HomeMy WebLinkAboutCity Council Minutes 02.28.2023f i iWAII
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February 28, 2023
A regular meeting of the City Council of the City of Laurel, Montana, was held in the Council
Chambers and called to order by Mayor Dave Waggoner at 6:32 p.m. on February 28, 2023.
COUNCIL MEMBERS PRESENT: Emelie Eaton Heidi Sparks
Michelle Mize Richard Herr
Casey Wheeler Iry Wilke
Richard Klose Jodi Mackay
COUNCIL MEMBERS ABSENT: None
OTHER STAFF PRESENT: Michele, Braukmann, Civil City Attorney
Brittney Moorman, Administrative Assistant
Kurt Markegard, Public Works, and Planning Director
Kelly Strecker, Clerk/Treasurer
Matt Wheeler, Public Works Superintendent
Stan Langve, Police Chief
Brent Peters, Fire Chief
Mayor Waggoner led the Pledge of Allegiance to the American flag.
Motion by Council Member Wilke to approve the minutes of the regular meeting of February
14, 2023, as presented, seconded by Council Member Eaton. There was no public comment or council
discussion. A vote was taken on the motion. All eight council members present voted aye. Motion
carried 8-0.
CORRESPONDENCE: None.
COUNCIL DISCLOSURE OF EX PARTE COMMUNICATIONS:
Council Members Mize, Sparks, and Mackay received emails in favor of Ordinance No. 023-01. They
each said they would read those received emails during the public comment period of the agenda item.
PUBLIC HEARING: None.
® Claims entered through February 24, 2023.
A complete listing of the claims and their amounts is on file in the Clerk/Treasurer's Office.
i Approval of Payroll Register for PPE 2/19/2023 totaling $207,222.79.
The Mayor asked if there was any separation of consent items. There was none.
Motion by Council Member Klose to approve the consent items as presented, seconded by
Council Member Eaton. There was no public comment or council discussion. A vote was taken on the
motion. All eight council members present voted aye. Motion carried 8-0.
CEREMONIAL CALENDAR:
Mayor Nottingham from Fromberg, MT, presented Mayor Waggoner with a plaque for the assistance
he offered during the flooding event this past summer. The City of Laurel provided containers for
damaged items to be properly disposed of and hauled those containers to the landfill. The City of
Fromberg was grateful to have the City of Laurel's help during its time of need.
Council Minutes of February 28, 2023
REPORTS OF BOARDS AND COMMISSIONS:
® Budget/Finance Committee Minutes of February 14, 2023.
® Tree Board Minutes of January 19, 2023.
AUDIENCE PARTICIPATION (THREE-MINUTE LIMIT):
Corey McIlvain, 903 6th Avenue, stated he is a 20 -year member of the Laurel Volunteer Fire
Department. He spoke in favor of better communication between the Fire Department and City
Administration. As the Fire Association President, he formally requested that the Fire Department be
placed on the next Workshop to have a discussion. He also stated that the Mayor had asked for a Chief
recommendation to be brought forward. There was a vote on Sunday, and that recommendation is
Brent Peters.
Mayor Waggoner stated he would place the Fire Department on the March 21St Workshop Agenda.
Barb Emineth, 501 Alder Avenue, read the attached letter into the record.
Julian Lore, 709 Roundhouse Drive, read the attached letter into the record.
Kasey Felder, 1434 McMullen Lane, read the attached letter into the record.
Steve Krum, 249 24th Avenue West, read the attached letter into the record. He also handed out a copy
of the brief in support of the motion for summary judgment to each Council Member.
SCHEDULED MATTERS:
Appointment of Steven Hurd to the Police Commission for the remainder of a three-year
appointment ending April 30, 2024.
Motion by Council Member Sparks to approve the Mayor's appointment of Steven Hurd to the
Police Commission for the remainder of the three-year appointment ending April 30, 2024, seconded
by Council Member Wilke.
Steven Hurd, 1704 Duval Drive, introduced himself to Council.
There was no council discussion. A vote was taken on the motion. All eight council members
present voted aye. Motion carried 8-0.
Resolution No. R23-13: A Resolution Of The City Council Adopting The Transportation
Coordination Plan, Laurel Transit, For The City Of Laurel.
Motion by Council Member Herr to approve Resolution No. R23-13, seconded by Council
Member Wilke. There was no public comment or council discussion. A vote was taken on the motion.
All eight council members present voted aye. Motion carried 8-0.
Resolution No. R23-14: A Resolution Awarding The Bid And Authorizing The Mayor
To Execute All Contract And Related Documents For Russell Park Landscape
Improvements.
Motion by Council Member Mackay to approve Resolution No. R23-14, seconded by Council
Member Wilke. There was no public comment or council discussion. A vote was taken on the motion.
All eight council members present voted aye. Motion carried 8-0.
Resolution No. R23-15: A Resolution Of The City Council Authorizing The Approval Of
The Independent Contractor Service Contract With Forestry Fuels And Fire.
Mayor Waggoner stated this resolution could be removed from the agenda. The final price
came in at $4,500, which is under the $5,000 threshold needed to bring this item before Council.
Motion by Council Member Mize to remove Resolution No. R23-15 from the Council agenda,
seconded by Council Member Wilke. There was no public comment or council discussion. A vote was
taken on the motion. All eight council members present voted aye. Motion carried 8-0.
Council Minutes of February 28, 2023
Ordinance No. 023-01: An Ordinance Amending Title Six Of The Laurel Municipal
Code (LMC § 6.16.010) Relating To Prohibited Certain Animals. (First Reading)
Motion by Council Member Mize to adopt Ordinance No. 023-01, seconded by Council
Member Eaton.
DJ Poolet, 809 8th Avenue, spoke in favor of allowing chickens within City limits. In particular,
the sizable investment it takes to own chickens and that chickens are very good for gardens.
Kris Keys, 420 7 1 Avenue, spoke in favor of allowing chickens within City limits. In particular,
he would like to see local eggs at the farmer's market.
The attached letters of support from Stephanie Lavely, Missy Ritchie, Haillie McComish,
Kristine Williams, Megan Keys, Linda Strawbridge, LeeAnn Burley, Paige Farmer, and Braven
Warner were read into the record.
Allison Mackay, 404 E. 9th Street, spoke in favor of allowing chickens within City limits.
There was no council discussion. A roll call vote was taken on the motion. Council Members
Sparks, Herr, Wilke, Mackay, Wheeler, Mize, and Eaton voted aye. Council Member Klose voted no.
Motion carried 7-1.
ITEMS REMOVED FROM THE CONSENT AGENDA: None.
COMMUNITY ANNOUNCEMENTS (ONE -MINUTE LIMIT):
There is a fundraiser for the summer lunch program through SOW Ministries. They are raffling off a
65 -inch TV. Tickets are $20 a piece, and only 100 tickets will be sold. Many churches in town assist
with the SOW Ministries summer lunch program.
COUNCIL DISCUSSION: None.
Mayor Waggoner stated the walking path at Riverside Park is open. Some cleanup needs to be done,
but it is open to the public.
® Resolution No. R23-16: A Resolution Of The City Council Amending Resolution No. R21-
130 To Allow Upcharge To Bid With SWS Equipment, LLC For The Purchase Of A Roll -
Off Container Truck For The City Of Laurel's Public Works Department.
Mayor Waggoner stated this resolution is for a surplus charge.
This roll -off truck was ordered two years ago and will be here tomorrow. The increase is $4,800, and
this surcharge is like other surcharges Council has seen previously.
Motion by Council Member Eaton to approve Resolution No. R23-16, seconded by Council
Member Wilke. There was no public comment or council discussion. A vote was taken on the motion.
All eight council members present voted aye. Motion carried 8-0.
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Motion by Council Member Eaton to adjourn the council meeting, seconded by Council
Member Wilke. There was no public comment or council discussion. A vote was taken on the motion.
All eight council members present voted aye. Motion carried 8-0.
There being no further business to come before the Council at this time, the meeting was adjourned at
7:28 p.m.
Council Minutes of February 28, 2023
Approved by the Mayor and passed by the City Council of the City of Laurel, Montana, this 141x' day
of March 2023.
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2/28 Council statement -
I am Juliane Lore. I live at 709 Roundhouse Drive, Ward 4. I'm speaking to you tonight as a resident, and
also as your City Prosecutor. I'd like to offer some perspective and support of a colleague whose ethics
and excellence are a standard I try to live up to every day, Michele Braukman, our City Attorney.
Inspired by Ray Southworth, another hero, who spoke here a few weeks ago in support of you, Council.
Shocked us all a little, he didn't come to bring any issue or problem up at all, just to shine light and say
he sees who you are and the amazing things you achieve and the service you give. He knew the people
at these tables don't hear that very much.
So - Last meeting I was watching online, and we all saw a simple budget request, a misdirected one,
just business, explode into something ugly, and into a troll fest online, get way out into the weeds and
for some inexplicable reason, it appears our City Attorney was targeted for much of the ugliness that
nobody was debunking on Facebook.
I'm here to channel some Ray, and shine some light, Facebook —make sure there's an accurate public
perception on her character and her contributions to our City. I'm still a little in disbelief that she signed
on, she's had such a big career already, and Laurel can be .. challenging.
I will share, or remind, everyone that Michele Braukman came up not like most lawyers do, from
families of lawyers, but without any silver spoon. She knew from the time she was very small the only
way she would rise up was through achievement, and work. And she worked, and she rose up, and she
worked, and she graduated summa cum laude at her law school — and that was Notre Dame, and that
was on a full ride. That's bootstraps. Respect!
Then she made a family, she's a Mom of four— at the same time, she worked her way up to partner at
Moulton Bellingham in Billings, and that firm is the cream of the crop. There, she represented the City of
Billings for twenty years in the same capacities that she serves us now... before she opened her own
firm, created three jobs, and was just voted runner-up best PI attorney in Billings in the Readers Choice
Awards sponsored by the Gazette I believe? She doesn't need this gig - She may only keep us on because
she has a sense of humor? And a huge heart?
I know it is not the money — I'll remind everyone here that when the previous attorney retired, she took
the same contract, no new money - less the health insurance. Those funds went back in the City kitty,
she didn't ask for it. We will never see any contractual rate decrease on succession ever again. The
impact on city budget was positive when she came on board in real numbers starting on day one.
Then — the Splash park! The Mayor's answer to a loved resource that had fallen to decay. I respect the
myriad of legal issues with conversion, operation, all the impressive work she's doing right there - but..
her firm gave TEN THOUSAND DOLLARS. Personally — her money — so that Laurel could use that as
matching funds for donors. $10,000 is 1/5 of her contract for a year, and she gave that back to the City
so that we could have this joy — and this is opening this summer. Respect.
A very few, quick highpoints on the some of the things she's done for the City just recently, any one of
which are huge achievements — projects stalled or sidelined for years -
We had our budget cycle — and then — did a complete revision of all city rates and fees. For the first
time, my department is collecting reasonable fees and covering its own supply costs. Some department
fees and rates were adjusted for first time in decades I understand. It was a huge project. It needed
done, it was past time. She took it head on, not piecemeal, now it's done, and we're making money.
Respect.
The HR functions she's taken on, a huge hole in the City for years — now we have cohesive policies and
procedures coming together. She's provided the introduction of information for every department head
and for Council that standardizes uniform pay ranges, lines us up with statewide salary increases and
duties, sets employment expectations. We have transparency and confidence with this guidance — and
that means us retaining great staff, and attracting quality new talent— stopping the "braindrain". That's
all her hard work, late at night.
(I ended here — I would have finished with this:)
Michele —just thank you —we see you. I know you're always doing our heavy lifting, our heavy listening,
writing, mediating, managing, often working out of pocket, and probably always tired. The lawyers are
just workhorses, hired guns. Good ones are anyway. They know their service to their client is never
about themselves. You exemplify that. Respect.
February 27, 2023
We know that the city is in charge of zoning the donut area where NorthWestern
Energy is building its power plant. We encourage the city to immediately follow its
established procedures regarding Industrial development. In 2021, the City
Attorney understood that this was the jurisdiction of the City of Laurel while
Yellowstone County continues to take the position that it is not the County's
jurisdiction to zone. It is unclear why the office of the City Attorney changed its
position and what is causing it to abdicate its authority over zoning land which
would protect existing landowners' properties, business, and public health and
safety.
Prior to construction, it is common practice for developers to file for permits,
ensure zoning aligns with the city's plan, and to comply with any other city or
county approval processes before construction begins. Yet, here in Laurel,
NorthWestern Energy is building its gas plant without approval from the county or
the city. It is being done on land that is zoned agricultural, which appears to be a
violation of our zoning regulations.
Our hope is that the City of Laurel will stop using taxpayer dollars on
unnecessary litigation, and instead focus its energy and time towards its
community members who are asking for help protecting our properties,
businesses, and health and safety. NorthWestern Energy must be held to the
same standards as any developer and go through the appropriate process to
build in our community. Simply put, it should be required to follow the same laws
as everyone else.
We hope that the City will support its zoning authority as well as our
Constitutional rights of free speech, open government and public participation in
the decision making process.
Please remember, Laurel is more than a City government. It is made up of
people inside and outside the city limits who are all working to help and care for
each other, this is a community. All good things start as an idea, and good
people need to work together to see ideas through to reality. We urge you to
settle this litigation and require NorthWestern to follow the city's zoning
requirements, just as any other developer would be required to do.
Sincerely,
Thiel Road Coalition
Montana Environmental Information Center
Northern Plains Resource Council
Steve Krum, 249 241h Avenue West, Laurel, Montana.
Mr. Mayor, Council Members. I am here asking the city to save the money and
spend it where it is most needed, supporting the Laurel Community by agreeing
the city has jurisdiction over NorthWesterns' parcels. The County has already said
that it does not have jurisdiction over the area.
For those in the city and surrounding community, contractors and residents alike
must acquire proper permits and ensure zoning is correct, if not, follow the
proper procedures to do so, yet, NWE is building a gas-fired plant without any
construction permitting from the state, county or city and doing so on
agriculturally zoned property, this is wrong! If Laurel does not accept the
authority given to them by state law to zone up to 2 miles outside their city limits,
then what is the point of spending 10's of thousands of dollars and 2 years of
employee and contractor time on a growth plan for future land use around the
city? Without this zoning authority, what is happening to the Laurel community
right now with what NWE is doing will open a door for a free for all in building
around the city limits of Laurel. Any kind of business can be built, where they
want, regardless of the city's growth plan, and no regard whatsoever for the
property owners' rights they are building next to.
Will the city council stand up and stop wasting money on unnecessary litigation
and focus their energy and time towards our community members asking for help
protecting their properties, their businesses and their health and safety? Require
NWE to follow the zoning regulations and permitting process. Do not let NWE
continue to bulldoze their way into our community at the expense of all our
rights.
Laurel is more than just a city; it is a community made up of people inside and
outside the city limits. We are a community with common interests. Mr. Mayor
and Council Members, please follow the law, follow the regulations, and follow
Laurel's growth plan, which NWE has chosen to ignore. Protect your citizens from
the air and noise pollution from this plant. When it is too late, and the air and
noise pollution is much worse than stated, the Laurel Community will have no
recourse. Please protect your people, Thank You.
Amanda D. Galvan
Mary Cochenour
Emily T. Qiu
Earthjustice
313 East Main Street
P.O. Box 4743
Bozeman, MT 59772-4743
(406) 586-9699 Phone
(406) 586-9695 Fax
agalvan@earthjustice.org
mcochenour@earthjustice.org
egiu@earthjustice.org
Attorneys for Plaintiffs
MONTANA THIRTEENTH JUDICIAL DISTRICT COURT
YELLOWSTONE COUNTY
THIEL ROAD COALITION,
NORTHERN PLAINS RESOURCE
COUNCIL, and MONTANA
ENVIRONMENTAL INFORIVIATION
CENTER,
Plaintiffs,
V.
CITY OF LAUREL, YELLOWSTONE
COUNTY, and NORTHWESTERN
ENERGY, INC.,
Defendants.
Case No. DV -56 -22 -1087 -OC
Hon. Jessica Fehr
BRIEF IN SUPPORT OF
MOTION FOR SUMMARY
JUDGMENT
TABLE OF AUTHORITIES......................................................................................... iii
INTRODUCTION.......................................................................................................... 1
LEGAL BACKGROUND............................................................................................... 2
UNDISPUTEDFACTS.................................................................................................. 3
I. CITY AND COUNTY LAND USE PLANNING ................................................ 3
II. NORTHWESTERN ENERGY'S GAS-FIRED PLANT ...................................... 5
III. CITY OF LAUREL ZONING PROCEEDINGS ................................................. 7
STANDARD OF REVIEW............................................................................................. 9
STANDING.................................................................................................................... 9
ARGUMENT................................................................................................................ 11
I. THE CITY OF LAUREL HAS ZONING JURISDICTION IN THE
EXTRATERRITORIAL AREA AROUND THE CITY ..................................... 11
A. The City Created a Growth Policy that Extended its Zoning
Jurisdiction and Authority to the Extraterritorial Area ...................... 12
B. The City Created a City -County Planning Board to Exercise
Zoning Jurisdiction in the Extraterritorial Area .................................. 13
C. The City has Expressly Exercised its Extraterritorial
Jurisdiction, and Now Cannot Ignore its Jurisdiction for its
Convenience............................................................................................ 14
II. YELLOWSTONE COUNTY DOES NOT HAVE ZONING AUTHORITY
IN THE EXTRATERRITORIAL AREA AROUND LAUREL ......................... 15
A. The County Admits that it has Never Adopted a Growth Policy
that Asserts Jurisdiction Over Laurel's Extraterritorial
Jurisdiction............................................................................................. 16
B. The County Admits that it Has Not Enacted Any Lawful
Subdivision or Zoning Regulations in the Extraterritorial Area
AroundLaurel........................................................................................ 17
CONCLUSION............................................................................................................. 19
ii
TABLE OF AUTHORITIES
STATE CASES
Bridger Canyon Prop. Owners'Ass'n, Inc. v. Plan. & Zoning Comm'n
for Bridger Canyon Zoning Dist. & 360 Ranch Corp.,
270 ::Mont. 160, 890 P.2d 1268 (1995).......................................................................
3
Broadwater Dev., LLC. v. Nelson,
2009 MT 317, 52 Mont. 401, 219 P.3d 492..............................................................
9
State ex rel. Christian, Spring, Sielbach & Assocs. v. Miller,
169 Mont. 242, 545 P.2d 660 (1976)......................................................................
17
State ex rel. Diehl Co. v. City of Helena,
181 Mont. 306, 593 P.2d 458 (1979)......................................................................
17
Heffernan v. Missoula City Council,
2011 MT 91, 360 Mont. 207, 255 P.3d 80 ......................................................
3, 9, 10
Little v. Bd. of Cnty. Comm rs of Flathead Cnty.,
193 Mont. 334, 631 P.2d 1282 (1981).......................................................................
3
Park Cnty. Env't Council v. Mont. Dept of Env't Quality,
2020 MT 303, 402 Mont. 168, 477 P.3d 288............................................................
9
Phillips v. City of Whitefish and Bd. of Comm'rs of Flathead Cnty.,
2014 MT 186, 375 Mont. 456, 330 P.3d 442 ....................................................
13,18
Quigg v. Slaughter,
2007 MT 76, 336 Mont. 474, 154 P.3d 1217............................................................ 9
Williams v. Bd. of Cnty. Commr's,
2013 MT 243, 371 Mont. 356, 308 P.3d 88.............................................................. 2
CONSTITUTIONAL PROVISIONS
Mont. Const. Article II, § 8............................................................................................ 2
STATE STATUTES AND LEGISLATIVE MATERIALS
Sen. Comm. Hr'g on SB 97 Before Sen. Comm. on Loc. Gov't (Jan. 12,
1999)........................................................................................................................ 18
STATE REGULATIONS AND ADMINISTRATIVE MATERIALS
MCA§ 2-3-101............................................................................................................... 2
§ 7-1-4111...................................................................................................... 11,12
§ 75-2-311...................................................................................................... 16,17
§ 76-1-103(4)....................................................................................................... 15
§ 76-1-601...................................................................................................... 12,17
§ 76-1-602........................................................................................................ 2,17
iii
MCA§ 76-1-603........................................................................................................... 17
§ 76-1-606...................................................................................................... 15,18
§ 76-2-201...................................................................................................... 1-0,18
§ 76-2-301.................................................................................................. 2, 11, 12
§ 76-2-310...................................................................................... 2, 11, 12, 13-14
§ 76-2-311.....................................................................................................passim
§ 76-2-311(2)....................................................................................................... 13
RULES
Mont. R. Civ. P. 56......................................................................................................... 9
E0_Wt_ *•.- _m,
Laurel Mun. Code 1.20.010(fl.................................................................................. 4,14
17.08.620....................................................................................... 14
17.44.020......................................................................................... 5
mfA
The Thiel Road Coalition, Northern Plains Resource Council, and Montana
Environmental Information Center (Plaintiffs) filed this declaratory action seeking
clarity over which government entity—the City of Laurel or Yellowstone County—
maintains zoning jurisdiction over a 36 -acre property where NorthWestern Energy
is actively constructing a 175 -megawatt methane gas-fired power plant.
NorthWestern's property is situated within the City of Laurel's
extraterritorial zoning jurisdiction and was previously zoned, in part, as
agricultural open space—a designation that would prohibit the building and
operation of NorthWestern's power plant. Yet, after months of unsuccessfully
lobbying the Laurel City Council for a zone change to accommodate its heavy
industrial use, NorthWestern abandoned its rezoning request and is now plowing
forward with construction of the plant in violation of the current zoning designation
and without government oversight. Meanwhile, the City of Laurel, after previously
recognizing its zoning jurisdiction in the impacted area, suddenly disclaimed its
enforcement authority over its extraterritorial zoning area, originally alleging that
Yellowstone County has zoning jurisdiction in the area, even though Yellowstone
County has admitted that it lacks authority and jurisdiction to zone in the area.
While this dispute continues, Plaintiffs, who live and recreate near the plant
site, are directly impacted by NorthWestern's 24-hour construction of its plant.
Because the City has abandoned its zoning authority, Plaintiffs have no avenue to
participate in local government process to oppose NorthWestern's heavy industrial
use in an area zoned for open agriculture. Troublingly, the City has actively
dismissed and discouraged Plaintiffs' attempts to raise concerns about the proposed
plant. Plaintiffs are now left without any forum to advocate against the building of
this plant which, if constructed, would severely impair Plaintiffs' members quality
of life. The plant's 18 exhaust stacks would not only dominate Plaintiffs' residential
and recreational viewsheds, but would also generate constant noise emanating
beyond the property's boundary, require 24-hour lighting that would obscure
Montana's rural night sky, and emit a steady stream of hazardous pollutants.
1
Legal clarity is urgently necessary to allow Plaintiffs—including City of
Laurel residents who would be directly harmed by the plant's construction—to
direct their concerns and advocacy to the appropriate governing body, and to ensure
that the governmental body in control of zoning jurisdiction can act confidently in
applying and enforcing its zoning regulations on NorthWestern's parcels. Absent
such relief, Northwestern will continue constructing its massive power plant on the
banks of the Yellowstone River without the proper zoning designation and without
oversight from the governing authority.
The Montana Supreme Court has long recognized that local government
planning, including the adoption of zoning laws, promotes public health, safety, and
the general welfare of a community "by separating incompatible land uses, such as
industrial and residential." Williams v. Bd. Of Cnty. Commr's, 2013 MT 243, ¶ 42,
371 Mont. 356, 308 P.3d 88. To help ensure compatible land use, Montana law
empowers local municipalities to restrict the use of property inside of and within a
proscribed distance outside of city limits, referred to as the "extraterritorial area,"
for both subdivision and zoning jurisdiction. MCA §§ 76-2-301, -310, -311.
A city claims its zoning jurisdiction over an extraterritorial area by adopting
a growth policy that includes the jurisdictional area. Id. The importance of an
underlying growth policy as a prerequisite to a city or county exercising jurisdiction
in the extraterritorial area cannot be overstated. Importantly, the process for
adopting a growth policy includes opportunities for public participation in local
government decision-making, which allows Montanans to exercise their
constitutional right to participate. Mont. Const. Art. II, Sec. 8; MCA § 2-3-101
(legislative intent to secure the right of Montanans to participate in government
decision-making); MCA § 76-1-602 (public hearing requirements for planning
boards adopting growth policies). Indeed, the Montana Supreme Court recognizes
growth policies as "the preeminent planning tool" available to governing bodies,
lauding the policies as "the product of extensive study, deliberation, and public
involvement ... [resulting in a] final product [that] is a well thought out, long range,
2
detailed and comprehensive planning document which takes into consideration
past, present, and anticipated land uses in the jurisdiction and which is debated
and adopted in an atmosphere that is free, to the extent possible, from the influence
of special interests and political expedience." Heffernan v. Missoula City Council,
2011 MT 91, $ 76, 360 Mont. 207, 255 P.3d 80 (citation omitted) (emphasis added).
Recognizing the importance of these growth policies, the Montana Supreme
Court continues to hold that without the prerequisite growth policy in effect
"counties have no authority to institute permanent zoning classifications." Bridger
Canyon Prop. Owners'Ass'n, Inc. v. Plan. & Zoning Comin'n for Bridger Canyon
Zoning Dist. & 360 Ranch Corp., 270 Mont. 160, 168-70, 890 P.2d 1268, 1273 (1995)
(holding that a growth policy, formerly described as a "master plan," is a condition
precedent to permanent zoning) (quoting Little v. Bd. Of Cnty. Commis of Flathead
Cnty., 193 Mont. 334, 350-53, 631 P.2d 1282, 1291-93 (1981)).
UNDISPUTED FACTS
I. CITY AND COUNTY LAND USE PLANNING
Both the City of Laurel and Yellowstone County have adopted growth policies
to guide land use decisions within their jurisdictional areas, but only the City's
growth policy extends jurisdiction to the extraterritorial area within one mile of
Laurel city limits. In 1976, the City of Laurel entered into an interlocal agreement
adopting a city -county planning board ("Planning Board") between the City of
Laurel and Yellowstone County to act as a zoning commission for the Board's
jurisdictional planning area, which includes the City of Laurel and extends 4.5
miles beyond the city's limits. See Galvan Decl. (attached as Ex. F), Ex. 8 at 6-9.
This interlocal agreement was amended in 2014 to update some of the membership
requirements of the Planning Board, which includes members living within the City
of Laurel, appointed by the Laurel City Council, and members living outside of the
city's limits, but within the Board's jurisdictional area, who are appointed by the
Yellowstone County Board of Commissioners. Id. According to the interlocal
agreement, it is the function of the Planning Board to "provide planning
3
recommendations" to the City and the County and "prepare a growth policy." Id. at
7.
Beginning in 2019, the Planning Board, in conjunction with the City of
Laurel Planning Department, prepared a growth policy for the City of Laurel.
Galvan Decl., Ex. 1 at 4. In 2021, the City of Laurel adopted that growth policy,
which explicitly recognizes the City's zoning jurisdiction as extending
"approximately one mile outside the municipal city limits," as depicted on the map
below. Id. at 28; see also Galvan Decl., Ex. 12 (resolution R21-01 adopting 2020
Growth Policy). Consistent with its growth policy, the City has adopted regulations
that authorize the City to exercise extraterritorial zoning jurisdiction. For example,
the Laurel Zoning Code notes that it applies "to all lands in the incorporated limits
of the city and any additional territory authorized by ... state statutes," and states
that Laurel's "[z]oning and subdivision ordinances and regulations may be enforced
within the corporate limits of the city and within one mile beyond its corporate
limits." Laurel Mun. Code 1.20.010(f) (emphasis added).
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ZONING JURISDICTION
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Source: City of Laurel website, https://cityoflaurelmontana.com/sites/default/files/fileattachments/
planning/page/133/laurel_zoningjurisdiction_2020.pdf (last visited Feb. 15, 2023)
Zoning maps recorded with the Yellowstone County Clerk and Recorder's
Office also reflect zoning designations adopted within this extraterritorial area,
including on the property where NorthWestern Energy has proposed to build a gas
11
plant. Galvan Decl., Ex. 10 at 4-5. Yellowstone County denies adopting any zoning
designations in Laurel's extraterritorial area. Cnty. Answ. at � 24; see also Galvan
Decl., Ex. 10 at 4-5.
Yellowstone County likewise has not adopted any growth policy that would
divest the City of its zoning authority over the extraterritorial area. Galvan Decl.,
Ex. 10 at 4-5. Indeed, Yellowstone County's controlling Growth Policy specifically
recognizes that Laurel's "zoning jurisdiction extends approximately one mile outside
the city limits" and disclaims its authority over Laurel, stating that "[t]he town of
Laurel lies outside the Yellowstone County Planning Board's jurisdiction and is not
covered in the Growth Policy." See Galvan Decl., Ex. 2 at 21 (emphasis added); see
also id. at Ex. 10 at 3. For nearly two decades, Yellowstone County's growth policies
have consistently recognized Laurel's jurisdiction in the extraterritorial area. See
Galvan Decl., Ex. 10 at 4-5; see also id. at Ex. 2; id. at Ex. 3. The County further
admits that it has never adopted a growth policy that extends County jurisdiction
into the extraterritorial area around the City of Laurel, nor has it adopted any
lawful zoning or subdivision regulations in that area that would divest the City of
its jurisdiction over the one -mile extraterritorial area. Galvan Decl., Ex. 10 at 4-5.
II. NORTHWESTERN ENERGY'S GAS-FIRED PLANT
At the center of this zoning controversy is Northwestern Energy's
construction of a 175 -megawatt gas-fired power plant on a previously undeveloped
36 -acre property on the north bank of the Yellowstone River, situated just outside
the City of Laurel. See NorthWestern Answ. at ¶ 19. The proposed construction site
consists of two parcels: Parcel 2, COS 1677, S15, T02S, R24E; and Parcel 1 COS
1239, S15, T25, R24E. Galvan Decl., Ex. 7 at 66. The parcels, which sit within one -
mile of Laurel city limits, are currently zoned, according to official zoning maps
maintained by Yellowstone County, partially as `heavy -industrial" use and partially
as "agricultural open" use. Galvan Decl., Ex. 10 at 4-5. Under Laurel municipal
law, these parcels would need to be rezoned for NorthWestern to lawfully build its
power plant. Laurel Mun. Code 17.44.020. The parcels are surrounded by
agricultural uses to the north and the east, and a wastewater treatment plant to the
5
west. See Galvan Decl., Ex. 7 at 74 (map submitted by NorthWestern showing
surrounding uses of plant); id. at Ex. 9 at 9, 15, 16. To the south, the parcels are
bordered by the Yellowstone River, across from which lie the City of Laurel's
Riverside Park, a public boat launch, and a rural residential area. Id. Several
members of Plaintiff Thiel Road Coalition live in a residential neighborhood directly
across the river from the power plant, which, if finalized, would be in plain view
from their homes. Felder Decl. at ¶ 6 (attached as Ex. A); Ronan Decl. at i[ 5
(attached as Ex. B).
Q7.— Gham,;e Pm k
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72nd, 2021 Northwestern Energy Zone Change SAN DERSONS7E`IART
Source: Galvan Decl., Ex. 7 at 70 (NorthWestern App. for Zone Change)
The plant, which is proposed to be built approximately 300 feet from the
river's edge, includes the construction of eighteen 9.7 megawatt -electrical
combustion engines, each with its own seven -story -tall exhaust stack. Galvan Decl.,
Ex. 9 at 3, 6, 13. These exhaust stacks would loom over the river corridor,
obstructing and dominating Plaintiffs' residential and recreational viewsheds.
Felder Decl. at ¶ 7; Ronan Decl. at ¶ 5. The Department of Environmental Quality
noted in its environmental assessment for the plant that the plant would also alter
the surrounding landscape in several ways, including that it would emit harmful
emissions into the air that would negatively impact the climate; be continuously lit
by industrial lighting; and generate noise well above what is typical for the area.
Galvan Decl., Ex. 9 at 12-13, 17-19.
III. CITY OF LAUREL ZONING PROCEEDINGS
Northwestern initially recognized the City's zoning authority over the
property where it intends to build its gas plant. See Galvan Decl., Ex. 7. Beginning
in the summer of 2021, Northwestern began pursuing a zone change request with
the City for its two parcels. See NorthWestern Answ. at T 27. At the same time,
NorthWestern also made representations to agency officials at the Department of
Environmental Quality that it believed its parcels were "100% within [the City of
Laurel's zoning] jurisdiction." See, e.g., Krum Decl. (attached as Ex. C.), Ex. Cl
(Email from NorthWestern's Manager for Lands and Permitting to Mont. Dept. of
Env't Quality); Galvan Decl., Ex. 7 (NorthWestern's Zone Change App.).
The Laurel City Council took NorthWestern's zone change application under
consideration and proceeded to exercise its jurisdiction over NorthWestern's parcels.
After the city -county Planning Board reviewed NorthWestern's request, beginning
in early October 2021, the City Council discussed NorthWestern's rezoning
application at several public meetings. See City Answ. at ¶¶ 30, 33. Ultimately, the
City Council set NorthWestern's zone change application for a public hearing in
mid-November. City Answ. at ¶T 30, 33; see also Galvan Decl., Ex. 5 at 1-2'; id. at
Ex. 7 at 3.
After learning about NorthWestern's application, Plaintiffs began
immediately advocating against the plant, including by attending several meetings
before the Council and providing public comment regarding their concerns about the
plant. Felder Decl. at ¶ 13; Fitzpatrick Decl. at T¶ 8-9 (attached as Ex. D); Hedges
Decl. at ¶ 10 (attached as Ex. E); Ronan Decl. at ¶ 10; Krum Decl. at TT 11-12. On
November 23, 2021—after several weeks of Plaintiffs appearing before the City
1 Page numbers identified in this exhibit refer to PDF page numbers.
7
Council to advocate against NorthWestern's requested zone change—the City
Council voted unanimously to send NorthWestern's application back to the city -
county Planning Board for further review. See City Answ. at $$ 30, 33; Galvan
Decl., Ex. 5 at 10-11.
Yet in December 2021, only a few weeks after the City Council voted to
remand NorthWestern's zone change request—and despite months of pursuing its
zone change request in front of the City Council—Northwestern abruptly withdrew
its rezoning application from City consideration without explanation and
commenced construction of the plant. NorthWestern Answ. at ¶ 36. The plant is
currently under construction on land designated on official zoning maps maintained
by Yellowstone County as zoned partially for "agricultural open" use. Galvan Decl.,
Ex. 10 at 3.
In the immediate aftermath of NorthWestern's withdrawal, Yellowstone
County's City -County planner continued to represent that the County had no zoning
jurisdiction on zoning matters outside of Laurel city limits, extending 4.5 miles into
the County. See Cnty. Answ. at ¶ 37. Meanwhile, the Laurel City Attorney issued a
legal memorandum taking the position that the City lacks jurisdiction to enforce
zoning designations in the extraterritorial area, despite the city's municipal code
expressly granting the city zoning enforcement authority in the extraterritorial
area. See City Answ. at ¶ 38; see also Galvan Decl., Ex. 11 (Laurel City Attorney
legal memorandum). In that memorandum, the City also advised the City Council
to not undertake any enforcement of its zoning designations in the extraterritorial
area. Id. The City Attorney followed up this memorandum with a letter to members
of one of the Plaintiff organizations, stating that the "general `lay -person' can [not]
appropriately articulate and understand" the zoning issues, asking them to "cease
and desist" organizing constituents, and requesting them to stop communicating
with elected officials and staff over this matter. See City Answ. at ¶ 44; see also
Fitzpatrick Decl., Ex. D1.
To date, Plaintiffs have been unable to obtain clarity on which entity holds
zoning jurisdiction over NorthWestern's parcels, with both the City and the County
8
denying any zoning jurisdiction over the extraterritorial area. Left without an outlet
for public participation in the local government zoning process, Plaintiffs filed this
challenge, asking the Court to clarify which public entity maintains zoning
jurisdiction and enforcement authority for the two parcels where NorthWestern is
currently building its power plant.
In determining whether to grant this motion for summary judgment, the
Court must determine whether any "genuine issues of material fact exist" and if
"the moving party is entitled to judgment as a matter of law." Quigg v. Slaughter,
2007 MT 76, ¶ 14, 336 Mont. 474, 154 P.3d 1217; Mont. R. Civ. P. 56. Where, as
here, no issue of material fact exists, the Court "must simply identify the applicable
law, apply it to the uncontroverted facts, and determine who prevails." Broadwater
Dev., LLC. v. Nelson, 2009 MT 317, T 15, 52 Mont. 401, 219 P.3d 492.
STANDING
All Plaintiffs have associational standing and Plaintiffs MEIC and NPRC
have organizational standing to bring this case as established by the attached
declarations. See Felder Decl.; Krum Decl.; Ronan Decl.; Hedges Decl.; Fitzpatrick
Decl.; see also Park Cnty. Env't Council v. Mont. Dept of Env't Quality, 2020 MT
303, ¶ 22, 402 Mont. 168, 477 P.3d 288. First, each Plaintiff has associational
standing because their members have "alleged a threatened injury to their property,
recreational, and aesthetic interests." Heffernan ¶T 38, 41, 46 (finding standing for
a neighborhood association to challenge proposed subdivision where members were
concerned about increased noise and traffic, diminished property values, and
decreased wildlife presence in the vicinity of their homes). For Thiel Road, MEIC,
and NPRC members who live in the neighborhood immediately across the
Yellowstone River from the proposed gas plant, members who recreate on the
Yellowstone River, and other members who live in and around the City of Laurel,
the potential for noise and visual impacts of the plant threatens to rob them of the
tranquility and solitude of the area that makes it a desirable place to live and visit
and could diminish their property values. Already, these members have experienced
9
the impacts of NorthWestern's rushed efforts to finish constructing the plant,
hearing the nearly constant noise of construction and experiencing the nearly
constant lighting. Felder Decl. at ¶¶ 6-8, 11-12; Ronan Decl. at T¶ 5-8.
Source: Galvan Decl., Ex. 13 (Photo of Northwestern Energy Laurel gas plant construction (Nov. S,
2022))
Members of each of these organizations were so concerned about their
property values and quality of life that they felt compelled to participate in the
government process considering NorthWestern's zone change request to voice these
concerns. But these concerned citizens were abruptly stripped of their public
participation opportunities when the City of Laurel changed course and abandoned
its zoning authority over NorthWestern's construction site and the City Attorney
requested that they stop communicating with local elected city officials and city
staff over this matter. Krum Decl. at ¶ 13; Felder Decl. at ¶ 14; Ronan Decl. at
If 10; Fitzpatrick Decl. at ¶ 10; Hedges Decl. at ¶ 10.
MEIC and NPRC also each has organizational standing to "file suit on its
own behalf to seek judicial relief from injury to itself and to vindicate whatever
rights and immunities the association itself may enjoy ..." as established in the
attached declarations. Heffernan ¶ 42; see Hedges Decl.; Fitzpatrick Decl. MEIC and
10
NPRC sufficiently allege their investment in the "protection of land, air, water, and
communities impacted by fossil -fuel energy projects and other industrial
development," Compl. T 14, as well as their organizational interests in "providing
the information and tools necessary to give citizens an effective voice in decisions
that affect their lives" id. at $ 13; see also Hedges Decl. at $ 3; Fitzpatrick Decl. at ¶
3. The legal limbo created by the City and the County has paved the way for
NorthWestern to construct its plant without government oversight or public input
and harms the organizations and their members. These organizations—which exist
to protect the environment and to give citizens in Montana a voice in matters
impacting their lives—are now silenced because of the City's sudden abandonment
of its zoning jurisdiction and can no longer participate in any process because that
process was unlawfully relinquished. Plaintiffs' injuries would be alleviated in this
case, through a court order providing legal certainty as to which entity—the City or
the County—has planning jurisdiction in the area where NorthWestern is building
its plant. The Court's determination would allow Plaintiffs and their members to
direct their advocacy to the appropriate governing body.
ARGUMENT
I. THE CITY OF LAUREL HAS ZONING JURISDICTION IN THE
EXTRATERRITORIAL AREA AROUND THE CITY
The City of Laurel has met all the legal requirements to adopt zoning
jurisdiction in the extraterritorial area where NorthWestern plans to build and
operate its gas plant. Under Montana law, second-class cities, like the city of
Laurel, may extend zoning regulations up to two miles beyond city limits. MCA §§
76-2-301; 76-2-310; 76-2-311; 7-1-4111 (second class city requirements). To establish
and exercise its extraterritorial zoning jurisdiction, the City was required to meet
two legal prerequisites. First, the City was required to adopt a growth policy that
includes the extraterritorial area. MCA § 76-2-310. Second, the City was required to
form either a city -county planning board whose jurisdictional area includes the area
to be regulated or increase its city planning board to include two representatives
from the unincorporated area that is to be affected. MCA § 76-2-311. The City of
11
Laurel readily satisfied these two legal requirements to extend its lawful zoning
jurisdiction over the one -mile extraterritorial area outside the City limits.
Specifically, as shown by the undisputed facts and discussed in further detail
below, the City of Laurel's adoption of a growth policy that expressly claims
jurisdiction over land within one mile of the City limits and its creation of the
Laurel -Yellowstone County City -County Planning Board satisfy the legal
requirements for the City to exercise extraterritorial zoning jurisdiction. MCA
§§ 76-2-301; 76-2-310; 76-2-311; 7-1-4111 (second class city requirements). More, the
City's behavior—including its adoption of a municipal code recognizing its
extraterritorial jurisdiction and its actions in processing NorthWestern's zoning
change application—only further solidifies the City's intent to exercise jurisdiction
in the extraterritorial area.
A. The City Created a Growth Policy that Extended its Zoning
Jurisdiction and Authority to the Extraterritorial Area.
In 2019, the city -county Planning Board and the city Planning Department
created a growth policy for the City of Laurel that explicitly includes Laurel's
zoning authority over the one -mile extraterritorial area outside the City limits.
Galvan Decl., Ex. 1 at 4. This growth policy, which was adopted in 2021 by the
Laurel City Council extended the City's zoning jurisdiction "approximately one mile
outside the municipal city limits. "Id. at 28; see MCA § 76-2-310 (growth policy
requirement for city to exercise jurisdiction within two miles of city limits); see also
Galvan Decl., Ex. 12. This growth policy was adopted in accordance with the legal
requirements governing growth policies and contains each of the necessary
elements of a legal growth policy. MCA § 76-1-601; see also Galvan Decl., Ex. 1 at 3
(referring to the applicable law and describing the growth policy as a "statutory
necessity").
Accordingly, the City of Laurel satisfies the first requirement for exercising
extraterritorial jurisdiction in the one -mile area around the City limits by adopting
a growth policy that specifically includes the extraterritorial area within the City's
zoning jurisdiction.
12
B. The City Created a City -County Planning Board to Exercise
Zoning Jurisdiction in the Extraterritorial Area.
The City of Laurel also met the second legal requirement for extending its
jurisdiction in the one -mile extraterritorial area by creating and adopting a city -
county planning board as required under MCA § 76-2-311(2).
In 1976, the City of Laurel and Yellowstone County entered into an interlocal
agreement forming a city -county planning board whose jurisdictional area includes
the City of Laurel and 4.5 miles outside of the city. See City Answ. at ¶ 53; see also
Galvan Decl., Ex. 12. In 2014, the City amended its original interlocal agreement,
retaining the city -county planning board. See Galvan Decl., Ex. 12.'- This Board—
both as originally adopted and as amended—includes official representatives from
the County and the City, as well as citizen members, some of whom must live
outside of the City limits but within the jurisdictional area of the Board. See Galvan
Decl., Ex. 8. More, while the City was not required to do so by virtue of the creation
of a city -county planning board, the City nonetheless also met the alternative
requirement of exercising its extraterritorial jurisdiction by including
representatives on the Planning Board who reside in the unincorporated area to be
affected. MCA § 76-2-311(2); see Galvan Decl., Ex. 8 at 2.
The City's adoption of a city -county planning board that includes the
extraterritorial area, in conjunction with its adoption of a growth policy including
the extraterritorial area, satisfies the legal prerequisites to the City exercising its
extraterritorial jurisdiction and authorized the City to treat property situated in the
2 While the City chose to adopt its city -county Planning Board through an interlocal
agreement, it is worth noting that the Montana Supreme Court has expressly held
that "even without [an interlocal agreement] in place, [a] City ha[s] the power under
§ 76-2-311, MCA, to zone in the donut up until the County determine[s] to adopt its
own regulations" so long as the city meets the legal requirements to do so. Phillips
v. City of Whitefish and Bd. of Commis of Flathead Cnty., 2014 MT 186, ¶ 43, 375
Mont. 456, 472, 330 P.3d 442, 454. Accordingly, legal issues related to interlocal
agreements are irrelevant, and not belabored here.
13
extraterritorial area as though it were situated within the City's corporate limits.
MCA §§ 76-2-310, -311.
C. The City has Expressly Exercised its Extraterritorial
Jurisdiction, and Now Cannot Ignore its Jurisdiction for its
Convenience.
After creating the required growth policy and planning board, the City
further exercised its extraterritorial zoning jurisdiction and authority by enacting
zoning maps, zoning designations, and municipal code provisions—demonstrating
the City's clear intent to exercise extraterritorial jurisdiction. For example, zoning
maps adopted by the City in 2020, including the map excerpted supra, Undisputed
Facts, claim city jurisdiction within one mile of the City limits. See Galvan Decl.,
Ex. 6 at 70-71 (NorthWestern Zone Change App. zoning maps). Similarly, maps
maintained with the County depict zoning designations adopted by the City within
the extraterritorial area around the city, including over the parcels where
NorthWestern's plant would be situated. See, Galvan Decl., Ex. 10 at 4-5.
The City has also repeatedly affirmed its intent to exercise extraterritorial
zoning jurisdiction through its adoption of municipal code provisions that claim the
City's authority to zone in the extraterritorial area. For example, the City's zoning
code applies to "to all lands in the incorporated limits of the city and any additional
territory authorized by ... state statutes," which would include the extraterritorial
authorizations in the Montana code. Laurel Mun. Code 17.08.620 (emphasis added).
Similarly, Laurel's municipal code authorizes that all "'[z]oning and subdivision
ordinances and regulations may be enforced within the corporate limits of the city
and within one mile beyond its corporate limits." Id. at 1.20.010(f) (emphasis added).
In addition to repeatedly recognizing City extraterritorial zoning jurisdiction
in various enactments, City officials have also behaved as though the City of Laurel
has jurisdiction in the extraterritorial area, including over NorthWestern's parcels.
For example, the Laurel City Council, when presented with NorthWestern's zone
change application within the extraterritorial area, chose to process that request,
discussing the request at several Council meetings before ultimately referring the
W,
application back to the city -county Planning Board for further review. See City
Answ. at X111 30, 33 (admitting that NorthWestern's Zone Change Application was
an Agenda Item in front of City Council on City Council Meetings scheduled for
October 12, 2021 and November 23, 2021); Galvan Decl., Ex. 5 at 10-11 (City
Council voted unanimously to remand NorthWestern's zoning request to the zoning
commission). It was not until after NorthWestern abruptly withdrew its zone
change request that the City Attorney began to publicly disclaim the City's
jurisdiction to enforce zoning regulations in the extraterritorial area.
The City of Laurel's jurisdiction in the extraterritorial area around the City
is legally sound and readily evidenced in the City's governing documents and
behavior. For each of these reasons, the Court should find that the City has
jurisdiction to apply its zoning designations in the extraterritorial area around the
City of Laurel.
II. YELLOWSTONE COUNTY DOES NOT HAVE ZONING AUTHORITY
IN THE EXTRATERRITORIAL AREA AROUND LAUREL
While it is clear that the City of Laurel has zoning jurisdiction in the
extraterritorial area around the City, it is equally clear—and Yellowstone County
readily admits—that the County does not have zoning jurisdiction in the
extraterritorial area around Laurel. Under Montana law, county jurisdiction to
enact land -use regulations is not assumed. Rather, the law requires that the
County, like the City, must take affirmative steps to enact land -use regulations. See
MCA § 76-1-606 (requiring a growth policy before a county adopts subdivision
regulations); MCA § 76-2-201 (authorizing county zoning consistent with the
"master plan," which is synonymous with growth policy, MCA § 76-1-103(4)). The
law also includes special requirements for the County to claim zoning or subdivision
regulations in the extraterritorial areas immediately abutting municipalities.
Where, as here, a city has claimed jurisdiction in its extraterritorial area, the
only way a county can divest a city of its extraterritorial jurisdiction is by, first,
adopting a growth policy including the extraterritorial area and, second,
promulgating lawful subdivision or zoning regulations covering the extraterritorial
15
area. MCA § 75-2-311. The County has failed to meet either of these requirements
and recognizes that it does not have jurisdiction over the Laurel extraterritorial
area.
A. The County Admits that it has Never Adopted a Growth Policy
that Asserts Jurisdiction Over Laurel's Extraterritorial
Jurisdiction.
In order to exercise zoning or subdivision jurisdiction over the extraterritorial
area around the City of Laurel, the County would have to first adopt a growth policy
that includes the extraterritorial area. MCA § 75-2-311. And while the County has
adopted growth policies, the County admits that it has never adopted a growth
policy that indicates an intent to exercise County jurisdiction within the one -mile
extraterritorial area around Laurel. See Galvan Decl., Ex. 10 at 4. To the contrary,
the County admits that all of the growth policies the County has adopted for the
past nearly two decades have either been entirely silent on the County's jurisdiction
in Laurel or, more importantly, specifically disclaimed County jurisdiction to enact
land -use regulations. See Galvan Decl., Ex. 10 at 4-5. For example, the County
admits that its 2003 Growth Policy specifically disclaims County zoning authority
in the extraterritorial area around Laurel, stating that "[t]he town of Laurel lies
outside the Yellowstone County Planning Board's jurisdiction and is not covered in
the Growth Policy," and describing Laurel's "zoning jurisdiction [as] extend[ing]
approximately one mile outside the city limits." Galvan Decl., Ex. 2 at 21 (emphasis
added); see also Galvan Decl., Ex. 10 at 4. The County further admits that its 2008
Growth Policy likewise disclaims County jurisdiction in the extraterritorial area
around Laurel, largely replicating its 2003 Growth Policy's description of Laurel's
extraterritorial zoning jurisdiction. Galvan Decl., Ex. 3 at 31 (disclaiming County
jurisdiction over the `Laurel planning area"); see also Galvan Decl., Ex. 10 at 4.
In the absence of a controlling County growth policy, the County cannot
legally adopt any regulations—zoning or subdivision—in the extraterritorial area
around Laurel. Put another way, unless and until the County adopts a growth
policy covering the area, Laurel retains jurisdiction in the extraterritorial area.
16
And, while the County indicated its future intent to pass a new growth policy to
exert its zoning jurisdiction in the extraterritorial area around Laurel, this future
intent does not impact the City's current zoning jurisdiction and authority over the
area. Creating and passing a new growth policy is a comprehensive, time-
consuming endeavor, as growth policies must legally include numerous elements,
including projected growth trends, goals and objectives, and strategies for
development and implementation, all of which require forethought, study, and
research. MCA § 76-1-601. Moreover, the process of adopting a growth policy also
requires adequate time for providing notice to the public and holding a public
hearing, as well as time to consider the recommendations and suggestions received
from the public. Id. at §§ 76-1-602, -603. Realistically, the process would take
several months and potentially could carry on for years with no guarantee that the
County will ever adopt the policy. In the meantime, the City holds zoning
jurisdiction and enforcement authority in the extraterritorial area.
B. The County Admits that it Has Not Enacted Any Lawful
Subdivision or Zoning Regulations in the Extraterritorial Area
Around Laurel.
The County has also not met the second legal prerequisite to exercise
extraterritorial jurisdiction, which is to enact zoning regulations. The County
readily admits that it has not enacted lawful subdivision or zoning regulations in
the extraterritorial area outside Laurel city limits in accordance with MCA § 75-2-
311. Galvan Decl., Ex. 10 at 2. While the County has adopted subdivision
regulations, it likewise admits that those regulations were unlawful, and cannot be
enforced, because of the lack of a growth policy covering the area to be regulated. Id.
at 2, 4; see also State ex rel. Christian, Spring, Sielbach & Assocs. v. Miller, 169
Mont. 242, 245-46, 545 P.2d 660, 662 (1976) (declaring zoning regulation null and
void for the failure to observe the proper procedures upon its enactment); see also
State ex rel. Diehl Co. v. City of Helena, 181 Mont. 306, 314, 593 P.2d 458, 462
(1979) (same).
17
The County's unlawful subdivision regulations also illustrate that a growth
policy is required to effectuate land use regulations. See MCA §§ 76-1-606; 76-2-201.
The necessity for a growth policy to precede a County's enforcement of subdivision
and zoning regulations is cornerstone to the Legislature's statutory scheme for land -
use planning, as demonstrated by the repetition of the requirement throughout the
statute. Id. The legislative sponsors of key provisions of Montana's land -use statute
made clear that underlying and animating the growth policy requirement was a
concern about sequencing, explaining that "planning needs to happen before the
subdivision comes before the board as subdivision regulations are not the
appropriate place to address growth the intent behind requiring growth policies was
animated by." See also Sen. Comm. Hr'g on SB 97 Before Sen. Comm. on Loc. Gov't
(Jan. 12, 1999) (transcribed statement of bill sponsor Sen. Lorents Grosfield)
(emphasis added).
What lies at the heart of the legal issues in this case, and ultimately resolves
these issues, is the County's admission that it has taken neither of the legal steps
necessary to exercise zoning jurisdiction in the extraterritorial area around Laurel.
The County cannot exercise subdivision or zoning regulation in the extraterritorial
area around Laurel because it admits that it has not adopted a growth policy
covering the area. In the absence of an applicable growth policy, the County is
legally prohibited from exercising zoning authority in the extraterritorial area. See
MCA § 76-2-311 ("A city or town council or other legislative body may enforce
regulations [in the extraterritorial area] ... until the county board adopts a growth
policy ... and accompanying zoning or subdivision resolutions that include the
area"); see also Phillips ¶ 43 ("[a] City ha[s] the power under § 76-2-311, MCA, to
zone in the donut up until the County determine[s] to adopt its own regulations.").
The County does not dispute this legal interpretation and, instead, admits that it
does not have legal authority to adopt either zoning or subdivision regulations
within the extraterritorial area around the City of Laurel. See Galvan Decl., Ex. 10
at 2, 4.
18
For each of these reasons, the County does not have jurisdiction in the area,
and, accordingly, the City's extraterritorial zoning authority remains intact.
1• i
For the foregoing reasons, Plaintiffs request that the Court settle this
uncertainty in zoning jurisdiction, declaring that the undisputed facts before the
Court demonstrate that, as a matter of law, the City has zoning jurisdiction in the
one -mile extraterritorial area surrounding the City of Laurel.
Respectfully submitted this 16th day of February, 2023.
Amanda D. Galvan
Mary Cochenour
Emily T. Qiu
Earthjustice
313 East Main Street
P.O. Box 4743
Bozeman, MT 59772-4743
(406) 586-9699 ( Phone
(406) 586-9695 ► Fax
agalvan@earthjustice.org
mcochenour@earthjustice.org
egiu@earthjustice.org
Attorneys for Plaintiffs
19
I, Kasey Krum Felder, hereby declare as follows:
1. I reside at 1434 McMullen Lane in Yellowstone County, just outside
the City of Laurel, Montana.
2. I am a member of Theil Road Coalition, Northern Plains Resource
Council, and Montana Environmental Information Center (MEIC). I have been a
recurring member of Northern Plains Resource Council since 2010. I wanted to
support an organization that cares about our environment and the local community.
I have been a member of the Thiel Road Coalition and MEIC since 2021.
3. I grew up in Laurel and I have lived here for most of my life. In 2011,
my husband and I moved to our property just south of the Yellowstone River in
close proximity to the City of Laurel, so our child could play in the dirt with a
country upbringing like my own. We love our neighborhood for its rural character,
close community, and proximity to the river. Although we live close to town, our
neighborhood feels remote. We regularly see wildlife such as turkeys, moose, deer,
fox, coyotes, mountain lions, black bears, beavers, and nesting eagles.
4. When we purchased our property, I felt that we had a little slice of
paradise just a few miles from town. We have a few neighbors, none of which are too
close in proximity. We enjoy hosting family events because it is so peaceful at our
house. Parts of our home were built in 1910; our tree row is from the 1950's; we
have a rugged old barn that has seen many decades pass and we're lucky enough to
be the third owners. Our home is surrounded by flower beds, frequented by many
1
songbirds and is a truly relaxing place to live. I have been fortunate enough to
watch birds migrate through our property every spring. My daughter has learned to
love being outside in part to living at our home on McMullen Lane. Our summer
days are spent outdoors enjoying the paradise we have.
5. My family has been operating a grape vineyard on our property since
2014. Our long-term goal is to start a winery here in Laurel and be able to list
ourselves as a place to visit with the state of Montana's tourism office, in addition to
hosting weddings and events at our property. We have been expanding our
operation and the variety of grapes we grow each year as we work toward that goal.
6. Our residential neighborhood is directly across the river from
Northwestern Energy's proposed plant, which is currently under construction. The
plant, when fully constructed, is to be just 300 feet from the river's edge and
includes the construction of eighteen 9.7 megawatt -electrical combustion engines,
each with its own seven -story -tall exhaust stack, which would obstruct my
residential and recreational viewshed.
7. The plant already has and will continue to have negative visual
impacts to my family, as well as our entire community. The size of the plant stacks,
in addition to the 24-hour exterior lighting of the power plant will impede a
nighttime hobby of mine: stargazing. On a clear summer night, my family and I can
view the night sky and constellations without difficulty. If the plant gets built, all of
my stargazing opportunities and evenings of learning more about astronomy taken
away.
2
8. If the plant does get built to completion, it will be operating 24 hours a
day, 7 days a week, 365 days per year. While I sometimes hear the railroad when
trains are passing through and it's possible to hear traffic on the new bridge on
Highway 212, these noises come and go. In contrast, the power plant will never
shut off, and the constant noise will harm our solitude and tranquility in Laurel.
Already, I am experiencing the negative impacts of construction, hearing constant
noise and seeing constant lighting from my property has negatively impacted my
life.
9. If the power plant is constructed, my property value will decline, and
our whole town will suffer from a decline in home property values. If the plant gets
built, I do not believe my property will be as valuable to future buyers. The plant, if
constructed, would also greatly impact my ability to develop my winery and
wedding events business on my property.
10. I intend to raise my child in our current home near the Yellowstone
River on McMullen Lane. Our family intends to continue our agriculture endeavor
in the vineyard to help showcase cold hardy grape varieties that are successfully
grown in Montana. I intend to enjoy the wildlife viewing opportunities and
recreation opportunities near my home for my entire life.
11. I have become angry about the prospect of having a power plant as my
neighbor. I find myself looking north, now seeing the construction progressing and
feeling concerned about what will become of this area if the power plant is finished.
3
My ability to enjoy my property and location have decreased as I watch the plant
being built right next door.
12. Regrettably, our community has already been scarred and has suffered
from negative aesthetics as a result of construction that has already taken place.
Our privacy and tranquility have already been jeopardized. I specifically moved to
this location because of the river and country feel of the area, and the construction
of the power plant has degraded every single aspect that I enjoy about this area and
our community.
13. I have been actively participating in local government processes
regarding the zoning of the parcels where the power plant is being built. I was first
aware of the plant moving forward with construction at its current location in
October 2021. From that date to present I have been attending local, county and
state meetings regarding a natural gas pipeline associated with the power plant and
the power plant zoning issues. I have attended public hearings and provided public
comments at the local, county, and state levels.
14. Attending local and county meetings left me very frustrated and
exhausted with the government process. I often feel that there is no one looking out
for my neighborhood and its interests. I feel that government officials are only
looking after large corporations. Once NorthWestern withdrew its rezoning
application, even the opportunity to participate in public process disappeared, since
the Laurel City Attorney discouraged the organizations I am a member of from
S
reaching out to City Council members about NorthWestern's plant and the related
zoning issues.
15, 1 want to participate in the government process involving the zoning of
NorthWestern's parcels and the construction of the plant because those decision
have a tremendous impact on my property values, my personal and family's
enjoyment of my property, and my business development. Yet, I have no way to
participate in this process because the zoning designations are no longer being
enforced by the city. I believe a clear determination on the zoning jurisdiction would
help guide me and my neighbors with knowing where to put most of our energy in
public participation at meetings.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 13th day of February, 2023, in Laurel, Montana.
Ljz"-I VU v
Kasey Krum Felder
W
I, Carah Ronan, hereby declare as follows:
2021.
1. I reside at 1721 Nicholas Lane in the City of Laurel, Montana.
2. I am a member of Theil Road Coalition. I have been a member since
3. I was born in Laurel, and just recently moved back in 2021 with my
husband to farm my grandparent's property, which is where I currently reside.
4. The Sundance Lodge recreation area is in our backyard, and it is an
amazing place to hike, fish, cross-country ski, and bird watch right in our backyard
between two amazing rivers (the Yellowstone and the Clark Fork) on the historic
Nez Perce Trail. We love stargazing from our property, being able to see meteor
showers, planetary events and the sunrise and sunset on the hills and mountains.
5. Our neighborhood is directly across the river from Northwestern
Energy's proposed power plant. Already we were impacted by the laying of the
pipeline to the plant, which leaves us with no safe exit strategy for ourselves and
our 88 -year-old grandmother. As NorthWestern plows forward with building its
plant, I hear the construction 24 hours a day, and am already negatively impacted
by the lighting for construction, which persists throughout the night. If the plant is
built, its exhaust stacks will be visible from my home and my fields where I own
and operate a cut flower farm and host farm to table dinners.
6. If NorthWestern's plant is built, I fear that our property value will
dwindle, and the pollution and possible toxins we will be exposed to daily with no
regard for our safety or health and wellbeing, the noise that will impact our daily
lives, the hazards and implications to our land, animals, farmland and most
importantly lives in the event of an "incident" are unfathomable. Our water well
has already been impacted since the digging of the pipeline to supply gas to the new
plant.
7. I fear that our property value will diminish because no one will want to
move to the industrial part of town. NorthWestern is forcing their agenda to place
their plant in our backyard and on the banks of one of our most valuable resources,
the Yellowstone River, on historic Agriculture land on the historic Nez Perce Trail.
8. The quiet country life will be no more—we will live in an industrial
zone. Again, no one wants to live in an industrial zone. I am anxious about the plant
moving forward when we don't know the full implications of how this plant will
affect our health or the heath of the city and county, let alone the Yellowstone River
and ecosystem, which includes eagles, both golden and bald, osprey, moose, deer,
bobcats, fox, fish, etc.
9. Starting in fall of 2021, collectively, my neighbors and I began to voice
concerns about Northwestern Energy's plans. We call ourselves the Thiel Road
Coalition. Along with other members of the Thiel Road Coalition, I have been
attending Laurel City Council meetings, along with my husband, and addressing
the council during public comment since 2021. I have written letters to the editor
multiple times and those letters have appeared in the Laurel Outlook and Billings
Gazette. I have been interviewed by local TV channels and appeared on the news
2
multiple times. I testified at the Capitol in front of Governor Gianforte. I also
created a two -minute documentary to showcase the harms caused to our community
by the building of NorthWestern's gas plant (submitted as Exhibit B1).1 I filmed
and edited all the video footage in the documentary. Exhibit Bl is a true and
accurate copy of the documentary I made, and is a true and accurate depiction of my
property located at 1721 Nicholas Lane.
10. At first, when I began attending City Council meetings, I felt
empowered by the Laurel City Council. They were seemingly concerned about the
potential impacts of the plant. But the City Council has now abandoned its zoning
authority. I feel like there is mass confusion in that neither the city nor the county
want to take ownership of zoning NorthWestern's parcels. Everyone in City Council
and the county are pointing the other way. There is no accountability and we are
left with no public process to advocate our concerns that our zoning laws are not
being followed.
11. It is hard to feel like the elected officials that are supposed to be
looking out for us, our land, our health and wellbeing and the future of the area,
have absolutely no plan to do so, and instead will go where there is money being
offered. Many times in this process I have felt that our concerns are not being
listened to or looked into. Its beyond heartbreaking, worrying and maddening.
1 Also found at:
https://www.f'acebook.com/Eartlliustice/videos/moiitana-plant/,5540166889415041
3
12. The lack of clarity in public participation has made me feel helpless.
No one is willing to look out for those of us most affected by the building of this
plant.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 15th day of February, 2023, in Laurel, Montana.
II
Carah Ronan
.mp4 video file submitted via conventional mail
to Clerk of Court and served via conventional mail to all parties
��1°;1 1
I, Steve Krum, hereby declare as follows:
1. I reside at 249 29th Avenue West in Yellowstone County, just outside
the City of Laurel, Montana.
2. I am curretly a member of Thiel Road Coalition, Northern Plains
Resource Council, and Montana Environmental Information Center. I have been a
member of these organizations since 2021.
3. I was born in Laurel, Montana. Laurel is where I have called home for
my entire life. I worked as an Operator, Operations Supervisor and Zone
Supervisor at CHS Refinery for nearly three decades. I am now retired.
4. I met my wife 52 years ago in Laurel. The house we currently live in is
the house we bought together after we got married. We had the privilege of raising
our three daughters in this home. On this property, we were able to raise our girls
surrounded by agriculture and wildlife. Two of my daughters still live in Laurel,
and one daughter lives in Billings. One of the two daughters in Laurel, Kasey Krum
Felder, now grows grapes on her property and has been able to preserve an
agricultural lifestyle similar to the one we raised her in.
5. Laurel is my home. It's a very special place for me, and we have the
mighty Yellowstone River by our town, which is a point of pride for our community.
The Yellowstone River is a spectacular natural treasure that makes our town
special and unique. If a methane burning power plant gets built in this location, a
multitude of benefits will be destroyed for our community. A barrage of air, noise,
light, pollution that Northwestern will add to the valley will take away from our
quality of life. It will strip away our recreation opportunities, our solitude, and the
character of our town. It will be a permanent visual harm and will permanently
impact property values in our community.
6. I am concerned about the existing particulate matter in Laurel for me
and my family, and any additional pollution would have a negative health impact
on all the people of our community, especially those closer to the proposed plant, my
daughter's family included. I have 6 young grandchildren who live in or visit the
area, and I am worried about their health. We do not want to add to pollution levels
in this area, where children play. It is estimated that the plant would add 1,000
tons/year of air pollution and another 700,000+ tons/year of greenhouse gases which
would harm future generations of Laurel, including my own children and
grandchildren. The smells we already get from the refinery prove that wind doesn't
obey borders or town lines, and there are no such things as predominant winds. On
any given day we can see the wind change and come from multiple directions on the
same day. I fear that the entire valley will be impacted by the hazards this plant.
7. I live less than 2 miles from where NorthWestern is building its plant
without any zoning oversight, despite the fact that city and county maps show part
of NorthWestern's parcels as designated for agriculture use. NorthWestern is
plowing forward with construction of its methane gas plant, which will consist of
eighteen 9.7 megawatt generators; eighteen 13,008 horsepower internal combustion
engines, each with its own seven -story -tall exhaust stack; and a massive bank of
2
cooling fans next to each other, scarring the landscape of Laurel and contributing to
climate -harming greenhouse gases. This construction will inhibit the viewshed of
where I recreate, and where I recreate with my children and grandchildren.
8. The constant pollutants coming from this plant, including hazardous
air pollutants and noise pollution like we have never heard, would be continually
coming from this plant and impacting people and wildlife for miles and miles. When
I visit my daughter's home by the river, go to Riverside Park for events, or just go
down on the river's edge in the Laurel area there will be no escaping the visual and
physical impact of this plant as it is currently being built 300 feet from the river's
edge just across from our daughter's family home. All fishing, rock hounding and
wildlife viewing would be destroyed by this plant's noise and air pollution.
NorthWestern's plant would be dominating the environment and ruining everyone's
life experience on the river's edge and in the valley.
9. I have been and continue to be interested in participating in
government process as it relates to the City of Laurel's and Yellowstone County's
planning efforts because these decisions greatly impact my quality of life and my
property values. The City of Laurel approved a (new) City Growth Policy on
January 12, 2021. One of the focuses of this Growth Policy is to expand recreation
opportunities, particularly recreation tied to the Yellowstone River. The river is a
natural asset to our town, and we have an opportunity to promote recreational
opportunities such as swimming, camping, fishing, boating, stargazing, rock
hunting, and observing wildlife. I fear that the construction of this plant would
negate our ability to promote recreation in our town. The external lights from the
plant, the noise, and the visual impairments by the exhaust stacks would hinder my
enjoyment of camping, fishing, stargazing, and wildlife observations, boating, and
other recreational opportunities along the Yellowstone River.
10. My family, friends, neighbors, and I have been participating in local
government meetings related to the plant for more than a year, beginning in
October 2021 when we learned that the plant was going to be built in Laurel even
though the articles in the local paper by Northwestern appeared to sound as if it
was being put on hold. It was at that time that we learned that NorthWestern had
applied for zone change and pipeline easement to the City of Laurel and the city
council had tabled the application.
11. We attended the next regular meeting on October 26, 2021 in
opposition to the zone change and pipeline easement. The city council put the
zoning issue on hold and the pipeline easement was rescheduled. After the October
26 meeting, I began attending all council meetings, workshops and special city
council meetings called by the City Council. After several more meetings in
November 2021 the City Council denied NorthWestern's easement request. In
December, I learned that NorthWestern had withdrawn its application for zone
change. Even after NorthWestern withdrew its application, I continued attending
City Council meetings into March of 2022.
12. In my efforts to understand the applicable zoning designations for
NorthWestern's land, I have read through the County Commissioner's and Clerk's
websites, Yellowstone County Treasurer's website, City of Laurel's websites, GIS
website, and many more times personally requested from the government offices
information on searching through their public records, with me doing the search,
me paying them to search, and with no results on my request.
13. I also requested more information from a City County Planning official
and in response received an email from the City County Planner in Billings on
December 29, 2021 stating that Laurel, not the County, had zoning jurisdiction
within 3.75 miles of Laurel city limits. See Email from Dave Green to Steve Krum
(Dec. 29, 2021) (attached as Ex. 1). Still, to this day I cannot get any information
from Laurel, Yellowstone County, or Billings offices that clarifies the current zoning
designations on NorthWestern's property.
14. It has been very disappointing and depressing to see NorthWestern
going forward with building this plant when the exact location where they are
building the main structures of the plant is on land that I believe to be
agriculturally zoned property. It is disheartening not to know which government
agency to turn to in order to file a complaint or even get feedback on these zoning
issues. All concerned local governments, whether city or county, are not taking
ownership of this issue. Seeing the way things are working now is mentally and
physically depressing and at times nauseating.
15. Knowing exactly which jurisdiction to take our complaints to would
allow us the rightful time and focus needed to make our arguments as to why this
zone change should not be allowed and how it would impact our lives, the lives of
W
our neitehlbors and the enVixe Laurel communit'-y area. 711"e are only asking for the
opportunity and time to protect our personal and private property rights and not be
forced into allowing this plant just because they built it. It is very disheartening
seeing them build on land that is so close to my daughter's, and others', homes
without any recourse. It depresses and sickens me to feel like I have lost the fight
for me and my family and friends to someone who is obviously breaking the law, as
every day more of this plant is being built.
I declare unCler penalty of perjury rhal; tree toregoingIS Uue and correct.
Executed this ITI, day of February, 2023, in Laurel, Montana.
Steve Kamm
[10 R-7
From: Steve Krum
Sent: Wednesday, December 29, 202112:03 PM
To: Green, Dave
Subject: RE: Any new NWE Applications for Proposed Power Plant in Laurel
Dave,
Thank You for your quick response. Tammy just thought you two would be the first to
possibly be contacted for the permitting processby NWE and she did say your focus was on
subdivision for residential/commercial and possibly you may be contacted for the commercial
aspect. There is a question as who has the authority to do zoning in the county around Laurel, we
were working through the Laurel City/County planning board on this issue and they had scheduled
two public meetings to address this but both have been canceled and NWE has pulled their
application from the Laurel City/County Planning Board for zone change. We are not sure exactly
what is going on but the thought is they would be coming to the County Planning offices for
permitting. If you hear anything or are contacted about this project from NWE would you please let
me know, it would be greatly appreciated. Thank You ... Steve...
Sent from Mail for Windows
From: Green Dave
Sent: Wednesday, December 29, 202111:45 AM
To: Steve Krum; Cromwell Nicole
Subject: RE: Any new NWE Applications for Proposed Power Plant in Laurel
Steve,
I do not work directly with zoning applications for the city or county. I work with developers in the
city and county wishing to create subdivisions for residential or commercial development. I have not
heard anything about a new power plant. If they are still proposing to develop something in the
Laurel area then the City/County planning department here in Billings would have no jurisdiction
over what is happening. Laurel has jurisdiction in the county for approximately 3.75 to 4 miles
outside Laurel city limits.
Nicole is not in the office until Monday January 3. 1 don't know if she is aware of anything concerning
plans by NWE and a new power plant.
Dave Green
City/County Planning
From: Steve Krum
Sent: Wednesday, December 29, 202111:22 AM
To: Cromwell, Nicole >
Cc: Green, Dave >
Subject: [EXTERNAL] Any new NWE Applications for Proposed Power Plant in Laurel
Hi Nichole/Dave;
My name is Steve Krum, resident of Yellowstone County just West of Laurel. I got your
name and e-mail address from Tammy Deines. Tammy told me you two would/could be a first
contact for NWE for an application to build a new power plant in the Laurel area. NWE just pulled
their zoning request from the Laurel City/County planning board and I was wondering if they have
made any type of contact or application process with your office concerning the proposed power
plant. I, along with many neighbors in the area, am opposed to the power plant being built in the
proposed location for multiple reasons. The Noise from this plant cannot be contained within its
boundary, the additional air pollution to an area that is already out of compliance with air quality
standards and the harm it will do the Yellowstone River Eco -system, all of which affects the Safety,
Health and Welfare of the Existing Neighbors and Neighborhoods in close proximity of the proposed
location, which includes District 18 where my daughters family lives and the city of Laurel.
Any information or updates about NWE applying for any type of permit to be able to build
this plant would be greatly appreciated.
Again;
Steve Krum
Laurel, Montana 59044
Thank You ... Steve...
Sent from Mail for Windows
I, Mary E. Fitzpatrick, hereby declare as follows:
I am a citizen of the United States and over 18 years of age. I reside in
Billings, Montana. I am a member of Northern Plains Resource Council (Northern
Plains).
2. For the past thirty years an active member of Northern Plains, and
have served on the Board and/or Executive Committee for more than half that time,
including 2 years as Board Chair. In my various roles at Northern Plains, I have
worked to address the environmental problems associated with natural resource
extraction in Montana, with a specific focus on fossil fuel development and climate
change.
3. The Northern Plains Resource Council is a grassroots conservation and
family agriculture non-profit organization based in Billings, Montana. Northern
Plains organizes Montana citizens to protect water quality, family farms and
ranches, and Montana's unique quality of life. Northern Plains is dedicated to
providing the information and tools necessary to give citizens an effective voice in
decisions that affect their lives. Northern Plains formed in 1972 over the issue of
coal strip-mining and its impacts on private surface owners who own the land over
federal and state mineral reserves as well as the environmental and social impacts
of mining and transporting coal. While Northern Plains was founded on coal issues,
the group quickly expanded into helping preserve the land, air, and water and
protect communities from similar threats caused by irresponsible oil and gas
development.
4. Many of the organization's roughly 3,000 members farm, ranch, and
recreate in Eastern Montana, and their livelihoods depend entirely on clean air and
water, a healthy climate, native soils and vegetation, and lands that remain intact.
Northern Plains members also live, work, and recreate in the City of Laurel area
where NorthWestern Energy plans to build its power plant and have participated in
advocacy efforts opposing the plant's zoning designation.
5. Northern Plains and its members have intensive, longstanding health,
recreational, aesthetic, professional, and economic interests in the responsible
production and use of energy, the reduction of greenhouse gas pollution as a means
to ameliorate the climate crisis, and the protection of land, air, water, and
communities impacted by fossil -fuel energy projects and other industrial
development. Some of Northern Plains' members live, work or recreate in areas that
will be adversely impacted by NorthWestern Energy's building of a methane gas -
powered plant on the banks of the Yellowstone River. Several members of Northern
Plains have attempted to participate in the local government process regarding the
zoning of the power plant but have been thwarted by local government's
abandonment of zoning authority over the site.
6. If NorthWestern Energy builds a methane gas plant in Laurel, the
experience of living and recreating near the plant will forever be degraded. Where
the power plant and its exhaust stacks would be visible, the natural beauty of the
2
area would be marred. Furthermore, the Montana Department of Environmental
Quality has stated that the plant would emit tens of thousands of tons of
greenhouse gases every year, which I fear would contribute significantly to pollution
that drives climate change and damage Montana's agricultural industry, and our
water, forest, and our recreational industry. If the plant is constructed, I fear that
Northern Plains members would be forced to breathe more polluted air.
7. Northern Plains opposes NorthWestern Energy's continued investment
in fossil fuel development, including the environmental harm and economic costs it
imposes. I believe that this plant would cost Montanans in the form of higher
electricity bills, both to pay for NorthWestern's investment in building the plant
and the ongoing and uncertain future costs of gas to fuel the plant. It heightens my
distress knowing that further investment in fossil fuel generated energy inhibits
investment in the development of renewable and more affordable forms of energy
production.
8. Northern Plains began our engagement on this issue when we learned
of NorthWestern Energy plans to build a methane fired power plant in Laurel,
Montana in the spring of 2021. A committee of Northern Plains members in Laurel,
throughout Yellowstone County, and across the state was formed to work on this
issue and a Northern Plains staff person was assigned to work with them on this
effort.
9. In the fall of 2021, Northern Plains members, staff, and Laurel
community members began canvassing neighborhoods in Laurel and phone banking
3
to educate the public about the issue. In further efforts to educate the public about
this issue, Northern Plains spent $21,000 on a media campaign, including
newspaper, television, and social media advertisements to educate the public about
the health, safety, and economic concerns assocated with the construction of the
proposed methane fired power plant. Northern Plains spent an additional $15,600
to purchase and implement software to collect sound quality monitoring data near
the site of the Laurel methane fired power plant to ensure that Northern Plains
members and nearby residents had the information they would need to ensure
NorthWestern Energy adheres to their air quality permits. Additionally, Northern
Plains expended member and staff time to organize and hold a People's Hearing in
February 2022 to give Laurel and Yellowstone County residents a venue to voice
their concerns because of a lack of official public comment opportunities.
10. Northern Plains member's attempts to contact Laurel City Council and
Yellowstone County Commission with their questions and concerns about the
zoning of this methane fire power plant have gone either unanswered or each body
has indicated that they should contact the other. Northern Plains also received a
letter from the Laurel City Attorney in August 2022 specifically asking the
organization to "ceast and desist" organizing constituents and to stop
communicating with city officials about the plant. Letter from M. Braukmann to
Northern Plains Resource Council (dated Sep. 8, 2022) (attached as Ex. 1).
0
11. In the absence of an authority over zoning, Northern Plains members
and Laurel residents are left without a clear decision maker to whom they can
express their concerns and take part in the decisions that impact their lives.
12. When Northern Plains began engaging on this issue, NorthWestern
Energy had applied for a zoning change before the Laurel City Council. That zoning
change application was subsequently abandoned and it was Northern Plains
understanding that NorthWestern Energy would reapply for this zoning change in
one years time. In the absence of a zoning change, construction of the methane fired
power plant has persisted causing Northern Plains member and Laurel residents to
ask questions about whether proper zoning had been obtained and from which
authority. With neither the Laurel City Council nor the Yellowstone Councy
Commission taking responsibility as the zoning authority, concerned citizens have
been left without proper recourse to engage on land use isses that impact their
communities wellbeing. As a grassroots organization, Northern Plains is committed
to providing everyday people with the information and resources they need to have
a say in decisions that impact their clean water, land, air, and the health of their
communities. We've been unable to direct Northern Plains members and the
general public's concerns to the proper elected officials as a result of this regulatory
uncertainty.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 15th day of February, 2023, in Billings, Montana.
W
.�ee
ea'ry E. Fitzpatrick
On behalf of the City of Laurel, we are in receipt of your letter regarding this matter.
We will provide you a response within the next few weeks, so that you can fully evaluate
the City's legal position regarding this issue. Have you retained Legal Counsel, and if
so, please direct me to him/her? The reason that I ask this is because these are
complicated legal issues that require a full and comprehensive analysis by lawyers that
understand land use, zoning, interlocal agreement, and other issues. While I
understand and respect Northern Plain's position in this matter, these are not matters
that the general "lay -person" can appropriately articulate and understand. These issues
involve complex legal authority within the State of Montana, the review of multiple
contractual obligations between the City/County, and existing statutory, Municipal Code,
Montana Code, and common law authority. It would be best, in my respectful opinion,
for this discourse to occur between seasoned lawyers that can assess the various
issues involved. If Northern Plain's does not have Legal Counsel, nor intends to retain
such, I will communicate with you in response, but I want to be frank in saying that I
don't believe the discussion will be productive, because it will not involve a true
understanding of the complex issues at stake here.
I look forward to your response on retention of Legal Counsel, and in the interim, I will
prepare a formal response to Northern Plains. I also respectfully ask that these
communications, moving forward, come through my office. Inundating Council
Members that have "a lot on their plate" in respect to City business is not productive,
and it further alienates parties/issues. I am in constant communication with the Laurel
City Council Members, and they are fully advised of all matters before the City. In
addition, I ask that Northern Plains cease and desist from sending out inflammatory
messages to City constituents, which further complicate this issue, and which take up
enormous time and effort from City staff that have nothing to do with this issue. I
believe that respectful discourse and communication through the appropriate parties
(which, in this case, is myself, as City Attorney, and the Mayor) is most appropriate for
attempting to find a way to both legally and practically resolve these issues.
Of course, if your Legal Counsel wants to set up a time to talk about these issues with
me, I am more than happy to do so.
Best Regards,
Michele L. Braukmann
Civil City Attorney
City of Laurel
115 West 1 st Street
Laurel, MT 59044
Cell Phone: 406.671.3963
civilattorney(aMa u rel. mt.gov
I, Anne Hedges, hereby declare as follows:
1. I am a citizen of the United States and over 18 years of age. I reside in
Helena, Montana. I am a member and employee of the Montana Environmental
Information Center.
2. For the past 29 years I have been employed by the Montana
Environmental Information Center (MEIC). In my various roles at MEIC, I have
worked to address the environmental problems associated with natural resource
extraction in Montana, with a specific focus on fossil fuel development and climate
change.
3. The Montana Environmental Information Center is a non-partisan,
non-profit environmental advocacy organization dedicated to ensuring clean air and
water for Montana's present and future generations. MEIC was founded in 1973 by
Montanans concerned with protecting and restoring Montana's natural
environment. Thousands of Montanans support MEIC as members, both financially
and with their activism. To protect and restore the land, air, water, and life-
sustaining climate of Montana, MEIC advocates, educates, and empowers people in
service of a clean and healthful environment for present and future generations.
4. MEIC plays an active role in promoting Montana clean energy projects
and policies, including advocating for the expansion of responsible, renewable
energy and energy efficiency, while opposing unnecessary reliance on fossil fuel
energy that leads to air and water pollution and contributes to climate change.
MEIC is also dedicated to assuring that state and local governments comply with
and fully uphold the laws and constitutional provisions that further the
organization's goals and mission in protecting the environment for all Montanans to
enjoy. MEIC has approximately 10,000 members and supporters, many of whom are
in NorthWestern Energy's Montana service territory and seek increased access to
affordable renewable energy sources.
5. MEIC and its members have intensive, longstanding health,
recreational, aesthetic, professional, and economic interests in the responsible
production and use of energy, the reduction of greenhouse gas pollution as a means
to ameliorate the climate crisis, and the protection of land, air, water, and
communities impacted by fossil -fuel energy projects and other industrial
development. MEIC members live, work, and recreate in areas that are currently
being adversely impacted by NorthWestern Energy's building of a gas -powered
plant on the banks of the Yellowstone River. MEIC brings this action on its own
behalf and on behalf of its adversely affected members, several of whom have
attempted to participate in the local government process regarding the zoning of the
power plant but have been thwarted by local government's abandonment of zoning
authority over the site.
6. If NorthWestern continues to build a methane gas plant in Laurel, the
experience of living and recreating near the plant will forever be impaired. Where
the power plant and its exhaust stacks would be visible, the natural beauty of the
2
area would be desecrated. Seeing these impacts would greatly harm the members of
MEIC.
7. According to NorthWestern's own projections for its air quality permit,
the plant would emit significant amounts of various air pollutants that directly
harm public health and hundreds of thousands of tons of greenhouse gases every
year, contributing significantly to pollution that drives climate change and its
impacts in Montana. If the plant is constructed, MEIC members would breathe this
polluted air.
8. Montana Environmental Information Center opposes NorthWestern's
continued investment in fossil fuel development, including the environmental harm
and economic costs it causes. This plant would cost Montanans in the form of higher
electricity bills, both to pay for NorthWestern's investment in building the plant
and the ongoing and uncertain future costs of gas to fuel the plant. It heightens my
distress knowing that further investment in fossil fuel generated energy inhibits
investment in the development of cleaner, more affordable forms of energy
production.
9. MEIC must also safeguard its institutional interests in warding off the
disastrous effects of climate change and minimizing harmful air and water pollution
by scrutinizing proposals for new fossil fuel development and holding responsible
entities accountable to the law. Advocacy around land use planning, and the public's
ability to participate in that planning, is an important tool in these endeavors
because it allows the public, including MEIC and its members, an opportunity to
weigh in on land use decisions that impact Montana's environment and public
health. As an organization, MEIC is concerned that the type of regulatory
uncertainty caused by the City of Laurel's and Yellowstone County's positions on
city and county zoning jurisdiction will hamper MEIC's ability to effectively
advocate for its organizational goals.
10. In the Fall of 2021, MEIC learned that NorthWestern was requesting a
change in zoning for the parcels in question in order to build a 175 -megawatt
methane gas plant. MEIC staff and its members researched the law and history of
the parcels' legal designations, examined the potential impacts of the proposed
project on water and air quality, hired a land use consultant to better understand
the legal process for changing the zoning of the site, reviewed City and County
documents regarding planning, zoning and subdivision regulations and
decisonmaking, educated the public and MEIC members regarding the proposed
project, its impacts, and the regulatory process, attended public hearings both
virtually and in-person before the Laurel City Council and its planning and zoning
committees, and worked with area residents and members to persuade government
officials to protect the air, land and water from the impacts of the proposed project
and the requested zoning change. All of this work with consultants, city and county
officials, area residents, MEIC members, the media, and members and the public
were disrupted when NorthWestern withdrew its zone change application. MEIC
made numerous attempts to request clarity from the city after NorthWestern's
withdrawal but were left with complete uncertainty regarding who was responsible
0
for making land use decisions for the site. This regulatory uncertainty undermines
MEIC's ability to meet its organizational goals and advocate for clean air, clean
water, and a healthy, climate due to the impacts of the proposed power plant.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 13th day of February, 2023, in Helena, Montana.
Anne Hedges
Briftney Moorman
From:
Ward 2B
Sent:
Tuesday, February 28, 2023 7:21 PM
To:
Brittney Moorman
Subject:
FW: Hens
From: Stephanie Lavely <stephanie.andes@gmail.com>
Sent: Sunday, February 26, 2023 10:48 AM
To: Ward 2B <ward2b@laurel.mt.gov>
Subject: Hens
Hello Michelle!
I am a resident of ward 2. 1 am very interested in keeping hens. We had some for a few years before we found out they
were illegal in Laurel. We shared our extra eggs with our neighbors. We really enjoyed watching them chase grass
hoppers in the summer. They were our pets. We were heartbroken to have to rehome them. We would really love to
own hens again! Please consider changing the law to allow that.
Stephanie Lavely
805 2nd Ave
406-698-9691
Briftney Moorman
From: Ward 1A
Sent: Tuesday, February 28,2023(l35Pk4
To: Bhttneyk400nnan
Subject: FW: Chickens inthe Limits ofLaurel
For tonights record
Thank you!
Heidi Sparks- Council Member
City ofLaurel- Ward 1
406-671-0911
From: Missy Ritchie <noarzkat82@yahoo.cono>
Sent: Tuesday, February 2O,28234:46PK4
To: Ward 1A<ward1a@|aure|.nnt.gov>;Ward 18<ward1b@|aune|.mt.Qov>
Subject: Chickens inthe Limits ofLaurel
Hello,
I live OD West Avenue in [@Un8L and I Om writing to GhOVV DOV SUDpD[t for the @lk]VV8DQe of chicken
hens within Ohn limits. Not only dOthey provide fresh eggs, chickens are great at pest control and also
create some of the best fertilizer, which Ol8DV g8[d8Oe[6 like OlVS8lf love. I really hope that the
ordinance will be changed tDallow them.
Thank you,
Melissa Wilson
1
Brittne Moorman
From: Ward 1A
Sent: Tuesday, February 28, 2023 6:35 PM
To: Brittney Moorman
Subject: FW: Chicken Ordinance
For tonights record
Thank you!
Heidi Sparks- Council Member
City of Laurel- Ward 1
406-671-0911
Wardla@Iaurel.mt.gov
-----Original Message -----
From: Haillie Arensmeyer <h_arensmeyer@icloud.com>
Sent: Sunday, February 26, 2023 3:30 PM
To: Ward 1A <wardla@laurel.mt.gov>
Subject: Chicken Ordinance
Good afternoon Heidi,
My name is Haillie McComish and I am writing to you in regards to my family's interest in owning hens. I have been a
resident of Laurel for 31 years. I was raised here and now my husband and I are raising our kiddos here. I think it would
be a great opportunity to provide a source of food for my friends & family in this economy. Not only are prices of food
going up but egg shortage is at an all time high. I would also share eggs with my neighbors if there is a want or a need.
If there is an increase number of hens owned in the community I believe to would provide business to our local Ace
Hardware and Tractor Supply for chicken needs. There is also the possibility to support our 4-H kids and local farmers.
I do believe there should be a limit on the number of hens owned and proof of appropriate containment and housing
should be provided to achieve a license to own said hens. Thank you for your time reading my opinion.
Haillie McComish
Sent from my iPad
Briftne Moorman
From: Ward 2B
Sent: Tuesday, February 28, 2023 7:20 PM
To: Brittney Moorman
Subject: FW: Laurel ordinance: Hens
From: kristine favero <faverokm@yahoo.com>
Sent: Sunday, February 26, 202310:24 AM
To: Ward 2B <ward2b@laurel.mt.gov>
Subject: Laurel ordinance: Hens
Michelle,
My family and I have interest in getting hens for our household. As you may know there are concerns about eggs and
meat, everyone is hurting to buy eggs and/or chicken products. Eggs is only one of the reasons our family would like
hens. Other reasons on why we would like you to consider hens is for our children. The responsibility of feeding and
caring for livestock and the possibility of participating in 4-H/FFA in the future. Having our little ones do chores at a
younger age will help them understand everything doesn't grow on "trees".
This also can open the possibilities of our community helping one another. Instead of asking for a 'cup of sugar', maybe
we can spare an egg or too for our neighbors.
Thank you for considering this change in the Laurel ordinance.
Thank you,
Kristine Williams
Sent from Yahoo Mail for iPhone
ftne Moorman
From: Megan Mccann<godsmyvendingmachine@rocketmail.com>
Sent: Friday, February 24, 2023 10:15 PM
To: Brittney Moorman
Subject: Supporting Chickens in the Laurel City Limits
Dear Council Secretary Moorman,
My name is Megan Keys and I live in Ward 2 in the city of Laurel Montana. In the case that I am unable to make it to the
council meeting on February 28th at 6:35pm, I am emailing you today so that my views may be read into record.
I have noticed the rising interest from members of the community to keep chickens. I think it is important that our
interests as a community are heard and also considered. I would like to have the option of having a few chickens at my
home within the city limits of Laurel and I am in support of others who would like to have chickens as an option as well.
I would like to support the change of ordinance 6.16.010. This ordinance currently prohibits the keeping of chickens in
the city limits of Laurel under part A. I would like for the ordinance in part A of 6.16.010 to no longer include chickens
(hens) as a prohibited animal under the "keeping certain animals prohibited" section.
Here are some supporting details why I think giving the opportunity to keep chickens could be beneficial to members of
the community.
Some of these benefits include the following; Food independence, this would allow residents to have access to fresh
eggs without needing to be dependent on the grocery store.
Keeping chickens could create an opportunity to cut back on food waste, which could lead to less waste being thrown
into the garbages and more of it being recycled/repurposed. Chickens provide some grasshopper pest control, which is
great because Laurel has a lot of grasshoppers during our summer months.
With chicken care comes opportunity to teach our children to raise and care for chickens responsibly.
Opportunity is created to better our community relationships when we have the chance to share extra eggs with our
neighbors.
Allowing the equal opportunity to keep chickens and to have access to these opportunities without the need to be
wealthy.
In conclusion, My vote it Yes. I support the keeping of chickens within the city limits.
Thank you for your time.
Sincerely,
-Megan Keys
Sent from Yahoo Mail on Android
Briftney Moorman
From: Linda Strawbridge <lindas1925@outlook.com>
Sent: Wednesday, February 22, 2023 12:40 PM
To: Brittney Moorman
Subject: Chickens in Laurel
I am sending this email in support of having chickens in town. I sincerely believe that this will help a lot of us with just a
little bit of security for food.
Linda
Briftne Moorman
From: LeeAnn Burley <leeann.burley89@gmail.com>
Sent: Wednesday, February 22, 2023 12:32 PM
To: Brittney Moorman
Subject: Chickens
City Council,
I am writing to express the need and want to have chickens in the city limits of Laurel. Surrounding areas have allowed
chickens for years, with such allowance comes rules and expectations. I feel as long as those rules and expectations are
followed there is no reason to not allow people to own them. Chickens can be used in a plethora of ways; they provide
us with eggs (which as you know could have come in handy these last few months), keep bugs and other pests down
during summer months, and can give a sense of purpose. You'll find your challenges and troubles with chickens, as with
anything. I feel like most people won't engage with the arduous task of keeping chickens if it is something they are
unfamiliar with.
Thank you for hearing us all on this topic.
fYlishine you the best!
-LeeAnn .Burlg
nave W01,300 er
Mayor
City of Laurel, Montana
(406) 628-8456 extension 5501
From: Paige Farmer <paigefarmer1992@gmail.com>
Sent: Tuesday, February 28, 2023 12:57 PM
To: Ward 3A <ward3a@laurel.mt.gov>; Ward 3B <ward3b@laurel.mt.gov>; City Mayor <citymayor@laurel.mt.gov>
Subject: Chickens in Laurel City Limits
To Mayor Dave Waggoner and Ward 3 Council Members Iry Wilke and Casey Wheeler,
I, Paige Farmer, would like to share my "in -favor" public input towards the topic of Chickens within the city limits of
Laurel as I am unable to attend tonight's meeting.
As a resident of Ward 3 and the City of Laurel, I have grown to love and appreciate all things that have come from this
community. We are ever growing and adapting. With that said, I believe allowing chickens within the city limits could
provide yet another chance for us to thrive. A chance to learn, provide for oneself, and teach our younger generation
sustenance, perseverance, and a true understanding of a life worth working towards.
As with any new order, I'm sure there will be hiccups, but the chance to separate ourselves from the industrial age and
pursue a healthier way to provide for our families is worth every step.
Thank you for your time.
Paige Farmer
1
Briftney Moorman
From: Braven Warner <sharpshooterbrave@yahoo.com>
Sent: Tuesday, February 28, 2023 1:21 PM
To: Brittney Moorman
Subject: Chickens Ordinance Change
Hello, my name is Braven Warner, and I live within city limits of Laurel. I will not be available tonight to support the
ordinance change, however would very much like to show my support in any way I can. I was told that I may email you
to do so. So I ask that you please express my support on my behalf if at all possible.
Thank you for your time,
-Braven Warner
Sent from my Phone