HomeMy WebLinkAbout01-05-22 Correspondence - Gallik, Bremer, & Molloy - Canyon Gate Annexation and Zoning Application GALLIK, BREMER & MOLLOY, P.C.
Attorneys at Law _
777 East Main Street, Suite 203
PO Box 70
Bozeman, Montana 59771-0070
(406) 404-1728
January 4, 2022
City Commission VIA HAND-DELIVERY
c/o City of Bozeman
Alfred Stiff Professional Building
20 East Olive
Bozeman, Montana 59715
RE: Canyon Gate Annexation and Zoning Application.
Honorable Members of the Bozeman City Commission:
On behalf of our clients, Mr. Pohl and I appreciate the attention provided so
far to their concerns. However, they must express for the record, their objection to
the procedure followed to date with respect to this Application which has impaired
the protections afforded them by the due process clause — specifically allowing the
Applicant unlimited time to present his case, portions of which were repeated over
and over, with the end result that public comment was unexpectedly limited to 2
minutes, largely because of the time absorbed by the Applicant, followed by the
closing of public comment — even written comment after the hearing for those who
were no able to fully offer their testimony during their two (2) minutes -- and then
giving the Applicant three (3) weeks to prepare rebuttal.
It is fundamental, that
"[t]he public hearing prescribed by statute is not a mere matter of form,
but is an integral part of the legislative process required by statute. The
public hearings, therefore, must not only be fairly undertaken in a
genuine effort to ascertain the wiser legislative course to pursue, but
must also a ecru to be done for that put-pose. In short, when the law
which calls for public hearing gives the public not only the right to
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attend but the right to be heard as well, the hearings must not only be
fair but must appear to be so.
1 Rathhkop 's The Law of Zoning and Planning, § 12.34 at p. 12-83 (2021 ed.)
(emphasis in the original). In Smith v. Skagit County, 453 P.2d 832 (Wa. 1969)
(holding modified on other grounds by State v. Post, 826 P.2d 172 (1992) the
Washington Supreme Court explained:
"It is axiomatic that, whenever the law requires a hearing of any sort as
a condition precedent to the power to proceed, it means a fair hearing,
in appearance as well. A public hearing, if the public is entitled by law
to participate, means then a fair and impartial hearing. When applied
to zoning, it means an opportunity for interested persons to appear and
express their views regarding proposed zoning legislation. Schlagheck
v. Winterfeld, 108 Ohio App. 299, 161 N.E.2d 498 (1958); Braden v.
Much, 403 Ill. 507, 87 N.E.2d 620 (1949). The term "public hearing"
then presupposes that all matters upon which public notice has been
given and on which public comment has been invited will be open to
public discussion, and that persons present in response to the public
notice will be afforded reasonable opportunity to present their views,
consistent, of course, with the time and space available. Where the law
expressly gives the public a right to be heard -- as distinguished from
open sessions of the Congress or state legislatures or lesser legislative
bodies which, although conducting their session in public, need not as
a matter of law allow public participation -- the public hearing must, to
be valid, meet the test of fundamental fairness,for the right to be heard
imports a reasonable expectation of being heeded. Just as a hearing fair
in appearance but unfair in substance is no fair hearing, so neither is a
hearing fair in substance but appearing to be un air.
453 P.2d at 846 (emphasis added).
The Washington court continued: "The test of fairness, we think, in
public hearings conducted by law on matters of public interest, vague though
it may be, is whether a fair-minded person in attendance at all of the meetings
on a given issue, could, at the conclusion thereof, in good conscience say that
everyone had been heard who, in all fairness, should have been heard and that
the legislative body required by law to hold the hearings gave reasonable faith
and credit to all matters presented, according to the weight and force they were
in reason entitled to receive." Id.
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To this end, we recognize that the Commission is not required to hear all the
persons in attendance without limitation as to time, however the limitation of public
comment for each speaker to two (2) minutes because the Staff and Applicant
consumed over two hours of public hearing time was grossly inadequate and unfair
to the members of the public and the property owners specially impacted by this
complicated Application which as you know requests significantly different zoning
designations and serious issues of public health and safety exist with respect to
emergency response times. Moreover, during the Applicant's presentation,
numerous "softball" questions were asked of him and his "team" by some members
of the Commission, which is certainly permissible, but appears to have been used by
the Applicant to simply engage in repeating the same sales pitch for the project,
including vague offer, made shortly before the hearing, of constructing "workforce
housing" in return for approval of one of the more controversial aspects of his
application: R-5 zoning.
Coupled with the foregoing is the fact that the City has closed the public
hearing, made no offer to the public who were unable to fairly present their
comments in 2 minutes, with the opportunity to submit those comments in writing.
At the same time, the City allowed the Applicant over three (3) weeks to prepare its
rebuttal comments. Under the foregoing "tests" it cannot be said that the conduct of
the hearing meets the test of fundamental fairness, as it is unfair in substance and
appearance.
We anticipate that the Applicant, during his three (3)weeks granted to prepare
rebuttal while those most impacted are forced to remain silent, will be presenting
new information in his rebuttal, as occurred in the public hearing on this Application
in December. To this end, I note that the City Manager,who is not to my knowledge,
a trained or educated planner, often interrupted the Planner assigned to this project,
and inserted his opinions and other comments, several of which were not in the staff
report, including, for example,the critical issue of emergency response times by first
responders by raising for the first time the Central Fire District, which I cannot find
any mention of in the Staff Report. This is new information.
In sum,the ever shifting sands of this Application, coupled with allowing Staff
(which clearly supports this application), the City Manager (who also clearly
supports this application) and the Applicant unlimited time to address the critical
issues of public health, safety and welfare, while limiting those most impacted by
this Application, to only two (2)minutes, followed by three weeks for the Applicant
to prepare his rebuttal, is inconsistent with fair,procedural due process and the public
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hearing is properly reopened to allow for adequate and complete public comment,
including but not limited to the opportunity to rebut the rebuttal.
RESPECTFULLY SUBMITTED this 4th day of January, 2022.
LAW OFFICE OF STEPHEN POHL GALLIK, BREMER & MOLLOY, P.C.
By: Stephen Pohl By: Brian K Gallik
Stephen Pohl Brian Gallik
Enclosures
C: Clients
Planning Office
City Attorney
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