City of Dillon sues county over subdivision approval

Casey S. Elliott
Wednesday, July 28, 2021

City of Dillon officials are suing Beaverhead County for a minor subdivision preliminary plat approval, claiming the county failed to follow the county’s subdivision regulations and growth policy, Montana law and the Montana Constitution.

The complaint, filed in Fifth Judicial District Court July 21, asks the court to void the decision; forbid the county from approving a final plat for the subdivision; declare the county violated local regulations, state law and the state constitution; and order the county to pay the city’s court and attorney fees.

The city asks the court to determine that the preliminary plat approval was “unlawful, arbitrary, and capricious, and an abuse of discretion for failing to comply with the Montana Subdivision and Platting Act, the Growth Policy Act and the 2013 Growth Policy, and the Right to Participate Article II, Section 8 of the Montana Constitution,” according to the complaint filed in District Court.

The Beaverhead County Commissioners acknowledged receipt of the complaint Monday, and had no further comment at that time.

The subdivision

The Plutt Family Minor Subdivision would create five lots (ranging in size from 3.25 acres to 14.657 acres) from an existing 29.307-acre tract of land, owned by Katherine Simkins, John Patrick Plutt, Marilyn Starcevich, and Peter, Paul and Michelle Zemljak.

The property is currently used for existing home sites, some farm ground and dryland grazing. The current property has access from Overland Road and Highway 41, and the city limit is less than a half-mile away. There is an existing well and a septic system on proposed Lot 5; Lot 1 has an approved Montana Department of Environmental Quality (DEQ) permit based on the original tract of land, according to a report filed by county planner Rob Macioroski. Lots 1-4 are planning to use existing on-site water and sewage disposal, which would require Montana DEQ approval.

The Beaverhead County Planning Board recommended preliminary approval of the minor subdivision at its June meeting. At that time, city of Dillon Mayor Mike Klakken stated by Montana law, the properties should be annexed into the city and hooked up to city water and sewer lines. Klakken also argued the entire subdivision should be reviewed by the city’s planning board because of its proximity to the city limits. Klakken said there is a water line roughly 40 feet from the boundary of the property that could be hooked into the new subdivision.

Macioroski and county sanitarian Tom Wagenknecht said it is up to the Montana DEQ if it will issue a septic permit or not for the planned lots; if it does not, the lots would have to hook up to city services.

The county commissioners approved the preliminary plat for the subdivision at their June 21 meeting. The owners have three years to comply with all conditions before they can seek final plat approval from the county.

The allegations

City Attorney Jim Dolan alleges in the complaint the county violated the Montana Platting and Subdivision Act because the plat application did not provide a required map showing where the city’s sewer line comes within 500 feet of the outer boundaries of the subdivision, making the plat application incomplete when it was approved. He also claims the county approved the preliminary plat without getting city input on whether it would be too expensive for the developers to hook up to city services, and that the county approved the preliminary plat without having the DEQ weigh in on the matter.

The city also claims the county violated its 2013 Growth Policy and related subdivision regula tions, which list a goal of having “complimentary standards” with nearby jurisdictions, such as the city of Dillon. Specifically, the growth policy indicates the county should “coordinate and cooperate with cities and towns located within the county’s address issues such as subdivision regulations within the urban growth area, annexation and cooperative services agreements.” The “urban growth area” is noted as located within one-mile of the Dillon city limits, and indicates “subdivisions located within the one-mile urban growth area could be required to provide services and make infrastructure improvements as required within the city limits.”

The city also claims the preliminary plat approval violates the city’s public right to participate, guaranteed under the Montana Constitution: “Whether by omission or commission, in failing to see detailed information from (the city) and/ or providing a mandatory map as required by (Montana law) regarding the water and sewer lines prior to the preliminary plat approval and after the June 21, 2021 public hearing on the preliminary plat was held and closed, (the county) precluded any meaningful participation and statutorily required input by (the city) on those issues.”

The case is DV-2021-14412.