HomeMy WebLinkAbout09-11-23 Public Comment - J. Goetz - Letter_Comment - Attn_ Community Dev. BoardFrom:Myriam Quinto
To:Agenda
Cc:Jim Goetz
Subject:[EXTERNAL]Letter/Comment - Attn: Community Dev. Board
Date:Monday, September 11, 2023 10:45:23 AM
Attachments:2023-09-11 Goetz - City.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Good morning,
Please find attached a letter from Jim Goetz, and enclosed attachments. Thank you. Best,Myriam
Myriam QuintoLegal Assistant Goetz, Geddes & Gardner, P.C.35 North Grand | P.O. Box 6580Bozeman, MT 59771-6580T: (406) 587.0618 | F: (406) 587.5144
NOTICE: This electronic mail transmission may contain confidential or Attorney-Client privilegedcommunications. It is not intended for transmission to, or receipt by, any unauthorized persons. Ifyou have received this electronic mail transmission in error, please delete it from your system
without copying it and notify the sender by reply e-mail.
James H. Goetz
J. Devlan Geddes
Trent M. Gardner
Kyle W. Nelson
Jeffrey J. Tierney
Katherine B. DeLong
Henry J.K. Tesar
Hannah S. Willstein
GOETZ, GEDDES & GARDNER, P. C.
Attorneys at Law
35 North Grand (zip 59715)
P. O. Box 6580
Bozeman, MT 59771-6580
Telephone
(406) 587-0618
Facsimile
(406) 587-5144
jim@goetzlawfirm.com
September 11, 2023
Via Email Only
City of Bozeman
Attn: Community Development Board
agenda@bozeman.net
Dear Board:
I reside in Bozeman at 1019 S. 3rd, and write in opposition to the City of Bozeman’s proposal
to modify the UDC. In particular, I object to the proposal to eliminate R-1 and R-2 residential
zoning to allow 3-story structures of up to 8 units. This is a draconian change which greatly upsets
the stability of our beautiful Bozeman neighborhoods.
My objections are encapsulated in an op-ed piece published in the Bozeman Daily
Chronicle on September 6, 2023 (copy attached). Also, as the Board knows, the University
Neighborhood group petitioned the City for an interim zoning ordinance regarding fraternities and
sororities and a hearing was postponed indefinitely.
That matter is now resolved through litigation. For the convenience of the board members,
I attach a copy of the Court’s opinion, on which we prevailed. So, the City is now required to
reinstate its prohibition of fraternities and sororities in R-1 and R-2 neighborhoods. I attach the
entire opinion for your convenience. I know you are busy and I don’t expect you to read it all, but
I think it would be useful to scan. The bottom line is, the City was mistaken in that case, and, I fear,
with the present UDC overhaul it is about to again make a drastic mistake.
I intend to offer further comments before the public hearing on September 18th.
I close by simply pointing out the City’s notice is misleading. The notice regarding the
September 11th meeting is misleading because it contains an “action item” alert which can be
construed as more than a mere presentation of the proposal. However, everything else I’ve read
leads me to believe that the September 11th presentation is just for information purposes and that
public input will be at the September 18th hearing.
If the City takes action on September 11th, it will be illegal for improper notice (as well as
misleading notice). I assume you will rectify this at the beginning of the hearing on September 11th.
Community Development Board
September 11, 2023
Page 2
Sincerely,
____________________________
James H. Goetz
sent to representatives in the mail for anoverridevote,but this veto tookplace min-utes before the legislature adjourned -andbefore theycouldvote to override it inperson.' Long story shorfl our governor found away toieto our biggest, most popular con-servation billwithout allowing an over-ridevote.Governor Gianforte has looked for pro-ceduralloopholes to skirt checks andbal-ances and ffied to trickvoters into think-ing they are recouping taxes instead ofpay-insfar more.iet's find someone better in 2024'JacksonCrawfordBozemanContractors Associationcolumn left much unsaidAs I read the recent columnbYDavidSmith, enecutive director of the MontanaConffactors Association, I was stnrck bythe significance ofwhatwasrit said'I con-cedeie need millions oftons ofgravel'The maiority ofthe gravel mined in GalI-atin Gaieway is tnrcked to Big Sky to sup-oort srowth andTA)CES In Madison'C orrity. Th" *"st e nd ofJack Qr-ryk-inMadison Countyhas seciions firll ofgraveland much closerthan Gallatin Gateway,so much for "as close to the user as possi-ble." It might be more expensivebut thetop 5 homis currently for sale in Big Slcy&rty and sooty when burned." Good forthe environment?-Protect propertv rights!When the prop-ertyowne;'s ".tio"t >"de his neighbor'sproperty, he has exceeded his rights' Fourneiihbors who share the south bound-"*if th" G"teway gravel pit lost some-wirere betwee nziViandtlo/o invalue theday DEQ;ent their required notice'The"iAKING"eate swingi both ways!Whowill make themwhole,the land owner(Black family),TMc (the gravel com-pany) or theMontana Contractors Asso-ciation?StefFarrandGallatin GatewayEtiminating residential zonrng woJIM GOETZ eight-ple><es in all residential who push bogus "data" in an effortGuest columnist *?";' iagf"e our crown jewel' to link zoning to the affordableSouthWil]sonAvenue,fiom housingproblem'Changing-the-Bozeman is a great city and a Main to Kagy, could nowbe lined zoningiode to c9r.nba1 an afford-*.-"a"tn r pr".""to li'"t' fr" h""" Jth high-d;;sity Soviet-style able housing problem is likethe mostvibrant downtown in gr^y ^ptr t*"nt siructures in place bombing Mexico in response totheWest. Our residential neigh- SfiL oirti"g,beautifrrl homes l"ptt l9j1 attack on Pearl Har-irifr".a, o' th" .rorth "nd sol,rth and yards. (Come to think of it, bor It defies common sense'sides with wide, tree-lined streets ,,'.,ci lik" the Commissioners Every Bozeman resident who""J *"U-*"intained yards are have allowed to happen on North lives in a residential area' or sim-treasures that we should all strive Willson Ave.) ' ^ Ply eryo.ys Y4F"q fu?"gl' oY-topreserve. Yer,Bor"*""hasanaffordable F l*ntt".t*orhoods'shouldNow, the City is proposing to housing problem, and,yes t\e- 6e concerned' Single-family'd;;d;h;r" ui""tizu ""iftot- City ir?iirr, to attempt to address - homeowners shouldbe partic-hoods by eliminating resid"ential it.Iiut no1 at the cost of the elim- ularly concerned' After.all' for;;;d'By;"sidentli zoning,I ination of our fine residential most ProP€rtyowners, invest-mean otu prer"rr, ,y*"*,1"ri"ty neighborhoods' ments in their homes constitute'extant since 1935,whiJ;;: ' frny it ,h" Citydoing this? k by far, the single most imPortantvides protection fo, .irrglJ-fa*i1y lpt"Ttiryt to*! h"rr""d*rrk th" economic decision of their livesdwellings in R-1 zoneJand sin- "iiool-Aid".That is the notion and their most important secu-;i;-a";"i1y;"d duplex units for that "exclusionary"residen- ritvblanket. For almost 90 years,R-2 zones. tial zoning is causing the afford- thlse homeowners have boughtIn essence,the Cityproposes "bl" horrri.t! probleir.This *ir and soldwith a high degree ofto eliminate R -7 l"nd1-2 zon- .orr..ptlorril, b""r, "ggr"ssively comfort that they could rely on;;;5il ;p-p*a *iu ^1o* peddlid by several rigit-wingeri their neighborhoods remainingduplexes, four-pl"*"r, "rrJ "*r, *ho "pp"r"n ly h"tJzoning"and "residentlal"' Now,with a strokeadds up to $720,795,000! They can affordsravel ?-rom Madison County.Yes, gravellompanies do applyto DEQfor a permit'However, the simpie act of submitting theaoolication "slams"the door shut on any"glrr.y ot p"tson having any impact on thefi nal permit approval.Yes, you -can attendhearines but the submission of the apphca-tion reiuces DEQIo an admin office, notan action offrce, and preemPts our countycommissioners and "we the people'"Three hundred diesel tmck loads ofcravel per day, 6 days a week, for 20 yearsE iui"g to nig Sky using diesel engines!WhatGoogli said about &esel engines:"carbon rich and close in composition tohome heating oil.As such,it's inherendynt solve housing crisisof the pen, the City proposes to- appears that the commissioners""Jtit",.o*fort out fio* uttd"t are nowwedded to the elimina-'il il;;;tr.l*"gi"" trte tion ofresidentialzoning and this"d',r"rr" ".onomic edct on the is being railroaded throlgh'"J*.fy.*fto*" if ",t "ightpl"* A hearingbefore the Com-or 24-wit ap**.", *rniiti *yd.'y.Development Board is .locates next door. "-^-r---- scheduledfor Sept' 18'with acityTo the City's credit, it previ- comTission hearing set for Nov'ouslv tried to address "fffi-' lf'[rrr 1ne need for such speed?ff:H"*;ffiil" m . lT*l*:nfflf,:T"t1;ment on new developers,butthat ;?;i";;;"r"*"".was legislatively killed.several . * frr" ;ffi; il provide the Cityyears ago b-y the majority party' in *i,rr .". *ti"""'comments and,league with developers and.con- if possible, attend these hearings.tractors.Nevertheless,the fact -, tt;;;ilt"fourlife in Boze:that the previous approach tailed -r., i'. d"olrrdent on its outcome.should not lead to the present '.l" *it-t "own precept of theapproach ofelimination of res- medical profession seemJappli-idential zoning.The City's sug- cabl.: "Fi'st, do no harrri. Elim-gestedcureisworsethanthedis- inationofresidentialzoningease. would do tremendous harm toRecently, the City conducted- a Bozeman, while promising to doseriesofpresentationsdesigned fittle,ifanything,asasolutiontoto inform ttre public ofits pro- affordable housing.posal.Thiswai largelY a dog andpony show Unfornrnately, it JimGoetzisa Bozeman attorney'at
MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY
*************
SUSAN JOHNSON, DAVE JOHNSON,
KATHY RICH, SUSAN HINKINS,
RICHARD GILLETTE, LINDA FULLER,
LARRY JENT, JULIE JENT, RICHARD J.
CHARRON, KRISTIN CHARRON,
Plaintiffs,
v.
ALPHA SIGMA PHI (MONTANA STATE
UNIVERSITY CHAPTER),and CITY OF
BOZEMAN,
Defendants,
Cause No. DV-2022-1006D
OPINION AND ORDER RE CROSS
MOTIONS FOR SUMMARY
JUDGMENT
BEFORE THE COURT is Plaintiffs’Motion for Partial Summary Judgment and the City
of Bozeman’s Motion for Summary Judgment Re: Statute of Limitations.
The Court has reviewed the briefs and is fully advised.
BACKGROUND
On December 18, 2017, the City passed Ordinance 1978 which was the repeal and
replacement of Chapter 38 of the Bozeman Municipal Code.
Chapter 38 comprises the City’s Uniform Development Code (UDC)and contains seven
(7) articles.
Among these are provisions for permits (Article 2); zoning and land use (Article 3);
FILED
STATE OF MONTANA
By: __________________
CLERK
73.00
Gallatin County District Court
Alexandra Sumner
DV-16-2022-0001006-OC
09/06/2023
Sandy Erhardt
Breuner, Andrew
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 2 of 19
community design (Article 4); project design (Article 5); and natural resource protection (Article
6).
Ordinance 1978 constituted an enormous revision and reorganization of the UDC
addressed to hundreds of separate provisions within the Chapter 38 articles.
The pre-2018 UDC; the 2018 update drafts; and the 2018 update were all over 500 pages
long.
In Article 3 alone, addressed to zoning, Ordinance 1978 updated approximately 80
sections.
This case involves a single, spreadsheet-style table on one (1) page of both the pre-2018
and updated UDC and which shows the types of uses permitted within low-density residential
areas like the neighborhoods where Plaintiffs reside.
In the pre-2018 version, “Table 38.080.020”, listed fraternities and sororities as
prohibited uses in the low-density, R1 and R2 zones.
The updated version,the new Table 38.310.030A (“Group Residential”), adopted by
Ordinance 1978 eliminated any reference to fraternities and sororities.
The parties agree that the result of this change is that Greek housing is now a permitted
use in the residential neighborhoods.
Plaintiffs challenge this change as unlawful.
Prior to 2018, Greek housing was a stand-alone residential use category and new
fraternity and sorority houses were prohibited in the residential zones.
While older houses were grandfathered in, new Greek housing in these neighborhoods
had been prohibited for 30 years or more.
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 3 of 19
Defendant Alpha Sigma Phi moved into a single-family dwelling in the heart of
Plaintiffs’ residential neighborhoods in late 2021 or early 2022.
Plaintiffs’ neighborhoods began to experience disturbances commensurate with living
near a college fraternity. These included loud music, parties, and similar nuisances.
Neighbors later identified 411 W. Garfield and its Alpha Sigma Phi occupants as the
source of the disturbances.
It appears that by the Spring of 2022, Plaintiffs learned that there was no longer a
prohibition in the UDC against Greek housing in their neighborhoods.
Plaintiffs argue that deletion of the prohibition on new Greek housing did not become
effective under MCA § 76-2-303(2)which requires public notice and which, they argue, was not
afforded here. They also argue that the City’s elimination of the prohibition was arbitrary and
capricious. Finally, Plaintiffs maintain that in making the change, the City failed to apply the
necessary statutory criteria as stated in Lowe v. City of Missoula, 165 Mont. 38, 41,525 P2d 551,
553 (1974).
The City maintains that the Plaintiffs were afforded lawful notice of the change to
treatment of Greek housing; that the change was part of a purposeful and comprehensive update
to the UDC; that the Lowe factors were considered and applied;and that, in any event, the statute
of limitations for challenging the change bars Plaintiffs’ claims.
STANDARD OF REVIEW
Applying Mont. R. Civ. P. Rule 56(a) and (b), the Montana Supreme Court explains:
Summary judgment is appropriate only when the ‘pleadings, depositions, answers
to interrogatories, and admissions on file’together with any affidavits, demonstrate
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 4 of 19
that no genuine issue exists as to any material fact and that the moving party is
entitled to judgment as a matter of law []Once the moving party meets its burden,
the opposing party ‘must present substantial evidence essential to one or more
elements of its case to raise a genuine issue of material fact []
Dewey v. Stringer, 2014 MT 136, ¶ 6 quoting Brothers v. Home Value Stores, Inc., 2021
MT 121, ¶ 6; and Tin Cup Co. Water v. Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶
22.
“Disputed facts are material … if they involve the elements of the cause of action or defense
at issue to an extent that necessitates resolution of the issue by a trier of fact.”State Medical
Oxygen & Supply v. American Medical Oxygen Co., 267 Mont. 340, 344, 883 P.2d 1241, 1243
(1994).
Here, there is no dispute about the facts that lead to the adoption of Ordinance 78 including
the public notice provided.
Nor is there a dispute as to the events that lead to the Plaintiffs’ filing of this action.
Therefore, this matter is properly subject to summary determination of the law as to the
lawfulness of the City’s adoption of the disputed zoning change as well as to the timeliness of
Plaintiffs’ suit as a matter of law.
DISCUSSION
Plaintiffs move the Court to grant their partial motion for summary judgment on the bases
that 1)the City failed to provide lawful notice to the public of the zoning change in violation of
constitutional and statutory requirements addressed to fair notice, public participation and open
meeting requirements (Count II); 2) the change violated due process because it was made
arbitrarily and capriciously (Count IV); and 3)that the City failed to consider the necessary
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 5 of 19
statutory criteria (the “Lowe” criteria) in removing the prohibition against new Greek housing in
Plaintiffs’ neighborhoods (also under Count IV).
The City moves the Court to grant their motion for summary judgement as to all of the
City’s claims because the statutes of limitations applicable to Plaintiffs’claims, it asserts, have
expired.
The Court first addresses the City’s statute of limitations claims:
Statute of limitations
The City contends the six (6) month limitations period under MCA § 27-2-209(5) applies
to Plaintiffs’Counts I,III and IV;and the thirty (30) day statute of limitations prescribed by
MCA § 2-3-114(2) applies to Count II.
Six (6) month statute of limitations
MCA § 27-2-209(5) states “[t]he period prescribed for the commencement of an action
against a municipality relating to a land use, construction, or development project is 6 months
from the date of the written decision.”
The Court looks to the plain language of a statute to determine its plain meaning. In re
U.A.C., 2022 MT 230, ¶ 13 citing State v. Christensen, 2020 MT 237, ¶ 95.
Section 27-2-209(5), by its plain language, refers to “project[s]”.
The City argues that the Court should deem the commissions’vote to adopt an omission
from the “Group Residential” table as part of its overhaul of the UDC covering hundreds of
pages and individual sections---as a “written decision” on a “land use . . . project.”
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 6 of 19
The City cites to Schweitzer v. City of Whitefish where the Court held that a property
owner’s petition for de-annexation was subject to claim preclusion because an earlier petition
raising the same subject matter and based on the same underlying facts was dismissed by the
district court as barred by the statute of limitations in MCA § 27-9-209(5). 2016 MT 254, ¶¶ 5,
12-19.
The Court in Schweitzer considered whether the district court properly applied claim
preclusion---and not whether the district court had properly applied the statute of limitations to
the city’s denial of a petition for de-annexation as to a particular landowner’s property.
Here, application of the statute to ‘a land use’ or ‘a construction’ would be awkward,
unconventional usages of those terms.
Rather, it is clear that those terms, like “development” modify “project.”
The Court notes that statutes of limitations for actions against local government or
government officials in § 27-2-209 are specific. The Court finds that if the legislature had
intended to include claims related to the repeal and adoption of an entire municipal code chapter
it would have done so expressly.
The Court concludes that a city commission’s adoption of changes to its municipal code
does not constitute a land use or other “project” in MCA § 27-2-209(5).
Therefore, the 6-month statute of limitations is inapplicable to Plaintiffs’ claims.
Thirty-day statute of limitations
With respect to Count II, addressed to the Plaintiff’s unlawful notice claim, the City
argues that the 30-day statute of limitations in MCA § 2-3-114(2) applies.
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 7 of 19
Title 2, Chapter 3 of the MCA contains statutes which effectuate the mandate in Article
II, section 8 of the Montana Constitution to afford reasonable opportunities for participation in
government affairs.
This includes requirements for adequate notice to the public.
“[P]rocedures must ensure adequate notice and assist public participation before a final
agency decision is taken that is of significant interest to the public.” MCA § 2-3-103(1)(a).
With respect to the 30-day statute of limitations, MCA § 2-3-114(1)states:
The district courts of the state have jurisdictions to set aside an agency decision
under this part upon petition of any person whose rights have been prejudiced [ ]
A petition pursuant to the section must filed within 30 days of the date on which
the person learns, or reasonably should have learned, of the agency’s decision
Here, Plaintiffs seek an injunction mandating that the prohibition against new fraternities
and sororities in residential zones be reinstated. Count II invokes Montana’s constitutional and
statutory requirements for open meetings, the “right to know” and adequate notice.
While it appears that the 30-day limitation is applicable to Plaintiffs’‘petition’for the
reinstatement of the prohibition on new sororities and fraternities in Plaintiffs’residential zones,
Plaintiffs also invoke MCA Title 76, Chapter 2, Part 3 (“Municipal Zoning”).
That part empowers city commissions to create zoning districts “[f]or the purpose of
promoting health, safety, morals, or the general welfare of the community.” MCA § 76-2-301.
The city must provide for the “manner in which regulations and restrictions and the
boundaries of districts are determined, established, and changed . . . . MCA § 76-2-303(1)
(emphasis added).
Subsection (1) further mandates that the “manner’ provided “is subject to the requirement
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 8 of 19
of subsection (2).”
Subsection (2) states that the aforementioned “regulation[s], restriction[s], or bound[aries]
may not become effective until after a public hearing in relation to the regulation, restriction, or
boundary at which parties in interest have an opportunity to be heard . . . .” MCA § 76-2-303(2)
(emphasis added).
With respect to notice, subsection (2) requires “[a]t least 15 days’ notice of the time and
place of the hearing . . .published in an official paper or a paper of general circulation in the
municipality.” MCA § 76-2-303(2).
Here, Plaintiffs’ complaint seeks remedies on the notice issue that the court views in the
alternative.
One remedy is to ‘set-aside’ elimination of the prohibition on new Greek housing in
residential zones and ‘reinstate’ the pre-2018 prohibition.
The other is a declaration that the change never ‘became effective’ because the notice
provisions described in MCA § 76-2-303(2) were not met.
Plaintiffs were aware of the changes to the UDC no later than May 2022---and likely
earlier. In any event, the Court believes their complaint is time-barred to the extent it seeks to set-
aside the change because their complaint was filed, by any measure, outside the 30-day limitations
period.
But the claim that the change was void from its inception is another matter. The Court
cannot void or set-aside a provision that never was. While there may be a time limitation on
bringing that kind of claim, it is not the 30-day limit is MCA § 2-3-114(1) which, by its plain
language, refers to “set-aside[s].”
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 9 of 19
To the extent that Count II seeks judicial recognition that the change to the treatment of
Greek housing was void ab initio, that claim is not time-barred.
Arbitrary and capricious
Having determined that Plaintiffs’ claims are not time-barred, the Court next addresses
their claim that the City’s elimination of the prohibition against new fraternities and sororities in
residential neighborhoods was arbitrary and capricious.
“The governing body’s action is arbitrary and capricious if it came about seemingly at
random or by change or as an impulsive and unreasonable act of will.”Heffernan v. Missoula City
Council, 2011 MT 91, ¶ 65 (citation omitted).
“[T]he reviewing court must consider whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error of judgment.”Heffernan, ¶ 65 citing
North Fork Preservation Ass’n v. Dept. of State Lands, 238 Mont. 451, 465, 778 P.2d 862, 871.
Plaintiffs argue that the City’s decision to drop the prohibition against new Greek housing
in residential neighborhoods was arbitrary and capricious because there was no explanation,
record, or outline of why the change was made.
Further, Plaintiffs cite to the history of Bozeman zoning codes which denote a significant
historical record of fraternities and sororities as separate entities from “group living.”
Specifically, Plaintiffs cite Citizens for a Better Flathead v. Board of Co. Comm’rs of
Flathead County, 2016 MT 325, ¶ 20 (quoting Heffernan,¶ 87), which states that a governing
body “‘must develop a record that fleshes out all pertinent facts upon which its decision was based
in order to facilitate judicial review’”.
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 10 of 19
The run-up to the City’s adoption of Ordinance 1978 was a year long process of workshops,
planning and commission meetings, and detailed agendas and staff reports related to updated UDC
drafts.
It was a purposeful and expressly comprehensive undertaking.
Throughout the process of the UDC update, the City identified goals and considered
numerous factors including the growth policy, public health and safety, public resources, and
transportation among others.
Among hundreds of other changes, it appears the City decided to combine many specific
uses into larger umbrella categories to allow landowners more flexibility and to decrease the
requests for use variances which disrupt zoning districts.
It is undisputed that the rationale for the change in treatment of Greek housing is not
expressly called out in the thousands of pages of materials related to the updated UDC.
The unresolved question is whether that decision was lawfully informed by public input as
to the elimination of the prohibition against new Greek housing in Plaintiffs’ neighborhoods.
In other words, did the City’s purpose in updating its UDC incorporate opportunities for
public feedback on the question of Greek housing.
The Court does not believe it can assess the soundness of the zoning change to Greek
housing specifically without further discussion of the notice requirement. Especially if a lack of
notice rendered the change at issue here null and void from the beginning.
However, before doing so, the Court addresses the application of mandatory zoning criteria
to the City’s UDC update.
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 11 of 19
The Lowe criteria
Plaintiffs argue that pursuant to MCA § 76-2-304, the City failed to consider the factors
listed in Lowe v. City of Missoula, 165 Mont. 38, 41,525 P2d 551, 552 (1974).
Lowe recognized that the sufficiency of a city council’s approval of a zoning regulation
should be guided by the Montana Codes of 1947 which in § 11-2703, R.C.M. 1947 states:
Such regulations shall be made in accordance with a comprehensive plan and
designed to lessen congestion in the streets; to secure safety from fire, panic, and
other dangers; to promote health and the general welfare; to provide adequate light
and air; to prevent the over-crowding of land; to avoid undue concentration of
population; to facilitate the adequate provision of transportation, water, sewerage,
schools parks, and other public requirements [] Such regulations shall be made
with reasonable consideration, among other things, to the character of the district
and its peculiar suitability for particular uses, and with a view to conserving the
value of buildings and encouraging the most appropriate use of land throughout
such municipality
Lowe, 165 Mont. at 40, 525 P.2d at 552.
These same considerations are incorporated into the mandatory zoning provisions in
MCA § 76-2-304 (Criteria and guidelines for zoning regulations).
The Court in Lowe reversed the district court’s approval of the zoning ordinance on the
basis that the record before the city council “was so lacking in fact information” that the district
court’s judgment was an abuse of discretion. Lowe, 165 Mont. at 41, 525 P.2d at 553.
Here, Plaintiffs argue that while there is no requirement that a governing body develop
formal findings of fact, there must be a clear record of compliance with these Lowe criteria.
In Lake County First v. Polson City Council, 2009 MT 322, the Plaintiff similarly
challenged the approval of a zoning amendment and argued the city failed to consider the Lowe
criteria.
The Lake County Court held that the city lawfully adopted an amended zoning ordinance
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 12 of 19
to accommodate Wal-Mart when it complied with the applicable statutes and regulations;
considered the reports, recommendations,and public comment before it;and made detailed
findings addressing each of the Lowe criteria even if they were not expressly attributed to that
decision. 2009 MT 322, ¶¶ 32-34 citing North 93, Inc. v. Bd. of Co. Commrs. of Flathead Co.,
2006 MT 132, ¶¶42 and 44.
Here, the City produced a number of Staff Reports that were updated to address the most
recent drafts of the UDC. The reports are detailed and comprehensive. And while they do not
identify the Lowe criteria expressly, they do address the considerations in Lowe and MCA § 76-2-
304.
That said, they are applied generally and not to any particular change amongst the hundreds
effectuated by Ordinance 1978. They are not directly applied to Greek housing or the changes to
the pre-2018 Table 38.080.020.
The Court agrees with the City that calling out and applying the zoning criteria to each
technical provision would be unwieldy and unnecessary. However,as with the related question of
arbitrariness,the sufficiency of the City’s analysis of the guiding criteria cannot be ascertained
without assessing whether the public, including interested persons,had a meaningful opportunity
to address a particular change for the City’s consideration under the zoning criteria.
The adequacy of the notice to ensure opportunities for public participation must embrace,
to some degree, the nature of the proposed change and how it will impact the community.
In Lake Co. public hearings and comment were part of compliance with consideration of
the Lowe criteria. Lake Co., ¶ 34 (“[T]he Council considered the application, the Department’s
Report, the Board’s recommendation and public comments, and assessed the Lowe criteria based
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 13 of 19
on these considerations”) (emphasis added).
Therefore,as with the Court’s consideration of whether the zoning change was arbitrary
and capricious,the integrity of the City’s application of the Lowe criteria cannot be fully assessed
without first addressing whether the City afforded lawful notice of the zoning change at issue here.
Required notice
Montana’s constitutional and statutory public participation requirements necessitate
“‘notice and an opportunity to be heard’”Carbon Cty. Res. Council v. Mont. Bd. of Oil & Gas
Conservation, 2016 MT 240, ¶ 21 (quoting Bitterroot River Protective Ass’n v. Bitterroot
Conservation Dist., 2008 MT 377, ¶ 21).
“The public has the right to expect government agencies to afford such reasonable
opportunity for citizen participation in the operation of the agencies prior to the final decision as
may be provided by law.” Mont. Const. Art. II, § 8.
“Public participation procedures ‘must include a method of affording interested persons
reasonable opportunity to submit data, views, or arguments.’”Carbon Cty. Res. Council, ¶ 21
(quoting MCA § 2-3-111(1)).
Plaintiffs argue that the City failed to give proper notice of the change to Table 38.08.020
under MCA § 76-2-303(2) which provides that a zoning amendment may not become effective
until after a public hearing is held in relation to the regulation:
A regulation, restriction or boundary may not become effective until after a public hearing
in relation to the regulation, restriction, or boundary at which parties in interest and citizens
have an opportunity to be heard has been held [ ]At least 15 days’ notice of the time and
place of the hearing must be published in an official paper or paper of general circulation
in the municipality
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 14 of 19
“A . . . restriction . . . may be amended, supplemented, changed, modified, or repealed”
under the requirements of MCA § 76-2-303(2). MCA § 76-2-303(1).
Put simply, changes to zoning restrictions require public notice, open meetings, and an
opportunity for public participation.
Additionally, the parts of MCA Title 2, Chapter 3 directed to public participation in
government actions also mandate procedures that provide “adequate notice and assist public
participation before a final agency action is taken that is of significant interest to the public.”
MCA § 2-3-103(1).
The legislative intent behind this mandate is “to secure to the people of Montana their
constitutional right to be afforded reasonable opportunity to participate in the operation of
governmental agencies prior to the final decision of the agency.” MCA § 2-3-101.
The City argues that the newspaper notices, workshops, presentations, planning meetings,
meeting agenda notices and public meetings provided the requisite notice.
In addition, revisions of the proposed updates (May 2017, July 2017, and December
2018) were made available for public inspection.
Ordinance 1978---the repeal and revision of Chapter 38 of the Bozeman Municipal Code
comprising the City’s updated UDC---was a behemoth.
It addressed hundreds of technical changes to all aspect of municipal development.
Amongst the notices, workshops, agendas and drafts, there was a single-line deletion in
the May 2017 updated UDC draft directed to what was proposed for the decades-long prohibition
against new fraternities and sororities in Plaintiffs’ neighborhoods.
On page 188 of a 562 page draft, a residential use table shown in ‘show edit’ mode had a
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 15 of 19
line through “fraternities and sororities” on a line which indicated they were “P” prohibited in
the Plaintiffs’ neighborhoods and a ‘bubble’ message that said “merge with group living.”
The City maintains that this single-line deletion showed the City’s “intention” to remove
the pre-2018 prohibition against new fraternities and sororities in Plaintiffs’ neighborhoods.
Notice on this issue never went beyond this.
The July 2017 draft removed the bubble.
The December 2017 final draft, now showing Table 38.330.030A (“Group Residential”),
deleted any reference to Greek housing and included “Group living” as a permitted use.
While numerous public notices and workshops, a “Deep Dive” public slide show on May
23, 2017 and a summary “Unified Development Code Reorganization & Update” dated May 8,
2017, none even remotely suggested that the City intended to end its 30-plus year prohibition on
new Greek housing in residential neighborhoods.
The Court finds this remarkable for a change in zoning for Greek housing in a
community inexorably tied to life at the Montana State University.
Newspaper notices did specifically call out numerous, specific changes to Chapter 38
sections---but none described the change at issue here.
This was also true of the Staff Reports---which gave line by line descriptions of the
commission’s consideration of the updated UDC articles. None of these described the change in
zoning for fraternities and sororities.
Ultimately the Court must first look to statute specifically addressed to the notice
requirement, i.e., the published notice of the time and place of the public hearing “in relation to
the regulation” which provides an “opportunity to be heard” and posted at least 15 days prior to
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 16 of 19
it. MCA § 76-2-303(2).
For purposes of the 15-day meeting notice in § 76-2-303(2), the operative newspaper
postings are those the City made on July 30, 2017 and August 6, 2017 in the legal notices section
of the Bozeman Daily Chronicle.
These provided notice of the August 24, 2017 commission meeting that would take up
consideration of Ordinance 1978. That consideration was ultimately continued through the
commission meetings in September, October, November,and early December---culminating
with the preliminary adoption of the ordinance on December 18, 2017.
The notice is instructive.
It sets forth, line by line, the lengthy amendments to the UDC sections.
The closest it comes to providing notice that the treatment of Greek housing under
Chapter 38 will change is “Amend Table 38.310.030 . . . . residential uses.”
If one happened to see the May 2017 revision with the show-edit bubble message
(“merge into group living”), one could look up the definition of “group living”in Article 7 of the
draft, updated UDC and find a generic definition without any of the identifying, distinctives
relating to their unique attributes for tradition and ritual, social activities, national affiliation,
leadership, scholarship, philanthropy, and member-based exclusivity among others.
As previously mentioned, the City has attached substantial documentation which it
asserts goes to the notice it provided over the course of 2017. However, there is no indication
that a single comment was received with input about new Greek housing being permitted in
residential neighborhoods where they had been prohibited for decades.
The Court finds it incomprehensible that such a reversal in the City’s zoning laws would,
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 17 of 19
with reasonable notice, be met with silence.
In any event, it is impossible for the Court to conclude that that the procedures here
“include[d] a method of affording interested persons reasonable opportunity to submit data,
views, or arguments” related to new Greek housing in residential neighborhoods. Carbon Cty
Res., ¶ 21 (quoting MCA § 2-3-111(1)).
The Court observes two (2) failures attendant to a lack of adequate notice about ending,
without qualification, the prohibition against new fraternities and sororities in the Plaintiffs’
residential neighborhoods.
First, it was a missed opportunity for meaningful public participation and input into
conditions that might have accommodated new Greek housing to grow and compliment the
existing Greek community at Montana State and on terms mutually beneficial to fraternities,
sororities and their neighbors.
Second, it is a disservice to fraternities and sororities that might seek new housing in the
residential zones at issue here. That is because the lack of meaningful notice makes it more
likely that the unexpected appearance of new Greek housing in these neighborhoods will be met,
as happened here, by surprise, angst and resistance.
The Court appreciates that the City undertook the adoption of Ordinance 1978 in a
purposeful, coordinated and professionally-informed manner. Some changes (e.g., provisions for
lighting and other design elements; block frontages;and additional domestic unites (ADUs)
among others) received individualized attention where hundreds of others received minimal
descriptive attention. The City’s approach took on much---and at the risk that particular items of
concern would cause issues down the proverbial road. That is what happened here where the
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 18 of 19
change to the treatment of new Greek housing was effectively subsumed by the complex process
of updating the UDC.
The removal of the decades-old prohibition against new Greek housing in Plaintiffs’
neighborhoods was accomplished without the kind of notice reasonably addressed to the
constitutional mandate of encouraging public participation.
The notice here was insufficient, inadequate and unreasonable as a matter of Montana’s
constitutional public participation and due process provisions.
Pursuant to the plain language of MCA § 76-2-303(2), a change to the City’s zoning laws
does not “become effective” without the required notice.
Therefore, the elimination of the prohibition against new fraternities and sororities in
Plaintiffs’ neighborhoods did not become effective here.
Additionally, a government process that fails to provide legally mandated notice to the
public and which results in a void enactment is, necessarily,an arbitrary, capricious and, per the
statutory ‘Lowe criteria’, unlawful process.
Severability
The UPC contains a severability clause. Additionally, neither party has cited authority
which would result in a finding that the entire updated UDC is invalid just because the Court has
determined that one provision in it is.
The Court’s finding that the City’s removal of the pre-2018 prohibition against new
fraternities and sororities in the Plaintiffs’ neighborhoods did not take effect does not, in and of
itself, impact the balance of the updated UDC. Nor is that the Court’s intention.
DV-2022-1006D
Opinion & Order on Cross Motions
for Summary Judgment
Page 19 of 19
ORDER
For the aforementioned reasons,IT IS HEREBY ORDERED:
1.The City’s Motion for Summary Judgement Re Statue of Limitations is DENIED.
2.Plaintiffs’ Partial Motion for Summary Judgment is GRANTED.
3.The City’s adoption of Ordinance 1978 as it pertains to the removal of the prohibition
against new fraternities and sororities in residential neighborhoods is deemed VOID
AB INITIO and the prohibition as reflected in the pre-2018 Table 38.08.020 is
REINSTATED. The City’s treatment of new fraternities and sororities in residential
neighborhoods shall align and be consistent with their pre-2018 treatment subject to
any future, lawful zoning changes.
4.In all other respects, the City’s 2018 UDC update as adopted in Ordinance 1978 is
unaffected by the Court’s Order.
5.Motions, if any, for costs and/or fees arising from this Order shall be filed within 14
days of this Order.
6.The parties shall file a joint or separate status reports within 30 days of this Order.
ELECTRONICALLY SIGNED AND DATED BELOW.
cc: J. Goetz, Esq./ H. Tesar, Esq.[ ]
B. Gallik, Esq.[ ]
L. Lund, Esq. [ ]
Alpha Sigma Phi Fraternity [ ]
Electronically Signed By:
Hon. Judge Andrew Breuner
Wed, Sep 06 2023 01:03:50 PM