MISSOULA — While it's not taking place in a court of law, a developer's appeal over the Historic Preservation Commission's denial of a building permit on private property underwent similar legal scrutiny on Monday night, with both sides arguing their case before the Missoula City Council.
Attorneys and architects representing the developer believe the preservation commission acted in bad faith when it denied their permit in 2023. They also believe the commission violated their due process rights by failing to provide a fair and objective consideration of their project.
But attorneys representing Save the Fort and the City of Missoula also made their case, suggesting that city staff accurately considered the project before denying it, and that the developers failed to meet the bar in proving their claims of bias.
The City Council will act as both judge and jury in the case.
“The bar here is very high to show bias,” said Ann Trahan, representing backers of the fort. “In this case, the record makes very clear that the commissioners' minds were not irrevocably closed. It's an inappropriate decision to invalidate their decision."
Fair consideration or not?
The developers have for the past four years sought to win approval for a mixed-use project on private property at Fort Missoula. As proposed, the project includes 16 condos along with two commercial buildings.
The private development, proposed by Tres Birds, would fund the multi-million restoration of the Old Post Hospital. Constructed in 1911, the building is a contributing feature of the Fort Missoula Historic District but has fallen into disrepair over the past few decades.
“This is a historic preservation project and not a greedy land grab,” said David Gray, a project architect. “The local owner and his family are simply trying to make restoration and preservation of the Old Post Hospital financially feasible.”
The developers first presented their proposal to the Historic Preservation Commission in 2021 and again in 2022. Both the commission and preservation officer recommended the denial of the project in May 2023 on a number of grounds, including its design, its scale and the materials it intended to use.
City Attorney Ryan Sudbury on Monday said projects in the Fort Missoula Historic District must comply with a number of criteria, ranging from the area's neighborhood character to standards set by the Secretary of the Interior guiding historic structures.
He defended the historic preservation officer's decision to deny the project.
“Really it boils down to three main things,” Sudbury said, noting the standards that guide such projects. “We don't feel this project satisfies those criteria. In other parts of the city, this would be a welcome addition. Unfortunately, the historic fort is not the place for that.”
The project, dubbed Fort Missoula Commons, would sit on five acres of private land within the district. The development team said it worked with the preservation commission and the city's preservation officer in a collaboration they believed would eventually lead to approval.
But instead, they now believe the commission's mind was already made up and that it never intended to approve the project for biased reasons.
“I've spent over four years of time, effort and money to get to this point,” said Max Wolf. “I believe we have not received fair consideration from city staff and the Historic Preservation Commission.”
Wolf, one of the project's developers, said they faced a moving target with the city changing the rules under their feet, making it impossible to win approval. They also believe their application was treated differently than others and wasn't given fair consideration.
Among other things, they said their application included 600 pages of details, though not a single question was ever posed by the city's decision-makers. Several members of the preservation commission also had a conflict of interest, either through their familial or organizational ties, they said.
“It's that due process and fairness that we feel we had a problem with,” said Mark Stermitz, an attorney representing the developers. “There are specific errors in the way that our application was reviewed.”
Stermitz also noted a legal opinion issued by the former City Attorney in March 2022 that said land-use decisions must be made “by decision-makers who are neutral, fair, impartial, objective, open-minded and equitable.”
The developers believe the preservation commission and preservation officer failed to meet that standard.
“It was critical that we dealt with a staff and commission that had an open mind from the beginning. That wasn't the case. Their minds were predisposed to turning this project down,” Stermitz said.
Trahan disputed those claims, saying the developers received due process and couldn't prove that any ex-parte communications took place. For that, she said law requires such communications to “substantially prejudice the affected parties' right to a fair hearing.”
“The developer has not met that standard,” she said.
The City Council has asked all parties to submit post-public hearing briefs by February 19. The city will consider the arguments on February 22.
