District judge rules in favor of Swan Lakers

Fourth Judicial District Court Judge Douglas Harkin ruled in favor of the Swan Lakers last week and agreed to review whether Lake County Commissioners erred in granting preliminary plat approval of the Historic Kootenai Lodge Condominium project in May.

"It gives us a green light to proceed on all fronts," said Jack Tuholske, a Missoula attorney representing the Swan Lakers and Bradley Wirth, petitioners in a lawsuit against the Lake County Commissioners.

Harkin issued an order Oct. 19 accepting the petition for judicial review and declaratory judgment filed June 1 against the commissioners. His order denied the county commissioners' request that the lawsuit be dismissed and it also grants the petitioners' motion that the Milhous Group be included in the lawsuit.

The petition filed by Wirth and the Swan Lakers alleges Paul Milhous, Milhous Group president, sought approval from the Lake County Commissioners for the condo project preliminary plat in early May before the owners of the Kootenai Lodge property at the time--Mark and Debi Rolfing--had signed a joint application form allowing the project to be considered by county officials.

The lawsuit contends that the Milhous Group's initial application was disapproved Feb. 18 by Lake County Planning Department officials because it did not include the Rolfing's signatures.

But five days later planning officials reversed their position and accepted the application after a meeting with former county planning director David DeGrandpre, who was working as a consultant for the Milhous Group.

The commissioners then granted preliminary plat approval even though Milhous' purchase of the property was not complete.

Since then, the Milhous Group has proceeded with moving an historic barn and removing trees at the property in preparation of building 57 condominium units and other structures at the historic site.

The lawsuit alleges 13 counts against the county commissioners, including:

• Approving a subdivision under invalid subdivision regulations

• Considering an incomplete subdivision application

• Approving a subdivision application without adequate information

• Failing to comply with the Subdivision Act and Regulations

• Violating the public's constitutional right to participate

• Abrogating its constitutional duty to protect a clean and healthful environment

• Failing to consider historical and cultural values of the property

• Lake County's subdivision regulations are unconstitutional

Tuholske said Friday that he plans to "vigorously" pursue a motion for discovery as one of the next steps in taking the lawsuit to a conclusion, a process that could take several weeks.

Peter Leander, another attorney representing the Swan Lakers in the lawsuit, said the Milhous plan to build 24 boat docks on the lake figured into the lawsuit, as did the Swan Lakers allegation that the development violates regulations by failing to have a septic plan in place at the time they submitted the subdivision request.

They still don't have a septic plan, Leander said earlier this week.

"The judge's ruling is a huge victory for the Swan Lakers and all citizens of Montana," Leander said.

"The judge is telling the county commissioners and the Milhous Group that they must face our allegations and defend themselves in front of a judge or jury. This is a great day for those common citizens who choose to take up the fight against, and refuse to be steamrolled by, those who attempt to exploit for profit those historical, cultural, spiritual and community values which the Kootenai Lodge represents," Leander said.

"This also gives the county commissioners an opportunity to get a directive from the court regarding their currently untenable position which requires them to approve developments that are not in the community's interest, for fear of being sued by an angry developer," Leander added.

Attorney Erik Thueson of Kalispell also is representing the petitioners.

Another lawsuit regarding the commissioners having violated open meeting laws also is continuing forward, according to Leander.

Lale County Commissioner Mike Hutchin said Monday that Harkin's brief issued last week was "typical legal maneuvering."

Lawyers with the county's insurance carrier are handling the case for the comissioners, he added.

"We have to live with it," Hutchin said. "It's out of our hands now."

A phone call to the Milhous Group, Baco Raton, Fla., yielded no comment on the ruling.