[MissoulaGov] Committee Update 8-22-07

Ed Childers echilders at ci.missoula.mt.us
Thu Aug 23 15:25:16 MDT 2007

Hi, John.

The Safeway project is not yet dead.

The Rule of Law includes, I believe, the court system. Don't you think?

Thanks for your passionate recollections.


Ed Childers

Missoula City Council, Ward 6


406-546-7681 (cell)

echilders at ci.missoula.mt.us

www.ci.missoula.mt.us <http://www.ci.missoula.mt.us/> is the City of
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From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of John Fletcher
Sent: Thursday, August 23, 2007 2:19 PM
To: bjaffe at ci.missoula.mt.us
Cc: missoulagov at cmslists.com
Subject: Re: [MissoulaGov] Committee Update 8-22-07

At 12:30 AM 8/23/2007, Bob wrote:

...The 2000 NS/WS plan called for 5 year updates. An update of the plan was
carried out this last year. It mostly covered housecleaning items like
updating lists of goals where some of those items had been completed. There
was also new survey information collected that was of value. The problems go
back to two contentious events. The first is the lawsuit over the
Safeway/St. Pat s project; the second is the Road Diet.

An organization called Citizens for a Livable Missoula (CALM) sued the City
claiming that the rezoning for the SafePats project did not substantially
comply with the neighborhood plan. After a couple of years of litigation
the courts finally agreed with the city that the numerous changes they made
to the project to comply with the plan did in fact constitute substantial
compliance. If I remember right, individual members of council were named
in the suit. Needless to say this is a very sensitive topic for a lot of
people and I m sure I will hear from most of them. The state has determined
that comp plans are to be guides that are referred to in zoning changes.
They are not regulatory documents in and of themselves. But the CALM lawsuit
is evidence that uppity citizens can be a major thorn in the side of
progress when they allege that the neighborhood plans approved by council
are not being followed. It s not something anyone wants to have to fight
about in court again.

So my personal impression is that planning is a dirty word for a lot of
folks. If you create a plan, someone may actually have an expectation in the
future that you will follow it. Who needs that type of restriction.....

Bob, your account of the CALM complaint is only half accurate. Yes, CALM
asserted that the Council's rezoning of two blocks of West Broadway did not
comply with the City's Growth Policy. CALM--and many other citizens of our
community, including professionals employed by the City--were also concerned
by the Council failures to follow due process and abide by the Rule of Law.
So your concluding comments about planning are on target...but there are
even larger issues.

Readers of MissoulaGov might wish to examine two sites:

* Missoula Municipal Code 19.72.040 (
e19/Ch19.72Amendments.pdf) states "When considering an application for
amending zoning designations, the Planning Board and City Council shall be
guided by and adopt findings of fact based upon the following:...[listing 12
findings, beginning with "whether the zoning is compatible with the growth
* The Council Minutes from 09-22-03 (
which includes the motion Council approved ("to rezone the property legally
described as Blocks 47 and 48, McCormick's Addition from C (Commercial), RH
(High Rise) and P-2 (Public Lands and Institutions) to the Broadway-Scott
Gateway Special District be approved subject to PAZ's recommended conditions
dated September 22, 2003 including Attachment A."). This motion is
remarkable in that--unlike other Council rezoning actions--did not include
Findings of Fact.

Asking why the Council neglected to include and adopt findings of fact in
its rezoning action that night descends into speculation. The Planning
Board--which produced a recommendation also favorable to the interests of
those requesting the rezoning--devised Findings to support its decision. My
personal conclusions are that the most probable explanations why Council
chose not to adopt Findings are (1) those who had assembled an eight-vote
majority to support the rezoning recognized this support would fall apart if
a rational basis for the decision had to be entered into the public record;
and (2) litigation was anticipated and--as a pre-emptive tactic--Council
wished to limit exposure or otherwise to foil any subsequent judicial

So, enough about a Council action on the night of September 22, 2003. That
Council was composed of Jerry Ballas, Myrt Charney, Ed Childers, Lou Ann
Crowley, John Engen, Clayton Floyd, Lois Herbig, Anne Kazmierczak, Jim
McGrath, Scott Morgan, Jack Reidy, and John Torma.

Also of concern is the legal strategy subsequently approved by the next
Council (following the November, 2003, General Election): Jerry Ballas, Myrt
Charney, Ed Childers, Lou Ann Crowley, John Engen, Clayton Floyd, Anne
Kazmierczak, Heidi Kendall, Bob Lovegrove, Don Nicholson, Jack Reidy, and
Stacy Rye. The City initially requested the District Court to dispose of
the CALM Complaint with a Summary Dismissal. Before the Court could rule on
this matter, the City amended its motion to a request for Summary Judgement.
[Essentially, a summary disposition of a matter is appropriate when a party
asserts there is no need for a full proceeding and dispositively establishes
that the factual record is complete and undisputed, leaving only a question
of law remaining to resolve the matter fully.] It would appear that no
member of the City Council asked "Hey, are we squeaky clean on this? Are we
so clean that we should avoid this case being heard on its merits? Is it
really in the community interest that we defend the process by which this
rezoning decision was reached? What about our Oath of Office?"

The District Court granted Summary Judgement to the City. The Judge, in his
Opinion, ignored the Council's neglect to proceed lawfully by adopting
Findings of Fact on July 22, 2003, yet the Judge saw fit to base his
decision on unapproved "Findings" cobbled up in August of 2004, almost a
year after the Council's rezoning action.

Where does this leave us today? Judge McLean's Opinion granting Summary
Judgement instead of proceeding to trial based on the merits of the case
lets us draw the conclusion that land-use decisions are political in
nature...and that accountability rests with the political process. Ballas,
Childers, Nicholson, and Rye are running for re-election. Voters might well
ask them to explain their understanding of MMC 19.72.040 and whether they
intend to uphold the law. 13 others are vying for office and deserve the
same questioning. Then--as Bob suggests--what of our Growth Policy? Does
our community continue to expect our council members to comply with the
substance of any of our neighborhood plans or transportation plans or any
other adopted policy?

Furthermore, once the breakdown in the Rule of Law begins, where does it
lead us? Why should an individual respect limitations in a building permit
or zoning compliance or traffic codes when the City Council has not only
demonstrated its unwillingness to follow its own adopted statute but has
also engaged in subsequent cover-up and disavowal?

My suggestions, Bob:

* The Council should discuss these matters on the public record, even
making sure that minutes from committees report comments verbatim. For too
long the Council has maintained its own ignorance (neither asking nor
answering the questions "Must the Council adopt Findings in its rezoning
decisions? Was Ordinance 3234 adopted without Findings?"), sometimes using
the coy excuse "Oh, we can't discuss this during pending litigation."
* The record suggests we can't leave this discussion to the Council
alone. The District Court has reinforced this conclusion: we shouldn't rely
upon judicial review of legislative action and we should prepare ourselves
for the exercise in the voting booths of informed accountability. The media
reporting on this matter has been appalling. Too many citizens also pose
the same two questions ("Must the Council adopt Findings in its rezoning
decisions? Was Ordinance 3234 adopted without Findings?"). There's been no
public conversation about the Council's motives and there's been no
organized discussion of holding our government accountable. It's time for
organizations with interests in public policy and land-use issues to take a
position and lead public discussion. The central committees of our
political parties. The Pachyderms and Forward Montana and Western Progress.
Five Valleys Land Trust and the Clark Fork Coalition and the Rocky Mountain
Elk Foundation. The Missoulian and the Independent. The League of Women
Voters. This isn't some insignificant little zoning matter, it's Rule of
Law and Oath of Office.
* However, since nothing appears to have happened on the ground of the
800 and 900 blocks of West Broadway in the four years since the
rezoning--and since the construction of a BigBox store intentionally
designed to directly compete with a Super Wal-Mart even when located just 8
blocks west of the intersection of Higgins & Broadway seems a questionable
financial decision for any corporation--why doesn't the applicant request
reconsideration of this mess? Otherwise, the stain upon St. Patrick
Hospital--which has the burden of moral probity in its name and
institutional history--will last for decades. [Full disclosure: I was a
proud employee of St. Pat's for a dozen years in the 70s and 80s. I'm
ashamed by St. Pat's association with this sorry affair.]

Thanks, Bob, for designing and maintaining this listserv. Some discussion
on MissoulaGov is a beginning.

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