HomeMy WebLinkAbout04-03-25 Public Comment - J. Amsden - Application No._ 24147; Re_ Notice of Constitutional Concerns – Potential Regulatory Taking and Unlawful Transfer of Development RightsFrom:Valery Moreno
To:Bozeman Public Comment
Cc:John Amsden
Subject:[EXTERNAL]Application No.: 24147; Re: Notice of Constitutional Concerns – Potential Regulatory Taking andUnlawful Transfer of Development Rights
Date:Thursday, April 3, 2025 3:45:42 PM
Attachments:image001.pngimage003.png25-0403 Amsden to City of Bozeman re Boutique Hotel City Action - Objection BHOA.pdf
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Dear Sir/Madam:
Please see attached.
Sincerely,
Valery Moreno
Legal Assistant
610 Professional Drive
Bozeman, MT 59718
Phone: 406.586.8700
Fax: 406.586.8960
Beck, Amsden &
Stalpes pllc
610 Professional Drive
Bozeman, MT 59718
JOHN L. AMSDEN
PARTNER
Tel: 406-586-8700
Amsden@becklawyers.com
April 3, 2025
VIA ELECTRONIC MAIL AND FIRST-CLASS U.S. MAIL
City of Bozeman
City Attorney’s Office / Planning Director 121 N Rouse Ave Bozeman, MT 59715 comments@bozeman.net Re: Notice of Constitutional Concerns – Potential Regulatory Taking and
Unlawful Transfer of Development Rights
Application No.: 24147
To Whom It May Concern:
This letter is submitted on behalf of the Bozeman Hotel Owners’ Association (BHOA) to express its objection to the proposed boutique hotel development identified in Application No. 24147. The Bozeman Hotel, continuously operating since 1891, is one of Bozeman’s most significant historic landmarks. Its enduring presence has contributed materially to the vibrancy and commercial viability of the downtown corridor.
We believe the proposed development, if approved, will unlawfully impair our
vested property interests and violate fundamental legal protections under state and
federal law.
Background
The Bozeman Hotel, located at 321 East Main Street in Bozeman, Montana, was completed in 1891. Designed by architect George Hancock in the vernacular Romanesque style, the historic building features arched windows, elaborate stained glass, and a five-story turreted bay. Its opening marked a significant milestone for Bozeman, symbolizing the town's growth and adding an urban formality to the community.
April 3, 2025
Page 2
134 years later, the City of Bozeman's contemplated approval of a new adjacent hotel development now threatens the continued viability of this historic landmark. Parking Dependency and Lease Agreement
Our current operations rely on a long-term lease for off-site parking directly
across the alley from the Bozeman Hotel, at the southwest corner of Rouse and
Mendenhall. The City previously approved this leasehold as satisfying our off-
street parking requirements under the Bozeman Municipal Code.
The applicant has admitted that its parking plan is to “change the user” of existing parking in downtown Bozeman:
Any elimination of this parking area would render our site noncompliant and subject to legal jeopardy through no action or fault of our own.
Inadequate Public Notice
The public materials associated with Application No. 24147 fail to meet the
standard of adequate notice. Visual renderings and descriptions misleadingly imply
that only the applicant's parcel is implicated. In truth, the development would
convert parking currently relied upon by surrounding businesses, including the
Bozeman Hotel, thereby inflicting material operational and legal harm.
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To comply with due process, all parties whose land use compliance or access is affected by this change must receive individual notice and an opportunity to be heard. This includes a wide area of downtown businesses and residents who
currently depend on that parking area.
Legal Concerns
1. Regulatory Taking Without Just Compensation (Fifth Amendment /
Montana Const. Art. II §29)
The City’s anticipated approval of this development—knowing it will extinguish our leased parking and thereby render our zoning noncompliant—may
April 3, 2025
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constitute a regulatory taking. This deprives us of established, City-approved use without compensation, justification, or alternative remedy. Courts have held that when a government action eliminates viable economic use, particularly where
reliance has occurred, it may constitute a compensable taking.
2. Unlawful Transfer of Development Rights
The action proposed here appears to effectuate a private-to-private transfer of development rights—favoring a new entrant while stripping legally recognized
rights from an established property. This lacks a legitimate public purpose and
violates principles of equal protection and substantive due process.
3. Vested Rights and Estoppel
The Bozeman Hotel has invested in reliance upon the City’s express approval of its parking plan. That lease agreement formed part of our zoning compliance and remains in active use. Any municipal action that nullifies that leasehold
without offering mitigation or replacement offends settled principles of equitable
estoppel.
Request for Immediate Action
To avoid unnecessary legal proceedings and ensure compliance with
constitutional and statutory obligations, we respectfully request that the City:
• Decline to approve any development that eliminates existing, City-
recognized parking for current businesses without an alternative solution;
• Undertake a formal takings analysis under Montana law before taking final
action on Application No. 24147;
• Provide written assurance that legally compliant operations will not be
subordinated to new development without due process, mitigation, and if
necessary, compensation.
We reserve all rights to pursue available legal remedies, including inverse
condemnation, estoppel, and constitutional claims under both state and federal law.
Please acknowledge receipt of this notice and advise us of the date by which a formal response will be provided.
April 3, 2025
Page 5
Sincerely yours,
John L. Amsden