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#KGPA-24-01 Public Comment from Michelle Weinberg Michelle T. Weinberg, PLLC Attorney at Law P.O. Box 1417, Missoula, MT 59806 (406) 314-3583 michelle@michelleweinberglaw.com May 3, 2024 Sent via E-Mail Kalispell City Council 201 1st Avenue East Kalispell, MT 59901 publiccomment@kalispell.com Re: #KGPA-24-01: Tronstad Meadows and Whitetail Crossing Growth Policy Amendment Application To: Kalispell City Council This firm represents Sandy and Jeff Muller in the above referenced matter and submits this letter in opposition to a growth policy amendment extending the city annexation boundary to encompass this property. The subject property is located on Tronstad Road between Highway 93 North and Whitefish Stage Road. My clients are joined by Brandon & Tammi Thornburg, Mary & Tony Sisneros, Guy Foy, Larry Meilhargey, Rocky Williams, Kristen Grahn, Ming & Dr. Dan Munzing, Roger & Sarah Boulch, Brian Kelly, Brenda & Thomas Oberlitner, and Danielle & Steve Tuhy in their opposition to the above referenced matter. First, the Growth Policy cannot be amended as requested by the applicant because the requested amendment would be inconsistent with the City of Kalispell Growth Policy Plan-It 2035 (“Growth Policy”) and Annexation Policy. Proposed land use actions, including growth policy amendments, must substantially comply with goals, objectives, and recommendations in the Growth Policy. As explained in Heffernan v. Missoula City Council, 2011 MT 91, 360 Mont. 207, 255 P.3d 80: The planning and zoning statutes in general continue to place paramount importance on growth policies and rely heavily on the planning board to provide input to the governing body on the question of planning and zoning. See generally Title 76, chapter 1, parts 1 and 6, MCA; see also §§ 76–2–201, –203, –204, –205, –303, –304, –310, MCA; §§ 76–3–509, –608, –621, MCA. Growth policies are Page 2 still “the preeminent planning tool.” They are the product of extensive study, deliberation, and public involvement. Sections 76–1–601 to –604, MCA. The final product is a well thought out, long range, detailed and comprehensive planning document which takes into consideration past, present, and anticipated land uses in the jurisdiction and which is debated and adopted in an atmosphere that is free, to the extent possible, from the influence of special interests and political expedience. Heffernan, ¶ 76 (emphasis added) (internal citations omitted). In Ash Grove Cement Co. v. Jefferson Cnty., 283 Mont. 486 (1997), the Court explained why such piecemeal amendments to a growth policy such as the proposed one here are both unlawful and untenable from a public policy perspective: While § 76-1-604, MCA, authorizes revision of a master plan, nothing in that statute supports the notion that revisions can be made which alter the master plan’s inherent jurisdiction-wide nature and result in a patchwork plan for the jurisdictional area. Indeed, “if the plan can be amended piecemeal, . . . the role of the plan as a comprehensive statement of community planning policies may be diluted and the planning process may be abused.” Daniel R. Mandelker,1 The Role of the Local Comprehensive Plan in Land Use Regulation, 74 MICH. L. REV. 899, 946 (1976). Ash Grove, 283 Mont. at 499. Here, the proposed growth policy amendment would be directly inconsistent with the Growth Policy rather than in substantial compliance with it because the subject property lies beyond the City’s Annexation Policy Boundary as shown on the Kalispell Growth Policy Planning Area Map. Growth Policy, Figure 1. Therefore, it is not within the “anticipated land uses in the jurisdiction” and would result in a “patchwork plan for the jurisdictional area” in contravention of Heffernan, Ash Grove, and the growth policy statutory framework. The amendment’s failure to substantially comply with the Growth Policy is further highlighted by the Growth Policy’s mandate that it be “updated every five years or sooner as needed.” Since the Growth Policy has not been updated to include the subject property within the City’s Annexation Policy Boundary, to do so at the request of one developer would be an 1 Professor Daniel R. Mandelker is a preeminent scholar of land use law. https://law.wustl.edu/faculty- staff-directory/profile/daniel-r-mandelker/ Page 3 unlawful, piecemeal attempt to undercut the Growth Policy and its prevailing vision for the entire community. As explained in my client’s comment to the Planning Commission, it is also worth reiterating that while the Staff Report recommends approval based on the provision of housing contained in Growth Policy “for all sectors and income levels in the community” (Chapter 3, Goal 3), this development will not provide affordable housing in the City. According to the applicant, as explained in a recent meeting with community members, the price point for the “affordable housing” in this development would be between $550,000 - $650,000. However, according to the Flathead Valley Housing Market Analysis performed by the University of Montana in February of 2023,2 page 13, such housing prices are not considered affordable for most households in Flathead County: In Flathead County, a typical new home might be represented by a single story, 3- bedroom, 1600 square foot home with attached garage. At current materials and labor costs, the price for such a home in a desirable location, including excavation, land, landscaping and all permits and fees would be approximately $550,000. Assuming a 7 percent interest rate and a 20 percent down payment, a household would have to earn about $100,000 to qualify for a conventional mortgage. With median household income for Flathead County estimated at $63,582, there are clearly many households who could not afford this typical home. Therefore, approval of the applications based on the promise of “affordable housing” would be unlawful because no such housing would materialize. The proposed amendment is also inconsistent with numerous other goals, objectives, and recommendations in the Growth Policy included within Chapter 3 (Community Growth and Design), Chapter 5 (Natural Environment), Chapter 8 (Transportation), and Chapter 9 (Public Infrastructure and Services). By way of example and not limitation, the proposed amendment does not: - Compliment the community values of creating walkable and bikeable neighborhoods nor integrate new development into the surrounding neighborhood (Chapter 3, Goal 1) because the developer is proposing to create 380 lots on 110.5 acres in a rural residential area, thus increasing vehicle traffic that will be inconsistent with pedestrian and bicycle use. - Recognize and uphold the general welfare of the community nor enhance adjacent streets (Chapter 3, Goals 2 and 4) because the increase in traffic will 2 https://www.kalispell.com/AgendaCenter/ViewFile/Item/603?fileID=6825 Page 4 endanger public health and safety and result in the further congestion of Tronstad Road and Whitefish Stage Road. - Enhance natural resource values, preserve agricultural lands, or protect water quality and safety (Chapter 5, Goals 1, 3, 4, 5, and 9; Chapter 9, Goal 7) because proposed development will convert the property’s current agricultural use to residential use and result in the potential water contamination of nearby wells.3 - Provide a safe, efficient, accessible, and cost-effective transportation system (Chapter 8, Goal 1) because the proposed development will result in the further congestion of Tronstad Road and Whitefish Stage Road and there is no guarantee of an additional traffic signal on Hwy 93. For these reasons, my clients respectfully requests that the Council deny the applicant’s request for the proposed Growth Policy amendment. Please feel free to contact me if you have any questions. Thank you, /s/ Michelle T. Weinberg MICHELLE T. WEINBERG, PLLC Attorney for Sandy and Jeff Muller 3 Flathead Beacon, Kalispell Officials Work Toward Solutions Following “Forever Chemical” Detection in Wells (March 9, 2024).