Montanans for Responsible Land Use submit letter to county contesting Big Sky Cheese appeal
The Montanans for Responsible Land Use, a group of area landowners and citizens, submitted a letter to the Cascade County Commission last week regarding the Big Sky Cheese appeal of the conditions placed on their special use permit.
Commissioners are holding a special meeting Nov. 21 to consider the appeal filed on behalf of Big Sky Cheese and its principal, Edward Friesen.
In their letter, which the county confirmed Nov. 19 that it had received, lawyers for MRLU ask commissioners to look to the public record that supports the 17 conditions the Zoning Board of Adjustment placed on Big Sky Cheese’s special use permit during an Aug. 28 meeting.
The group also writes that Big Sky Cheese’s contentions of illegality regarding nine of those conditions are misplaced.
Big Sky Cheese is requesting that commissioners remove nine of the conditions.
According to the meeting agenda, on Nov. 21 commissioners may remand the special exception to the ZBOA; reverse or affirm, wholly or partly, the ZBOA decision; or modify the ZBOA decision.
Under state law, the applicant can appeal to the commission or district court if they find the decision is in part, or wholly, illegal.
In October, Neighborhood Council 5 asked the Great Falls City Commission to formally study the potential impacts of the proposed Big Sky Cheese and Madison Food Park. Council 4 also voted to support the resolution and other neighborhood councils are considering signing on in support of the resolution, which has not yet gone to the City Commission for consideration.
The MRLU lawyers write that the conditions were supported by the record and that the ZBOA does have the legal authority to impose such conditions.
“The record clearly demonstrates that the BOA was acting within its authority, and in consideration of the extensive public record, in developing the conditions for the approval of the SUP. Accordingly, the BOA did not abuse its discretion in approving and conditioning the SUP, it relied on fact and foundation that was clearly reasonable,” Roger Sullivan, the attorney for MRLU, wrote in the letter to commissioners.
Big Sky Cheese took issue with the condition requiring that it obtain necessary water rights from the Montana Department of Natural Resources 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.
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.”
In the MRLU letter, Sullivan writes that obtaining water rights was a condition recommended by staff in June that the applicant did not object to.
Sullivan writes that there is no record or testimony from Big Sky Cheese challenging the BOA’s authority to issue the condition and that the board’s condition doesn’t require the county planning department to monitor, intervene or enforce DNRC regulations.
“Per condition 2, the applicant is responsible for monitoring activities and must submit such monitoring reports to the planning department. The planning staff only has the responsibility of keeping such reports on file and making them available for public review,” Sullivan wrote.
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 and Big Sky Cheese argues that wastewater monitoring wells are not typically required by MDEQ.
In the MRLU letter, Sullivan writes that the contention is contradicted by statements from Big Sky Cheese’s engineer who said it would be a standard MTDEQ requirement for monitoring a lagoon system.
Another ZBOA condition requires 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.
The Big Sky Cheese team took issue with the condition arguing that it could impede delivery operations that would occur outside the facility.
In response, the MRLU letter states that the condition was “not intended to exclude delivery trucks.”
Another condition requires Big Sky Cheese to get a road easement from U.S. Highway 89 to the parcel where the cheese facility would be. Big Sky Cheese argues that since the parcels are under the same ownership, that condition is unnecessary and that under Montana law, a landowner can’t grant an easement to itself.
In response, Sullivan writes for MRLU that “although it is anticipated that all the land will be owned by Madison Park, LLC, there is no guarantee that this will be the case and there is nothing in the public record that the ZBOA relied upon that contains any information about future ownership.
The ZBOA also imposed a condition prohibiting livestock and dairy cows on the Big Sky Cheese site. In their appeal, Big Sky Cheese contends that are no findings of fact or conclusions of law to support the condition and that the company could potentially lease some of its property for grazing in what is an agricultural zoning district.
Sullivan writes for MRLU that Big Sky Cheese stated in its permit application that no livestock or dairy cows will be on site and that the permit approval is only for the Big Sky Cheese property, not the thousands of surrounding acres also owned by Madison Food Park.