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HomeMy WebLinkAbout03-08-22 Public Comment - J. Kauffman & B. Gallik - North Central Appeal KAS'nNG, KAUFFMAN&MERSEN,P.c. A T T O R N E Y S A T L A W JOHN M.KAUFFMAN 7I6 SOUTH 2Oth AVENUE,SUITE I0I JANE MERSEN BOZEMAN,MONTANA 597I8 DENNIS L.MUNSON TEL:(406)586-4383 FAX:(406)587-787I LILIA N.TYRRELL E-MAIL:reception@kkmlaw.net JORDAN P.HELVIE KENT M.KASTING,OfCownel March 8, 2022 VIA EMAIL AND BY HAND Bozeman City Commission c/o Mike Maas, City Clerk City of Bozeman 121 N. Rouse, Suite 201 Bozeman, MT 59715 Re: Appeal No. 22005- North Central Master Site Plan Addressing Standing Issue and Requesting In Person Meeting Dear Commissioners: Along with Brian Gallik and his office, we represent the Appellants in the above-referenced matter that will come before the City Commission on March 8, 2022. We reviewed the agenda item for our clients' appeal and noticed there was a recommendation that the City Commission preserve an issue should its decision be appealed, namely whether the Appellants have met the standing requirements of Section 38.250.030.A. Such a recommendation is not only without merit but reflects an anti-democratic and hostile approach to the citizens and neighbors of the properties at issue who are bold enough to exercise the right to appeal a staff decision. This letter addresses the standing issue. In addition, given the gravity and the fundamental change represented by the issue being appealed, Appellants request the hearing on this matter be continued so that it can be held in person, rather than through the buffers of computers and Webex. MANUFACTURING A STANDING ISSUE BETRAYS PUBLIC TRUST The doctrine of standing evaluates whether a party is entitled to have a deliberative body, like the City Commission, decide a dispute. See Heffernan v. Missoula City Council, 2011 MT 91, ¶ 30, 360 Mont. 207, 255 P.3d 80. "Standing requires a party to have a personal stake in the outcome of the controversy. Id. Relative to this appeal, one or more of the Appellants must have standing or, as stated in the BMC, be an "aggrieved person". §38.250.020.A; see also§38.700.020 (An aggrieved person is one "who has a specific, personal and legal interest in the final decision of any agency, board or commission, as distinguished from a general March 8, 2022 Page 2 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." In Hefferman, the Missoula City Council approved a subdivision and the neighbors appealed. Missoula argued that the neighbors did not have standing because they did not come forward with an injury to a specific personal or legal interest. The trial court and the Montana Supreme Court rejected this argument. The trial court reasoned "that the adverse impacts cited by Neighbors (such as increased traffic, noise, and pollution, and disruption of wildlife in the area) could materially injure their properties or the value of their properties; and that it was not necessary to allege specific physical property damage or dollar amounts for injuries to property values. Id., ¶37. The Montana Supreme Court affirmed the trial court's decision. Id., ¶47. Here, there is no legitimate reason to "preserve" the issue of standing as to Appellants. Rather, it merely serves to chill public participation in the City's affairs by attempting to intimidate its citizenry into believing they have no say or, at a minimum improperly confuse them over their rights. It is inconsistent with their rights under the Montana Constitution and implementing statutes. Montana's Constitution guarantees Montanans the right to participate in their government. This is embodied in Art. II, § 8 ("Right of participation") and Article II, §6 (Right to assemble, petition for redress or peaceably protest government action). See also, MCA § 2-3-111 (Opportunity to submit views—public hearings). While the City is allowing for limited public comment, the threat to the public's right to participate is plainly evident in the late-declared recommendation that Appellants may not have standing to protect their rights in the first place. The recommendation to "preserve" a standing argument undermines the Appellants' rights, erodes confidence in the Commission's openness to hear appeals and is fundamentally misplaced in this instance. The developer promoting the Master Site Plan had an affirmative obligation to notice its application to all property owners within 200 feet of the proposed project area. §38.220.420. This requirement stems from the City's own policy that it "provide adequate notice of governmental actions to those affected by such actions." §38.220.400. By its own ordinance, the City has acknowledged that property owners within 200 feet of the project area are affected by its decisions. Moreover, other property and business owners in the near vicinity, who are also Appellants, clearly have rights and interests unique to them to protect their interests from the adverse impacts of the proposed Master Site Plan. In fact, on December 20, 2021 (at p. 6) the City's Department of Community Development notified the public, including the Appellants, that they had the right to appeal the staffs decision to approve the Master Site Plan. Appellants note, the March 8, 2022 Page 3 City does not make it easy for its citizens to appeal a staff decision. In order to even get their appeal before the Commission, given its labyrinthine regulations, the Appellants had to: A. Engage counsel (critical now given the specter of"standing") B. Meet the 5 elements of§ 38.250.030 BMC C. Pay the appeal fee of$2,060.00 (which is not in the BMC) D. Prepare and then send notices to the property owners with 200 feet In the two (2) months since Appellants complied with the City's various regulations, no one from the City has ever indicated or suggested that any of the Appellants lacked standing to appeal the staffs decision or a future decision of the Commission. Rather the City: (1) created policies of inclusiveness that have led Appellants to believe their concerns will be heard, valued and considered; (2) invited Appellants to appeal a decision that fundamentally and adversely impacts their neighborhoods; (3) took the Appellants' $2,060 appeal fee; (4) required Appellants to send out notices to all property owners within 200 feet of the project; (5) acknowledged the Appellants timely appeal in the City's January 24, 2022 letter to Appellants' counsel; (6) advised Appellants in that January 24 letter of how to proceed at the hearing on the appeal; (7) set the appeal for March 8, 2022, and now on the eve of the hearing (8) indicates Appellants may have no right to have their issues heard in the first instance or challenge such a decision in Court. The staffs recommendation to you to "preserve" the standing issue for these Appellants is antithetical to the constitutional provisions noted above, unwarranted and a betrayal of public trust. It communicates a disregard for citizens who dare to exercise their voices in opposition to a decision by staff—citizens who have made personal investments in their neighborhoods and communities. It makes a mockery of the Appellants' right to appeal and the Commissions right (and duty) to review staff decisions and to protect Bozeman residents. See§38.200.010 BMC. It may be the recommendation has become part of the staffs standard recommendations when faced with an appeal of a staff decision. If this is the City's "one size fits all" approach to appeals by its residents, Appellants respectfully submit it is callous, unnecessary and conveys to the public that the Commission does not want to hear from its residents. I I i l March 8, 2022 Page 4 The Commission should stop the practice of chilling public participation in this way and reject the recommendation that it "preserve" the standing argument for Appellants. THE HEARING SHOULD BE CONTINUED TO BE HELD IN PERSON The Appellants request that the City revisit its decision to hold this public hearing remotely, by Webex. The proposed Master Site Plan is a matter of monumental public importance as it will define the character of Bozeman forever. Creating a computer buffer between the Commission and the public eliminates the in-person communication that defines and promotes community, particularly as the Commissioners cast their votes. In-person meetings for the Gallatin County Commission have been conducted without incident, and over 4,000 fans gathered over the weekend to cheer on the MSU mens'basketball team. We respectfully submit the hearing on this matter should be continued to allow for the public to appear, face to face with this Commission, before you cast your votes. As you consider this request, we note the fundamental importance of meaningful (as opposed to just the appearance of) public participation in the planning process "Whe 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 appear to be done for that purpose. In short, when the law which calls for public hearing gives the public not only the right to attend but the right to be heard as well, the hearings must not only be fair but must appear to be so. Rathhkcp's The Law ofZoning 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) 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 t 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. 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 he open to puhlic discussion, and that persons present in response to the puhlic notice will he afforded reasonable opportunity to present their views, consistent, of course, with the time and space available. I ,I, March 8, 2022 Page 5 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. at 846 (emphasis added)(internal citations omitted). Upon due consideration, we respectfully submit that the Commission should conclude that an in-person meeting is the proper way to address the issues raised by the appeal based upon the facts and circumstances here. Sincerely, ;;J/ohn,A-,I. Kafiffman Brian Gallik 114< c. Clients Greg Sullivan, City Attorney (email only)