[Canyon] barn enforcement update
Tom Fiddaman
decision on the appeal of the enforcement action against the Theken barn in
Brass Lantern (below the M) at the end of last month.
The decision upheld the county's denial of an after-the-fact amendment to
the Brass Lantern PUD to legalize the barn, and its subsequent removal
order. It specifically cites resident testimony and the BCPOA survey that
indicated a strong desire for meaningful enforcement. It also specifically
upholds many of the arguments made by BCPOA and the county, for example:
- There really are enforceable building envelopes in Planned Unit
Developments (PUDs).
- In spite of the original developer's failure to record an exhibit to the
Brass Lantern covenants, there was abundant notice of the existence of a
building site and open space restriction, and the builder was obliged to
investigate any ambiguities before proceeding.
- The original developer voluntarily surrendered control over open space and
other aspects of the development in exchange for added density.
- State exemptions to zoning of agricultural _lands_ do not apply to the
location of agricultural or recreational _structures_, particularly where
the primary land use is residential, and PUD open space controls exist.
This decision is a substantial victory for enforcement and the Bridger
Canyon Zoning Regulation in general. There's now a strong precedent, serving
as a warning that "build first and ask for forgiveness later" is not a good
strategy.
Unfortunately, this isn't quite over - we've just learned today that Theken
plans to appeal the decision to the Montana Supreme Court. This probably
means another delay of about 6 to 8 months. BCPOA and the county did not
oppose a stay of the removal order, because it would have eventually been
granted anyway, and opposition would merely waste everyone's time and money.
Thanks everyone for hanging in there while this long process unfolds.
Tom Fiddaman
BCPOA chair
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