Developer Rights v Private Property Rights – Guess (again) Whose Trumps Whose

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.

  1. goof houlihan

    Representative Pomnichowski’s been in the thick of the water issue, I believe. She’s got a good understanding of it for a city girl. You aren’t mentioning “packaging plants” in your rant today, which remove the individual septic for each house; again, I’ll say it, the wastewater treatment issues you discuss are no substitute for county wide zoning. Instead, individual private subdivision wide treatment plants will substitute for the individual septic you decry. We will then have large subdivisions with ‘sewer districts” scattered around the county, instead of large subdivisions with individual well and septic.

    It’s not City Hall that’s approving these well and septic subdivisions; any city worth a hoot will be requiring both annexation and hookup to it’s sanitary sewer, each requirement dependent on the other.

    “Isn’t protecting private property rights one of the basic roles of government?”

    Are private property rights important to you? They seem to be pretty low on the priority list with the “true progressives”. You complaints certainly strike a chord with me, but then, I’m not a “true progressive” but a “red baiter” (maybe even a master at it). It’s going to take thoughtful zoning or planning commissioners, not the kind of ideology dominated bullshit that comes from the far left, or the far right, to carry the day at the legislature on this issue.

  2. I don’t know where you are putting me in that spectrum you outline in your last paragraph – but I won’t dwell on it either.

    Issues such as the one I’m outlining above and in the previous post shouldn’t be a far left or a far right issue. Frankly – and this you may shudder at – I consider that you might actually be a Progressive Republican. Progressive isn’t a party, it’s a willingness to move forward and not stagnant. To make things better. I believe that can be done within any ideology. But maybe that is just me. Your ideas on zoning and affordable housing seem to imply that. You’ve also said that running local government isn’t about republican or democrat – but basic services. We agree on that stuff goof.

    I also agree with you goof – it isn’t City Hall – it’s counties. But the state, as I point out, also has the ability to regulate. But should it be local? Local zoning? I’d sure ascribe to that a lot sooner than I’d champion state regulation, but someone needs to get off their you-know-what and do something. As I’m trying to outline with these pieces here, and while I’m framing the most solid argument on private property rights, it has a lot to do with the greater issue of clean and sufficient water in our streams and aquifers for all uses, not just development. I repeat – what is Montana without its rivers and streams? I’ll add – what is Montana without its agriculture?

    You come right out to the heart of the issue – and that is exactly what the development realm is fighting back on. They don’t want community septic and water systems. It’s too costly. Or, better said, it’s cheaper and more profitable (developer profitable) to leave septic/sewer and wells to the individual.

    Ms Cohenour’s outrage was kicked off by another legislator’s question to a state attorney to find out whether a local county (Gallatin, I believe) overreached it’s regulatory authority by requiring a subdivision to provide community water and sewer.

    It shows the basic lack of understanding some of these legislators have over our basic state laws when it comes local authority over zoning and planning issues.

    I cited Cohenour not to short Representative Pomnichowski – Pomnichowski not being on the committee – but because she actually spoke out against the turn some members of the committee, she sees, were pushing towards. Away from its mandate. The mandate having been defined in the 2007 Legislative session. I didn’t cite her political affiliation, you should note.

    Right now, given the events in committee, which I have been following for some time, I have some real concerns that we might end up with another mess much as that which we ended up with when they tried to regulate gravel pits in 2005.

  3. Curmudgeon

    Thanks again, jhwygirl, for continuing your informative focus on this issue. I see no conflict between your position and that of goof. Both State and local actions are needed. The state issues will be debated during the next session and the Water Policy Interim Committee’s recommendations will be vital. Rep Jill Cohenour (Helena) is on the side of the angels and will hold their feet to the fire, but she will need grass roots support. The developers and real estate people are well funded and are already forming front organizations to bring all resources to bear on defeating any change.

    Locally, we are fortunate in Helena that all of our county commissioners have had the political courage to continue to press for responsible zoning including “well isolation zones” and “mixing zones”. The real estate people and developers have delayed any progress for 15 years through delay tactics and lawsuits. However, it looks like the necessary legal changes will happen within the next 6 months.

  4. goof houlihan

    I too, don’t think there is a conflict. I just don’t trust the “water rights” issue to control the random 400 house subdivision on some tiny county road thirty miles from nowhere. I haven’t seen much of anything from the state, some “come lately” handwringing maybe, about these issues.

    What’s the DEQ focused on? Beating up the cities as the easy “point source” solution rather than focusing on the endless additional flushes into the ground water.

    The Gallatin Commission has a natural “in” right now for county wide zoning, and instead they’ve gone the way of “emergency zoning of gravel pits” instead of something more comprehensive–with a natural base of support for the former that is very active and vocal right now. Whether it’s coal bed methane, strip clubs or gravel pits, or even the reality of much needed zoning, none of these has seemed to result in more comprehensive look at zoning.

    I thought JP was on one of the interim water committees, and still do. Will confirm. Didn’t think you were slighting. Maybe it’s just that I don’t lose one thread when picking up another…force of habitual “wider thinking”.

    No, my last PP isn’t particularly aimed at the OP. However, being for “property rights” in a Lockean sense means a lot more than just applying that term when we can find a use for it. I apply it universally, and in a very “liberal” way, that is, to a woman’s right to control her labor, and in a very “conservative way” as any person’s first right to any fruits of their labor.

    Too many times the “true progressive” sees “economic justice” as extorting the labor or the fruits of the labor of another, the opposite of what you are saying in the original post. Why wouldn’t we all ‘Share the mixing zone” after all, as the Sonoran institute has long advocated, “there is no such thing as property rights”. (I’ve heard that said twice and read it said another time.)

    “First in with subdivision wins; last in loses” is exactly the wrong incentive to give, which is the reality right now. And yes, property rights matter, in the case of mixing zones and in every other case as well. It’s a fundamental American right.

  5. goof houlihan


    JP, no doubt, is on an interim water committee. Worth supporting.

  6. I’ll have to look for more info on her Goof – maybe I’ll shoot her an email. She’s on our list of battleground house candidates, and if she’s supporting these water issues – the whole boatload of them – she’s a candidate I want to help out any way I can.

  7. goof houlihan

    Yeah, it might be her involvement on Natural Resources (Committee) that I’m thinking of. She was just on a panel about water issues given by (Gallatin grassroots?–something like that). But she’s been driving off to Helena for some water committee meeting regularly.

    Her understanding of zoning issues, transferable development rights, and local government is very good. I gave her a lot of crap about her “partial annexation” bill and I hope she’s given that up–I chalked it up to overly influenced by her work on TDRs and the county zoning issues.

    It’s her work on the city’s Planning and Zoning commission where her most valuable community service has been done.

    Please do contact her. She is active on this water issue. I’d get a kick out of it, too.

    The “battleground” aspect is working my conscience hard and is my least favorite part of the race. Makes it hard to publicly campaign for her.

    PS, I see her at good music scenes everywhere. She’s hip to the jive which is all good, ya know?

  8. Thanks Goof. Will do.

    On another note, I hear Missoula is going to lobby for getting rid of the zoning protest provision. Any thoughts on that?

  9. Binky Griptight

    Well, it sure seems like it would be a political battle that Plum Creek couldn’t win. One landholder, with an out-of-state residence, holding the will of the people at bay?

    Of course, Plum Creek could stir up the ‘property rights’ people, creating fear of zoning. But, I don’t think that is Plum Creek’s modus operandi these days. They’re more likely to leverage their holdings to their advantage, in exchange for not protesting.

    Besides, Plum Creek may not be the single majority landowner in a couple of years, so their bargaining power is dissipating as they sell off their holdings.

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