Payne appeals permit modification denial

Helena-based attorney R. Allan Payne, who is also Libby’s contracted city attorney and legal counsel for the City-County Health Board, and occasionally represents the county commissioners, filed an appeal Oct. 23 on behalf of his father, Robert Payne, contesting the decision of the Montana Department of Environmental Quality to deny a permit to modify the boundary of his Libby area wrecking yard.

In the appeal, Payne accused the county of acting improperly when recommending the denial to the Department of Environmental Quality.

“D.E.Q.’s denial of the application was improper because it is based solely on the county’s opposition but, on its face, the county’s opposition does not meet the statutory requirement for such opposition because the county failed to make a finding or even collect a scintilla of evidence that the boundary adjustment would ‘significantly affect the quality of life of adjoining landowners and the surrounding community,’ Payne wrote. “The opposition by the county is also improper as Payne Logging was not given notice of the hearing the county held on its application.”

According to the appeal, Payne Logging was given notice of three violations by the Lincoln County Environmental Health Department stemming from a site visit in November 2014. Those violations were for failing to display a license, inadequate reporting of vehicles received and failing to adequately shield junk vehicles from public view. Payne argued that Payne Logging made adequate efforts to address those violations with the creation of a compliance plan signed by Robert Payne and a representative from the environmental health department Jan. 14, 2015. The compliance plan calls for the license to be displayed and for the company to document newly-received vehicles according to a reporting form which was developed as part of the plan. The plan also indicates the company will properly shield junk vehicles from public view, many of which were moved.

“Mr. Payne removed the junk vehicles visible from Parkway after the inspection,” wrote environmental health technician Jennifer Nelson in the compliance plan. “But there is still an issue of junk vehicles being in public view from Rodeo Drive, a county road within J. Neils Park. Part of the issue is due to junk vehicles on the property not being within the wrecking yard are delineated and approved by the state. Mr. Payne has expressed that he does not have enough room in current delineated wrecking yard area for all of his junk vehicles and he plans to apply for a change to the wrecking yard boundary. We agreed that he would submit an application for this change by April 30, 2015. If he decides not to apply for a boundary change, then all junk vehicles outside of the wrecking yard boundary will be moved into the currenly designated wrecking yard by June 30, 2015, and all junk vehicles visible from the public roadways will be sufficiently shielded by that date.”

Payne Logging applied for a boundary modification and the county commissioners conducted a public hearing Aug. 26, 2015. The meeting was noted on the commissioners’ meeting agenda, satisfying Montana’s public hearing notice requirements.

At the meeting roughly 20 area residents gathered to express their opposition to the permit change.

“Jennifer Nelson summarized the boundaries of Mr. Payne’s entire property and the boundaries of his current wrecking yard as well as his proposed new boundaries,” Lincoln County Clerk and Recorder Robin Benson recording in the meeting minutes. “His proposal is to exclude his home and front yard and to move the boundaries for better access of trucks and trailers. He is not in compliance with the current permit that was issued in October of 2013. The D.E.Q. came in, inspected and issued a notice of his failure to shield. Concerns were raised by several members of the audience about any type of protection not being in place for ground water quality and there is no monitoring of ground water for the safety of the wells of the neighbors surrounding the wrecking yard... No one in attendance was in support of Mr. Payne’s request. They stated that he should be required to be in compliance before consideration of his boundary change request is addressed.”

The commissioners unanimously voted to oppose the permit change and passed Resolution 947 to that effect, signed Sept. 2, 2015.

The Department of Environmental Quality followed the commissioners’ recommendations and terminated the permit application Sept. 24, 2015.

“On Sept. 2, 2015, the Lincoln County Commissioners opposed any change to your current license under Resolution 947, (enclosed), until full compliance with the motor vehicle recycling regulations are achieved regarding your original application,” wrote D.E.Q. officer Brady Christensen Sept. 24. “The Motor Vehicle Recycling and Disposal Program has terminated the application requesting to move the boundaries of your facility due to the denial on the county level. In order to reapply for a boundary change you must first be compliant at your original location to the satisfaction of the county commissioners regarding the shielding of the facility.”

Payne’s representation of his father, while still functioning as a special deputy county attorney for the City-County Health Board and for the commissioners on a petition to de-list the grizzly bear has again raised concerns about Payne’s multiple representations in Lincoln County. Commissioner Mark Peck said he was unsure of whether the filing fits the legal definition of conflict of interest, but was troubled by the action.

“It troubles me that a person who does a lot of legal work for the county, who is a deputy county attorney for the City-County Health Board, is filing an action that can affect the county health department and the commissioners,” Peck said. “I understand the desire to help family members, but it troubles me. I’m disappointed.”