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HomeMy WebLinkAbout09-20-26 Public Comment - G. Garrigues - Public Comment for_ September 21, 2026 Special Meeting — Applications 22293 and 22294From:Greg Garrigues To:Bozeman Public Comment Subject:[EXTERNAL]Re: Public Comment for: September 21, 2026 Special Meeting — Applications 22293 and 22294 Date:Sunday, September 20, 2026 6:02:36 PM Attachments:20260919_Garrigues_Public Comment.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. Hello City Commission- I have submitted the enclosed through the online web app, and it has not appeared in the searchable public comment, so I am re-submitting here in an effort to deliver comment prior to your meeting. Please confirm receipt. Thank you. Best regards- -Greg Garrigues M: +1-406-581-1208 This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e- mail from your system. Page 1 of 6 Re: September 21, 2026 Special Meeting — Applications 22293 and 22294 September 19, 2026 Mayor Morrison and Commissioners: I am submitting this comment concerning Preliminary Planned Unit Development Application 22293 and Preliminary Plat Application 22294 and the City Commission's September 21 special meeting following the District Court's August 3, 2026 Order in Bridger Center, LLC v. City of Bozeman, Cause No. DV-23-541. I opposed this development during the original proceedings, and I continue to oppose it. However, my principal concern for purposes of this remand is procedural: whether the City adopts additional findings that actually address the deficiency identified by the District Court and that can be traced to the evidence, the decision maker, and the process through which those findings were reached. That distinction is important because Judge Ohman did not determine that the applications should be approved. Nor did the Court conclude that the 2023 Commission lacked reasons for denying them. The Court expressly stated that it was expressing no opinion regarding the ultimate merits of the applications. Instead, the Court identified a specific deficiency in the City's findings. Although the Commission had articulated various rationales for denying the requested relaxations, the record did not adequately explain why the Commission gave greater weight to some evidence than to conflicting evidence, particularly in light of City staff's recommendations supporting the requested relaxations. The Court concluded that this deficiency prevented meaningful judicial review. That is therefore the issue I believe the September 21 proceeding must resolve. I. The decision-making body has materially changed: There is an important complication that did not exist when the applications were decided in March 2023. The Commission that actually heard the evidence, received extensive public comment, deliberated, and voted on these applications is substantially different from the Commission sitting today. The March 21, 2023 motion to approve Application 22293 failed 0-5, with Mayor Cyndy Andrus and Commissioners Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, and Christopher Coburn all voting against approval. The current Commission consists of Mayor Joey Morrison, Deputy Mayor Douglas Fischer, and Commissioners Jennifer Madgic, Emma Bode, and Alison Sweeney. Thus, only Commissioner Madgic participated in the original decision. Page 2 of 6 Significant City administrative personnel have changed as well, including the City Manager and Community Development leadership. The 2023 staff report identifies Anna Bentley as Community Development Director; the current Community Development Director is Erin George, and Chuck Winn became City Manager in May 2025. Personnel changes do not by themselves determine the validity of a remand proceeding. Here, however, they matter because of the particular deficiency the District Court ordered the City to correct. The Court is asking for an explanation of why evidence was weighed as it was. Four of the five people presently sitting as the quasi-judicial decision makers did not perform the original evidentiary weighing. I therefore respectfully request that, before adopting additional findings, the Commission state clearly on the record which of two different actions it is taking. Is the present Commission attempting to explain the evidentiary weighing actually performed by the March 2023 Commission? Or is the present Commission independently reviewing the complete administrative record, weighing the conflicting evidence itself, and making its own findings on remand? Those are not the same thing. If the present Commission is attempting to explain the 2023 Commission's decision, the additional findings should identify where in the contemporaneous administrative record the reasoning now attributed to the former commissioners can actually be found. Four current commissioners cannot personally know the unexpressed reasoning of four former commissioners simply because they now occupy the same offices. If, instead, these are the present Commission's own findings, then the record should make that clear. Each participating commissioner should establish that he or she has reviewed the administrative record necessary to independently evaluate the conflicting evidence and reach the evidentiary judgments reflected in the new findings. Montana's Supreme Court has recognized in the subdivision context that conflicting evidence does not invalidate a local government's decision if substantial evidence supports that decision and the governing body explains why it regarded certain evidence as more credible than other evidence. MM&I, LLC v. Board of County Commissioners, 2010 MT 274, ¶ 30. The question presented here is therefore not simply whether additional reasons can now be written down. It is whose evidentiary judgment those reasons represent and where the basis for that judgment appears in the record. II. The original public-comment record should not disappear on remand: Page 3 of 6 The public record on these applications was substantial. At the time the staff report was prepared, the City had already received 19 public comments, and additional public comment was received at the March 21 hearing. The minutes document multiple comments opposing the proposal, and staff expressly summarized the public comments for the Commission before it deliberated. I recognize that a quasi-judicial land-use decision is not determined by simply counting the number of people for or against an application. Public opposition, standing alone, is not a substitute for applying the governing criteria to evidence. But neither should substantive evidence supplied through public comment be discounted merely because it came from members of the public. Indeed, the District Court specifically observed that the Commission relied in part upon public comments while also finding that the Commission had not sufficiently explained why it credited that evidence over contrary evidence and staff recommendations. The appropriate task on remand should therefore be to identify what factual evidence contained in the public record the Commission credited, what review criterion that evidence bears upon, why the Commission regarded it as reliable or persuasive, and how it was weighed against contrary evidence. The public comments raised substantive concerns involving matters such as emergency access, wetland and watercourse setbacks, flooding, wildlife impacts, traffic, the substantial physical constraints of the site, and the direct impact on the adjacent existing homes. Those issues should be evaluated for their evidentiary content and relationship to the applicable criteria—not reduced merely to a tally of supporters and opponents. III. Each relaxation should be addressed separately: The District Court identified six distinct requested PUD relaxations. They involve very different questions: townhouse use in the R-1 district; combined pedestrian/emergency access; Shady Glen Lane right-of-way and street standards; pedestrian access serving as emergency-vehicle access; reduction of the watercourse/wetland setback from 50 feet to 35 feet; and fill within portions of the 100-year floodplain. Because the Court identified inadequate evidentiary weighing as the problem, I respectfully request that the Commission's additional findings establish, for each relaxation separately: 1. the governing review criterion; 2. the factual finding being made; 3. the particular evidence in the administrative record supporting that finding; 4. the material evidence pointing toward a contrary conclusion, including applicable staff analysis and recommendations; 5. which evidence the Commission gives greater weight; and 6. the reason the Commission gives that evidence greater weight. Page 4 of 6 Merely stating that one piece of evidence is “more persuasive” than another would leave essentially the same question the District Court identified. The findings should expose the reasoning connecting the evidence to the conclusion. IV. Current staff should not unknowingly supply a new rationale for an old decision: The change in City personnel creates a related issue. The evidence relevant to the Court's remand includes the professional review and recommendations actually contained in the 2023 administrative record. Current City staff can certainly help the Commission locate, organize, and understand that record. But the additional findings should distinguish clearly between analysis that existed when the applications were originally decided and any new interpretation, explanation, analysis, or factual information being developed in 2026. Current personnel should not inadvertently become the source of a retrospective explanation for what former staff or former commissioners supposedly meant, concluded, or considered unless that explanation can be traced to the contemporaneous administrative record. Likewise, the fact that the City's present staff might evaluate the record differently today does not establish what either the former staff or the former Commission concluded in 2023. V. Application 22294 deserves a clearly identified basis: The Preliminary Plat, Application 22294, also warrants specific treatment. The District Court's Order explains that the subdivision application was denied because it did not meet the zoning criteria following denial of the PUD and that the Commission incorporated its PUD findings into its subdivision findings. The City's subsequently adopted findings likewise describe the applications as linked. If the City now concludes there are independent factual or legal grounds supporting findings concerning Application 22294, those grounds and the evidence supporting them should be identified separately. Conversely, if the disposition of 22294 remains entirely derivative of the findings regarding Application 22293, that relationship should be stated plainly. VI. The Commission should establish what record is before it before acting: The September 21 agenda characterizes this as a quasi-judicial action to “Make and Adopt Additional Findings of Fact” in accordance with the August 3 Order. Page 5 of 6 I therefore respectfully request that the Commission identify, before deliberating on or adopting additional findings, the record upon which it intends to act. If the Commission is limiting itself to the evidence and information contained in the existing administrative record, please state that expressly. If new evidence, new factual information, new technical analysis, or materially new staff interpretation is being considered, please identify it before relying upon it. Montana law specifically addresses relevant new information arising in subdivision proceedings. Section 76-3-615, MCA, requires the governing body to determine whether information is relevant and new and substantially affects consideration of the application; where the governing body intends to rely upon qualifying new information, the statute provides for a subsequent public hearing addressing that information. That distinction is particularly important here because the currently published September 21 agenda describes the action as adoption of additional findings, not as a new hearing on the underlying subdivision application. VII. Please establish the procedural foundation before adopting findings: For these reasons, I respectfully ask the Commission not to adopt additional findings at this special meeting unless it can first establish on the record the procedural and evidentiary foundation for those findings. Before adoption, the public record should make clear: — whether the findings explain the reasoning of the 2023 Commission or express the independent judgment of the 2026 Commission; — what portions of the administrative record each present decision maker has reviewed; — what evidence supports each disputed finding; — what conflicting evidence was considered; — why particular evidence was given greater weight; — whether any post-2023 information or analysis is being considered; and — whether the findings concerning Application 22294 are independent or derivative of Application 22293. If those matters cannot be established from the presently available record on September 21, I respectfully request that the Commission continue the matter rather than adopt findings whose evidentiary or procedural foundation has not yet been established. Page 6 of 6 A continuance would not predetermine the ultimate outcome. It would simply allow the present Commission to ensure that its action actually responds to the District Court's remand rather than supplying additional language without resolving the defect identified by the Court. VIII. Conclusion: I continue to oppose the proposed development. I also believe the integrity of this proceeding requires something more important than reaching a particular result: the public and a reviewing court should be able to determine exactly how that result was reached. The August 3 Order provides a straightforward standard. The problem was not merely the quantity of the City's findings. It was the missing explanation connecting conflicting evidence to the Commission's decision. Given the substantial turnover in the Commission and senior City personnel since 2023, that explanation cannot simply be assumed. The additional findings should permit anyone reviewing them to follow a clear path: Governing Criterion → evidence supporting the finding → conflicting evidence → Commission's weighing of that evidence → reason for that weighing → resulting finding and conclusion. If the present Commission cannot establish that path from the record presently before it, I respectfully ask that it not adopt the proposed additional findings on September 21 and instead continue the matter until the procedural and evidentiary basis for further action has been clearly established. Thank you for your consideration. Greg Garrigues 1113 S. 5th Avenue Bozeman, Montana 59715