Judge postpones ruling in dispute

September 26, 2018

The long-running dispute over a Creston-area water-bottling plant will continue for a few weeks longer after a district judge on Tuesday declined to order the plant’s shutdown, pending more information.

After listening to representatives of Flathead County, Montana Artesian Water Company owner Lew Weaver, and a neighbor of the bottling plant, Flathead District Court Judge Robert B. Allison told a standing-room only courtroom he was “not in a position to rule today based on what I’ve heard.” Instead, he prefers to wait until he receives post-hearing briefs from both parties, due on Friday, Oct. 19.

The hearing stemmed from a lawsuit - filed on behalf of two advocacy groups, Egan Slough Community and Yes! For Flathead Farms and Water, and Egan Slough area resident Amy Waller - over Montana Artesian’s bottling operation in the recently expanded Egan Slough Zoning District. That district expansion, approved by voters as a citizen-driven ballot initiative in June, would place the bottling plant in an area zoned for agricultural or residential use, thus preventing its commercial operation.

But the plant’s proponents argue that because Weaver obtained the proper water-rights permits prior to the zoning district expansion, the bottling plant’s operations should be grandfathered into the revised Egan Slough district as a legal non-conforming use. The legality of the bottling operation has been left up to the county Planning Office, which enforces zoning-district regulations. While the Planning Office has waited to decide on the plant’s legal use, pending an investigation, Montana Artesian has proceeded to bottle water and distribute to a local convenience store. The plaintiffs view the delay as an abdication of regulatory responsibility, leading to the complaint to force the issue.

County Planning Director Mark Mussman testified during the hearing that the department “has not reached a conclusion” on whether or not the plant can legally bottle and sell water.

“That investigation is ongoing,” he said, adding that he could not specify a date of resolution. When pressed for a timeline by Allison, Mussman said there was “a very good possibility” the investigation would wrap up after the review of documents provided by Weaver following an Aug. 20 request.

At the heart of the dispute is the bottling plant’s operations at the time of the zoning district expansion on June 21 of this year, and whether capability to bottle and permits allow for Montana Artesian to bottle and distribute after that date. George Ferris, a county code compliance officer, testified that when he inspected the plant on July 12, Weaver “indicated...that some equipment arrived when I was there (for the inspection) that allowed them to begin production” of bottles for distribution. Prior to that, he said, some “preliminary bottling operations had taken place just to run them through the system,” but those bottles had not been for commercial sale.

The court also heard from Jesse Green, a sanitarian with the city-county health department, on the matter of wholesale food manufacturing and retail licenses. Green testified that the county approved those licenses as they were submitted with Montana Artesian’s planning review in 2017. When asked by plaintiffs’ attorney David K. W. Wilson if that approval took into account the final zoning, he said no.

Weaver testified the plant had all the necessary permits and equipment before the zoning expansion was ratified in June.

“I feel that I have complied with all laws and regulations in the state of Montana,” he said.

The final testimony was from Jeanne Carlson, a Creston resident who lives near the bottling plant. Carlson testified to the detriments of the plant on her neighborhood, such as dirt and dust stirred up by delivery trucks, increased road traffic and concerns over wetland degradation.

“It will impact our neighborhood greatly,” she said.

The hearing concluded with the judge setting an Oct. 9 deadline for the plaintiffs’ reply, and Oct. 19 for post-hearing briefs. At that point, he said the court “will then consider these matters and determine what we’re going to do going forward.”

Reporter Adrian Horton can be reached at 758-4439 or at ahorton@dailyinterlake.com.

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