Land Use

“Communities all across Montana are struggling against the abuses of improper land use.”
— Roger Sullivan, Trial Trends, Summer 2007

McGarvey Law specializes in land use law, and works to ensure that development happens in  a way that minimizes damage to the state’s valuable natural resources and is carried out in accordance with local and state laws.

Our firm has bona fides in challenging subdivision development, ensuring local government complies with applicable law, and the nuances of zoning law.

We work with land use planners, environmental sampling and restoration companies, environmental engineers, hydro-geologists, toxicologists, and other relevant experts to ensure that a proposed development preserves the “health, safety, convenience, and welfare” of local citizens.

Case Examples:

North Fork Preservation Association v. Dept. of State Lands and CENEX

In 1985, Cenex was granted a drilling permit for an exploratory oil and gas well near Polebridge, Montana that sat just two miles from Glacier National Park. In 1988, we intervened to challenge the state of Montana’s environmental assessment and to address Cenex’s failure to prepare an Environmental Impact Statement (EIS). We prevailed on summary judgment, but our decision was reversed by the Montana Supreme Court, which held that no EIS was necessary, and that no violations of law had occurred. (238 Mont. 451, 778 P.2d 862 (1989)) In spite of this ruling, no well was drilled on this state lands parcel near Polebridge. An exploratory well drilled on adjoining private land in 1989 came up dry. We challenged that well because there had been no public notice and no public hearing; the Flathead County District Court ruled in our favor. The Montana Board of Oil and Gas’ permit was revoked until a public hearing could be held. Because of our advocacy, Cenex decided not to develop any of its leases in the North Fork, releasing them back to the Department of State Lands, and ensuring the preservation of the North Fork’s undeveloped lands.

Plains Grains v. Power Company

McGarvey Law successfully blocked the construction of two controversial coal-fired power plants near Great Falls, representing the Helena-based Montana Environmental Information Center and about 40 landowners who opposed the project. At the request of a developer, Cascade County moved to rezone 668 acres from farmland to heavy industrial use so a power plant could be constructed on the land. MEIC and the landowners sued Cascade County, alleging illegal spot zoning. The county planning department acknowledged that the operation of a power plant was out of character with the neighboring agricultural land, but approved the rezoning anyway. The Montana Supreme Court ruled in favor of MEIC and the neighboring landowners because the requested heavy industrial use differed significantly from the current agricultural uses, the area to be rezoned was relatively small, and the benefits would accrue to a single landowner.

Kadillak v. The Anaconda Company, Department of State Lands

McGarvey Law represented 127 homeowners on the east edge of Butte whose homes and health were threatened when the Anaconda Company proposed a large toxic waste dump on neighboring land. After a complex three week trial involving multiple expert witnesses, the district judge ruled in Anaconda’s favor, a decision that was reversed by the Montana Supreme Court in a landmark case. The Supreme Court’s decision, and our advocacy, pushed Anaconda to create a new Environmental Impact Statement. Anaconda eventually committed to conveyor dumping, a safer alternative that cut air pollution by 75%.