip landowners filed a legal challenge to the Commissioners’ ruling in state district court in Red Lodge.
8. A hearing was held on June 4 in Red Lodge before Judge Blair Jones in the case of Martinell, et al, v. Board of County Commissioners of Carbon County, et al.
9. On July 8, Judge Jones issued his decision, essentially saying that the County Commissioners failure to adhere to their own standards for accepting citizen initiated zoning petitions rendered the whole process, with all the work done by the petitioners to assert their rights on their own properties, meaningless.
In summary: here’s what happened and here’s what’s next
If you don’t want to wade through the details, here’s what happened in a nutshell: The Silvertip landowners submitted petitions that were approved and certified. The Carbon County Commissioners were rewarded by Judge Jones for their failure to follow their own rules and policies. Their reward was the dismissal of the suit against them.
The Silvertip landowners, after nearly a year of attempting to follow all the provisions of law, still cannot take advantage of the provisions of Montana law that enable them to protect their land, the water they need for their livelihoods and their health.
The landowners now have two options:
1. They can regroup, recollect petitions, and resubmit to the County Commissioners. Restarting the process would leave them open to the same sort of Commissioner misbehavior they have experienced the last time they submitted.
2. They can appeal Judge Jones’ decision, and go to the Montana Supreme Court to make sure that the legal protections against a small group of protesting landowners that are afforded in other types of zoning, are applied to citizen initiated zoning as well.
Regardless of which path they choose, you can expect that there’s no quit in this group of dedicated people. Nobody promised this would be easy.
We all owe them a debt of gratitude for their willingness to fight for our rights.
Here’s video of the hearing last month before Judge Jones that led to the ruling. Thanks to an extremely dedicated local volunteer for investing the time to shoot the videotape and transfer it to disk.
Judge Blair Jones’ ruling
Carbon County Resolution 2009-16, establishing requirements for citizen initiated zoning petitions
Timeline of events leading to legal action by Silvertip landowners, with videos of all related public meetings
FAQ: What the petitioners want