Did court give mall green light?

Five years after the project was first proposed, a recent Montana Supreme Court ruling may have cleared the way for Glacier Mall to proceed.

The ruling addressed Flathead County's approval of a growth policy amendment and zone change request for developer James "Bucky" Wolford (see related story).

The amendment and zone change were approved in 2003. North 93 Neighbors, a group opposed to the mall, subsequently sued to block both decisions. The lawsuit was dismissed at the District Court level last year and then appealed to the Supreme Court.

The court recently sent a portion of the Wolford growth policy amendment back to the county for further evaluation.

However, it also indicated that the zone change had been handled appropriately - suggesting that the proposed mall site north of the intersection of U.S. 93 and West Reserve Drive is now zoned for retail and commercial development.

Wolford has proposed a 735,000-square-foot enclosed mall, a 350,000-square-foot "power center" for big box stores, another 80 acres of peripheral commercial development and a 56-acre mixed-use residential/office area.

Wolford could not be reached for comment, but Ken Kalvig, his local attorney, said he thinks the ruling gives the project the go ahead.

"The court clearly said the zone change was fine, so we have zoning," Kalvig said. "In my opinion, that decision was unqualified."

Justice Brian Morris, writing in the court's majority opinion, noted that the commissioners "followed the proper statutory and regulatory procedures for adopting zoning amendments and had sufficient evidence before it to make an informed decision. We agree with the District Court that the [commissioners] did all that the law required."

Kalispell attorney Rich DeJana, who was not involved in the case, supported Kalvig's interpretation.

"My impression is, this [ruling] gives Bucky a green light," he said.

Although the court remanded a portion of the growth policy amendment back to the county for further consideration, DeJana said that shouldn't affect the zoning. Even if more work needs to be done on the amendment, the zoning is now in place.

Wolford had requested 274 acres of B-2 general business zoning and 143 acres of SAG-5 suburban agricultural zoning. He intends to build a regional shopping mall and a related "power center" for big box stores, with space available for additional retail/commercial development.

If Kalvig and DeJana are correct, Wolford could immediately submit a subdivision application to divide the property into smaller building sites. Alternatively, he could begin the site preparation work and subdivide the property later.

Besides the subdivision process, the project may face other regulatory hurdles related to sewage disposal, storm water and other infrastructure issues.

Not everyone is convinced that the zoning is a done deal, however.

Kalispell attorney Roger Sullivan - one of the few attorneys to actually win a court ruling against Flathead County in a land-use lawsuit in recent years - said he thinks it may still be suspect.

By law, the proposed zoning on a piece of property must be in substantial compliance with the growth policy. In this case, the Supreme Court noted that the mall zoning "depended on approval of the amendment to the growth policy."

Consequently, if the county can't demonstrate that the growth policy amendment was handled appropriately, Sullivan thinks it could undermine the zone change.

"If the growth policy amendment falls, then they don't have zoning," he said. "This whole thing could still unravel."

Deputy County Attorney Jonathan Smith said he sees both sides to the argument. Nevertheless, if Wolford submits a subdivision application, Smith said he'd advise the county to go ahead and process it.

Given that the District Court and Supreme Court both found little merit in most of the opponents' claims in this case, Kalvig said it's time to move beyond the lawsuit.

"We recognize that we may have a few more hoops to jump through, but at the end of the day none of that affects the zone change, which was approved by the county and upheld by the courts," he said.

"We have to move things forward. What's most important for us is to do a project that's good for the developer and good for the community. Bucky wants to get things done in a way that hopefully breaks down some of the barriers that have built up over time - but I would think by now people have figured out that he'll take whatever time is needed and devote whatever resources are needed to move through the process."

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com