by Michael Howell
The Sapphire Coalition, a new local non-profit land conservation group, is taking legal action against the Ravalli County Planning Department and the Ravalli County Attorney’s office, hoping to force them into taking action against the Lance Albert family transfer which they claim was used to evade subdivision laws. They also claim that citizens did not have the opportunity for public participation in the matter. The lawsuit was filed on May 24, 2024 in Ravalli County District Court.
The Sapphire Coalition states in its press release that it “works to actively participate in the appreciation, understanding and ultimately conservation of land, water, and natural resources important to the Bitterroot Valley farms, ranches, natural habitats, water supplies and open space that the valley citizens cherish.” Its members lease and own property in the area surrounding the property involved in the Albert Family Transfer and are multi-generational local family ranchers who have been ranching in the area for decades.
Coalition members claim they are not against family transfers but are opposed to their being used to evade the subdivision process and in this case the approval of the subdivision without any public participation has created the potential to degrade the quality of their ranches, and negatively affect business, aesthetic, and residential uses, including but not limited to the installation of additional unregulated groundwater wells in an already diminishing groundwater aquifer.
It states in the press release that “Gary Chilcott, of Deer Lodge, MT, brother of Ravalli County Commissioner Greg Chilcott, was the original owner of the 80-acre Hamilton Heights property in question. In 2019, Chilcott sold the property to his son, Lance Albert of Alaska, who then applied for a family transfer, which identified his 5 minor children, wife and father (Gary), as transfer recipients.”
Andy Maki, chairman of the Sapphire Coalition, says, “This was just part of a 280-acre multi-phase subdivision within a mile of the public FWP-managed Calf Creek Wildlife Management Area, adjacent to several conservation easem*nts and part of thousands of acres of contiguous open agricultural lands.”
According to Maki, Chilcott was also the developer of the adjacent proposed development, Sapphire Heights, which had a shared road easem*nt and septic mixing zone easem*nts with his property. This subdivision proposal was withdrawn by the applicants in March after the Ravalli County Planning Board found that the impact on the elk population and wildlife could not be mitigated. In April, Chilcott then moved forward with a realtor to sell the Albert family transfer lots since the required three-year waiting period ended last spring. By selling lots after the family transfer waiting period is over, Chilcott is not required to pay any impact fees or have any review of the subdivision by the county planning board or the public.
“Those fees go towards paying for impacts to infrastructure such as fire, police, school, and road departments,” said Maki. “By comparison, the Sapphire Heights subdivision proposal submitted by WGM had to pay $160,000 in pro rata impact fees. This group alleges that the original intent was to subdivide without going through subdivision review creating a ‘de facto’ subdivision and avoiding these fees.”
“In recent years,” he said, “more lots have been created through family transfers than traditional subdivisions. The county is losing out on millions of dollars of pro rata impact fees that would have been negotiated during a typical public hearing process. Meanwhile, without any due process people wonder why their taxes keep going up, their wells dry up, their irrigation water gets fought over and they lose their rural views as the new growth is serviced.”
“It certainly looks as though developers are buying large parcels of pristine land, then using family transfer to side-step the county subdivision review process,” stated Tina Donnelly, neighbor and Sapphire Coalition board member. “Ultimately, the land is being converted to ‘for profit’ sales. Their acts have absolutely nothing to do with the spirit and law of family transfer. Why should developers be allowed to subvert the law, chop up our lands, and adversely impact our wildlife and farms just to make money? And the developers take their profit and walk away from our community with no regard for the damage that they have caused.”
The group is asking the Court to declare that the decision to grant the family transfer violated their right to know and participate under the Montana Constitution and violated Ravalli County subdivision regulations by not publicizing notice or opportunity for comment on the application for family transfer exemption.
They also ask that the approval of the transfer be vacated and remanded to the department for public process and reconsideration in the light of the statutory and regulatory mandates and issue a Writ of Mandamus to provide a public participation process, including but not limited to holding a public hearing for interested persons to submit data, views, or arguments on Albert Family Transfer.
The Court is also asked to declare and adjudge that the County Attorney’s Office has a non-discretionary mandate to commence action to enjoin further sales or transfers of any tracts of the Albert Family Transfer and issue a Writ of Mandamus directing the County Attorney’s office to commence action to enjoin the sale of the tracts. They are also asking for costs and attorney fees to be paid under the Private Attorney General Doctrine.
On June 26, County Attorney Bill Fulbright submitted a motion to dismiss the case, arguing that the plaintiffs have “failed to meet the threshold considerations of personal jurisdiction, subject matter jurisdiction and justiciability.”
First he asks the Court to consider five documents on file at the Ravalli County Clerk and Recorder’s office that may be considered “matters outside the pleadings,” in which case the Court has the authority to treat the matter as one of summary judgment. He also argues that the Planning Board has no authority or involvement in the decision. (The plaintiffs claim that naming the Planning Board was a technical error that will be corrected in an amended complaint.)
The County Attorney argues additionally, however, that although the County may be subject to claims of personal jurisdiction, the Ravalli County Planning Department, which issued the decision, is not. “The ‘planning department’ is nothing more than a group of county employees, ultimately supervised by the BCC [Board of County Commissioners]. The ‘department’ name is simply an internal designation for division of labor, to accomplish certain tasks within the work of the county,” he writes.
Fulbright also claims that the use of a Writ of Mandamus is inappropriate because the Planning Department’s decision was a “discretionary act” and not a “ministerial act.” He also argues, quoting from case history, that “It is axiomatic that an action already done may not be undone by mandamus… The writ of mandate is used ‘to stimulate action pursuant to some legal duty and not to cause the respondent to undo action already taken, or to correct or revise such action, however erroneous it may have been!’”
It is also argued in the brief that the public comment language in the 2006 subdivision regulations was changed in 2012 to read: “The applicant and the public shall be permitted to comment on the proposal and rebut any presumptions that the use of the exemption evades the MSPA or these regulations.”
“Noticeably absent from the 2012 Regulations is any requirement of a public meeting, or published notice of the application,” writes Fulbright. “Likewise, no such requirement is imposed by State law. While Plaintiff may not like the BCC’s policy decision on this point, this process of administrative review by the Planning Department was adopted by the BCC through a process of public notice, numerous public hearings, public comments, discussion and debate, which culminated in the 2012 Regulations. The 2012 Regulations remain the current version, under which the Planning Department operated at the time of the Albert Family Transfer application. By the plain language of § 11-5(B)(1), the public has the right to comment, and the Planning Department must accept such comments, but the process does not require a publically noticed meeting.”
Fulbright argues additionally that the request for remedies is moot because it comes too late. “A matter is moot if the court is unable due to an intervening event or change in circ*mstances to grant effective relief or to restore the parties to their original position… The intervening events which may render a case moot are of varied character and include the conduct of the parties,” he quotes from another case.
He goes on to state, “Even where a county allegedly mistakenly recorded deeds under a subdivision exemption, the Court stopped the county from setting aside said recordings… There is a limit to how far back Plaintiff can demand 20/20 hindsight be used to void actions taken over 4 years earlier.”
Finally, Fulbright argues, the law was amended by the 2023 Legislature to provide a specific remedy to complaints that applies to the Albert Family Transfer: “If a governing body can prove by documented evidence in a court of competent jurisdiction that a person has knowingly evaded subdivision regulations through the use of a division of land pursuant to subsection (1)(b) or (2)(b), that person is subject to a civil penalty of $5,000 for each division of land, payable to the governing body.”
“With the penalty provision in subsection (6), the Legislature has defined a process, and a remedy, neither of which are the remedy sought by Plaintiff herein. By contrast, the 2023 legislature specifically did not consider an appropriate remedy to be judicial cancellation of approved land transfers, especially four years after the fact. Plaintiff’s Third Claim should be dismissed,” he writes.
