Amy Thiel has lived for nearly 40 years on Bandera Drive, along the western edge of a largely empty zoning district created by the county, at residents’ behest, almost two decades ago.
Thiel has raised three children in her home, with the youngest now 16. Yet the county now hopes to alter the statute regulating Special Zoning District (SZD) 43, which some residents worry will spur more industrial activity.
Already, some 500 yards from Thiel’s fence, Helena Sand & Gravel operates a mining and processing facility.
“My entire backyard is a horrible view and noise. There’s so much dust it’s unreal,” she told The Monitor, expressing concern about the proposed changes. “My fear is that they will…be allowed to mine 10 feet from my property line.”
This not-in-my-backyard story begins in early 2008, when the state’s Department of Environmental Quality (DEQ) handed HSG a permit to mine 110 acres of its 421-acre parcel, which sits mostly between Valley Drive, Canyon Ferry Road, Lake Helena Drive and Lewis St.
In response, area residents petitioned the county requesting the creation of an SZD for the remaining 311 acres, with the purpose of protecting the area’s residential character, along with property values. The creation of such a district would essentially ban industrial and mining activities, barring HSF from future work across some 75% of its parcel.
Yet with seven out of 10 neighborhood residents signing the petition (and state law requiring 60%), the county commissioner’s board granted the creation of SZD 43 in April 2008. “The people won,” recalled Thiel, who was among the signees. “It felt like a victory.”
HSG sued the county, arguing that the district had been improperly created and represented a commandeering of its property. The district court found in favor of the county on both counts, pointing out that HSG lacked permits for the 311 acres inside SZD 43. HSG appealed and the case reached the state Supreme Court, which in 2012 affirmed the lower court’s decision.
Fast-forward 14 years and the county is now proposing some alterations to the SZD 43 statute. The amendments would primarily alter district regulations in three ways: allowing the expansion of “non-conforming” uses of land and structures; eliminating a requirement that non-conforming structures must first be made to conform to district regulations before being expanded; and removing a list of Special Restrictions.
Jenny Chambers, director of Lewis & Clark’s Public Works and Planning Department, told The Monitor that the county’s Community Development and Planning Department had proposed the changes in an effort to bring SZD 43 in line with the county’s recently updated growth policy,
Whatever the objective, many nearby homeowners have taken issue with the changes. Count Anita and Ray Lincoln – who have lived on Wildfire Road, within SZD 43, for decades – among the concerned.
“We chose this area for the rural, quiet area, yet close to already existing options (stores, restaurants, post office, repair shops),” Anita told The Monitor in an email, adding that they hadn’t expected the arrival of Helena Sand & Gravel. “We are far enough from the pit that we don’t get smells, but we already hear their rockcrusher all the time.”
The couple expressed particular concern about the proposed removal from the SZD 43 statute of the Special Restrictions, which prohibit mining, hazardous waste disposal, landfills, and an array of other commercial activities.
“We can’t imagine if a casino or a landfill or a wrecking yard were to be allowed among our homes,” the Lincolns wrote in a letter to their neighbors, which was shared on Facebook. “There is no known reason to remove these restrictions.”
Chambers laid out the county’s thinking in an email exchange.
“The Special Restrictions section is unnecessary, as any use not listed under the Permitted or Conditional Uses sections is not allowed,” she said, adding that since uses like hazardous waste disposal and mining are not listed under these sections, they would be prohibited.
“Having a Special Restrictions section has only created confusion,” Chambers added, “as it only lists a few uses that are prohibited when all uses not listed under the Permitted or Conditional Uses sections are prohibited.”
The two lists seem to include few uses that would imperil neighboring residences beyond a foul animal smell. Agricultural and livestock uses are listed, along with homes, schools, guesthouses, daycare, cafes, churches, golf courses and business offices. No industrial, mining, waste disposal or other potentially hazardous uses are included.
Chambers added that the only allowed SZD 43 uses not listed in the permitted and conditional use sections are uses that existed or were permitted prior to the 2008 adoption of the regulations. Thus, the updated statute would allow for only “non-conforming” uses and structures that existed before the creation of SZD 43.
“The proposed amendments will allow for the expansion of non-conforming uses and structures within the district subject to the issuance of a Conditional Use Permit,” said Chambers, adding that a CUP is not guaranteed approval, but requires a public site-specific review.
Thiel wondered if the county hoped to deceive residents and change the regulations in a way that allowed problematic uses without letting people know. “When they come in and try to get it done in a sneaky, underhanded manner, it feels like a total violation of our rights,” she said.
Maybe two dozen homes sit within SZD 43, including all those along Wildfire Road. But several dozen more homes, with hundreds of residents, sit just outside the district, including Red Fox Meadows and Eastgate Village. Eastgate Elementary is a stone’s throw away.
Like Thiel, Jean Riley, president of Eastgate’s Water and Sewer Association, also raised children in the area. The water association owns a 20-acre parcel within the district that holds two wells that provide water to Eastgate homes.
She feared further industrial and mining work in the area could put her two wells, and residents’ drinking water, at risk. She also thought HSG, not the county, was behind the proposed changes to SZD 43, and worried about increased industrial activity.
“Lake Helena Drive already has traffic, all those trucks are going to make it more difficult, kick up dust and destroy the nicety of the neighborhood,” said Riley. “This could bring down property values.”
Lewis & Clark County’s Planning and Zoning Commission plans to hold a public hearing on the proposed SZD 43 amendments April 16 at 5:30 p.m. in Room 330 of the City-County Building on North Park Ave in Helena. Following the hearing, the Planning and Zoning Commission plans to make a recommendation to county commissioners, who will then hold another public hearing on April 28 at 9:00 a.m. at the same location.
This article has been updated to reflect that the Eastgate Water and Sewer Association owns the land within SZD 43 that holds the subdivision’s two water wells.
