Big Sky Cheese files appeal over some of ZBOA’s conditions on permit approval

Edward Friesen, on behalf of Madison Food Park and Big Sky Cheese, has filed an appeal with the County Commission of the Zoning Board of Adjustment’s Aug. 28 decision on their special use permit.

The ZBOA’s approval of the permit included 17 conditions and Friesen has taken issue with nine of them.

Under state law, the applicant can appeal to the commission or district court if they find the decision is in part, or wholly, illegal.

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Friesen and his team are asking commissioners to remove the nine conditions from the board’s approval. The appeal was written by Alan McCormick of Garlington, Lohn, Robinson law firm in Missoula.

Currently, county legal staff is reviewing the appeal and a commission meeting has been tentatively scheduled for late November depending on legal’s analysis.

Friesen contests the condition requiring his company to obtain the necessary water rights from the Montana Department of Natural Resources and Conservation and place meters on wells and submit quarterly reports to the planning department and obtain water rights if usage exceeds the exempt well levels provided by DNRC.

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According the the petition submitted by Friesen’s legal team, exempt wells don’t obtain water rights but are subject to a notice of completion.

The county ZBOA lacks “the authority to supplement or deviate from DNRC rules and regulations. Further, as a practical matter, the planning department is not equipped to monitor quarterly well usage reports and lacks the authority to intervene in the event of any deviations, which are solely for DNRC to enforce.”

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The ZBOA included a condition requiring Big Sky Cheese to obtain approval from the City-County Health Department and the Montana Department of Environmental Quality for a new public water supply/water water system and requested that DEQ consider requirements for the wastewater ponds to be lined, as well as requiring the applicant to provide quarterly reports to the planning department.

In their appeal, the Big Sky Cheese team writes that they appreciate and understand the need for permits and they’ll abide by requirements for public water supply and wastewater systems.

Their concern lies with the monitoring requirement.

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“Wastewater monitoring wells are not typically required by MDEQ and the Board of Adjustment lacks all authority to require such wells, any associated monitoring, and any resulting reporting requirements. This condition does not explicitly require the installation of monitoring wells, but implicitly does via the requirement for reporting. It lacks the specificity necessary to know how to satisfy the condition even if the board had the authority to supplement or deviate from MDEQ’s authority, rules and regulations,” according to the appeal.

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Conditions from the ZBOA limited operation hours from 7 a.m. to 7 p.m., which would make it impossible to operate the facility, according to the appeal.

At the proposed cheese processing plant, activities such as routine maintenance, cleaning and disinfection of equipment, wastewater treatment plant operations and the like would be on a 24-hour cycle, according to Friesen’s appeal.

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“There are no findings of fact or conclusions of law adopted by the Board of Adjustment which would support the imposition of this condition. The facility is located more than a mile from any other existing structures and the site was chosen specifically because of the extremely low density of housing and other land uses in the area. Therefore, the facility is in an appropriate area for the proposed use, there are no other land uses limited on hours of operation in the area, there are no findings of fact which support limiting these hours and it would be impossible to operate the facility with such limitations,” according to the appeal.

The ZBOA included a condition requiring all cheese manufacturing process activities to be kept inside a fully enclosed building and not be visible to the general public, with air from the internal cheese manufacturing process being treated and filtered to address other concerns. The condition required Big Sky Cheese to design and adopt odor control measures.

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The condition is too vague for Big Sky Cheese to comply or for county planning to know when the condition has been met, according to the appeal.

Manufacturing activities will generally take place inside the facility and filters will be used to reduce or eliminate odors, according to the appeal. But the condition is worded in a way that could be interpreted as preventing deliveries of milk or other supplies since those occur outside the building, according to the appeal.

The condition includes no specifics as to what odor control measures are acceptable, according to the appeal, and while the company intends to limit odors, “the facility is located in an area with significant agricultural operations which generate a host of odors, none of which are subject to requirements to be conducted indoors and with odor control measures.”

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Another ZBOA condition required Big Sky Cheese to execute or obtain and record a road easement from U.S. Highway 89 to the parcel where the proposed cheese plant would be located.

Friesen’s team contends there are no findings of fact or conclusions of law to explain the requirement. “We are unable to determine what concern this condition is attempting to address,” according to the appeal. The land will also be owned by Madison Food Park, and according to the appeal, Montana law doesn’t allow landowners to grant easements to themselves.

The conditions included in the ZBOA’s approval included a prohibition on livestock and dairy cows on the Big Sky Cheese site.

Again the Friesen team argues there are no findings of fact or conclusions of law to support the condition and the proposed facility is located in the county’s agricultural zoning district, which allows livestock and agricultural production. The proposed site is surrounded by agricultural land and while the applicant doesn’t “have plans for livestock use on the property, the property contains thousands of acres and some leasing for grazing could be a useful option” according to the appeal.

The ZBOA conditions also required design standards for width, pavement and subsurface for an access road to accommodate emergency vehicles and provide for dust control.

The Friesen team wrote in their appeal that their concern is paving the road. There are no justifications for the condition, particularly since many roads in the area are gravel, according to the appeal. Madison Food Park intends to pave the road eventually, according to the appeal, but there are other methods of dust control they could use in the interim.

The conditions require Big Sky Cheese to provide emergency secondary access, but the appeal contends that there are no specifications in the condition to allow the applicant to know how to meet the requirement or the planning department to know if it had been met. Since the local volunteer fire department provided no comments on the project, Friesen’s team is asking commissioners to delete the condition.

The conditions also require Big Sky Cheese to obtain fire suppression cistern approval from the rural volunteer fire department.

According to the appeal, the cheese plant is a commercial facility, which would require fire suppression systems and adherence to state building codes through the state’s permitting process.

“This condition, as worded, lacks any specificity for our client to know how to meet the condition, or to allow the planning department to know whether the condition has been met,” according to the appeal.