HomeMy WebLinkAbout03-04-19 Correspondence - B. Gallik (with Gallik, Bremer & Molloy, P.C.) to City Commission - Objection to Planning Fees and Request to Continue GALLIK, BREMER & MOLLOY, P.C.
Attorneys at Law
777 East Main Street, Suite 203
PO Box 70
Bozeman, Montana 59771-0070
(406) 404-1728V(zcehre
3- -1
March 4, 2019
City Commission VIA HAND-DELIVERY
City of Bozeman
121 North Rouse
Bozeman, Montana 59715
RE: Objection to Planning Fees and Request to Continue
Honorable Members of the Bozeman City Commission:
This Firm, along with Swimley Law Firm, represent Boardwalk Property,
Inc. ("Delaney"). Delaney recently paid under protest review fees for a major
PUD subdivision which exceed $200,000.00. On its face, and in light of the prior
fee schedule employed by the City, and the time it takes to review a major
subdivision application, this fee lacks any basis in reality. As my client only
recently learned of the City's proposed modification to its fee schedule, and the
amount at issue shocks the conscience, we ask that the City table this item to allow
for additional public review, analysis and public comment.
DISCUSSION.
"If there is statutory authority, reasonable fees and charges for the
processing of a subdivision application may be imposed." 5 Ziegler, The Law of
Planning and Zoning, § 91:12 at 91-26-27 (2018 ed) (emphasis added). See also,
Lucas, Excessive Zoning and Land-Use Fees Subject to Legal Challenge, The
Legal Intelligencer . . . (July 7, 2015) ("If the fees are not reasonably
commensurate with the costs of services performed, they will be view as a "back-
door-tax" and be subject to legal challenge").' To this end, courts review
1 https://www.babstcalland.conVwp-content/uploads/2016/04/Excessive-Zoning-and Land
Use-Fees-Subject-to-Legal-Challen2e.pdf(last accessed March 4, 2019)
-2-
challenges to land-use fees as whether the fees at issue were disproportionate to the
reviewing body's projected costs. Id., § 91-28, citing Coates v. Planning Bod. Of
Inc., Village of Bayville, 445 N.E.2d 642, 643 (N.Y. 1983).
In this case, as the Commission Memorandum dated March 4, 2019 states,
statutory authority exists for the City to impose fees for land-use applications.
However, the amount charged (and paid under protest by Delaney) under the newly
adopted fee schedule grossly exceeds past fees charged Delaney and others by the
City for PUD subdivision applications.
Based upon its experience, and the past fee schedule of the City, Delaney
estimated the review fees for its Ferguson Farm II subdivision would be
approximately $25,000.00. This is twice what the City of Billings would charge
(around $12,000.00) and around $10,000 more than what the City of Missoula
would charge for the same or similar application. The new fee, which is nearly 10
times these amounts, should provide, even to the casual observer, substantial
concern.
Based upon the City's 2018 budget, planning technicians are paid, initially,
around $20.00 per hour. While this amount does not include benefits, or other
costs of any employee, even doubling that amount to $44.00 hour (to include
wages and benefits and is the number used by the City in its analysis) results in a
cost to the city of a full-time employee, working 8 hours a day, 40 hours a week,
for two (2) years on only this project to come close to reaching the $200,000.00 fee
imposed by the City in this case. If a senior planner were to review this
application, his or her time on this would be at a higher rate, but presumably with
less time, and certainly it would not take two (2) years to review this application.
Substantial legal questions also exist with respect to the City's subjective use
of the term "units" versus "lots" in calculating the cost of review of the application.
In short, the $200,000.00 fees at issue appear clearly disproportionate to the actual
costs of reviewing the application and expose the City to liability for these excess
charges.
As authorities in the field make clear, "a municipality should proceed
cautiously when considering increases to its current zoning and land-use-related
fee structure, and closely examine the actual costs incurred in administering the
regulations in question before acting. Failure to do so can prove costly, and could
-3-
place the municipality at risk of costly litigation and ultimately an order requiring
it to refund the fees, plus interest" and possibly attorneys' fees. Lucas, supra, p. 3
(emphasis added).
The fees assessed against Delaney are not defensible. Absent recession of
the existing fee schedule and replacement of the same with one based upon reality,
Delaney will vigorously oppose those fees, including resort to the courts if
necessary. In the proper exercise of this Commission's discretion, it should
rescind the recent increases, and continue the hearing and decision on this matter to
allow the public and developers the opportunity to have meaningful public
comment on this very important issue.
RESPECTFULLY SUBMITTED this 4th day of March, 2019.
GA REMER & MOLLOY, P.C.
Bri/7Galli
k
C: Client