Zoning change recommended

 

The Miles City Zoning Commission voted 4-1 Wednesday to recommend approving the zone change requested by Brad Certain for his property along Highway 59 South.

Commission chairwoman Amber Trenka hesitated for some time before voting yes, reflecting the complexity of the issue.

The request now goes before the Miles City Council, which has final say in the matter.

Certain is seeking a change from agricultural to general commercial for the 55-acre tract, which will be broken into five separate lots to create a subdivision. There are no potential purchasers for the property. Brawler Industries (a group including Western Industries), which was mentioned as a a potential owner at the previous meeting, has found another property and is planning to purchase it.

The zoning board again discussed the “Little factors,” in reference to the court case of Little versus the Flathead County Commissioners. The case upheld the Montana Supreme Court's definition of spot zoning, which is illegal in Montana. Recently the Miles City Council rejected a separate zoning change request for another property on Highway 59 South, citing spot zoning.

The first Little factor is, does the zone change create use that is “significantly different” land use than prevailing land use. Commercial use, as defined in code, is considerably different from agricultural use, with commercial zoning allowing a much broader use of the land.

The second factor involves two criteria. The first is whether the land proposed for the rezone makes up a relatively small amount compared to land zoned agricultural around it. The second criteria asks, “Would granting the zoning map amendment amount to preferential treatment for one or a few persons as against the general public? The third factor asks, “Would the zoning map amendment constitute special legislation or preferential treatment designed to benefit only one or a few landowners at the expense of the surrounding landowners and the general public?”

The third factor came under the most consideration, with commission member Leroy Meidinger saying, that, in his personal opinion, he “didn’t think it would be at the expense of the surrounding landowners. The rezone could benefit adjacent and area landowners with commercially zoned land being more valuable than agricultural land when in close proximity to town. 

Commission member Leif Ronning added, “I’ve always been a bit confused about it (the third “Little” Factor), since it was clearly going to be for the benefit of everyone out there.”

Before the commission began its discussion, members of the public were permitted to make short presentations in favor of or in opposition to the re-zoning. 

Gary Ryder, legal representative of Barbara Toderoff Nicholson and John Toderoff, Jr., who are opposed to the change, said that their biggest concern was “the plan as presented doesn’t give sufficient detail.”  He said his clients are not opposed to growth, “but there are a lot of unanswered questions” about the change. Ryder also noted that the plot, if re-zoned, will have to go through the county commission for subdivision review.

Sharon Oftedal, also in opposition, emphasized, “We must adhere to the law.”

Ronning made the motion to recommend the re-zone to the Miles City Council. Meidinger seconded, with Muriel Rost adding that a no protest to annexation clause should be included. This means that if the city wishes to annex the property into the city limits in the future, property owners cannot protest that annexation.

Longtime commission member Nancy Mitchell had spent a lot of time considering the issue, making lists of both sides, but “didn’t have a tipping mechanism” for one side or the other. She voted no and said she will include her lists in the submission to the city council.

The final vote of 4 to 1 will pass the recommendation on to the council. 

Before adjournment, Meidinger added, “The council is going to have a hard decision.”