North Fork Land Use Planning Committee Comments
Re:
Text Amendments to North Fork Zoning District
The following facts are all drawn from the public record in this review.
BACKGROUND
The North Fork Land Use Advisory Committee has proposed amendments to the text of the North Fork Zoning District.
The Flathead County Planning and Zoning Office has thoroughly reviewed and subsequently recommended adoption of the proposed amendments.
During its review of the proposed amendments, members of the Flathead County Planning Board raised a number of concerns. Among other comments, they characterized the amendments as creating "the most restrictive zoning district in Flathead County."
COMMENTS
A thorough comparison of the proposed North Fork amendments to those regulations already present within the Flathead County Zoning Regulations suggests quite clearly that most of the Planning Board's concerns should not have been nearly as grave as they were portrayed to be. In fact, the majority of the proposed North Fork amendments: (1) represent requirements already in place in much of Flathead County; (2) reflect terms adopted verbatim from the existing County Zoning Regulations; and (3) and even seek in many cases to impose less restrictive requirements than what is already in place elsewhere in Flathead County.
General
1. Accessory Use
Many members of the Flathead County Planning Board expressed concern and felt that the North Fork amendments were actually deficient on their face because they listed no Accessory Uses.
As the Commissioners are certainly aware, Flathead County has ten (10) specifically defined zoning districts within the general County zoning scheme. The North Fork represents one of those ten. Of the ten specific districts, only two (2)-Hubbert Dam and Rogers Lake-contain Accessory Uses. Aside from the North Fork, obviously none of the other seven (7) districts were considered deficient or somehow too restrictive because they did not list Accessory Uses. Nowhere in the regulations does it state that Accessory Uses are required. On the contrary, the current Flathead County Zoning Regulations and the general lack of Accessory Uses prove that Accessory Uses are not a prerequisite to the adoption of zoning amendments. The North Fork amendments are therefore no less worthy of adoption than any of the existing regulations in the other nine (9) districts.
2. Commercial/Residential Uses
Some members of the Flathead County Planning Board were concerned that the North Fork amendments unnecessarily applied to residential as well as commercial uses. First, in their current condition, the North Fork standards address only three issues: (1) lot size; (2) setbacks; and (3) signage. These standards are universally applicable to commercial and residential uses.
These amendments are now being proposed precisely because the North Fork stands alone among the County's zoning districts in its total lack of commercial use designations. That desire to clarify future commercial use is the clear intent of the amendments, and residential use is not the concern. Accordingly, the proposed amendments address in their entirety commercial uses. The only possible references to a residential use application in the proposed amendments include designating Single-Family Dwellings and Recreational Vehicle/Camping as permitted uses. Indeed, such designations are not even accurately described as a restriction, but rather constitute affirmation of such uses.
In comparison, many other County zoning districts very clearly restrict an owner's residential uses. For example, the Little Bitterroot district restricts the kind of exterior lighting that a homeowner can install (Section 3.33.110), the Ashley Lake district restricts the height of residential property (Section 3.38.050), and the LaBrant/Lindsey Lane district restricts the residential use of recreational vehicles (Section 3.39.120). The North Fork proposed amendments make no such restrictions.
The fact remains that almost every zoning district in Flathead County has uses similar or identical to what is being proposed in the North Fork. That some of those uses would appear to implicate residential uses (such as residential businesses or guest cabins) is entirely secondary to the fact that in their application, they intend to and are specifically defined to address solely commercial use, just as is the case in the application of those terms elsewhere in the County and its other zoning districts.
3. "Prohibited" Uses
Some members of the Flathead County Planning Board criticized the proposed North Fork amendments because of concern that all uses not specifically listed would be forever precluded.
As the Commissioners can see, and as pointed out previously to the Planning Board by the County Planning and Zoning Office report, Section 2.07 of the Flathead County Zoning Regulations regarding Non-Conforming Uses applies to the North Fork. Accordingly, any uses currently in existence but not specifically listed in the proposed amendments will be allowed to continue.
As the Commissioners are further aware, the distinctions between classifications of Permitted Use, Conditional Use, Accessory Use, etc. all essentially pertain to what use within a given district is per se allowed, and which other uses require closer scrutiny. For example, a Conditional Use is by no means a prohibited use, but rather simply one that must be reviewed, given the potential impact within the district, pursuant to Section 2.06.080 of the Flathead County Zoning Regulations in terms of (A) site suitability; (B) design appropriateness; (C) availability of public services and facilities; and (D) immediate neighborhood impact. That review is made by the Board of Adjustment, and there is no basis for suggesting that because a use is listed as Conditional Use, it is a prohibited use.
Likewise, there is no basis for contending that a not specifically listed use is a prohibited use. The Flathead County Zoning Regulations specifically provide a procedure whereby a use that is not specifically listed can be approved. Section 3.03.030 states that "where a use or class of use is not specifically listed, its status shall, upon request, be determined by the Zoning Administrator . . . by reference to that listed use, if any, which is so like the requested use in purpose, function, character, and effect as to be substantially similar to said listed use." In other words, any landowner can simply request, just as would be the case for a Conditional Use, that a not specifically listed use be allowed.
4. Public Health, Safety, and Welfare
Some members of the Flathead County Planning Board criticized the proposed North Fork amendments because they allegedly did not address how the amendments promoted the public health, safety, and general welfare, and that therefore the amendments should be rejected.
Section 76-2-203, MCA, states that zoning regulations must, among other criteria, be designed to "lessen congestion in the streets; secure safety from fire, panic, and other dangers; promote public health and general welfare; provide adequate light and air; prevent the overcrowding of land; avoid undue concentration of population; and facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements." The Flathead County Planning and Zoning Office found that in each of the above regards, the proposed North Fork amendments either contributed to maintained the present standards, and in no way inhibited the current level of public health, safety, and general welfare as defined by these specific concerns.
The fact remains that in relation to Flathead County's other zoning districts, the North Fork has a more obvious public health, safety, and general welfare element than almost any other district, given its remote geography and rural character. The fact that proponents do not specifically argue that a particular use is designed solely for increasing safety is beside the point. Indeed, it is dubious to what extent a list of permitted commercial uses is even capable of conveying an primary and express safety element. Simply because the proposed amendments so clearly continue the character and relatively low impact uses already found in the North Fork, they inherently protect against the risks to public health and safety that would inevitably spawn from unlimited commercial or residential uses. Whether that issue constitutes the lead argument on behalf of the amendments or not, it should be obvious to anyone who is familiar with the area and its potential risks.
Furthermore, a comparison of the North Fork district to Flathead County's other zoning districts demonstrates that to the extent public health, safety, and general welfare must be considered and incorporated into the text, the North Fork amendments are sufficient. For example, of Flathead County's ten (10) zoning districts, only three (3)-LL LaBrant/Lindsey Lane, the North Fork, and the Airport Overlay-expressly incorporate in their definition concern for public health and safety. All the others refer instead only to a general intent to, for example, "promote orderly growth and development," or "protect the quality, character, and openness of the neighborhood."
Specific
1. Bed & Breakfast
Some members of the Planning Board were concerned that the amendments restricted too heavily an owner's right to operate a Bed & Breakfast.
As the Commissioners can see, and as pointed out previously to the Planning Board by Mr. Sanderson, the North Fork amendments make no alteration to the general Flathead County Zoning Regulations definition of a Bed & Breakfast use. In other words, the North Fork amendments adopt precisely the standard and definition currently found in Section 4.02 of the Flathead County Zoning Regulations.
In comparison, multiple approved zoning districts in Flathead County impose a different and more restrictive definition of Bed & Breakfast. For example, the Rogers Lake, Ashley Lake, and LL LaBrant/Lindsey Lane districts limit Bed & Breakfasts within those areas to no more than four (4) rooms for rent. The North Fork amendments would therefore be less restrictive in their regulation of Bed & Breakfasts than many other Flathead County zoning districts.
Given the obvious potential for Bed & Breakfast use in the North Fork, the proposed amendments must be viewed favorably in terms of adopting simply the language already a standard part of the Flathead County Zoning Regulations, and not imposing additional standards the way that multiple other districts have.
2. Guest Cabins
Some members of the Planning Board were concerned that the amendments restricted too heavily an owner's right to place cabins on their property. Part of that concern was based upon the fact that many owners in the North Fork have had family property for decades and they want to preserve the land for their family to be able to use.
The North Fork amendments provide a special definition for Guest Cabin use, thereby replacing the standard and definition for Guest Cabin currently found in Section 7.080.050 of the Flathead County Zoning Regulations.
In comparison, the North Fork standard for Guest Cabin use is less restrictive than that required by the County Zoning Regulations generally. For example, the County prohibits a cabin from having more than two (2) bedrooms, whereas the North Fork amendments make no such restriction. In other words, guest cabins in the North Fork can accommodate large families by being built with more than just two (2) bedrooms.
Likewise, the County regulations limit the construction of Guest Cabins to one (1) per tract. In recognition of the fact that the North Fork is a place attractive for family and guest use, the North Fork amendments replace that definition, and would permit more than one (1) guest cabin per tract.
Clearly this kind of accommodation for the specific needs of the North Fork is exactly the purpose of district zoning. By allowing greater Guest Cabin use in this regard, the amendments clearly cannot be accurately portrayed as "the most restrictive" in the County.
3. Dude Ranch
Another potentially likely area-appropriate use in the North Fork is Guest or Dude Ranch. The North Fork amendments adopt a special definition of Dude Ranch. That definition adopts the 160-acre minimum verbatim from the Flathead County Zoning Regulations definition of a Guest Ranch (Section 7.080.060). Clearly then, the North Fork amendments as applied to this use is not any more restrictive than that required by the County Zoning Regulations.
4. Residential Businesses
Some members of the Planning Board were concerned that the amendments restricted too heavily an owner's right to operate a Residential Business.
The North Fork amendments provide a special definition for a Residential Business use, thereby effectively replacing the standard and definition for Home Occupation currently found in Section 7.09.020 of the Flathead County Zoning Regulations.
In comparison to the County definition of a Home Occupation, the North Fork Permitted Use standard for Residential Business is less restrictive than that required by the County Zoning Regulations generally. For example, the County standard requires that a Home Occupation be conducted "entirely within the dwelling" and "carried on by members of the family," and further that the use "not involve more than one-third of the total square footage of the dwelling." The North Fork standard makes no such restriction regarding a requirement that the business be operated entirely within the dwelling or as to total square footage allowed. Additionally, the North Fork standard allows as a Permitted Use a Residential Business to employ one non-family member, which is more than the County standard would allow.
Even getting beyond the County definition of Hope Occupation, the Flathead County Zoning Regulations require a Conditional Use permit for the operation of any residential business within the following general zones: Agricultural, Suburban Agricultural, Suburban Residential, and Single-Family Residential. The North Fork amendments, on the other hand, allow a Residential Business as a Permitted Use. In short, as a Permitted Use, any North Fork landowner can operate a Residential Business with fewer restrictions than elsewhere in the County.
Regarding the proposed North Fork Conditional Use of Residential Business With More Than One Non-Family Member Employee, the proposed amendment is similar to the Conditional Uses for Residential Business in many other approved zoning districts in Flathead County. For example, the Ashley Lake and LaBrant/Lindsey Lane districts both limit home-based businesses to one non-resident employee (Section 3.38.170). Accordingly, the North Fork amendments are no more restrictive than other zoning districts in the County.
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