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County wraps up road lawsuit with $424,000 check

Damages, attorneys fees total $724,000
2012-11-28T17:49:00Z 2012-11-28T19:34:05Z County wraps up road lawsuit with $424,000 checkBy EVE BYRON Independent Record Helena Independent Record
November 28, 2012 5:49 pm  • 

Lewis and Clark County Administrator Eric Bryson hand-delivered a $424,000 check to Helena attorney Ken Dyrud Wednesday as part of the final settlement over a road lawsuit involving developer Jerry Christison and his Fox Trot Estates Subdivision.

The check delivery was the second of two payments made to Christison and his attorney; an additional $300,000 check for actual damages was presented to Christison last year, for a total of $724,000 in damages and attorneys fees.

“Now the county’s obligation is fulfilled,” Bryson said. “We settled the case in good faith and we’re not disputing the bill. We’re glad to get this over.”

He said the commission knew they would owe six figures in attorney’s fees, and had set aside about $500,000 in their annual budget to cover the cost.

Christison said he’s also pleased to put the litigation behind him. He noted that they battled with the county over the road past his subdivision at length before filing the lawsuit about five years ago.

“We were trying to clarify the law and how they interpret it,” Christison said. “The biggest harm is that it has taken forever to get the deal done, but that’s in the past. We’re moving on and getting on with our lives.”

Christison’s lawsuit was one of about half a dozen filed by individuals over how the county handles what’s known as “off-site” roads — essentially, not the streets in a subdivision but county-owned roads that lead to the subdivisions.

He and Dyrud filed a lawsuit in 2006 after Christison was told he was responsible for about $2 million in upgrades of 1.8 miles on Lake Helena Drive for his 12-lot subdivision. They argued that the amount was not only arbitrary and capricious, but also unconstitutional.

District Court Judge Jeffrey Sherlock ruled in July 2009 that the requirement violated state and federal constitutions because the subdivision residents represented only 12 percent of the people using the road.

“To require the developers of a 12-lot subdivision to pay in excess of $2 million to pave an already deficient county road is to shift the government’s obligation onto private parties,” Sherlock wrote in his decision.

The judge said Christison was eligible for monetary damages, and also sent the subdivision proposal back to the commission for reconsideration.

In the meantime, the county had passed new rules regarding subdivision road requirements, which said developers had to pay a proportionate share of the improvements needed for the roads leading to and from their subdivisions, depending on how much traffic the developments add to the roads.

The commission applied those to Christison’s proposal, but Sherlock ruled last year that since the county has no plans to upgrade the road at this time; no time frame to do so; and no dedicated account in which to hold Christison’s money, that it again was illegal.

“As far as the court can determine, the county could keep the subdivider’s assessment and use it, for example, to buy new playground equipment in Augusta,” Sherlock wrote in his decision.

Christison said his subdivision eventually was approved, and lots are for sale.

Bryson said the county believes that the other pending lawsuits over roads in the county are different than Christison’s case, and he’s confident they’ll prevail.

Copyright 2015 Helena Independent Record. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(30) Comments

  1. skooter
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    skooter - December 03, 2012 6:04 pm
    Dietz - everybody knows you're a sourpuss. can play every wrong is made up by somebody else's even wronger. No wonder you see life the way you do (that and too much Michael Savage's middle of the road reasoning me thinks).

    The national level in an article about fass-b & brown? Sure...why not.

    The house has passed budgets that don't maintain middle class tax levels, and maintain tax cuts for the rich, with steep cuts to only social programs...and they haven't been willing to compromise. Their budgets are a farce, one-side and only support their agenda...that might have flown if they'd won elections but they lost convincingly - their agenda is not what the majority of the nation wants. They are the minority.

    the democrats have put several plans out there - from the senate, the minority house and from the executive branch. The house repubs are trying to hold middle class tax cuts hostage for fear of the so called fiscal cliff. shame on them - but they'll ultimately either honestly come to the table and negotiate or get the dump or negative pr for the fiscal cliff. Where they were able to play games and stomp no last year - they won't be able to this year. And the best part as a democrat is that they are further eroding their support as they continue to pretend they won the last round of elections.

    The fiscal cliff is only really a fiscal cliff for the right. As soon as they fail to engage in real negotiations again - or bailout after forcing the last artificial crisis last time. Obama can let the cliff hit, watch all of the bush legacy taxes lapse, immediately support new legislation to cut middle class taxes by themselves, and watch the republicans spin in the wind trying to tell the American people they refuse to pass tax cuts for the 98% of America to protect 2%. It will be a mid term disaster and will kill them in 4 more years as well. Now that's some honest Republican politics.

    The house killed several jobs bills, veteran relief and a multitude of other packages that should have passed easily but for the right trying to not allow any victories for the White HOuse before the's entirely disingenuous to suggest the right has tried to work with or compromise in any real way...fortunately for the country they will now virtually be forced to.
  2. dietz1963
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    dietz1963 - December 03, 2012 10:31 am
    Its politics skooter, and both sides of the aisle are guilty of pointing fingers, calling names and so on, if they don't get their way. Democrats are just of guilty calling republicans idiots, drowning out the "opposition" and so on. Both parties are guilty of "not playing well with others", meaning, republicans play well with republicans, democrats play well with democrats, but NEITHER play well with each other. Sorry your bias doesn't see that. Off the subject, lets talk about a budget at the national level. House has passed at least 2 budgets only to be shot down in the senate. Then the democrats turn around and accuse the republicans of not passing a budget, or even come up with one? Bold faced lie. More correct would be to say that the house hasn't passed a bill the democrats like, but is totally false to say that republicans have not suggested or passed a budget when in fact they have...
  3. 5thgen
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    5thgen - December 01, 2012 2:24 pm
    Your welcome, I really wasn't sure how you meant how or who you meant the Terrible too. Thanks for explaining yourself, I (my opinion) however am not sure Mr. Brown's demeanor has caused this terrible waste of tax payer money. take care
  4. skooter
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    skooter - December 01, 2012 9:30 am
    I can find plenty of fault - I said "Terrible" but as I didn't know too much more about the lawsuit I didn't add too much more. I have followed both Fassbender and Bown over the years and am familiar with that tone (and from past work experiences) and so I was talking about Fassbender's comments (which I said in my comment), but the issue - drowning out others, acting like a tool overall and sabotaging your own success by being a richard - definitely seems applicable to El Hefe Brown in spades.

    I think subdivisions need to share in the costs associated with the infrastructure involved in their creation and long term success, but yesm 12 mill seemed excessive for 12 houses unless they were Yellowstone Club Megamansions.

    Thanks for asking for clarification when you get so confused. ;-)
  5. skooter
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    skooter - November 30, 2012 8:14 pm
    your usual cop out...stunning. so busy pretending to be cynical yet unbiased that you bias clearly shows.

    everything that fassbender says has these elements to them: " If only they had heeded my advice; stupidity; IRRATIONAL; incompetence...etc...same with Brown. Again...I didn't say he (brown or fassbender) was always wrong some or all of the time ...but just like fassbender, the shrill nature of the personalities and the way they work with others has the effect of shooting themselves in the foot. they don't play well with others, they call everybody that disagrees with them idiots, and then wonder (and complain loudly) about why others don't want to play with them.
  6. 5thgen
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    5thgen - November 30, 2012 4:54 pm
    Skooter: Are you commenting on Fassbender's comments or are you commenting on Derek Brown time as commissioner, I'm confused as your responses are confusing as it appears your lumping both these guys together. I haven't noticed any comments from Mr. Brown on this issue on this blog. Just curious. Also I know you rarely find fault with a democrat, but don't you think these lawsuits have been a big waste of taxpayer money and common sense should have prevailed. A 12 lot subdivision requires a 2 million dollar road improvement fee?
  7. dietz1963
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    dietz1963 - November 30, 2012 12:56 pm
    Thats not the way I understood the tone, but then since Fassbender is a republican it only makes since democrats would feel this way. Its different when democrats are schrill, narcissism and belligerant. In that case, its the republicans that drove them that way LOL. SSDD.
  8. Curmudgeon
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    Curmudgeon - November 30, 2012 10:01 am
    MICHAEL S, have you any substantive accusations of wrong-doing? Or is this just generalized disguntlement, generalized whining?

    "...Helena is a cesspool." Oh, really? I always thought it was a rather nice place. But, if it's that bad, you might start researching some better places to move to.

    "The fault, dear Brutus, is not in our stars, but in ourselves." (Julius Caesar, Act I, sc.ii).

    Try looking in a mirror. Then take some Tums and Mylanta --- maybe you'll feel better tomorrow.
  9. Prattler
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    Prattler - November 30, 2012 7:56 am
    "Attilla" offered the following cogent comment:

    "How exactly does zoning address road issues? The fact is, it doesn't, and anyone with even a hint of a clue understands that."

    The fact is comprehensive zoning encourages growth in those areas with existing infrastructure (roads, water, septic, etc.) capable of accommodating growth with minimum additional taxpayer expense and identifies those areas where developers will have to augment the existing infrastructure if they choose to subdivide. Zoning also provides a framework for specific standards relating to infrastructure, health and safety (Planning 101).

    Of course I don't expect you understand, since you have obviously swallowed the HBIA Kool-Aid and firmly believe the Growth At Any Cost mantra that "private property rights" entitle you to build anything anywhere you choose regardless of impact to existing homeowners or cost to the taxpayer. Comprehensive zoning sets reasonable limits that protect the rights of current property owners as well as establishing standards for future development.

    You apparently have a problem with the fact that city dwellers are County taxpayers and allowed to vote in County elections. Perhaps you should concentrate on that issue which is less complex and easier to comprehend given your limited resources.
  10. skooter
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    skooter - November 29, 2012 11:58 pm
    Thanks a are too kind.
  11. skooter
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    skooter - November 29, 2012 11:57 pm
    Who's confusing anything (other than you)... it WAS my opinion, that's why I wrote it here. You are the only one assuming I think it was anything but.

    There's no lack of evidence in his actions on the board, his quitting because he didn't get his way, his blog, his many diatribes..., you may find it refreshing, but I, like many others, find that the shrillness, narcissism and sheer belligerence to any voice but his own obscures what may have been a message worth hearing...he has himself to blame as much anybody else.
  12. knucklehead
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    knucklehead - November 29, 2012 5:03 pm
    @Skooter... How does one present documentation on a particular issue without being considered as "shrill"? Seems to me that this is a refreshing concept in court of public opinion.
    Perhaps we shouldn't confuse facts with opinion.
  13. 5thgen
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    5thgen - November 29, 2012 1:46 pm
    Skooter: Well if nothing else you are consistent.
  14. skooter
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    skooter - November 29, 2012 11:48 am
    I gotta say...terrible. And I read Fassbender's comment and entry and realize the same thing. Whether he had good ideas, bad ones or even somewhere can detect in his letter/comment that his sheer shrillness, inability to work with others and tone undermined his ability to get things done. Sorta sad if you think about it.
  15. Agent Smith
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    Agent Smith - November 29, 2012 10:05 am
    Good shot, Steeline. You hit the heart of the matter.
  16. attilla
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    attilla - November 29, 2012 9:54 am
    I wonder if Fasbender's loss would have been 10 points if this article had been in the paper before the election? And actually, if one looks at the election's results in the County (you know, that area outside of the city the COUNTY Commissioners are supposed to represent??), Hunthausen and Murray both LOST by way OVER 10 points.

    "The Commissioners made some stupid decisions". Now, there is the understatement of the century. Unfortunately in the article one can see the stupid decisions are going to continue. The Commission is going to fight the remaining roads lawsuits, and geniuses like Prattler are going to keep supporting them.

    Prattler, you constantly post in this forum, and I've tried to see your point of view, but for some reason I just can't get my head shoved that far up Hunthausen's and Murray's arses. How exactly does zoning address road issues? The fact is, it doesn't, and anyone with even a hint of a clue understands that. Keep up the good work sunshine ...
  17. attilla
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    attilla - November 29, 2012 9:36 am
    Murray and Hunthausen got the advice they wanted to hear, and it was advice that supported their clearly illegal agendas.
  18. attilla
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    attilla - November 29, 2012 8:38 am
    I'm wondering, how does the dispersal of almost 1/2 a million dollars get authorized without a public hearing and a vote of the commissioners??? Another back room deal? Funny how the good ole boy's club delayed the settlement until after the election to protect Hunthausen. What a joke.

    The Commissioners have no problem budgeting $424,000 for attorney's fees, and when all is said and done wasting well over a million dollars on this lawsuit, but they can't afford to send someone out to grade or plow my road. This is the most worthless, incompetent Commission I've ever seen. Murray and Hunthausen are complete buffoons. Maybe those of us who live in the county should just quit paying taxes and the city can take care of our road problems ... after all it is the idiots in the city who keep electing these morons. If you just count the votes of those living outside city limits (those who actually live in the COUNTY), Hunthausen and Murray both got their butts kicked by a wide margin. Thank you City of Helena ... I vote we have a special tax assessment on the City dwellers to pay for these lawsuits since they are the ones who keep putting these idiots in charge..
  19. Prattler
    Report Abuse
    Prattler - November 29, 2012 8:27 am
    Get over it people! You made demonizing the County Commissioners your primary issue during the campaign and you LOST by 10 points! The Commissioners made some stupid decisions, but it's time for the HBIA and their real estate handmaidens to stop whining and become part of a solution. Support comprehensive zoning so the rules are clearly written, pass the legal test, and encourage responsible development. As for Fasbender's repeated screeds and bloviations..................Snore.
  20. steeline
    Report Abuse
    steeline - November 29, 2012 8:22 am
    There is one player missing in this mess. That is the County Attorney and staff. He is the legal advisor to the Commission. The advice, if any, that was issued to the County Commisioners, as we know now, was flawd to say the least. When you get power starved Commissioners pushing an illegal agenda then it is incumbent upon the Legal staff of the County, "The People", to set the Commissioners straight. However, it is not suprising, to me anyway,that the County Commissioners got bad advice or no advice at all. Maybe we should look at the Legal Department of the County and do some house cleaning there. We have to get it Right.
  21. APerfectCure
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    APerfectCure - November 29, 2012 8:16 am
    Wow, as if we dont already haven enough bs going on in lewis and clark county....and now you cost us almost a million dollars? Why does this keep happeneing, I guess like your role models in big government you need a swift boot out of office, we need real represenatives in lewis and clark not phonies.....
  22. 5thgen
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    5thgen - November 29, 2012 6:48 am
    I would like to have one simple question answered, how could anyone think making a developer pay approx. 2 million dollars for a 12 lot subdivision, make any possible sense. In other words each lot have have had to cost almost $200,000 even before any improvements, water, sewer etc? Meanwhile lots of us continue to drive on sub standard roads that get potholes fixed time and time again as the roads continue to degrade. I know some gravel roads in some counties that are in better shape then some of our paved roads including the one I live on.. We either need smarter commissioners or better lawyers watching out for the taxpayers of this county.
  23. JeffP4045
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    JeffP4045 - November 29, 2012 5:39 am
    What? You mean Murray actually being held accountable? Surely, you jest. Typical gov't worker; do what you want, go as far as you can go, don't stop until you are forced. They are incompetent at their job, yet the obtuse voters keep electing them. The huge waste of money on this and other lawsuits could be used to maintain the roads they are charged with maintaining, but no, they have to pretend the developers are responsible for that. A great number of roads in the county are not sufficiently maintained, yet where is the requirement that they be repaired? No one at any level of gov't is ever held accountable. It takes a court case and hundreds of thousands of dollars to even get some attention to the fact of their incompetence and corruption. You get what you vote for.
  24. Sunburst
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    Sunburst - November 29, 2012 5:27 am
    $724,000 paid for by us. For what? Attorney fees. I thought it was a road fund not an attorney fee fund. Who in the world represented us in this mess? Certainly was not very well thought out.

    This is exactly what frustrated Derek Brown to the point of his resignation. Looks like he had a point. Spend road fees on roads. Not a complicated concept.

    Sherlock's reasoning was logical. This means the same logic could have been used before the fighting started.

    Wonder how many more of these messes have occurred or are laying around.

    Sure wish there had been more than one Derek serving as commissioner.

  25. caribouboy
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    caribouboy - November 29, 2012 4:16 am
    I know that Bryson, Johnson and Dennison are in the bag for the Liberals but come on. To not even mention the commissioners that tried to extort extra money from a developer is beyond the pale.

    New Editor, hopefully you don't approve of this.
  26. mike fasbender
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    mike fasbender - November 28, 2012 11:27 pm
    Commissioner Hunthausen stated during the campaign the lawsuit liability might be zero. I guess if one uses fuzzy math there isn’t really that much difference between zero and a million dollars. But hey, it doesn’t come out of his pocket.
    I sent the letter below to L&C County back in 2005. The Christison subdivision was voted on initially by the commission in 2006. If only they had heeded my advice, or the advice of Commissioner Anita Varone, or the advice of many others who cautioned the Commissioners about following the law … On this one case alone well over $1 million in taxpayer dollars wouldn't have been wasted.
    Contrary to the lies that were told about me during the campaign, it should be clear that actually I'm in the bag for the TAXPAYERS and for FOLLOWING THE LAW. It should also be clear that many of the statements Commissioner Hunthausen made during the campaign were not true. For example, he stated the legal troubles came before he was on the commission. The truth of the matter is found in the following quote from the Helena IR, 3/02/2011: “For the second time, a District Court judge has challenged the constitutionality of road-related requirements Lewis and Clark County placed on developers planning a subdivision near Lake Helena Drive. At the end of January, Judge Jeffrey Sherlock ruled that an assessment the county had asked of Jerry and Genevieve Christison, developers of the 12-lot Fox Trot Estates subdivision, is in violation of both the United States and Montana constitutions. … It was a plan approved by commissioners Andy Hunthausen and Mike Murray, though Commissioner Derek Brown voted against it.” Certainly sounds like legal troubles to me brought on by his vote.
    It is unfortunate that we lost the only Commissioners who were actually looking out for the taxpayers. Anita Varone chose not to run again, and Derek Brown recently resigned … because of the incompetence and lies.

    Quoting my letter:
    “Dec. 2, 2005

    L&C County Planning Department
    316 North Park
    Helena, MT 59624
    ATTN: Jerry Grebenc

    Dear Sir:
    I am writing in response to a mailing I received concerning Hoff Lot 3 Amended Major. The letter states that condition of approval 10.b. requires the applicant to construct a portion of Emerald Ridge Loop to a County asphalt standard.

    I would urge you to be extremely careful in what you are requiring the applicant to pay for.

    MCA 76-3-510 states that: A local government may require a subdivider to pay or guarantee payment for part or all of the costs of extending capital facilities related to public health and safety, including but not limited to public roads, sewer lines, water supply lines, and storm drains to a subdivision. The costs must reasonably reflect the expected impacts directly attributable to the subdivision. A local government may not require a subdivider to pay or guarantee payment for part or all of the costs of constructing or extending capital facilities related to education.

    If 100% of the ADT’s on this portion of Emerald Ridge Loop are directly attributable to the applicant’s subdivision, then by all means, applicant should be required to pave it. If the applicant’s subdivision will be responsible for only a portion of the traffic, then the paving should be done either by the County or through an RID. Applicant should be required to pay for that percentage of the cost of the paving based on ADT’s directly attributable to applicant’s subdivision, or else waive the right to protest joining an RID.

    As a taxpaying citizen of L&C County, I would really like to see the County quit exposing the taxpayers to unnecessary lawsuits.

    Michael J. Fasbender
    PO Box 651
    Helena, MT 59624”. End quote.

    For the record, let me state in NO UNCERTAIN TERMS, it is a RECKLESS ABUSE of taxpayer funds to roll the dice on the remaining lawsuits in the IRRATIONAL hope that the County will "prevail". The same laws apply and the same laws were violated in the other 7 lawsuits that are already filed and will follow this one. The incompetence continues, and we the taxpayers are footing the bill.
  27. Limber
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    Limber - November 28, 2012 10:58 pm
    Charge commission members with crime? C'mon, think! The case is civil, not criminal. Being stupid isn't a crime, (but it can be expensive).
  28. MichaelS
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    MichaelS - November 28, 2012 8:02 pm
    its all so interesting. christison made his living by being a liquidator of businesses for the SBA, the goes "private" after retiring from his "goverment" job and is still making a nice living off the taxpayers, its true helena is a cesspool.
  29. CarrollQueer
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    CarrollQueer - November 28, 2012 7:24 pm
    Hey Bryson,
    Instead of trying to "prevail" over the residents of this county why don't you and the commissioners try working with them?
    Do you also need to be reminded that the $500,000 you set aside comes directly from those hard working citizens who pay taxes!
    $724,000 would have gone a long way in improving needed infrastructure in this county.
    It's time for this waste of taxpayers money to stop.
  30. Concerned taxpayer
    Report Abuse
    Concerned taxpayer - November 28, 2012 6:17 pm
    So if the commission did something illegal, are members of the commission being charged with a crime? Or do taxpayers now have to foot the bill of the incompetents?

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