Fort Missoula developers secure legal firm, appeal preservation commission’s denial

Martin Kidston

(Missoula Current) While members the Historic Preservation Commission said plans to rehabilitate the Old Post Hospital at Fort Missoula could save the structure, they ultimately denied the project, saying associated development was “incompatible” with the historic site.

Now, two months later, the developers behind the project have secured legal representation and have appealed the decision, arguing that members of the commission violated their due process rights and “failed to provide a fair, objective consideration.”

Those behind the Fort Missoula Commons project also contend that several members of the commission may have a conflict of interest, which should have resulted in their recusal. Of the seven members present on May 3 when the commission denied the project, only one recused himself from voting.

“Members of the HPC participated and voted on the application despite circumstances which suggest that recusal may be appropriate, such as having relationships (formal and otherwise) with groups or organizations publicly opposed to the application,” the appeal states.

The appeal, submitted by Crowley Fleck Attorneys, goes on to suggest that “It is conceivable that some members of the HPC had undisclosed conflicts of interest, or possible improper ex parte contacts, or other conduct evidencing a pre-disposition toward denying the application.”

The project

To fund the multi-million-dollar restoration of the Old Post Hospital, the developers have proposed 16 condos in five buildings set behind the hospital on private property, along with two commercial buildings connected by a plaza, also set on private property.

The project would cover around 5 acres of private land within the district. The hospital was constructed in 1911 and has sat vacant for years, experiencing significant decay. It was placed on the market in 2019.

“This is probably the last shot the Old Post Hospital has,” said project architect David Gray. “It's already financial unfeasible to save. This is the development which is being proposed, which is to offset the restoration costs of the Old Post Hospital. If this is denied, you're voting to wipe out the history of the Old Post Hospital.”

Members of the commission have been unmoved by efforts to restore the hospital by funding it with housing on an adjoining private lot. Many contend the project as proposed is out of context with Fort Missoula.

Commission chair Paul Filicetti said members “have provided feedback to the developer, and none of that feedback has been taken into account.”

“My concern here is that it's a great opportunity and change is inevitable. I'm all for it,” he said. “But this isn't the change we're looking for in terms of the architecture, the pattern, character, feeling and setting, all the things that are important to Fort Missoula.”

A familiar path

The commission's denial of Fort Missoula Commons and the developers' allegations of bias nearly mirrors the path the Mercantile took in 2016.

The Historic Preservation Commission denied that project after stumbling through a marathon meeting that saw its members amend several key facts at the last minute, argue over law and blame the developers for not seeking an alternative use for the downtown property.

In that instance, four members of the commission abstained from voting over accusations of bias. Still, the commission's actions in 2016 prompted the City Council to institute a strict legal statute in hopes of avoiding the same conjecture and bias that some believe infiltrated the preservation commission during the Mercantile hearings.

Now, as in the case of the Mercantile, those behind Fort Missoula Commons have appealed the commission's denial to the City Council. They're also asking that all recordings of the commission's proceedings be given to council, including “all documents and presentations generated for or by the pre-application meetings with the HPSC.”

Regulations state than an appeal may be sustained if the City Council finds error. Attorneys at Crowly Fleck have detailed five issues where it believes the commission erred.

“Any of these errors is sufficient to overrun the HPC's decisions denying Fort Missoula Commons' applications for the hospital,” the law firm wrote. “For Missoula Commons has submitted public information record requests that the City of Missoula has not answered, which may also impact the specific grounds for this appeal.”

Crowley Fleck Attorneys added that the commission failed to include a legal opinion from the City Attorney's Office regarding the “appearance of fairness in land-use decisions” into the public record prior to its decision.

“In Montana a land use growth policy is to be a guide for consideration with respect to general policy and pattern of development and adoption of zoning regulations,” former City Attorney Jim Nugent wrote. “A land use growth policy is not a regulatory document and does not confer any authority to regulate that is not otherwise specifically authorized by law or regulations.”