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HomeMy WebLinkAbout04-09-25 Public Comment - J. Amsden - Application No._ 24147; Re_ Supplemental ObjectionFrom:Valery Moreno To:Bozeman Public Comment Cc:John Amsden Subject:[EXTERNAL]Application No.: 24147; Re: Supplemental Objection Date:Wednesday, April 9, 2025 3:48:28 PM Attachments:image001.pngimage002.png25-0409 Amsden to City of Bozeman re Supplemental Objection BHOA.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. 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 9, 2025 VIA ELECTRONIC MAIL AND FIRST-CLASS U.S. MAIL City of Bozeman Attn: City Commission 121 N. Rouse Avenue Bozeman, MT 59715 comments@bozeman.net Re: Supplemental Objection – Application No. 24147 – Boutique Hotel Mendenhall Constitutional, Legal, and Technical Objections to City Action Impacting Bozeman Hotel. Dear Mayor and Members of the City Commission: This letter supplements our April 3, 2025 submission to the City of Bozeman (attached hereto), in which we raised formal objections on behalf of the Bozeman Hotel Owners' Association (“BHOA”) regarding the proposed Boutique Hotel Mendenhall (Application No. 24147). That correspondence identified serious constitutional concerns, including a potential regulatory taking under the Fifth Amendment and Montana Constitution, as well as due process and equal protection violations arising from the City’s contemplated approval of a project that would extinguish established off-site parking relied upon by the Bozeman Hotel. We now submit this technical comment to further elaborate the unresolved planning, factual, and procedural deficiencies in the development application. 1. Continued Loss of Parking Used by Existing Downtown Businesses The site proposed for the Boutique Hotel Mendenhall is currently used as a functioning parking lot serving multiple nearby businesses, including but not limited to the Bozeman Hotel. These businesses have relied on this parking to support operations, maintain zoning compliance, and ensure customer access. Removal of that parking—whether through lease termination or redevelopment—produces real-world consequences that extend far beyond the applicant’s parcel. The application does not acknowledge this displacement. Instead, the traffic and parking narrative treats the site as vacant or underutilized, despite its documented active use. This City of Bozeman April 9, 2025 Page 2 represents a material omission. Any responsible parking impact analysis must begin with actual existing conditions. Substituting theoretical or aspirational use data for reality creates a false impression of neutrality and ignores the broader burden on the downtown core. 2. Private Lease Termination Does Not Cure the Legal or Planning Deficiencies The City has been informed that the applicant has secured a lease for a previously encumbered off-site lot—the same lot long used by the Bozeman Hotel to satisfy its City- approved parking obligations. While this may resolve private contractual claims between the lessor and lessee, it does not cure the broader public impacts or legal infirmities. The issue is not simply whether a lease has changed hands, but whether the City is authorizing a private-to-private reallocation of recognized development rights—stripping a longstanding, code-compliant business of operational capacity in favor of a new development. As outlined in our April 3, 2025 memorandum, this raises concerns of a regulatory taking, substantive due process violation, and unlawful transfer of development rights. That legal analysis remains unrebutted. 3. Ambiguity in the Parking Analysis – Request for Disclosure and Clarification To date, neither the public record nor the application materials clearly state whether the applicant’s traffic and parking analysis accounts for the net loss of existing stalls. Specifically: • Does the analysis recognize that on-site stalls are currently used by surrounding businesses? • Does it offset new demand against existing supply that is being eliminated? • Does it assume a net-zero baseline, thereby misleadingly suggesting no impact? If the analysis omits displaced stall counts or treats the new parking plan as wholly additive, it is analytically flawed. It fails to capture the true impact of the project on public parking resources, customer accessibility, and the walkability of the historic district. We respectfully request that the City Commission direct staff or the applicant to clarify: • The total number of parking stalls currently available on the development site; • The number of stalls to be removed; • The number of stalls to be added (on-site or off-site); • Whether any stalls previously credited to other developments (including the Bozeman Hotel) are being double-counted; City of Bozeman April 9, 2025 Page 3 • Whether the proposed parking arrangement satisfies BMC requirements for off-site, shared, or transferred parking agreements. 4. Takings Liability and Due Process Obligations Remain Unresolved As addressed in our April 3 legal memorandum, the City's facilitation of this reallocation may expose it to constitutional liability. Under the framework articulated in Penn Central Transportation Co. v. New York City, the loss of approved, relied-upon parking—especially when initiated without individualized notice—triggers a strong claim for regulatory taking. The Bozeman Hotel’s continued lawful operation depends on the City’s prior approval of its off-site lease as compliant with zoning regulations. Disrupting that reliance interest without compensation, mitigation, or procedural protection offends both the Fifth Amendment and Article II, Section 29 of the Montana Constitution. If the development proceeds as currently structured, the City may be liable under both inverse condemnation and federal § 1983 claims. 5. Requested Action by the City Commission We respectfully renew our request that the City Commission: • Decline to approve Application No. 24147 until all parking and displacement impacts have been disclosed and mitigated; • Direct staff to require a net parking impact analysis, accounting for displaced stalls; • Undertake a formal regulatory takings review under Montana and federal law; • Provide written assurance that current, lawfully operating downtown businesses will not lose zoning compliance through no fault of their own; • Condition any approval on preservation of compliant off-site parking for all affected parties, or alternative mitigation measures. 6. Conclusion This matter involves not merely a private development dispute but core issues of equity, reliance, and constitutional protection. We urge the City Commission to act cautiously and lawfully. The current proposal forces a historic, taxpaying business to bear the burden of a newcomer’s success. That is not planning; that is expropriation. We look forward to your response and will continue to monitor the proceedings closely. Please contact us if any additional information or analysis would be helpful. City of Bozeman April 9, 2025 Page 4 Sincerely yours, John L. Amsden Enc. 25-0403 Amsden to City of Bozeman re Boutique Hotel City Action – Objection BHOA 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. April 3, 2025 Page 3 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 Page 4 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