City sets process, hearing date for Fort Missoula Commons appeal

Martin Kidston

(Missoula Current) The Missoula City Council on Wednesday detailed the process and timeline it will take to consider an appeal filed by a developer regarding the Historic Preservation Commission's denial of a permit.

In doing so, city officials cautioned members of council to avoid ex parte communications, perceptions of bias and “liking” one group's social media posts over another. Doing so could jeopardize the council's decision on the matter in September.

“You don't want to engage in conversation outside the public hearing process on this matter,” said City Attorney Ryan Sudbury. “That includes talking to staff about the substance of what's being appealed, or the appellant, members of (Friends of the Fort) and members of the general public. It can create problems procedurally for the final decision that council reaches in this matter.”

If such a violation occurred before the hearing, set for Sept. 11, it could result in that council member being recused from the discussion, Sudbury added.

Members of the Historic Preservation Commission (HPC) in May denied a permit to Tres Birds, essentially blocking their plans to redevelop private property within the Fort Missoula historic district and plans to preserve the deteriorating Old Post Hospital. In doing so, members of the commission said the project was “incompatible” with the site.

One month later, the developers appealed the decision, arguing that members of the HPC violated their due process rights and “failed to provide a fair, object consideration.” They also contend that several members of the commission had a clear conflict of interest, which should have resulted in their recusal.

During the hearing, which is set for Sept. 11, the City Council can uphold or reverse the Historic Preservation Commission's findings, send it back to the commission for another review, or take the issue up on its own. Both sides have retained legal representation to represent them in the appeal process.

“Because this is an appeal from the commission, we have an obligation to prove there was error,” said Mark Stermitz with Crowley Fleck Law, which is representing the developers. “This isn't a do-over, per say. We want to be sure we have time to do that. We felt a little squeezed at the commission level. We'll be very surgical in what we have to say in the case.”

As it did during a similar appeal over the Historic Preservation Commission's denial of a permit related to the Mercantile, the City Council is expected to set timelines for both sides to make their case, along with public comments.

Initially, council intended to hold the hearing on the evening of Sept. 11, but more time may be needed. That would result in a subsequent hearing.

“We don't want it (the hearing) to be an unfocused, all-comers situation. There are going to be some specific questions we are going to urge the council to consider. The more definition we can bring to bear on the process, the better it will be for everyone,” Stermitz added.

Leah Trahan with Parsons Behle & Latimer, which is representing Save the Fort, agreed, and urged the council to come prepared to oversee a smooth and fair hearing.

“It's our understanding this isn't a complete denovo review of the Historic Preservation Commission's decision,” she said. “It's just to determine if HPC made an error. I would encourage you to consider a process to be presented before the public hearing so the public can meaningfully respond to that.”

The city already has created a unique email address to receive public comments and to create one public record. Council members also are expected to forward personal emails on the issue, along with voicemails, to the account at FortMissoulaCommons@ci.missoula.mt.us.

“It's the same thing we did when the City Council was considering the historic preservation permit for the Mercantile,” said council president Gwen Jones. “Having a unique email address, especially as the City Council sits in a quasi-judicial role, these public comments need to be entered into the public record.”