Lawyers debate mall lawsuit

By WILLIAM L. SPENCE

The Daily Inter Lake

Efforts to bar the Flathead County commissioners from testifying about the Glacier Mall master plan amendment could hinge on how narrowly the legislative "record" is defined.

District Court Judge Kitty Curtis heard oral arguments on this issue on Friday. Her decision will set the ground rules for a February hearing, determining who can or can't help resolve the last legal issue that's preventing the mall from moving forward.

Friday's hearing was the latest action in a three-year-old lawsuit filed by North 93 Neighbors. It was prompted by a Montana Supreme Court decision this summer.

The high court said when the county commissioners approved the mall amendment in 2003, they failed to demonstrate that all of the issues raised by the public had been adequately considered.

The court therefore remanded that portion of the lawsuit back to District Court, asking Judge Curtis to determine whether the almost 4,400 letters and e-mails submitted about the mall raised any relevant issues that weren't addressed by the planning staff report.

Attorneys for the various parties in the lawsuit disagree about how to handle the remand. The county wants to provide witness testimony, possibly from the commissioners or from the county planning staff, whereas North 93 wants to restrict the review to the written record.

Kalispell attorney Roger Sullivan, representing North 93, told Curtis on Friday that the approval of the plan amendment was a legislative act. As such, it had to be based on the factual record available at the time - meaning the planning staff report, the public comment letters and the minutes of the meeting when the amendment was approved.

If that record was so lacking in substance that it didn't support the commissioners' decision - if, for example, the staff report were superficial or if it failed to address relevant concerns raised by the public - then the decision amounted to an "abuse of discretion," Sullivan said.

The only appropriate way to resolve this issue, he said, is to review the record, listing the concerns raised in the letters and deciding whether they were addressed in the staff report or in the meeting minutes.

The commissioners don't need to testify for that kind of review, Sullivan said. Moreover, it could open the door to "after the fact" explanations for their decision.

However, attorneys for Flathead County and developer Bucky Wolford said the Supreme Court already determined that the written record in this case was insufficient to determine whether there was an abuse of discretion. That's the whole reason for the remand.

Consequently, the only way to satisfy the court is to go beyond the written record.

"This case was remanded specifically because of what the record doesn't show," said Scott Hagel, one of several attorneys representing Wolford. "The Supreme Court wants an explanation [about whether any relevant issues were ignored], and it's already told this court that the explanation isn't contained in the record. We can't effectively meet the court's mandate without witness testimony."

Curtis said she would rule on this issue by the end or December or early January.

The amendment at the heart of Friday's court action allowed commercial and mixed-use residential/office uses on 481 acres northeast of the intersection of U.S. 93 and West Reserve Drive. A subsequent zone change was adopted as well.

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.

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