[MissoulaGov] Committee Update 12-3-08

[Jim McGrath]

Right. A development agreement might typically be used in a case where
regulatory relief was exchanged for other public goods. In the MRA
cases, often the public investment was leveraging additional provisions
from the developer that went above and beyond zoning, such as design
features or living wages. 

Thus if the city wanted to have the kind of "conditions and exactions
that would normally fall into subdivision review would instead be placed
in the development agreement" as Bob said, it ought to be giving
something in exchange. The MRA gives money. 

Annexation didn't used to be seen as a boon, but perhaps that has
changed. Additional density obviously is.

________________________________

From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of Geoff Badenoch
Sent: Friday, December 05, 2008 3:04 PM
To: community at buildmissoula.com; 'Bob Jaffe'; missoulagov at cmslists.com
Subject: Re: [MissoulaGov] Committee Update 12-3-08

 

I am intrigued with the idea of using "development agreements" as part
of zoning/annexation.  There are obvious issues that need to be
addressed, as Ryan points out.

 

When I was at MRA, we used "development agreements" as a way to
memorialize the terms under which a developer would receive urban
renewal (tax increment) funds, a situation where case by case, quid pro
quo made sense.  If the developer didn't want to meet MRA's terms, the
developer didn't have to take the financing.  MRA still does that, and
it works in those cases.

 

To the degree that MRA is successful in redevelopment it is because its
work isn't about enforcing codes so much as it is negotiating the best
deal for development. I think Ryan is pointing out a basic difference
here in how a development agreement works. That doesn't mean it couldn't
be useful, but apples and oranges, etc.

 

Geoff Badenoch

 

-----Original Message-----
From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of Ryan Morton
Sent: Friday, December 05, 2008 11:55 AM
To: 'Bob Jaffe'; missoulagov at cmslists.com
Subject: Re: [MissoulaGov] Committee Update 12-3-08

 

I think you're missing the bigger point, Bob.  You SHOULD BE negotiating
development agreements, but you have NO intention of doing that.  You
just want what you want, then you take it.  Then you're going to push
applicants into a contract saying that what YOU decided represents
mutual benefit.  It's not like applying for and signing a cell phone
contract.  Those contracts are standardized terms and conditions for
everyone and are regulated for consumer protection.  Development
agreements will necessarily have to be different from each other where
the applicant has no protection (beyond suing you).  So let's recap.
You want to require a non-standard, non-negotiable "agreement" that
others are not required to do at annexation.  Not the City's finest
work...

 

As far as UFDA, that should have nothing to do with this.  Your
annexation agreements would require URBAN LEVEL INFRASTRUCTURE as a
condition of annexation.  Fringe development that gets annexed would
essentially become urban as a condition of annexation.  If you're
suggesting that the development agreement will make annexation harder
thus forming the vision of UFDA, you've just proved my earlier point
that you have no intention of negotiating these agreements.  Your
comment about working with the City to "reach a reasonable agreement" is
sounding pretty disingenuous...

 

If you do want to discuss how development agreements could make a
positive impact on Missoula through fair (and open) bargaining and/or
mediation, let me know.  I'll get you as much information as I can
muster.  I really do think development agreements could be positive and
would like to see something that's more in line with the spirit of
development agreements.

 

Ryan Morton

The Missoula Building Industry Association

 

________________________________

From: Bob Jaffe [mailto:BJaffe at ci.missoula.mt.us] 
Sent: Friday, December 05, 2008 6:37 AM
To: community at buildmissoula.com; missoulagov at cmslists.com
Subject: RE: [MissoulaGov] Committee Update 12-3-08

 

Ryan, 

You make a good point that any development agreement should have
substantial clawback provisions for developers who don't comply with the
conditions after their projects get approved. I don't believe any of the
conditions the council has asked for in subdivisions have been
unreasonable. Obviously this opinion would be contested by some of the
more litigious developers.

Our recent growth policy amendment establishes that we already have
plenty of entitled lots and don't really need to be extending the city
boundaries any further through additional annexation. If developers
don't want to work with the city to reach a reasonable agreement then we
don't need to annex them. They are free to build at county densities.

 

Bob

  

 

From: Ryan Morton [mailto:community at buildmissoula.com] 
Sent: Thursday, December 04, 2008 12:05 PM
To: Bob Jaffe; missoulagov at cmslists.com
Subject: RE: [MissoulaGov] Committee Update 12-3-08

 

Thanks Bob.

 

I'm not sure I agree with your evaluation of development agreements.  In
other states, development agreements are used to actually negotiate a
contract-like agreement between a developer and a governing body.  A
good example is when a developer proposes a large scale development with
mixed housing types and even mixed uses (residential, commercial, and
parks/open space).  The bargaining and/or mediation yields an agreement
of mutual benefit (which is why I like them so much).  That agreement
stays in effect with a regulatory freeze for a certain period of time to
secure the developers investment.  I don't think that's what Missoula
will be doing however.  

 

At PAZ it sounded more like you wanted legal coverage against your
conditions of approvals that applicants consider excessive or
unreasonable (Clark Fork Terrace is it?).  I'd be careful about taking
that angle as you can't really force applicants into an agreement
(coercion and discrimination aren't very cool).  To make matters worse,
the City would have to take an official action in the form of a motion
to enter into the agreement.  So even if you condition annexation upon
execution of a development agreement, the applicant can choose not to
execute after you've already PASSED A MOTION.  Once you take such an
action, you can be sued.  I'm also pretty sure they could use the
unexecuted agreement as evidence against you.  So you'd only get
protection in situations where an applicant was foolish enough to sign
the agreement.  And I assure you, I (and I imagine most attorneys) will
advise everyone in the development community NOT TO SIGN the development
agreements IF the conditions are unreasonable.  

 

I think it becomes even trickier with zoning as the statutes provide a
12 point criteria.  There's no "No. 13 - Development Agreement" option
for you to approve or deny a rezone.  So I'm not sure you could deny a
rezone simply because the applicant refused to sign the development
agreement.

 

It's also unfortunate that applicants would then have to litigate
something they shouldn't have to.  It seems equally logical that to
protect yourselves against litigation you could simply make conditions
that are more reasonable.  One wonders about the advice the City is
getting on such matters.  How many lawsuits have you had over conditions
of approval? Is there a theme?  Seems like the parks dept conditions get
you into trouble fairly often (including your most recent lawsuit).
Just sayin'...

 

Ryan Morton, Government Affairs Director

The Missoula Building Industry Association

 

________________________________

From: missoulagov-bounces at cmslists.com
[mailto:missoulagov-bounces at cmslists.com] On Behalf Of Bob Jaffe
Sent: Wednesday, December 03, 2008 9:44 PM
To: missoulagov at cmslists.com
Subject: [MissoulaGov] Committee Update 12-3-08

 

Greetings,

Bright and early this morning to learn about Tasers.  The police were
awarded a grant that they wanted to apply towards buying more Tasers.
The grant requires acceptance by the governing body.  Stacy sent this
back to committee because there was some concern about how Tasers are
used. Before approving the purchase of more of these things we wanted
assurances that they are not being abused. Clearly it is better to
temporarily paralyze someone with an electric shock than it is to shoot
them dead. But on the other hand if an officer has the option of Tasing
a non-cooperative person, why bother to take the time and effort to use
diplomacy to achieve compliance?  

Tasers have been in use in Missoula for about four years. In that time
they have been deployed 138 times. 45 of those were display only. They
only had to show the thing to the suspect to gain compliance. Here are
some links to the information provided:

ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/TaserReportC
hrisOdlin.pdf

ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/TaserUsageDa
ta.pdf

Taser MMIA Memo
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/TaserMMIAMe
mo.pdf> 

7.10 Use of Force
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/710UseOfFor
ce20020301.pdf> 

7.20 Taser Policy
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/720Taser200
80101.pdf> 

 

I was satisfied that the police are doing what they can to make sure the
Tasers are being used responsibly. The vote to support the grant was
unanimous.  I believe Stacy will be making a referral for a report on
the "Force Policy" in general.

 

In conservation we heard an extended report on the development plan for
Fort Missoula.  Nothing particularly new from last time but a little
more detail.  There will be a public hearing on the adoption of the park
plan this Monday. The total estimated price tag for the improvements is
about $20 million.  The highlight of the whole meeting was the public
comment offered by Tate Jones of the Historical Museum. He pointed out
the grand works accomplished by our community at a time when the people
were nowhere near as affluent as we are today. What has changed?
Certainly things were a lot rougher in Missoula a century ago when the
nice part of the court house was built. How could they afford to build
such nice stuff back then? Were attitudes about quality and longevity
that much different then or was there some fundamental difference in the
economics of construction?

 

Next we discussed the rezone of the parcel south of the Elbow Room bar.
The owners of the Elbow Room currently lease the land where the bar is
located. But they own the other half of the block to the south. They are
requesting a CLB (liquor and gambling) overlay on the entire half block.
That's a pretty depressing few blocks right there between Stephens and
Russell. From the aerial photo you can see that the entire area is paved
and there are like two trees. There are CLB's all over the place. Some
in use and some not. For example the post office parking lot has a CLB
overlay. There was much apprehension about creating another CLB
(especially such a large one) in the neighborhood without removing some
of the others. This area is also a redevelopment district and the
council wanted to hear from MRA on what their hopes were for the
neighborhood.

 

Our other scheduled item was the appeal on the DRB decision regarding
the sign request for the Montana Lil's casino going in at the corner of
Reserve and Brooks.  The DRB gave them some of what they wanted so they
appealed to the council for the rest. My take was that it was more
likely the council would take away what DRB gave them than give them the
remainder. Apparently the applicant had the same concern and withdrew
their appeal. My understanding is they have resubmitted a sign package
that is in compliance with the ordinance.

 

While I'm on the subject of signs, Mr. Wilkins informed us all of a sign
proposal from Sentinel High School. They want to put up one of those
video display signs that exceeds the size limit allowed in our code and
they intent to display commercial advertising on the sign. Offsite
advertising is also completely against the sign ordinance. But since
they are a school they are not subject to our zoning rules so they can
pretty much do what they want.  If you think that is offensive maybe you
should let Sentinel or the school board know. 

 

After lunch we started with Public Works. The main item of discussion
was the vacation of a portion of Nora Street. The old dairy property on
the corner of Toole and Spruce is being redeveloped. The area that is
the current parking lot at the end of the little triangle there is
actually public right of way.  They are asking for it to be formally
vacated. They are going to put in substantial pedestrian and aesthetic
improvements to the site.

 

After public works we had another PAZ session to discuss a resolution to
establish a policy regarding development agreements. We have required
development agreements recently on projects where we are annexing a
parcel that is going to be used for a condominium or multifamily project
rather than be subdivided. This way we can place the various conditions
that would normally be part of subdivision approval into the development
agreement since there isn't going to be any subdivision.  The new policy
would call for development agreements to be used on all annexation and
zoning requests. This way the various conditions and exactions that
would normally fall into subdivision review would instead be placed in
the development agreement. Then, if the developer wants to sue us they
would be arguing contract law instead of land use law. We are much more
protected in contract law. Annexation and zoning are discretionary for
the council. No one has a right to be annexed or to have their zoning
changed. So if they want those things they can enter into a contract
with the city to establish the conditions that will be required. 

Another aspect of the policy is to start requiring fees in lieu of
impact fees for developments that request contract sewer. So if we give
them contract sewer and don't annex they are currently exempt from
impact fees. The new policy ends that. For now on developments that hook
up to the sewer but don't get annexed will still have to pay the
equivalent of the impact fee. That money will then be put aside until
they do annex so we will have some cash to then do improvements without
having to fight over it with the current residents. 

This is all common practice in other states and in other cities around
Montana. I'm not sure why it has taken us so long to catch on.

 

Thanks for your interest,  

 

 

Bob Jaffe

Missoula City Council, Ward 3

bjaffe at ci.missoula.mt.us

406-728-1052

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