Council delays vote on rezoning


More than an hour was spent discussing a rezoning request by Diamond J Construction at the Miles City Council meeting Tuesday, but for legal reasons the council decided to place it on the agenda of the next council meeting for a vote.

Although four of the five council members present were against the request because they felt it violated state laws, they moved the vote to the next meeting to make sure procedure was being met.

The land is zoned agricultural, and the request is to rezone it to general commercial. The land is less than two miles south of Miles City, therefore it is in the city’s zoning jurisdiction. 

The Zoning Commission had made a recommendation that the request be denied because members feel it meets the definition of spot zoning, which is illegal in Montana. 

The issue came before the May 27 council meeting, but the request died because no one made a motion to pass it. Because no motion was made, no discussion took place.

Diamond J is owned by John Peila and Emmett Willson. Peila and lawyer, Mark Noennig of Billings, were at that meeting.

City code dictates that a public hearing be held on the request after the Zoning Commission’s recommendation, so the hearing was on Tuesday’s council agenda.

At Tuesday’s meeting, City Attorney Dan Rice advised that the council give public notice of a final vote. The agenda had only listed the public hearing.

There was considerable public comment for and against the rezoning.

Brad Certain had sold the land to Diamond J and has more land across Highway 59 from it. He was in favor of the rezoning, as he also wants to rezone his land. However, all of the other neighbors who voiced their opinion were against it because they felt it would bring their property values down.

If more than 20 percent of the neighbors are against the rezoning, it has to have a three-fourths approval by the council (six votes) in order to pass. Only five council members were present.

Peila said Diamond J has outgrown its office and shop and wants to relocate at the Highway 59 location. He said he was unaware of the city’s zoning jurisdiction when he began to build.

He said he is willing to landscape around the building if his neighbors want. He would be annexed into the city if the city wished. 

Peila noted that he has invested “quite a lot of money” in the land and employs 40 people. 

He said they had submitted a set of plans to the state, and the state issued a permit. They requested a septic permit from the county and were issued that. 

They submitted a storm water plan to Montana Department of Environmental Quality and received a permit for that. A local engineering firm drew up the site plans. “Not once did anyone with the city, or at all, tell us we were uncompliant. We only knew we became uncompliant from the rumor mill around town,” Peila said.

When asked, he admitted it wasn’t the city’s responsibility to contact him.

Co-owner Emmett Willson said, “We just need to grow bigger, and we want your support. As a city council, as a town, we want that boost-up saying, ‘Here you guys go, the young entrepreneurs, the new community leaders.’”

Instead of help, he said he felt they were “being crippled.”

Attorney Noennig said the city staff recommended the zoning be passed contingent on the city attorney’s opinion on spot zoning, and he encouraged the council to go with the staff’s recommendation and not the Zoning Commission.

He explained that there are three lots between the building site and the city limits on the west side of the highway, and one lot has been grandfathered in as commercial. 

The law is against spot zoning if the development benefits one or a few at the expense of surrounding landowners or the general public. 

Noennig said the Montana Supreme Court has found numerous times that just because one person is benefiting from the land doesn’t necessarily mean it’s spot zoning because it has to show it is detrimental to the general public. He then cited examples of when the court found in favor of stores in areas not zoned commercial.

Attorney Gary Ryder is representing one of the neighbors and said they had not been contacted by Peila or Certain.

He said both Peila and Certain have experience with real estate all over town, and one of his employees used to be a planner. He said it’s hard to believe they didn’t know about zoning.

“All the people within 150 feet have protested this,” he told the council.

Neighbor Sharon Oftedal said this issue was not a popularity contest, it’s about spot zoning, and it’s about a group of landowners that are “adamantly opposed” to it. It’s also about a zoning board that did not think it was a good idea, “and they did not make that decision lightly.”

Many people made the argument that growth has only one direction to go, and that is south. Bill Oftedal said this town doesn’t have any more home sites, and he believes that housing will be heading south of town.  

Mayor Butch Grenz said a lot of this could have been avoided if the subdivision had been done properly before Peila purchased the land.