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HomeMy WebLinkAbout04-03-20 Public Comment - J. Kauffman - Request Dismissal of HBP Appeal to Armory Hotel April 3, 2020 BY EMAIL Bozeman City Commission c/o Greg Sullivan, City Attorney 121 N. Rouse Bozeman, MT 59715 Re: Landowner’s Request to Dismiss Appeal by 5 West Residential, LLC to Conditional Approval of Armory Hotel Modification Application No. 19410 Dear Commissioners: Our office represents The Etha Hotel, LLC (the “Etha”), the landowner of the project commonly referred to as the Armory Hotel. On March 4, 2020, Bozeman’s Director of Community Development Martin Matsen (the “Director”) issued a conditional approval of a modification to the Armory Hotel project (the “Director’s Decision”). Later we received a copy of a March 18, 2020 letter from an attorney for a group that identifies itself as 5 West Residential, LLC d/b/a HBP Residential Condominiums (“HBP and the “HBP Letter”). The HBP Letter seeks to appeal two aspects of the Director’s decision: (1) the location of the rooftop mechanical equipment (the “Rooftop Issue”) and (2) conditions related to lighting (the “Lighting Issue”). The Etha respectfully requests that the Bozeman City Commission (the “Commission”) dismiss the HBP appeal as soon as it is presented on its agenda. HBP is not an eligible appellant because it is not an aggrieved person under the Bozeman Municipal Code (the “Code”). Even the City’s staff refused to identify HBP as an aggrieved person” in its March 31, 2020 staff report. As discussed below, only an “aggrieved person” who provide evidence of that status is eligible to appeal the Director’s Decision. HBP is not an “aggrieved person”. It has not provided evidence that it is an aggrieved person and cannot. HBP IS NOT AN ELIGIBLE APPELLANT Pursuant to the Code, only an aggrieved person is eligible to appeal the Director’s Decision. §38.250.030(A). In addition, a proposed appellant must provide “evidence that the April 3, 2020 Page 2 appellant is an aggrieved person as defined in section 38.700.020” as part of its appeal. Sections 38.220.140.A.4 and 38.250.030.E of the Code. The Code defines an “aggrieved person” as a person who has a specific, personal and legal interest in the final decision of an agency, board or commission, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal. Section 38.700.020 (emphasis added). HBP offers no evidence that it (or any of its members) is an aggrieved person as part of the HBP Letter, but instead merely proclaims it is an “aggrieved party [sic] pursuant to §38.250.030 of the BMC”. Nowhere in the HBP Letter does the HBP articulate any personal and legal interest in changing the location of the rooftop mechanical equipment. HBP’ demands the City require the Etha to move mechanical equipment installed on the 2nd and 3rd rooftops to the top of the eighth floor. HBP prefers a view of a pool, garden and terrace. However, neither HBP (nor any of its member in the HBP appeal) have alleged (a) a legal right to a view of a pool, garden and terrace or (2) a legal right to be free of a view of screened rooftop mechanical equipment. It has not cited any Code provision that could require the City to impose such a requirement. HBP alleges some of its members own “property directly adjacent to the Armory Hotel project”. The 5 West building is not adjacent to the Armory Hotel (it is across Mendenhall) and there is no evidence in the HBP Letter that any member of HBP owns any property adjacent to the Armory. The HBP Letter does not even provide a list of its members as part of its appeal. There is no evidence provided in the HBP Letter (as required) that any member supporting the appeal even has a view of the Armory Hotel and not all residential units face south. HBP may not criticize the Director’s Decision and harm the Armory Project without first evidencing it is an aggrieved person, and it has not done so, nor could it. In addition, in order to qualify as an aggrieved party and have standing to appeal, HBP must allege an injury that falls within the “zone of interest” protected by the Code (or an applicable statute). See Heffernan v. Missoula City Counsel, 2011 MT 91, ¶32, 360 Mont. 207, 255 P.3d 80. No provision of the Code provides anyone a legal right to require the City provide them a rooftop view on a neighboring property of anything, including a pool, garden and terrace. No provision of the Code provides anyone a legal right to require the City provide them a rooftop free of screened mechanical equipment. The Code provides the City with authority to require screening. Section 38.21.050.F. The Etha has screened the equipment and will supplement the screening in accordance with the Director’s Decision. However, HBP cites no Code section that even permits the City to impose April 3, 2020 Page 2 such an arbitrary and impractical condition. HBP cites no provision of the Code that confers upon them status as an aggrieved party.1 Moreover, HBP merely alleges, at best, that it (or perhaps unnamed members) might suffer some future injury should the Commission affirm the Director’s Decision maintaining the location of the mechanical equipment on the 2nd and 3rd floor rooftops. A speculative allegation of future injury is simply insufficient to constitute an injury that qualifies HBP as an aggrieved party. Clapper v. Amnesty Intern. USA, 568 U. S. 398, 406, 133 S.Ct. 1338, 1147 (2013). As the City is well aware, the mere fact that someone claims to be an aggrieved party under the Code is insufficient and does not entitle them to status as an aggrieved person. The City successfully dismissed an appeal by persons who were not aggrieved party (though alleged they were) in the case of United Food and Commercial Workers et al. v. City of Bozeman DV 19-10B. While a more detailed letter addressing the defects with the substance of the HBP appeal may follow, we note here the appeal is predicated on two incorrect assumption: (1) it incorrectly claims the Etha “unilaterally decided to eliminate the pool, terrace and garden from the second and third floor rooftops” and replaced them with mechanical equipment; and (2) it incorrectly claims the public had no input and the change violates the City’s Code, but notably cites no Code section. The Etha did not act unilaterally. The Etha installed the mechanical equipment on the 2nd and 3rd floor rooftops pursuant to the plans it submitted to the City in 2015 and only after the City had reviewed and approved those plans for construction. There was nothing unilateral about the change. The Etha would not have devoted the resources or time to design the hotel to accommodate the mechanical equipment on the 2nd and 3rd floor rooftops, and install them there, without the City’s involvement and approval. The public did have input. Despite the 2015 approval from the City, the City also provided the public the ability to comment on the location of the mechanical equipment when the modification addressed in the Director’s Decision was publicly noticed. It is untrue that the public had no input or chance to comment on the location of the mechanical equipment. Only after that public comment did the Director make his decision. The Commission should not permit HBP, a company that is not an aggrieved person, to appeal the Director’s Decision. Allowing HBP to present at the April 6, 2020 hearing before the Commission is contrary to the provision set forth in the Code. HBP has offered no grounds for an exception and none exist. The HBP appeal should be dismissed as soon as the matter is 1 Zoning laws exist for the purposes of promoting health, safety, morals and the general welfare of the community (see §76-2-301, MCA) – not an entity that wants a rooftop view. April 3, 2020 Page 2 presented to the Commission. The Director’s Decision on the rooftop mechanical and lighting issues should be affirmed. Sincerely, John M. Kauffman c. The Etha Hotel, LLC