Finding resolution to Libby zoning controversy

Editor’s note: This story has been re-written to address inaccuracies in the order in which events were presented in the March 5 edition of The Western News, as well as the discussion of a resolution that was incorrectly identified as an ordinance in the original story. Additional history of the process that led to the resolution was added as well to provide historical context.

The original story is presented intact at the end of the online version of this story for anyone wanting to compare versions. Copies of the March 5 edition of The Western News are also available at our office at 311 California Avenue, Libby.

The Libby Ordinance Committee voted March 1 in favor of sending a recommendation to the city council to amend the existing description of the Libby Planning Board to include acting as the city’s zoning commission.

The recommendation followed a resolution passed by the city council Feb. 4, which resolved that the planning board is authorized to review and advise the council on municipal zoning pursuant to Montana Code Annotated 76-2-307.

The wording of the resolution does not specify whether or not the planning board was already appointed to review and advise the council regarding zoning.

Of commissions

Under Montana state law, all zoning powers rest with a governing body, such as a city council or county commission. However, in order to make use of those powers — except on a temporary basis until a zoning commission is appointed — a city council must first appoint a zoning commission.

The only role of that commission defined in the state law is to act on requests from the council for zoning recommendations. The zoning commission has no zoning powers, and after meeting statutory obligations to prepare a preliminary report and hold public hearings regarding its recommendations, presents those recommendations to the city council.

State law does not require the council to follow any recommendation from the zoning commission when exercising its zoning powers.

Under MCA 76-2-307, the city council has the authority to appoint a zoning commission with no specifications regarding the number, nature or even residency of the members of that commission.

Though the council chose to pass a resolution to settle the question of whether the planning board was appointed as the zoning commission, there has been no official legal opinion rendered as to whether or not a council simply requesting zoning recommendations from a planning board would or would not satisfy state law in regard to appointing the planning board as the zoning commission.

The resolution the council passed Feb. 4 — resolution 1933 — states that the council had previously used the Libby Planning Board to “review and recommend” zoning changes to the council. It is one of the reasons cited for the resolution.

However, after seeking legal advice on the situation and being unable to find specific language in previous minutes where the city council specifically stated that they were appointing the planning board as the zoning commission, Libby Mayor Brent Teske said that the city decided to pass the Feb. 4 resolution in order to give clarification to the matter.

Solutions

Teske had spent the last several months reviewing minutes from previous city councils, looking for the chain of events that led the council to use the planning board in the role of a zoning commision.

Council member Kristin Smith — the chair of the Libby Planning Board — has stated on several occasions that it is common practice in Montana for city planning boards to act as the zoning commission. Smith is also retained by the county planning board in an advisory role and was previously the county planner.

Libby resident DC Orr has raised accusations at city council meetings of either intentional or accidental illegal actions by the council and various individuals regarding the composition and functions of the planning board.

Orr told the ordinance committee March 1 that he was glad the city would now be in compliance with state law.

In a Nov. 21 email to Teske, Orr stated that the portion of state law related to planning boards and their responsibilities, “only provides zoning authority to a legally formed joint City/County Planning Board under MCA 76-1-108 which gives the joint City/County Board authority under Title 76, Chapter 2 for action as a Zoning Commission.”

At a Dec. 17 council meeting while discussing 76-2-307 with Teske, Orr said the city planning board could not be a zoning commission without first becoming a city-county planning board.

However, Teske told Orr during the Dec. 17 meeting that 76-2 of state code — which deals with municipal zoning — is “standalone,” and speaks to the powers of the city in appointing a zoning commission.

In response to the original version of this article, Orr stated that the reason the city did not seek to form a city-county planning board is because Smith would have a conflict of interest as both the city planning board chair and a consultant to the county.

Montana state law has no provision for a city planning board to become a city-county planning board or for merging a city board with a county board. State law has guidelines for the formation of a new city-county planning board by county commissioners, and does not state any requirement that members of defunct boards serve on the new board.

At the ordinance committee meeting March 1, Orr said that the original discussion had begun at a Sept. 17 city council meeting with objections that the city council was not acting in accordance with 76-2-307 when it had the planning board make zoning recommendations.

Context

A number of business owners came to the Sept. 17 city council meeting with concerns regarding how zoning recommendations would affect their current businesses.

“In my opinion, we’re not Whitefish, Montana, nor do I want to be. We have our own identity, and that’s Libby, Montana,” said Ryan Andreessen from Timberline Auto Center, and he was met with a round of applause from the audience.

Andreessen was one of several business owners who said they had been unaware of the public meetings held by the planning board, despite the board meeting legal advertising requirements. Only three owners were purported to have been present for the board’s open house where it presented its recommendations before bringing them to the council.

At the Sept. 17 meeting, Orr said he felt any recommendations from the planning board were invalid because of what he characterized as a lack of transparency.

“There’s a lot of this that needs to be back to square one, and that needs to be done in a transparent, public fashion. So moving ahead with finalizing this, I would ask that you get a lot more transparent,” he said.

Throughout following meetings, the city invited community members to join an email list to be notified of all future meetings held by Libby committees and boards, as well as of the council.

The zoning recommendations came up again at the council’s Oct. 15 meeting.

Orr reiterated his concerns about transparency. He gave as an example that a Libby Ordinance Committee meeting scheduled for noon on the next day — a Tuesday — while open to the public, was unlikely to have much public participation.

“Holding your meetings at noon ensures that most people will not show up. That’s non-transparent,” he said.

“From what I can see at this point, the planning commission was operating illegally, and anything they have presented to this council is illegitimate, because they did not abide by transparency issues, by open meeting laws, by the laws set forth for public participation, which is part of our Montana Constitution,” he said.

“Probably the right thing to do would be to send it back to the planning commission. Organize a planning commission that is transparent.” he said.

While interviewing to be appointed as a member of the planning board on Nov. 5, Orr became the first person to suggest before a meeting of the city council that the planning board was not a zoning commission.

In response to a question from council member Brian Zimmerman, when he asked Orr to elaborate on his stated desire to bring “sound knowledge of Constitutional property rights to the table,” Orr responded, “This whole zoning thing, while the planning board may have the authority to do zoning, that is more the venue of a zoning board. The planning board is primarily to address subdivisions, new development, that sort of stuff.”

Orr also said he was concerned over whether some of the members of the board were properly appointed, noting that the mayor is supposed to make those appointments. Adding to that, he questioned whether the board had been operating with a full seven members as enumerated in their bylaws. He said that these two things made the recommendations by the planning board illegitimate, and left the city wide-open for litigation.

When Zimmerman asked Orr why he would want to be on a board that he considered illegitimate, Orr responded that he felt he could help to correct the problems he had identified.

Smith said during the Nov. 5 interview meeting that she felt it was important to appoint someone to the planning board who would not be divisive. She made her statement while expressing support for another candidate for the position, Christian Montgomery, who Teske ultimately chose to appoint.

She did not name Orr in any of her remarks, nor did anyone else state that Orr would be a divisive choice during the post-interview council discussion.

Council member Rob Dufficy followed in his comments by saying “The comment was made that Mr. Orr might be divisive. I don’t think that’s correct.”

Dufficy said that he didn’t see Orr as divisive, but as someone who wants to get in and help.

At the Nov. 19 meeting of the city council, council member Hugh Taylor made a motion to send the zoning recommendations back to the planning board. The recommendations had come to the Libby Ordinance Committee after the Sept. 17 meeting. However, there had been no vote or recorded decision by the council to send the recommendations to the ordinance committee.

He also questioned whether the planning board had been properly appointed to make zoning recommendations.

“I looked at the MCAs. The role of the planning board is not zoning. It’s the role of the zoning commission. There is an MCA that can give planning the authority, but I don’t think that’s ever been done,” Taylor said.

However, Taylor’s assertion was not responded to by fellow council members or the audience at that time, as the conversation switched back to transparency.

Later in the meeting, Orr commented that, “You don’t have a city planning board. You’ve never had a planning board. A city planning board does not have any authority without the county’s approval of forwarding any recommendation to the city council,” he said.

Teske, who had been looking into the formation of the planning board, said that he had determined the city planning board was formed in 2005, when the city withdrew from the city-county planning board. However, he said he was still looking through old council minutes to be certain the formation of the city planning board had been done properly.

After Teske spoke, Orr added to his earlier remarks, saying he wanted to make a clarification regarding his assertion that the planning board was illegitimate. He noted that the planning board was formed under 76-1 of Montana Code Annotated, as stated in the board’s bylaws.

“There is provision in chapter one for a city planning board to form a county-city planning board. They have to go to the county and request permission, and the county makes the decision whether to join the effort or not,” he said.

“Once they form a joint city-county planning board under title one, they can operate as a zoning commission, which is chapter 76, title 2 of Montana Code Annotated,” he said.

“The zoning commission, I think it’s 76-2-108 that says specifically that ‘A city may avail themselves of the powers under this title only with the — operating in conjunction with the county,’” he said. “So, when I say that the planning board was illegitimate, as a city planning board, under 76, chapter 1, they do not have zoning authority. Now, if they were a city-county planning board, they can go to chapter 2 of title 76, and they can gain zoning authority by becoming a zoning commission.”

Teske sought clarification on the section of code Orr referenced, since 76-2-108 deals with permitting.

At that time, Taylor suggested 76-2-307, which Teske then read aloud.

That section of code states, “In order to avail itself of the powers conferred by this part, except 76-2-306, the city or town council or other legislative body shall appoint a commission, to be known as the zoning commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such city or town council or other legislative body shall not hold its public hearings or take action until it has received the final report of such commission.”

Aside from 76-2-306, which gives temporary zoning authority to the council in the absence of — and contingent on efforts to create — a zoning commission, no other section of state law is indicated as modifying 76-2-307.

After Teske read out 76-2-307, Orr responded, “What you just read there in 307, where it says ‘In order to avail itself of the powers conferred, they shall form a zoning commission.’ That’s a legal imperative. That means that a city planning board from 76-1 — chapter one — does not cut it. A city-county planning commission under 76-1, has to form a zoning commission.”

The question of whether or not to return the recommendations to the planning board was tabled that night.

At the next meeting on Dec. 3, Teske told the council that his research of city council minutes led him to minutes from Oct. 2005, when the council first discussed forming a city planning board. On Dec. 5 of that year, the city council had a first reading of an ordinance to establish a city planning board.

Teske said he was still searching for county documents regarding the county’s role in approving the formation of the city planning board.

Under state law, in order for a city council to create a city planning board, the city council has to first request approval from the county commissioners.

“My comment would be back to what we talked about last time, about the planning board having the authority to do zoning,” Taylor said.

Teske said he was still looking into whether the planning board had been legally appointed as a zoning commission.

Taylor said that the next question was whether the recommendations should have ever gone to the ordinance committee.

Teske said that there had never been a vote or agreement by the council to move the recommendations to the ordinance committee.

Taylor then reiterated his motion to return the recommendations to the planning board.

“I’ve had two weeks to research whether this board had the authority to do what they were doing,” Orr said. “The law is fairly clear. A city planning board cannot bring zoning recommendations to the council. It has to be a joint city-county planning board.”

At the next meeting on Dec. 17, Orr noted that the appointments Teske made of planning board members at that meeting would “retroactively ratify those members, but do you retroactively ratify the action that they took in the two years that they operated in violation of the law?”

Teske responded that the only other recommendation the planning board had provided to the council aside from those currently under review had been “shot down,” therefore, there were no past recommendations in effect that would need ratifying.

Teske also addressed the legality of the planning board itself. He said that the Lincoln County Commissioners’ minutes from Nov. 2, 2005, showed that the commissioners had been notified of the city’s desire to form a city planning board.

He also presented the minutes from the Jan. 9, 2006, city council meeting at which the council had a second reading, establishing the city planning board.

“The legitimacy of the city planning board has been rectified tonight, absolutely,” Orr said. “The question of whether or not the city planning board has the authority to recommend zoning is still an issue that I think you guys are unclear on.”

“I think it was 76-2-307: ‘In order to avail themselves of the powers conferred in section three — which, under title 76, chapter two, part three, is all about zoning — in order to avail yourselves of the powers in that part, you have to form a city-county planning board,” Orr said. “The mayor thinks differently. Hopefully you will clarify that before you guys move forward on this.”

Teske responded that he thought Orr was looking at the wrong section of code.

Teske said that he was still researching at that time when the city first began asking the planning board for zoning recommendations, and whether it was properly done.

In a vote where Smith abstained — as chair of both the ordinance committee and the planning board — the council chose to move the recommendations back to the planning board from the ordinance committee.

ORIGINAL STORY (Published March 5, 2019):

The Libby Ordinance Committee voted Friday in favor of sending a recommendation to the City Council to amend the existing description of the Libby Planning Board to include acting as the city’s zoning commission.

The recommendation follows an ordinance passed by the City Council Feb. 4 that resolved that the planning board is authorized to review and advise the council on municipal zoning pursuant to Montana Code Annotated 76-2-307.

Libby Mayor Brent Teske had spent the last several months reviewing minutes from previous city councils, looking for a chain of events that had led to the council using referring zoning questions to the planning board, which had been a longstanding practice.

The board itself was created in December 2005, according to minutes that Teske found from that time.

Council member Kristin Smith has stated on several occasions that it is common practice in Montana for city planning boards to act as the zoning commission.

Libby resident DC Orr, who has raised accusations of either intentional or accidental illegal actions by the council and various individuals involved regarding the planning board reviewing zoning, told the ordinance committee Friday that he was glad they would be in compliance with state law with the change to the description of the duties of the planning board.

Previously, Orr had maintained that the planning board could not be a zoning commission, since it was a city planning board and not a county-city planning board.

However, Orr was referencing code specific to city-county planning boards, (and not) 76-2-307 -- which is referenced in the ordinance passed Feb. 4 -- that states (in order for a city or town council to make use of zoning powers, it “shall appoint a commission, to be known as the zoning commission.”

Under MCA 76-2-307, the city council has the authority to appoint a commission with no specifications regarding the number or nature of the members of that commission. Montana code does not specify any limitations on the membership of the board nor on the discretion of the council in who is appointed to the commission.

Prior to the Dec. 17 meeting where Teske cited 76-2-307, Orr maintained his position that the city planning board could not be a zoning commission, and prior to that date he did not cite 76-2-307 in his arguments that the city was acting illegally. However, at the ordinance committee meeting Friday, Orr said that the original discussion had begun with objections that the city was not acting in accordance with 76-2-307.

There has also been no official legal opinion rendered as to whether or not a council simply referring zoning questions to a planning board would or would not satisfy state law in regard to appointing the planning board as the zoning commission. State law, however, does not specify what specific action the council needs to take in order for it to be considered an appointment of a zoning commission.

However, after seeking legal advice on the situation and being unable to find specific language in previous minutes where the Libby City Council specifically stated that they were appointing the planning board as the zoning commission, Teske said that the city decided to pass the Feb. ordinance in order to give specific clarification to the matter.

In the preamble of the ordinance the council passed Feb. 4, that the city council has used the planning board as a zoning commission in the past was one of the reasons given for changing city code to add the responsibilities of zoning commission to the description of the duties of the planning board.