Public Comment_ Resolution 6213 Michelle WeinbergFrom:Michelle Weinberg
To:Kalispell Meetings Public Comment
Subject:EXTERNAL Public Comment: Resolution 6213
Date:Friday, July 12, 2024 4:22:41 PM
Attachments:Public Comment.Resolution 6213.7.12.24.pdf
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Good afternoon,
Please see the attached public comment in advance of Monday's meeting on the
agenda item Resolution 6213 - Hearing on Conditional Use Permit of the Flathead
Warming Center.
Thank you,
Michelle T. Weinberg, PLLC
Attorney at Law
P.O. Box 1417, Missoula, MT 59806
(406) 314-3583
michelle@michelleweinberglaw.com
Michelle T. Weinberg, PLLC
Attorney at Law
P.O. Box 1417, Missoula, MT 59806
(406) 314-3583
michelle@michelleweinberglaw.com
July 12, 2024
Sent via E-Mail
Kalispell City Council
201 1st Avenue East
Kalispell, MT 59901
publiccomment@kalispell.com
Re: Resolution 6213: Potential Action to Revoke the Flathead Warming Center’s
Conditional Use Permit
To: Kalispell City Council
This firm represents the Flathead Warming Center (FWC) in the above referenced matter
and submits this letter along with Allan McGarvey of McGarvey Law and Alan J. Lerner of
Lerner Law Firm in opposition to the City’s consideration of an action to revoke the Conditional
Use Permit (CUP) issued to FWC on November 2, 2020 and the more recent administrative
CUP issued on September 1, 2022.
In 2020, this Council approved a zone change and a CUP for FWC to open a homeless
shelter because this Council determined that such a shelter would serve a legitimate purpose and
advance the public health, safety, and general welfare of the City. At the time, the Kalispell
City Council was apprised of what a homeless shelter was and the population it intended to
serve. This Council considered the impacts to the neighborhood located in “one of the main
commercial corridors within the City” and determined that a homeless shelter would provide
“opportunities for housing our community’s homeless population,” in conformance with
Chapter 3, Goal 3 of the City’s Growth Policy.
In granting the initial CUP well over three years ago, the Council knew that FWC
intended to develop its property for use as a homeless shelter and determined that the use of the
subject property for a homeless shelter conformed to the CUP review criteria. It is undisputed
that FWC thereafter met the nine terms and conditions of its primary CUP approval, thus
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creating a vested and protected property right that runs with the land for FWC to use its property
as a homeless shelter.
As such, to revoke FWC’s 2020 and 2022 CUPs years after the fact in an attempt to
retroactively deny its approval would constitute an arbitrary, capricious, unreasonable and
unlawful act contrary to the powers granted to this Council by the Montana Legislature. The
revocation would also constitute a taking and violate our client’s right to procedural and
substantive due process under the U.S. Constitution and Montana Constitution, as well as
implicate state tort law remedies, among other causes of action.
First, despite the City’s categorization of this action as quasi-judicial, it is important to
clarify that the revocation of the CUP would be legislative act. This is especially the case given
that FWC’s CUP was considered “in conjunction with a request for a zoning text amendment
which would add homeless shelters as a conditionally permitted use in the B-1 zone,” and
because the City is now considering an action to institute a de facto zone change and ex post
facto denial of a zoning permit. Greens at Fort Missoula v. City of Missoula, 271 Mont. 398,
897 P.2d 1078 (1995).
However, the City does not have the legislative power to revoke FWC’s CUP because, as
a municipality with general government powers, the City only has those powers provided or
implied by law as given to it by the Montana Legislature. Mont. Const., Art. XI, § 4; D & F
Sanitation Service v. City of Billings, 713 P.2d 977, 219 Mont. 437 (Mont. 1986). Pursuant to
Mont. Code Ann. § 76-2-308, a “city or town council or other legislative body may provide by
ordinance for the enforcement of this part and of any regulation or ordinance made thereunder.”
Under 27.33.050 of the City’s Zoning Ordinance, however, the City’s zoning regulations only
state that an applicant can violate its CUP when it fails to “comply with the terms and/or
conditions of a Conditional Use Permit.”
Here, it is undisputed that FWC in fact complied with nine terms and conditions of its
CUP as specified below and in accordance with the law:
1. FWC commenced the approved activity within 18 months from the date of
authorization;
2. The CUP did not become effective until the B-1 zoning text amendment allowing
homeless shelters as a conditional permitted use became effective;
3. FWC’s property was developed in substantial conformance with the submitted
application and architectural/site plan drawings;
4. FWC applied for and received a building permit prior to occupancy;
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5. FWC submitted architectural renderings to the Architectural Review Committee for
review and approval;
6. FWC received Site Review Committee approval prior to the issuance of the building
permit;
7. FWC provided a minimum of one paved parking space per five occupants;
8. FWC extended the existing sidewalk along North Meridian Road to define the parking
lot access and reduce the driveway to 24 feet, along with a five-foot landscape buffer;
and
9. FWC complied with the occupancy requirements associated with the City’s CUP
approvals and received a supplementary administrative conditional use permit to
allow for additional occupancy.
Therefore, because the City does not have the power to revoke FWC’s CUP under
Montana law and its own zoning regulations, such an action would be unlawful and void.
Second, even if the City had the power to revoke FWC’s CUP ex post facto (to reiterate,
it does not), it could not do so over three years after its issuance and based on the vague,
conclusory, and unsupported factual contentions provided to FWC in the City Attorney’s letter
dated May 31, 2024 – assertions supported by unspecified and unverified law enforcement call
data and “public comments.” To do so would constitute an unreasonable, arbitrary and
capricious action and would be void under Montana law.
Indeed, the City cannot even prove and has not provided any evidence that FWC or its
Executive Director, made any untrue or incorrect “initial representations” in FWC’s application.
By way of example and not limitation, the City cannot prove that FWC has increased
homelessness in the unspecified “surrounding area.” As reported in the Daily Montanan,
Montana as compared other states saw the second largest increase in homeless youth, 76%, and
the third largest percentage increase overall, 45%, in the number of people experiencing
homelessness, from 2022 to 2023.1 The causes for these increases are attributed to factors such
as the lack of affordable housing and untreated behavioral health disorders – not homeless
shelters.
Similarly, the City cannot prove that any increase in loitering, law enforcement calls,
garbage, etc. is attributable to FWC as such factual contentions are based on vague references to
1 Daily Montanan, Montana leads nation in homelessness increases in 2023 report to Congress
(February 6, 2024) (available at https://dailymontanan.com/2024/02/06/montana-leads-nation-in-
homelessness-increases-in-2023-report-to-congress/).
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law enforcement calls or unspecified and unverified public comments. The City’s vague
accusation that FWC has failed to be a “good neighbor” is likewise unsupported, conclusory,
and frankly preposterous given FWC’s mission and operating procedures. Thus, because these
and the remaining assertions by the City in its May 31, 2024 letter are not supported by the law
or any evidence, the revocation of FWC’s CUP would be unreasonable, arbitrary, capricious,
and unlawful.
Third, because FWC fulfilled the set of terms and conditions of the CUP, such permit
approval gives rise to FWC’s legitimate expectation of retaining its CUP and the current
proposed action to revoke it invokes the Due Process Clause of Article II, Section 17 of the
Montana Constitution and the Fifth Amendment and Fourteenth Amendment of the United
States Constitution. As the Montana Supreme Court has explained:
Article II, Section 17, of the Montana Constitution provides that: “No person shall
be denied life, liberty, or property without due process of law. Substantive due
process prohibits the state from taking unreasonable, arbitrary or capricious action.
Powell v. State Comp. Ins. Fund, 2000 MT 321, ¶¶28-29, 302 Mont. 518, 15 P.3d
877. “[A] statute enacted by the legislature must be reasonably related to a
permissible legislative objective” to comply with the requirements of substantive
due process. Powell, ¶ 29.
Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, ¶ 35, 315 Mont. 107, 67 P.3d 892.
Here, for the reasons explained above, the City’s revocation of FWC’s permit would be
subject to nullification under due process review as a violation of FWC’s federal and state right
to substantive due process because such government action would be “clearly arbitrary and
unreasonable” Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.
1989).
Such action would also be a violation of FWC’s procedural due process rights given the
unreasonable and unfair process associated with the City’s actions. In re Best, 2010 MT 59, ¶
22, 355 Mont. 365, 229 P.3d 1201 (“due process requires a fair and impartial tribunal”); Matter
of Goldman, 179 Mont. 526, 551, 588 P.2d 964, 978 (1978) (explaining the requirement of a fair
hearing). The charges the City has leveled against FWC are vague, overly-broad and undefined,
such that our clients are having difficulty responding in a meaningful and effective way. The
allegations are based on unsworn comments and those commentators have not undergone cross-
examination or further review to determine the veracity of their allegations. In short, merely
because the City has set this hearing and provided a vague list of supposed concerns, such action
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does not provide our client with the procedural due process requirements of notice and a
meaningful opportunity to be heard. Indeed, the unfair and arbitrary nature of the process is
plain on its face and clearly fails to pass constitutional muster.
It is also important to note that, given the scurrilous accusations lodged at FWC and its
Executive Director, combined with the complete lack of evidence and what appears to be a lack
of a fairness and impartiality based on recent public statements by certain City employees and
elected officials, at least one of whom may also have a conflict of interest under the City’s Code
of Conduct, the City’s revocation of FWC’s CUP would likely be considered “so egregious, and
‘shocking to the conscience’” so as to implicate 42 U.S.C. § 1983 in addition to state tort law
remedies such as negligence, defamation, and false light. Rutherford v. City of Berkeley, 780
F.2d 1444, 1448 (9th Cir. 1986).
Finally, the Takings Clause of the Fifth Amendment of the United States Constitution,
made applicable to the states through the Fourteenth Amendment, and Article II, Section 29 of
the Montana Constitution protects private property rights from being taken for public use
without just compensation. Here, FWC has a constitutionally protected property right and claim
of entitlement to retain its CUP permit approval because the City lacks all discretion to revoke
the permit or withhold its continued approval. See Helena Sand & Gravel, Inc. v. Lewis & Clark
Cty. Planning & Zoning Comm’n , 2012 MT 272, ¶¶ 36, 43, 367 Mont. 130, 290 P.3d 691
(citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 132 (1978).
FWC has been in operation since 2020 as a legal conditional use. It has obtained the
required permits as required by the CUPs and performed substantial work in obtaining and
improving the FWC facility – totaling well over $800,000 – in good faith reliance upon permits
issued by the City. As such, FWC has a fundamental vested right in its continued operation,
which would cease and entitle FWC to compensation if its CUP were revoked. The proposed
revocation would also be an inverse condemnation of FWC’s property and business.
In short, revocation of the CUPs at issue would exceed the City’s lawful authority and
subject it to a number of legal actions from FWC, which would likely result in a significant
damage award for our client.
For these reasons, and in fairness to FWC and the individuals and community the non-
profit corporation serves, we respectfully request that the Council protect FWC’s vested and
protected property right in accordance with the law and your oath to support, protect and defend
the constitution of the United States and the constitution of the State of Montana.
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Thank you,
/s/ Michelle T. Weinberg
MICHELLE T. WEINBERG, PLLC
/s/ Allan McGarvey
MCGARVEY LAW
/s/ Alan J. Lerner
LERNER LAW FIRM