[MissoulaGov] Committee Update 12-3-08

[Ryan Morton]

Thanks Jim.  

 

The City is giving Sewer Service.  Apparently, Sewer has strong currency in
Missoula (so many inappropriate jokes, so little time).

 

That's part of the underlying trouble with this approach.  Many of the
people seeking annexation now invested into property AFTER the City decided
to send sewer out to certain areas (3rd Street in particular).  Now, the
City is saying they want this development agreement as a condition for
annexation.  The landowners have basically become hostage.  They probably
would have invested ELSEWHERE had the City not decided to extend sewer out
there.

 

Ryan, MBIA

 

  _____  

From: Jim McGrath [mailto:jmcgrath at missoulahousing.org] 
Sent: Friday, December 05, 2008 3:11 PM
To: Geoff Badenoch; community at buildmissoula.com; Bob Jaffe;
missoulagov at cmslists.com
Subject: RE: [MissoulaGov] Committee Update 12-3-08

 

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/TaserReportChris
Odlin.pdf

ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/TaserUsageData.p
df

Taser
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/TaserMMIAMemo.p
df>  MMIA Memo

7.10
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/710UseOfForce20
020301.pdf>  Use of Force

7.20
<ftp://www.ci.missoula.mt.us/Packets/Council/2008/2008-12-08/720Taser2008010
1.pdf>  Taser Policy

 

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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