Archive for May 4th, 2008

by jhwygirl

Last week I wrote about the multiple permitting agencies doing the circular finger-pointing blame of who should be protecting private property rights (i.e., water rights). The state blamed it on the lack of zoning, local county officials blaming it on the state. That left my friend out, still, with both agencies continuing their permitting process and subdivision approval without any analysis to the impact that a proposed adjacent-to-his-property 45-lot subdivision would have on his private property (i.e., water) rights.

I mentioned that, in helping my friend review the subdivision proposal, that there were 3 troubling property rights issues. I mentioned another one of the three – mixing zones – but today’s post is about the “well isolation zones” required for those exempt 35 gpm wells mentioned in the previous post.

Each exempt 35 gpm well is required to have a “well isolation zone” of 100 feet around the well – a 200 foot circle that is created, with the well in the center of it – that is required to be maintained free of the septic tank mixing zones (more on that later).

The well isolation zone is not required to be within the perimeter of the private property that the well serves, nor is it required to have any permit or easement from any private property that it impinges, nor is the developer or well owner required – either through local zoning or state regulations – to notify the impacted private property owner of a well that is closer than 100 feet to his/her property.

Because a well, on adjacent property, closer than 100 feet, impacts the adjacent property owner.

A well, adjacent to your private property, that is closer than 100 feet, means that their well isolation zone impacts your ability to put a septic tank on your private property. As a private property owner, you will be required to keep your septic tank, and its accompanying mixing zone, out of the neighbor’s well isolation zone.

In my friends case, with several of the proposed 45-lot subdivision’s well isolation zones located on his private property, it is clear that a redesign of the subdivision would result in a reduction to the number of lots. It is clear that redesigning the subdivision so that the lots keep both the well isolation zone and the mixing zones (which, in this particular case which is somewhat unique, are required to be maintained within lot lines) off of his private property, will require larger lots, thereby reducing the overall number of lots on the developer’s proposed 45-lot subdivision.

Poor poor developer, right? At least that is, apparently, what both the state and the local zoning authority is telling my friend, as they refuse to take actions to keep those well isolation zones off of his property.

Instead, if this proposed 45-lot subdivision is approved as proposed, what will occur is that when and if my friend considers subdivision – he is now surrounded on 3 sides by 2-6 acre lots, and water, surface and subsurface, is becoming harder and harder to get for his crops and his cattle – he will have to limit his design by those choices now being made by the adjacent developer and sanctioned by the local governing body.

Some time in the future, some planner, some state official, is going to tell him that he won’t be able to do exactly what the developer to his north did – because those neighboring well isolation zones will determine what he is able to do.

As an aside here, and referencing back to my previous post concerning senior property/water rights – do you see how Montana’s rules and regulations, whether state or local, are geared towards promoting development at the cost of agriculture?

While researching something else, I came across this letter to the editor that succinctly addresses this issue. Lewis & Clark County is apparently considering rules that would require both the mixing zones and the well isolation zone to be located entirely within the developing property. Hurray for Lewis & Clark County, but, unfortunately, this does not help my friend, nor does it address most private property owners in the state.

As long as local officials are unwilling to zone, private property rights will continue to be subjugated to developers across the state. The lack of action puts individual property owners in the tenuous positions of having to sue other private property owners, on a case-by-case basis, for impinging on their private property.

Zoning isn’t the only answer – the state is well within its authority to regulate this issue as well.

Who has more of any obligation to protect private property rights? Does it fall on local authorities more than state? Or is it just the opposite? Someone, surely has the obligation, no? Isn’t protecting private property rights one of the basic roles of government?

Maybe some of those impacted private property owners should get together and sue the entities that are enabling these actions.

Sadly, frankly, that is probably exactly what those entities are banking on – banking on the inability of the private property owners to band together and take legal actions against them for what is effectively a taking of private property rights – an action by a governing body which reduces private property rights by permitting actions on another private (developer’s) property.

You know the saying, “You can’t fight city hall?” What that really means is “You can’t afford to fight city hall,” – they’ve got their own pool of attorneys, who can out maneuver you until you are broke paying your own attorney.

Believe it. Because that is exactly what they are banking on.

The State Legislature’s Water Policy Interim Committee is considering exactly these rules and regulations. I urge you to contact them – there is a link on that page I’ve linked to above listing the members of the committee. It’s hard to get anywhere framing issues in a “let’s do what is best for our environment” way of thinking (though, lord knows why considering our Montana Constitution and the Montana Environmental Protection Act) – this is a private property rights issue, and one that needs to be addressed.

Representative Jill Cohenour (Helena HD-78 ) expressed some frustration to her fellow committee members at this week’s meeting, criticizing some of the member’s attempts at moving away at what the original goals were of the committee – to examine surface and ground water interaction, water quality and quantity, and exempt wells – and moving towards personal agendas geared towards pro-development stances. I don’t know Ms. Cohenour, but a huge kudos to her for speaking out instead of sitting by in frustration, biting her tongue and not saying what others might view as not politically correct.

Something needs to be done on these issues, and it is clear that Representative Jill Cohenour is leading that battle.

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