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Complaint and Application for Writ of Mandate1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Roger M. Sullivan McGarvey, Heberling, Sullivan & McGarvey, P.C. 745 South Main Kalispell, MT 59901 (406) 752-5566 David K.W. Wilson, Jr. Reynolds, Mod and Sherwood, P.L.L.P. 401 N. Last Chance Gulch Helena, MT 59601 (406) 442-3261 Attorneys for Plaintiffs CLERK. OF ="1i`;-ti.ICi .UR1 lil i_ 3 I t,. 1 BY MONTANA ELEVENTH JUDICIAL DISTRICT COURT, FLATHEAD COUNTY FLATHEAD ALLIANCE FOR SENSIBLE ) GROWTH, INC., a Montana nonprofit public benefit corporation, GORDON PIRRIE, TOM D. LITTLE, D.M.D., MARION GERRISH, C.M. CLARK, THOMAS P. ) FULLERTON, D.C., WILLIAM W. GOODMAN, and JOHN D. HINCHEY, ) Plaintiffs, V. CITY COUNCIL AND MAYOR OF THE CITY OF KALISPELL, MONTANA, ) acting as the governing body of the City of Kalispell, a governmental entity, ) Defendants. Introduction Cause No. DV-02-D With this action plaintiffs request that the Court declare void the action by the Kalispell City Council on July 1, 2002, approving the Glacier Mall Mixed Use Development Amendment to the Kalispell City -County Master Plan, which would allow development of the largest shopping mall ever proposed in Montana. Plaintiffs bring this action to ensure that the Kalispell City Council performs its clear legal duties and complies with the Montana statutes governing planning and public participation, the Montana Constitution, and the Complaint and Application for Writ of Mandate and Writ of Review 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Kalispell City -County Master Plan. 1. Flathead Alliance for Sensible Growth, Inc. (FAFSG) is a Montana nonprofit public benefit corporation dedicated to protecting the quality of life throughout the Flathead Valley, including Kalispell and Evergreen, by supporting sound planning for sensible growth, the economic vitality of downtown Kalispell, natural resource conservation with particular emphasis on water quality, and participation in the public assessment of development impacts. 2. Gordon Pirrie is a long-time owner of businesses and property in downtown Kalispell, and a long-time civic leader. Dr. Tom Little is a long-time resident of the City of Kalispell and a citizen who has been concerned with sound planning in Kalispell and Flathead County for decades, including his involvement as lead plaintiff in the seminal land use planning case in Montana, Little v. Board of County Commissioners ofFlathead County, 190 Mont. 334, 631 P.2d 1282 (1981). Marion Gerrish is a long-time resident of the City of Kalispell and the owner of property in downtown Kalispell, who has a long history of involvement in the civic affairs of Kalispell. C.M. Clark is the owner of businesses and properties in downtown Kalispell and has actively participated in activities supporting the redevelopment and economic viability of downtown Kalispell. Dr. Thomas P. Fullerton is a chiropractic doctor who practices in Kalispell, and who lives and owns property immediately adjacent to the proposed Glacier Mall. William W. Goodman is the owner of businesses and property in downtown Kalispell and has actively participated in numerous civic activities dedicated to the redevelopment of downtown Kalispell and the historic preservation of downtown Kalispell. John D. Hinchey is a resident of the City of Kalispell and the owner of property in downtown Kalispell. These individual plaintiffs have participated in the public participation process attendant to the proposed Glacier Mall Mixed Use Development Amendment to the Kalispell City -County Master Plan and they will each Complaint and Application for Writ of Mandate and Writ of Review 2 1 suffer harm if the actions complained of are not remedied. 2 3. The City Council and Mayor of the City of Kalispell, Montana, form the 3 governing body of the City of Kalispell, with the jurisdiction and power, under such 4 limitations and restrictions as are prescribed by law, to represent the city and are entrusted 5 with the care of city property and the management of the business and concerns of the city 6 in all cases where no other provision is made by law, as provided in Title 7 of the Montana 7 Code. All claims herein are asserted against the City Council and Mayor in their official 8 capacities acting for and on behalf of the City of Kalispell. 9 Jurisdiction and venue 10 4. This Court has jurisdiction over this case pursuant to § 27-26-102, MCA; § 27- 1 1 25-102, MCA; § 27-8-201, MCA; § 2-3-114, MCA; § 2-3-213, MCA; and the Montana 12 Constitution. 13 5. Venue is proper in this judicial district as all plaintiffs and defendants reside 14 or are located within Flathead County, Montana. 15 Kalispell City -County Planning Board and Master flan 16 6. In November of 1965, pursuant to state law now codified as § 76-1-105, MCA, 17 the Kalispell City Council and the Board of Commissioners for Flathead County created the 18 Kalispell City -County Planning Board. 19 7. In December of 1971 the Kalispell City Council and the Board of 20 Commissioners for Flathead County approved the last revised boundary ofthe jurisdictional 21 area of the Kalispell City -County Planning Board, which scheme included a jurisdictional 22 area outside of the city limits of Kalispell for planning purposes. The City of Kalispell and 23 Flathead County acted pursuant to state law, now codified as § 76-1-504, MCA, which 24 provides: 25 Jurisdictional area of city -county planning board. The governing bodies represented on a city -county planning board shall by separate resolution 26 establish the jurisdictional area of the planning board. The jurisdictional area LAW OFFICES McGARVEY, HEBERLING, - SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA shall include the area within the incorporated limits of the city and such contiguous unincorporated area outside the city as in the judgment of the respective governing bodies, bears reasonable relation to the development to the area involved. 8. In October of 1974, pursuant to state law now codified as §§ 76-1-601, and - 604, MCA, the Kalispell Planning Area Comprehensive Plan was jointly adopted by the Kalispell City Council and the Board of Commissioners for Flathead County. 9. In 1986, pursuant to the above -referenced statutes, the Kalispell City Council and the Board of Commissioners of Flathead County jointly adopted the Kalispell City - County Master Plan (Master Plan), which amended and superceded the 1974 comprehensive plan. A copy of the 1986 Master Plan is attached hereto as Exhibit 1. The Master Plan contains over 80 pages of text, a master plan map as the graphic illustration of the Master Plan, and goals in twelve specific areas, including growth management, environment, economy, land use and agriculture, as well as specific objectives for each ofthese goals. As provided therein: Through the preparation of a Master Plan, citizens of this area put down in writing the policies and guidelines that should lead or direct the decision - makers to make the right decisions to ensure that the desired future is a reality. ... The Kalispell City -County Master Plan is an official public document adopted by the Kalispell City Council and the Flathead County Commission. It is a policy guide to decisions concerning the physical, social, economic, and environmental development of the Planning Jurisdiction. 1986 Master Plan at p. 1. 10. The area encompassing the Glacier Mall Mixed Use Development Amendment to the Kalispell City -County Master Plan is outside of the city limits of Kalispell, but within the jurisdictional area of the Kalispell City -County Planning Board and the Kalispell City - County Master Plan. 11. The Flathead Regional Development Office (FRDO) was established pursuant to a 1979 inter -local agreement (known as the Countywide Administrative Board Agreement) entered into by Flathead County and the cities of Kalispell, Whitefish and Columbia Falls. Complaint and Application for Writ of Mandate and Writ of Review 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA The FRDO provided planning staff and administrative services for the referenced cities and county. On July 1, 2001, Flathead County withdrew from the Countywide Administrative Board Agreement, and the FRDO was dissolved. As of July 1, 2001, planning and zoning administrative staff and services for Flathead County have been provided by the Flathead County Planning and Zoning Office, while administrative staff and services for the cities of Kalispell, Whitefish and Columbia Falls have been provided by the Tri-City Planning Office. ' 12. On July 9, 2001, Wolford Development submitted a Master Plan amendment request to the Flathead County Planning and Zoning Office, a copy of which is attached hereto as Exhibit 2. The total acreage involved in the request for Master Plan amendment purportedly involved 144 acres, located near the northeast corner of U. S. Highway 2 and East Reserve Drive. Under the 1986 Kalispell City -County Master Plan, the land was designated agriculture, commercial and light industrial. The amendment sought designation for commercial development. As described in Wolford Development's application: Wolford Development seeks to develop a 750,000 square foot, fully enclosed shopping mall, which will likely house four major department stores as anchor tenants, approximately 90 to 100 retail stores, food court with indoor . and outdoor seating and movie theater. Exh. 2 at p. 1. 13. On August 14, 2001, the joint Kalispell City -County Planning Board adopted the Flathead County Planning and Zoning Office Staff Report #KPA-01-102 as findings of fact, and recommended approval of the proposal, noting that the proposal would require approval of both the Kalispell City Council and the Board of Commissioners of Flathead County. The referenced Flathead County Planning and Zoning Office StaffReport is attached hereto as Exhibit 3. 14. Although the Glacier Mall development represents the largest commercial development in the history of Montana, and would cover an area several times the size of Complaint and Application for Writ of Mandate and Writ of Review 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA downtown Kalispell, the Flathead County Planning and Zoning Office StaffReport consisted of less than six pages of text, no technical reports or data, and applied no specific criteria to evaluate whether or not the proposed plan amendment conformed to the goals and policies of the Kalispell City -County Master Plan. As to "Growth Management Considerations" the Staff Report/Findings of Fact noted: The single largest negative presented with this application is that the force vacancies in the existing business and redirect growth into the unincorporated portions ofFlathead County. It is unreasonable to assume that government in the exercise of its legislative authority has the ability to preserve or protect existing commercial enterprises. Business in its purest form is capitalism at its finest, those that provide the best service at the best price will remain in business those that do not will fail and be replaced by another entrepreneur. (Exh. 3 at p. 3, emphasis added.) As to "Environmental considerations" the Staff Report noted: This proposal has the potential to dramatically alter the storm and mound water characteristics of the area, this coupled with the fact that the water table in this portion of the County is relatively shallow. While staff is not qualified to quantify or address the potential impacts, the developer should work to resolve these issues. (Id. at 4.) The Staff Report recommended approval of the Master Plan Amendment for the mall development. (Id. at 6, emphasis added.) 15. On September 4, 2001, the Board of Commissioners for Flathead County passed Resolution No. 790P, attached hereto as Exhibit 4, giving notice of its intention to consider the Master Plan amendment proposed by Wolford, scheduling a public hearing on the proposed Master Plan Amendment, and further resolving as follows: BE IT FURTHER RESOLVED that no change in the Kalispell City -County Master Plan shall take effect until approved by both the City Council of the City of Kalispell, Montana, and the Board of Commissioners of Flathead County, Montana. (Exh. 4.) 16. On September 18, 2001, the Board of Commissioners ofFlathead County held a public hearing on the amendment to the Kalispell City -County Master Plan proposed by Wolford Development. The Board of Commissioners' journal record of that hearing is Complaint and Application for Writ of Mandate and Writ of Review 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA attached hereto as Exhibit 5. Public comments included concerns regarding the floodplain and shallow alluvial aquifer in the area of the development; the over -development of commercial and shopping centers in the planning jurisdiction; and the need for further factual information in order for an informed decision to be made, including information on the need for the proposed development, impacts on water quality, and the impact on public services such as the sewer plant. Chris Kukulski, City Manager for the City of Kalispell, stressed that state law had changed to require a "growth policy," and explained that the Kalispell City Council had spent the last twelve months trying to develop the growth policy and indicated that the need for a growth policy was not unique to Wolford's project. City Manager Kukulski warned that, "I think no matter what attorney you talk to we are going to continue to have problems stack up if we do not meet the state's law and get a growth policy in effect sometime in the near future." (Exh. 5 at p. 8.) As reflected in the Commissioners' journal record there was concern, confusion and a sense of urgency as to the October 1, 2001, implementation deadline for the new "growth policy" requirements contained in Senate Bill 97 passed by the 1999 Montana Legislature. (Exh. 5.) 17. On September 28, 2001, the Board of Commissioners of Flathead County considered adoption of the final resolution (Resolution No. 790Q) approving the amendment to the Kalispell City -County Master Plan requested by Wolford Development. The Board of Commissioners' Journal of September 28, 2001, together with Resolution No. 790Q is attached hereto as Exhibit 6. Commissioner Williams made a motion to strike the final paragraph from Resolution No. 790Q, which provided that "no change in the Kalispell City - County Master Plan shall be effective until approved by both the City Council of the City of Kalispell, Montana, and the Board of Commissioners of Flathead County, Montana." The motion carried unanimously and the resolution was adopted as amended. 18. On October 1, 2001, the matter of the proposed Wolford mall Master Plan Amendment was taken up at the regular meeting of the Kalispell City Council and the Complaint and Application for Writ of Mandate and Writ of Review 7 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA proposal was transmitted to the Tri-City Planning Office staff for review. In a memo dated October 15, 2001, attached hereto as Exhibit 7, the Tri-City Planning Office responded with a memo from Thomas R. Jentz, Director and Chris A. Kukulski, Kalispell City Manager. The report to the Kalispell City Council concluded that, "based on both the draft growth policy plan and the current Kalispell City -County Master Plan, the development proposal does not comply with either." (Exh. 7 at p. 23.) Following receipt of the October 15; 2001, memo, the Kalispell City Council took no action on Wolford's July 9, 2001, application to amend the Kalispell City -County Master Plan. 19. On October 26, 2001, the City of Kalispell filed a lawsuit against Flathead County (complaint attached hereto as Exhibit 8) alleging that Flathead County's unilateral action in amending the Master Plan was illegal. In particular, the City of Kalispell asserted that "any amendments to the existing plan, depend upon the j oint action and consent of both the city and the county who are each bound by the agreement." (Exh. 8 at p. 3.) 20. On December 17, 2001, the Board of Commissioners of Flathead County adopted Resolution No. 1543 (attached hereto as Exhibit 9) which included the following: THEREFORE BE IT RESOLVED that the Flathead Board of County Commissioners withdraws from any further participation in the Kalispell City - County Planning Board thereby dissolving that Board. BE IT FURTHER RESOLVED that by withdrawing from the Kalispell City - County Planning Board any and all resolutions establishing the jurisdictional area of the Board outside the City limits are rescinded. (Exh. 9 at p. 2.) 21. Contemporaneous with the passage of Resolution No. 1543 the Board of Commissioners passed Resolution No. 1544 to increase the membership and extend the jurisdiction of the Flathead County Planning Board to include that portion of the county outside of the City of Kalispell which had previously been included in the jurisdictional area of the Kalispell City -County Planning Board. A copy of Resolution No. 1544 is attached Complaint and Application for Writ of Mandate and Writ of Review 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA hereto as Exhibit 10. Neither Flathead County nor the City of Kalispell was vested with the authority to unilaterally amend the jointly created Kalispell City -County Master Plan 22. All paragraphs above are incorporated by this reference. 23. Under the governing statutes referenced above, including §§ 76-1-105, -504, -601 and -604, MCA, and the inter -local agreements and joint actions ofthe City of Kalispell and Flathead County referenced above, neither Flathead County nor Kalispell was vested with the authority and jurisdiction to take unilateral action in amending the jointly created Kalispell City -County Master Plan, which includes the jurisdictional area for which the Glacier Mall Master Plan amendment was sought. 24. The Kalispell City Council lacked the required statutory power and jurisdiction, and failed to act in conformance with the requisite inter -local agreement, when it took action on July 1, 2002, purportedly approving the Glacier Mall Mixed Use Development application to unilaterally amend the 1986 Kalispell City -County Master Plan.. The Kalispell City Council's attempted amendment to the Master Plan is null and void. 25. On December 19, 2001, Kalispell City Manager Chris Kukulski sent a letter to the Board of Commissioners (attached hereto as Exhibit 11) requesting clarification concerning Resolution 1543. In particular, the City of Kalispell wanted to confirm that it was the intention ofthe Commissioners to permit the City ofKalispell to form a new city planning board pursuant to the provisions of § 76-1-105(2), MCA, and § 76-1-223, MCA. The letter of clarification was returned, signed by a majority of the Board of County Commissioners. 26. Also on December 19, 2001, City Manager Chris Kukulski and Tri-City Planning Office Director Thomas Jentz compiled a report to the Kalispell City Council and Mayor concerning the creation of a Kalispell City Planning Board and Zoning Commission. (Attached hereto as Exhibit 12.) The report was issued in preparation for a special meeting Complaint and Application for Writ of Mandate and Writ of Review 7 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA of the Kalispell City Council scheduled for December 26, 2001, at which time the City Council was to address the issue of creating a new Kalispell City Planning Board. As regards the new Kalispell City Planning Board, the report specified that "there would be no urban area outside the city limits over which the planning board has jurisdiction." (Exh. 12 at p. 2, emphasis added.) 27. A special meeting of the Kalispell City Council was held on December 26, 2001, at which time the establishment of an interim Kalispell City Planning Board and Zoning Commission was considered. A copy ofthe approved minutes ofthe special council meeting is attached hereto as Exhibit 13. As set forth therein: [Assistant City Attorney] Harball said this board will only handle planning within the city limits and simply allows applications to go forward. (Exh. 13 at p. 2, emphasis added.) 28. On December 26, 2001, the Kalispell City Council adopted an emergency ordinance establishing an interim Kalispell City Planning Board and Zoning Commission which ordinance "shall be effective immediately upon the date of its final passage and approval and shall expire by its own terms and operation of law from and after 90 days of its passage by the City Council." (Kalispell City Ordinance No. 1411, attached hereto as Exhibit 14.) Neither the Kalispell City Planning Board nor the Kalispell City Council have jurisdiction over the area included in the proposed Glacier Mall Master Plan Amendment 29. All paragraphs above are incorporated by this reference. 30. The jurisdictional area over which the Kalispell City Planning Board has jurisdiction to make recommendations for adoption or amendment ofthe master plan includes only the area within the city limits of Kalispell. The area included in the proposed Glacier Mall Master Plan Amendment was not in the jurisdictional area ofthe Kalispell City Planning Board. Complaint and Application for Writ of Mandate and Writ of Review 10 1 2 3 4 5 I. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA 31. The Kalispell City Planning Board was without jurisdiction to recommend approval of the Glacier Mall Mixed Use Development Amendment to the Kalispell City - County Master Plan, as it purportedly did on May 28, 2002. The purported recommendation of approval made by the Kalispell City Planning Board to the Kalispell City Council is null and void. 32. Furthermore, § § 76-1-106, -601, and -604, MCA, requires that a validly acting planning board, with jurisdiction to act, must first propose for consideration by the appropriate governing body (here the Kalispell City Council) action in regards to adoption or revision of the master plan. § § 76-1-106, 601, MCA; Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 494, 943 P.2d 85, 90. Therefore, the Kalispell City Council was proceeding contrary to the requisite statutory procedure and was without jurisdiction to consider the purported recommendation of the Kalispell City Planning Board in regards to the Glacier Mall Mixed Use Development request for Master Plan amendment. The action taken by the Kalispell City Council and Mayor on July 1, 2002, in purportedly approving the Glacier Mall Mixed Use Development application to amend the 1986 Kalispell City -County Master Plan is null and void. There is no legal basis for the Kalispell City Council's attempts at "amending" and "extending" the emergency ordinance 33. All paragraphs above are incorporated by this reference. 34. Emergency Ordinance No. 1411 was passed pursuant to the provisions of Kalispell City Ordinance Sec. 2-26 (attached hereto as Exhibit 15), which provides as follows: EMERGENCY ORDINANCES: In the event of an emergency, the City Council may waive the second reading. An ordinance passed in response to an emergency shall recite the facts givm� rise to the emergency and requires a two-thirds (2/3) vote ofthe whole governing body for passage. An emergency ordinance shall be effective upon passage and approval and shall remain effective for not more than ninety (90) days. Emergency ordinances may only be considered when a measure is necessary immediately to preserve the peace, health and safety of the City or its residents. (Emphasis added.) Complaint and Application for Writ of Mandate and Writ of Review 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Kalispell City Ordinance 2-26 was passed pursuant to and is governed by the provisions of Montana law governing local government ordinances, including § 7-5-104, MCA, which provides as follows: Emergency ordinance. In the event of an emergency, the governing body may waive the second remdin&. An ordinance passed in response to an emergency shall recite the facts giving rise to the emergency and requires a two-thirds vote ofthe whole governing body for passage. An emergency ordinance shall be effective on passage and approval and shall remain effective for no more than 90 days. (Emphasis added.) 35. On March 18, 2002, the Kalispell City Council passed Ordinance No. 1414, purportedly "amending" Ordinance No. 1411 and "extending" the duration of the interim Kalispell City Planning Board and Zoning Commission for an additional 90 day duration. Emergency Ordinance No. 1414 is attached hereto as Exhibit 16. 36. On July 1, 2002, the Kalispell City Council passed Ordinance No. 1429, this time purportedly "amending" Ordinance No. 1414 and once again "extending" the duration ofthe interim Kalispell City Planning Board and Zoning Commission for an additional 90 day duration, noting that the prior 90 day period had expired on June 18, 2002. Emergency Ordinance No. 1429 is attached hereto as Exhibit 17. 37. Under enabling state statute § 7-5-104, MCA and City Ordinance Sec. 2-26, an emergency ordinance shall remain effective for no more than 90 days. There is no provision for "amending" or "extending" an emergency ordinance. Kalispell City Ordinance No. 1414 and Ordinance No. 1429 are null and void. The action taken by the Kalispell City Planning Board on May 28, 2002, purportedly recommending approval ofthe Glacier Mail Mixed Use Development Amendment to the Kalispell City -County Master Plan is null and void. 38. Furthermore, § § 76-1-601, and -604, MCA, require that a validly acting planning board, with jurisdiction to act, must first propose for consideration by the appropriate governing body (here the Kalispell City Council) action in regards to adoption or revision of the master plan. §§ 76-1-106, and -601, MCA; Ash Grove Cement Co. v. Complaint and Application for Writ of Mandate and Writ of Review 12 1 Jefferson County (1997), 283 Mont. 486, 494, 943 P.2d 85, 90. Therefore, the Kalispell City 2 Council was without the requisite statutory power and jurisdiction to consider the purported 3 recommendation of the Kalispell City Planning Board in regards to the Glacier Mall Mixed 4 Use Development request for Master Plan amendment. The action taken by the Kalispell City 5 Council and Mayor on July 1, 2002, in purportedly approving the Glacier Mall Mixed Use 6 Development application to amend the 1986 Kalispell City -County Master Plan is null and 7 void. 8 Wolford's second application for amendment of Master Plan was not considered in accordance with statutorily mandated standards and conditions under Senate Bill 97 9 39. All paragraphs above are incorporated by this reference. 10 40. On April 15, 2002, Wolford Development, Inc. submitted to the City of 11 Kalispell and the Tri-City Planning Office the Glacier Mall Mixed Use Development 12 Application to amend the 1986 Kalispell City -County Master Plan, which is attached hereto 13 as Exhibit 18. On May 7, 2002, the Tri-City Planning Office issued StaffReport#KMPA=02- 14 2 on the Glacier Mall Mixed Use Development Request for Master Plan Amendment, which 15 is attached hereto as Exhibit 19. The Staff Report noted that the master plan amendment 16 previously submitted and purportedly approved by the Board of Commissioners of Flathead 17 County involved a master plan amendment to approximately 145 acres. The amendment to 18 the Kalispell City -County Master Plan being sought by Wolford Development from the City 19 of Kalispell involved approximately 232 acres, and would include a fully enclosed regional 20 mall on approximately 70 acres, and adjacent commercial center on approximately 32 acres, 21 a series of free-standing commercial parcels totaling approximately 66 acres and a mixed use 22 area of approximately 56 acres for lower intensity commercial uses such as offices as well as 23 high density residential uses. (Exh. 19 at pp. 4-5.) The Staff Report stated that "there are no 24 specific evaluation criteria in the Kalispell City -County Master Plan or in the Montana 25 planning statutes for review of plan amendments." (Exh. 19 at p. 6.) The Staff Report also 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA noted the need for further reports and analysis in a number of areas including storm water impacts on the shallow Evergreen alluvial aquifer, impacts on businesses in Kalispell's central business district, traffic impacts and impacts to infrastructure, especially sewer. 41. In 1999, pursuant to Senate Bill 97, the Montana Legislature amended the statutes governing master plans, codified at § 76-1-101, et seq, MCA. Included among the provisions of Senate Bill 97 were substantial changes to § 76-1-601, MCA, which governed the contents of a master plan. The legislation included the substitution of the term "growth policy" for "master plan." As regards § 601, the legislation for the first time mandated what must be included in a growth policy, added elements that are required to be included in a master plan, and established an effective date for the statute of October 1, 1999. A copy of § 76-1-601, MCA (1999), with the Compiler's Comments and the effective date is attached hereto as Exhibit 20. Although SB 97 provided for delayed implementation of the new growth policy requirements as applied to the adoption of zoning regulations after October 1, 2001, there was no such provision for delayed applicability beyond the effective date of October 1, 1999 for amendments to a master plan. The action taken by the Kalispell City Council and Mayor on July 1, 2002, in purportedly approving the Glacier Mall Mixed Use Development application to amend the 1986 Kalispell City -County master Plan does not comply with the mandatory requirements of § 76-1-601, MCA, which has been in effect since October 1, 1999, and is therefore null and void. 42. Under the 1999 amendments, "growth policy" means and is synonymous with "masterplan." §76-1-103(4),MCA. Section 76-1-601, MCA, specifies the required contents of a growth policy, which includes the following mandatory provision: A growth policy must include: (f) an implementation strategy that includes: (ii) a list of conditions that will lead to a revision of the rg owth policy; § 76-1-601(2)(f)(ii), MCA (emphasis added). The legislation provides that the amendment Complaint and Application for Writ of Mandate and Writ of Review 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA referenced above became effective October 1 1999. 43. Section 76-1-305(1)(2), MCA, requires as follows: To effectuate the purpose of this chapter, the board shall have the power and dujy to: (1) exercise general supervision of and make regulations for the administration of the board; (2) prescribe uniform rules pertaining to investigations and hearings; (emphasis added) 44. As indicated by the Staff Report (Exh. 23 at p. 6) the Kalispell City -County Master Plan did not conform with the mandatory requirements of § 76-1-601(2)(f)(ii), MCA and § 76-1-305 (1)(2), MCA. Neither the public, the planning board, nor the Kalispell City Council were able to properly consider the proposed Glacier Mall Mixed Use Development Master Plan Amendment in the context of the statutorily mandated list of conditions that would lead to a revision of the Master Plan, nor did the planning board promulgate the required regulations and uniform rules pertaining to investigations and hearings. The purported amendment of the Kalispell City -County Master Plan by Resolution No. 4717, approved by action of the Kalispell City Council on July 1, 2001, is null and void by virtue of failing to adopt and follow- statutorily required standards and procedures. Kalispell City Planning Board's recommendation of Master Plan amendment ignored public comment and documentation 45. The 1986 Kalispell City -County Master Plan contains twelve goals, with attendant policies to implement the goals of the Master Plan. The May 7, 2002, Staff Report discussed some of the goals of the Master Plan. At the time of the public hearing on the proposed Glacier Mall Master Plan Amendment before the Kalispell City Planning Board on May 14, 2002, as well as in written comments submitted beforehand, the public overwhelmingly opposed the proposed Master Plan amendment and provided extensive documentation of the failure of the proposed amendment to conform to the goals of the Master Plan, including the goals concerning growth management, administration, Complaint and Application for Writ of Mandate and Writ of Review 15 1 environment, economy, land use, transportation, public facilities, and agriculture. In addition 2 to numerous comments from individuals in opposition to the proposed Master Plan 3 Amendment, comments were submitted by public interest organizations including the 4 Flathead Basin Commission, the Flathead Lakers, the University ofMontana's Flathead Lake 5 Biological Station, and Citizens for a Better Flathead. None of these comments from the 6 concerned public were reflected in the changes to the May 7, 2002, Staff Report. 7 46. At the time of the public hearing, a representative of Wolford Development g presented a "redlined" version of the May 7, 2002, Staff Report (attached hereto as Exhibit g 21), requesting the changes set forth therein. No additional studies were submitted by 10 Wolford Development. Nevertheless, in contrast to the treatment ofthe public and the public 11 agencies, between the time of the public hearing on May 14, 2002,,and the Kalispell City 12 Planning Board's deliberation on the proposed Master Plan amendment on May 21 the Tri- 13 City Planning Office staff undertook the amendment of the May 7, 2002, Staff Report, 14 incorporating the vast majority ofthe changes proposed by the developer, while incorporating 15 virtually no changes based on the public comment and documentation. Attached hereto as 16 Exhibit 22 is the "Amended and Annotated" Staff Report dated May 21, 2002, which 17 exclusively discusses the amendments to the StaffReport proposed by Wolford Development. 18 On May 28, 2002, the Kalispell City -County Planning Board passed a resolution approving 19 of the Master Plan amendment proposed by Wolford Development and adopting as its 20 findings of fact the May 21, 2002, Staff Report. A copy of that Planning Board resolution 21 and Staff Report (dated May 28, 2002) are attached hereto as Exhibit 23. 22 The Kalispell City Council's approval of Master Plan amendment is contrary to lady, not supported by substantial evidence and is arbitrary and capricious 23 47. All paragraphs above are incorporated by this reference. 24 48. On June 24, 2002, the Kalispell City Council held a public hearing on the 25 proposed Glacier Mall Master Plan amendment, in the Kalispell City Council chambers, 26 LAW OFFICES McGARVEY,HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA where the Kalispell City Planning Board had previously held its public hearing. Because numerous members of the interested public were not able on May 14, 2002, to enter the council chambers to participate in and observe the deliberations at the time of the planning board hearing, the concerned public contacted the City of Kalispell prior to the June 24, 2002, City Council public hearing in order to request that the city assist the public in participating in this important decision -making process by holding the public meeting in a room large enough to accommodate all of the public that were interested in participating in and observing the proceedings before the Kalispell City Council. A request was also made that critically important information necessary to evaluate the impacts of the proposal be made available to the public prior to the public hearing. (See letters attached hereto at Exhibit 24.) 49. Nevertheless, the Kalispell City Council proceeded with holding the public hearing on the proposed Master Plan amendment in the confines ofthe Kalispell City Council chambers. The meeting overflowed the city council chambers and the adjoining hallways, out onto the sidewalk. While the city had set up a video monitor outside the council chambers, dozens of members of the public were not able to get close enough to the meeting to see the monitor, much less participate in the meeting. In fact, Marti Kurth, of Citizens for a Better Flathead, presented to the City Council at the time of the public hearing 163 cards signed by people who could not get into city council chambers to testify. (See Exhibit 25 attached hereto.) Although not all interested members of the public were allowed to observe the public hearing or directly address the Kalispell City Council, there were 768 comments in opposition of the proposed Master Plan amendment and 34 proponents. (See compilation by City Council member Duane Larson, at last page of Exhibit 31.) 50. Although the StaffReport noted that the developer intended to supplement the record with reports on hydrology and traffic studies, and perhaps provide other pertinent information such as economic impacts of large-scale commercial development (see Exhibit Complaint and Application for Writ of Mandate and Writ of Review 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY,HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA 23 at pp. 13-14, 16, 17, 19), and although the public requested that additional information be made available so that the public could meaningfully participate in the decision -making process, no further reports were submitted by Wolford Development to the Kalispell City Council. However, the record was replete with other reports from professionals and the public detailing a number of significant impacts that would result from the Glacier Mall Master Plan amendment, as well as documenting the need for additional information before an informed decision could be made concerning the proposed amendment. Extensive comments were submitted by Jack A. Stanford, Ph.D., professor and director ofthe University of Montana's Flathead Lake Biological Station, attached hereto as Exhibit 26; hydrologist John Muhlfeld, attached hereto as Exhibit 27; Civil Engineer J. Jay Billmayer, P.E., attached hereto as Exhibit 28; the Flathead Lakers, attached hereto as Exhibit 29; and Citizens for a Better Flathead, attached hereto as Exhibit 30. 51. On July 1, 2002, the Kalispell City Council voted 4 in favor and 4 opposed to the proposed Glacier Mall Mixed Use Development Amendment to the Kalispell City -County Master Plan. Mayor Kennedy broke the tie vote, voting in favor ofthe proposed amendment through adoption of Resolution No. 4717. Resolution No. 4717 together with the minutes ofthe July 1, 2002, City Council meeting are attached hereto as Exhibit 31. As noted in that resolution, "the City Council hereby adopts Tri-City Planning Office amended report KMPA- 02-2 as findings of fact." (Exh. 31 at p. 3.) The referenced report is attached hereto as Exhibit 23. 52. Despite the substantial amount of comment from the public and the substantial information from professionals that was submitted to the City Council for their consideration, not a single mention of or reference to this information was included in the finding of fact adopted by the Kalispell City Council. In fact, the findings of fact adopted by the planning board and contained in the May 28, 2002, Staff Report were not changed in any way. The findings of fact adopted by the Kalispell City Council are not supported by substantial Complaint and Application for Writ of Mandate and Writ of Review 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA evidence, are arbitrary and capricious and otherwise contrary to law. The Glacier Mall Master Plan amendment does not comply with the Kalispell City -County Master Plan 53. All paragraphs above are incorporated by this reference. 54. The Kalispell City -County Master Plan includes twelve goals which are further elaborated through a series of objectives. Planning is directed by goals — those ideals people hold of what the good life is. Goals are very long range statements about the future of a community, they give direction. They are, in essence, what the people ofthe Kalispell Planning Jurisdiction are striving for in terms of neighborhood and community environment, growth, community services, etc. Objectives are much more specific statements. They are shorter range and provide the basic steps to achieve goals. Goals and objectives taken together form the cornerstone ofthe Plan. (Exh. 1 at p. 4, emphasis added.) 55. After a master plan is adopted, any amendment to the master plan must be consistent with and must substantially comply with the goals and objectives of the master plan. Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 943 P.2d 85; Bridger Canyon Property Owners Assn. v. Planning and Zoning Comm'n (1995), 270 Mont. 160, 890 P.2d 1268; Little v. Board of County Comm'rs (1981), 193 Mont. 334, 631 P.2d 1282; § 76-1-601(3)(a), MCA. 56. The Glacier Mall Mixed Use Development amendment to the Kalispell City - County Master Plan, approved by the Kalispell City Council on July 1, 2002, is not consistent with and does not substantially comply with the goals and objections of the Master Plan, including but not limited to the following: a. Growth Management 57. The goal for growth management states: A comprehensive, effective growth management program which provides for all of the needs of the community, is adaptable to changing trends and is attuned to the overall public welfare. (Exh. 1 at p. 5.) Achieving the goal of comprehensive and effective growth management requires analysis of the impacts of the substantial amount of new commercial development on lands within the Complaint and Application for Writ of Mandate and Writ of Review W 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 WJ 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Kalispell City -County Planning Jurisdiction, and analysis ofthe interconnectedness of these commercial land use decisions. The 1986 Master Plan notes that at the time it was drawn up, there were approximately 591 acres of commercial property in the Kalispell area. (Exh. 1 at p. 40.) The 1986 Master Plan projected a need for additional 400 acres of commercial development by the year 2010. (Exh. 1 at p. 43.) As amended to date, without the addition of approximately 170 acres of commercially designated property requested via the Glacier Mall Master Plan amendment, the Master Plan already designates over 1,200 acres for commercial use — — far exceeding the projected 1,000 total acres for commercial designation by the year 2010. Because of the already existing excess of commercial development, there is a surplus ofretail space available in the Kalispell Center Mall, Gateway West Mall (now closed), the downtown core of Kalispell, as well as remaining undeveloped commercial property on U.S. Highway 93 south of Kalispell, the 60 acre commercial site north of Kalispell at the intersection of Highway 93 and Reserve Drive, and the 640 acre Section 36 site in the same area. (See Exh. 23 at 11.) b. Joint Administration 58. The Master Plan goal for joint administration provides: A city and county administration which jointly cooperate in promoting, guiding, and directing the Planning Jurisdiction's growth and development. (Exh. 1 at p. 5, emphasis added.) Among the explicit objectives under this goal are inter -local agreements between the city and county and the explicit objective that, "the Kalispell City -County Master Plan should be jointly adopted and used when considering any and all development decisions." The unilateral action ofthe City of Kalispell (as well as Flathead County) in attempting to amend the Master Plan is in direct violation of this goal and objective. C. Environment 59. The Master Plan goal for the environment is: Air, water, open space and scenic vistas unhindered by pollution, blight, or Complaint and Application for Writ of Mandate and Writ of Review 20 1 2 3 4 5 6 7 8 9 10 11 12 13 19 20 21 22 23 24 25 26 LAW OFFICES MCGARVEY,HESERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA other degrading factors. (Exh. 1 at p. 6.) Environmental objectives include establishing strict standards for development which occurs in environmentally sensitive areas, such as floodplains and drainage ways. (Id.) An additional objective is to "develop a city-wide drainage plan which would mitigate harmful water pollution effects and reduce damage created by storm and surface water runoff." (Id.) The final Staff Report, adopted as findings of fact by the Kalispell City Council, notes that: There are considerable constraints associated with the 100 year floodplain, Trumbull Creek and Spring Creek channels and the small wetlands area near the south of the site... According to the Federal Emergency Management Agency (FEMA), the agency in charge of developing and maintaining the Flood Insurance Rate Maps (FIRM) a measurable. portion of the site has environmental constraints. due to the 100 year floodplain designation. Approximately 18 percent of the site is designated as being in the 100 ,year floodplain.... There is a small wetland area located near the southern portion of the site where one of the main entrances to the property is located and manifests as a small pond. This pond appears to be created from high groundwater in the immediate area.... Management of storm water to protect groundwater and surface water is a concern because of shallow groundwater in the area in proximity of Trumbull Creek and Spring Creek. (Exh. 23 at p. 14-15.) 60. Although neither the developer nor the staff submitted any analysis of environmental impacts from the proposed Glacier Mall Mixed Use Development Master Plan amendment, substantial site specific comments were submitted by Dr. Jack Stanford, one of the world's preeminent limnologists and the director ofthe University ofMontana's Flathead Lake Biological Station (see Exh. 26); J. Jay Billmayer, a civil engineer with an emphasis in hydrology and with years of experience with the Flathead River floodplain and the Evergreen alluvial aquifer (see Exh. 28); and John Muhlfeld, a hydrologist with particular experience with the Evergreen alluvial aquifer (see Exh. 27). 61. Dr. Stanford's reports clearly document in the interconnectivity between surface disturbances and uses on the Evergreen alluvial aquifer, which includes the area proposed for the Glacier Mall development, and impacts to the water quality of Flathead River and Flathead Lake: Complaint and Application for Writ of Mandate and Writ of Review 21 2 3 4 5 6 7 8 9 10 11 12 13 WH 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & MCGARVEY KALISPELL, MONTANA Our research clearly shows that the shallow alluvial aquifer of the Flathead River circulates water back to the river in the Evergreen area and, hence, to Flathead Lake. This aquifer has to be protected if the high water quality in Flathead Lake is to be maintained. Water quality problems associated with urban development, like the proposed mall and the collateral urbanization that will come with it, in this sensitive area cannot be held anywhere near zero by any treatment systems that might (or might not) be installed. We have clearly demonstrated water quality in Flathead Lake has deteriorated by one third since 1977 due to incremental increases in pollution within the Kalispell Valley and the airshed of the lake. The -mall and its collateral development- represent another and potentially huge increment. Flathead Lake is our most treasured asset. The mall and its collateral development should not be juxtaposed with the river — aquifer system, especially since it can be built in more benign (from a water quality perspective) areas of the valley. (Stanford's June 26, 2002, letter, Exh. 26.) 62. Billmayer Engineering submitted to the City Council, "A Report of Engineering Insight and Opinions Relating to Glacier Mall Master Plan amendment." (Exh. 28.) Billmayer analyzed the nature of the alluvial aquifer, site soils, problems with storm water management, waste water treatment and disposal, impacts on private water wells in the area, and the extensive floodplain. According to Mr. Billmayer: The proposed master plan amendment will allow intense development on a site that is comprised of course gravel soils that support a rapidly moving shallow aquifer. There is no known precedent in our community for such an expansive and intense development within a comparable environmentally sensitive area. . . . [T]he site selected does not appear to be capable of supporting a development plan of this intensity. (Exh. 28 at p. 1.) 63. The written comments on hydrological impacts of the Glacier Mall proposal submitted by hydrologist John Muhlfeld (Exh. 27) are not only confirmatory of the reports submitted by Dr. Stanford and Billmayer, but point out that the hydrologist retained by the developer, Land and Water Consulting, Inc., had previously performed an analysis on potential impacts of a nearby project on the alluvial aquifer, and that report by Land and Water Consulting is also consistent and confirmatory ofthe other professional written reports Complaint and Application for Writ of Mandate and Writ of Review 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA submitted in this proceeding. The referenced Land and Water Consulting report is also attached hereto as part of Exh. 27. 64. Environmental concerns were also conveyed to the planning staff, Board and City Council by the City of Kalispell Public Works Department in a May 6, 2002 memo, attached to the staff report (Exh. 23). The Public Works Department expressed concerns over additional impacts from the mall because of the increase in the size of the project from the initial application. Concerning wastewater, the Public Works Department stated: "As a result, there are now concerns about the capacity of many downstream facilities to handle flows greater than those originally estimated. Further, the impacts ofthis development on the City's existing wastewater treatment capacity will be substantially different than originally presented. Treatment capacity at the existing facility is limited." The memo noted that "traffic impacts would appear to be much greater than originally anticipated." It further noted "storm water run off will be a significant problem with a development of this scope. Storm water flows from this site cannot exceed pre -development levels." (Exhibit 23, emphasis added.) 65. The Glacier Mail Mixed Use Development amendment to the Kalispell City - County Master Plan, whereby the largest commercial development in the history ofMontana is proposed to be placed in an area consisting of a substantial percentage of floodplain and on a shallow alluvial aquifer with direct connectivity to Flathead River and Flathead Lake, is not consistent with the environmental goals and objectives of the Kalispell City -County Master Plan. d. Economy i. Central Business District 66. The economic goal of the Master Plan is a "healthy, diversified economy promoted by careful planning of type, location and design of industrial areas, shopping centers and tourist facilities." Among the objectives is to "undertake activities to ensure the Complaint and Application for Writ of Mandate and Writ of Review 23 1 Central Business District remains strong and viable." (Exh. 1 at p. 7, emphasis added.) The 2 Central Business District includes the area "along Main between 5t' Street South and 3 Washington" (Exh. 1 at p. 40) — — where the Kalispell Center Mall is now located. Mr 4 Wolford was quoted on the front page Missoulian article of June 9, 2002, as follows: 5 I hate to use the word "kill, but I will cause the demise of that project [the Kalispell Center Mall]. It will have to be redeveloped in some form or fashion. 6 Missoulian, June 9, 2002, p. 6 (Exh. 32). To "cause the demise" of a major component ofthe 7 Central Business District conflicts with the Master Plan's explicit objective of a "strong and 8 viable" Central Business District. Mr. Wolford's candid admission is consistent with other 9 information already of record. As noted above, in an early review of this proposal, the 10 Flathead County planning staff determined that: 11 The development will cannibalize downtown Kalispell commercial operations, 12 force vacancies in the existing business and redirect growth into the unincorporated portions of Flathead County. 13 (Exh. 3 at p. 8.) Likewise, the May 28, 2002, Tri-City Planning Office Staff Report notes that 14 the project would generate additional tax revenue for Kalispell, however, "this 15 oversimplification does not account for potential economic flight in the commercial core or 16 the displacement of existing businesses." Moreover the StaffReport recommended a "market 17 analysis" to determine the impact that the proposal would have on existing businesses. (Exh. 18 23 at pp. 13-14.) 19 67. The Glacier Mall Master Plan amendment is inconsistent with the economic 20 goals and objectives of the Master Plan. 21 H. Prime Farmland 22 68. Another economic objective is to "conserve prime farmlands in order to retain 23 farming as a viable sector in the economy." (Exh. 1 at p. 7.) Included within the proposed 24 mall site is a significant area identified as "prime farmland" by the Master Plan. (Exh. 1 at 25 p. 23.) The Master Plan has as a further objective to "direct growth to already established 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 24 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 041 21 22 23 24 25 N1. urban areas and rural areas which are not environmentally sensitive or productive agricultural lands." (Exh. 1 at p. 12(i).) 69. The Glacier Mall Master Plan amendment is not in accord with the stated economic goals and objectives of the Master Plan. 70. The Master Plan goal for land use provides: The orderly development of the Planning Jurisdiction with ample space for future growth while, at the same time, ensuring compatibility of adjacent land uses. (Exh. 1 at p. 8.) One of the stated objectives to achieve this goal is to: "Set standards for the designation or expansion of commercial areas based on a compact development pattern designed to meet the needs of the intended service area and not the desires of speculation or strip developers." (Exh. 1 at p. 8, emphasis added.) As set forth above, there has already been a large increase in the Kalispell City -County planning jurisdiction area in commercial land since the Master Plan came into being in 1986. As noted in the Tri-City Planning Office Staff Report of May 28, 2002: Impacts associated with the influx of nearly 200 acres of commercially designated property approximately three miles from the commercial core of Kalispell with access to public services has the potential to alter the established land use patterns within the city of Kalispell. Additionally, the land along the periphery ofthe site and particularly to the east of the site appear to be purely speculative in nature and intended to capture potential commercial development into the future. At the time the 1986 Plan document was written there was approximately 590 acres of commercial property in the Kalispell plan area. However, at present there is over 1200 acres [o]f commercial land. Most of the Evergreen area was considered Suburban or Urban Residential. Additionally, the State School Section has been redesignated as a mixed -use area. There has been substantial development around the hospital and Mountain View Plaza (Home Depot) has been developed as well as several areas within the immediate Kalispell area. It should be noted that the Kalispell Center Mall is located on approximately LAW OFFICES McGARVEY, HEBERLING, KSULLIVANISPEL , McNTANA Complaint and Application for Writ of Mandate and Writ of Review 25 KALISPELL, MONTANA h Ph 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 20 acres; Gateway West Mall on approximately 13 acre and that the entire downtown core of Kalispell contains approximately 40 acres and these areas are having a difficult time maintaining a stable commercial base. (Exh. 23 at 9, 10, 11.) 71. The Glacier Mall Master Plan amendment does not conform with the goal of orderly and compact development designed to meet the needs of the planning jurisdiction "and not the desires of speculation or strip developers." 1�� 72. The Master Plan goal for transportation calls for "safe, convenient and economical access to all facilities throughout the area." The May 28, 2002, Staff Report notes that, "additional traffic generation as a result of this type of intensive development will result in significant impacts to the roadway system in the area particularly to East and West Reserve Drive, Hwy 2 and Rose Crossing." (Exh. 23 at 17.) The Staff Report noted the need for a comprehensive traffic impact study. (Id.) However, neither the developer nor the staff presented such a study for consideration by either the Planning Board or the City Council. Among the "significant impacts" that the public brought to the attention of the City Council were safety concerns of children using the nearby schools. 73. Without the analysis required to more fully assess the traffic impacts, it cannot be said that the Glacier Mall Master Plan amendment conforms to the transportation goal in the Master Plan. 74. The actions by the City of Kalispell in adopting Resolution No. 4717 to approve the Glacier Mall Mixed Use Development Master Plan amendment for only the small portion of the jurisdictional area covered by the Master Plan is contrary to a number of the goals and objectives of the Master Plan, does not substantially comply with the Master Plan, and undermines the importance of comprehensive planning required by Montana statutes and the decisions of the Montana Supreme Court. Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 499, 943 P.2d 85, 93; §§ 76-1-601, -604, MCA. LAW OFFICES MCGARVEY,HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 cleanguarantees to a and healthful environment 75. All paragraphs above are incorporated by this reference. 76. Article II, Sec. 3 of the Montana Constitution guarantees every citizen of Montana the "inalienable right to a clean and healthful environment." 77. Article IX, Sec. 1(1) provides that the "state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations." 78. The Montana Supreme Court has held that the right to a "clean and healthful environment" contained in the above -referenced constitutional provisions is a "fundamental right": Any statute or rule which implicates that right must be strictly scrutinized and can only survive scrutiny ifthe state establishes a compelling state interest and that its action is closely tailored to effectuate that interest and it is the least onerous path that can be taken to achieve the state's objectives. [We] conclude that the delegates' intention was to provide language and protections which are both anticil2atoKy and preventative.... Our constitution does not require that dead fish float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked. Montana Envtl. Info. Ctr. v. Dep't of Envtl. Quality (MEIC v. DEQ) (1999), 296 Mont. 207, 224, 230, 988 P.2d 1236, 1246, 1249 (emphasis added). 79. Article IX, Sec. 1(3) ofthe Montana Constitution requires that, "the Legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources." Those duties are carried out, in part, by the planning laws of Montana referenced above. The Kalispell City -County Master Plan was developed pursuant to and in fulfillment of those statutory and constitutional goals. 80. Any government or private action which implicates the fundamental right to a clean and healthful environment must be strictly scrutinized. When the action of a LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 WO 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA governmental entity intrudes upon a fundamental constitutional right, the agency must demonstrate that it has a compelling state interest in the intrusion, and must further demonstrate that its actions are closely tailored to effectuate that interest, and that the action taken is the least onerous path to achieve the government's objective. MEIC v. DEQ, 296 Mont. at 224, 988 P.2d at 1246. 81. The record demonstrates that the plaintiffs' rights to a clean and healthful environment are implicated by the Kalispell City Council's actions which threaten the quality of the ground and surface water of the Evergreen alluvial aquifer, Flathead River and Flathead Lake. The record demonstrates that the proposed Glacier Mall Mixed Use Development will irreparably harm the environment of the Flathead Valley, Flathead River and Flathead Lake. (See comments of Dr. Jack Stanford at Exh. 26, comments of Civil Engineer Jay Billmayer at Exh. 28, and comments of hydrologist John Muhlfeld at Exh. 27, all as more particularly set forth above.) Likewise, the Tri-City Planning Office StaffReport noted that there were significant environmental constraints to the proposed development in the floodplain and in wetlands areas (Exh. 23). 82. The Kalispell City Council in adopting Resolution No. 4717 failed to maintain and improve a clean healthful environment. The City of Kalispell, acting by and through its staff, Planning Board and City Council, did no environmental review whatsoever of the proposed Glacier Mall amendment to the Kalispell City -County Master Plan, which action will allow the above -referenced environmental degradation. The City of Kalispell, acting by and through its City Council, has utterly failed to demonstrate and document that it has a compelling state interest in allowing the further pollution and degradation of state waters, and it has failed to demonstrate that its decision is the least onerous path that can be taken to achieve its objectives, all in violation ofthe Montana Constitution. Mont. Const. Art. Il, Sec. 3; Art. IX, Sec. l(1), Sec. 1(3). Complaint and Application for Writ of Mandate and Writ of Review 28 1 hear or observe the proceedings. In addition, the developer was given unlimited time to 2 present his proposal to the planning board, and the public was given only limited time to 3 comment. Because many members of the interested public were unable to hear and observe 4 the public hearing, and because public comment began late in the evening, numerous people 5 left the meeting before being able to meaningfully participate. 6 91. Despite the fact that numerous interested individuals were prevented from 7 speaking at or participating in the May 14, 2002, Kalispell City Planning Board meeting, the 8 planning board formally "closed" the hearing on May 14, and the public was given no further g opportunity to submit comments to the planning board before its May 28 meeting and 10 decision. However, at the behest ofthe developer substantial changes were made to the staff 11 report between May 14 and May 28, 2002. (Cf. Exh. 21, 22, 23.) 12 92. The Kalispell City Council relied on, and in fact adopted virtually all of, the 13 flawed and deficient May 28, 2002, Staff Report in making its July 1, 2002, decision 14 approving the Glacier Mall Master Plan amendment. 15 93. The Kalispell City Council made its decision to approve the amendment to the 16 Master Plan based upon inadequate and incomplete information, and therefore did not 17 provide the public with a reasonable opportunity to participate in the decision -making 18 process before a final decision was made. Despite the substantial likelihood of significant 19 environmental impacts to the Evergreen alluvial aquifer, Flathead River and Flathead Lake 20 as detailed in the submissions by biologist Dr. Stanford, engineer Jay Billmayer and 21 hydrologist John Muhlfeld, the Kalispell City Council made its decision without any 22 environmental review whatsoever to evaluate environmental impacts. Further, as set forth 23 above, the Kalispell City Council made its decision prior to completion of studies 24 recommended by the planning staff. 25 94. The Kalispell City Council's failure to properly allow, encourage and consider 26 public comment, and to properly document and evaluate for the public the environmental, LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL„MONTANA Complaint and Application for Writ of Mandate and Writ of Review 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA flgig=, 1 i i 1 1 VWX7I . 83. All paragraphs above are incorporated by this reference. 84. Montana law requires public bodies to develop procedures for permitting and encouraging the public to participate in agency decisions that are of significant interest to the public. Attached hereto as Exhibit 32 are a series of articles prominently placed in newspapers in general circulation in western Montana which clearly demonstrate that the Glacier Mall Master Plan amendment was of significant interest to the public. The required procedures must assure adequate notice and assist public participation before a final agency action is taken, and allow the public to submit data, views or arguments before a final decision is made. § 2-3-103, MCA. 85. The Kalispell Planning Board had a duty to prescribe rules pertaining to hearings. § 76-1-305(2), MCA. It has not done so. 86. The Kalispell City Council is required to develop procedures, pursuant to § 7-1- 4142, MCA, for permitting and encouraging the public to participate in decisions that are of significant interest to the public. The Kalispell City Council's procedures are inadequate and discourage public participation. Moreover, Kalispell City Attorney Harball advised the Kalispell City Council and Mayor, in regards to the Glacier Mall Master Plan amendment request, that it was a "quasi-judicial" proceeding and that the City Council and Mayor should refrain from "ex parte" communications with the interested public and anyone else concerning the master plan amendment. The interested public complained that the City had failed to adopt standards or procedures regarding quasi-judicial proceedings and ex-parte contacts, and requested that the City do so. (Exh. 24.) To date no such standards and procedures have been adopted. 87. The statutory public participation provisions are intended to implement Art. II, Sec. 8, of the Montana Constitution which requires agencies to give the public a reasonable opportunity to participate before a final decision is made. Complaint and Application for Writ of Mandate and Writ of Review WE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 88. In this instance, the Kalispell City Council has not afforded the public with a reasonable opportunity to participate in the decision -making process prior to a final decision on an issue that is of significant interest to the public. 89. The Kalispell City Council's June 24, 2002, public hearing was held in the City Council chambers, which was clearly inadequate to hold the large number of people whom the City Council should reasonably have expected would attend the public hearing. In fact, the City had been explicitly warned that the interested public had not been able to observe and participate in the Kalispell City Planning Board public hearing concerning the same master plan amendment, which public hearing was also held in the City Council chambers. (Exh. 24.) At the time of City Council hearing, once the hearing room filled up, members of the public filled the adjoining hallway, and additional members of the public were forced out onto the sidewalk. Although one video monitor of the public hearing was placed in the adjoining hallway, dozens of people were unable to get into that hallway and therefore were unable to observe the meeting or participate in the hearing at all. In fact, attached hereto as Exh. 25 are 163 cards signed by people who were unable to wait in line to speak, including 83 people who could not get into the City Council's chambers, to observe the City Council's deliberations or to testify. 90. Moreover, when the Kalispell City Council met and deliberated on June 24 and July 1, 2002, its discussions and deliberations were guided in substantial part by the recommendations and findings of fact made by the Kalispell City Planning Board on May 28, 2002. The Kalispell City Planning Board decision was itself the result of a flawed public participation process. The May 14, 2002, planning board public hearing was, as indicated above, held in the same council chambers which was far too small to handle the large number of citizens who turned out to comment on the proposal. Once again, people were unable to observe or participate in the planning board hearing. Despite this fact, the planning board did not provide an audio or video monitor so the people outside the council chambers could LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 M 23 24 25 26 economic and social impacts of the proposed Glacier Mall Master Plan amendment violated Art. II, Sec. 8 of the Montana Constitution, the Public Participation Act §§ 2-3-101, etseq, MCA, and § 7-1-4142, MCA. The July 1, 2002, decision should be set aside by the Court pursuant to § 2-3-114, MCA. 95. All paragraphs above are incorporated by this reference. 96. Article II, Sec. 9 of the Montana Constitution gives citizens the rights to "observe the deliberations of all public bodies." That duty is implemented by the Open Meeting Act §§ 2-3-201, et seq, MCA, which requires that all meetings of government agencies be open to the public. That duty is further implemented by § § 7-1-4141 and -4143, MCA. 97. The Kalispell City Council's June 24, 2002, public hearing was held in the City Council chambers, which was clearly inadequate to hold the large number of people whom the City Council could reasonably expect to attend the public hearing. In fact, the city had been explicitly warned that the interested public had not been able to observe and participate in the Kalispell City Planning Board public hearing concerning the same master plan amendment, which public hearing was also held in the City Council chambers. (Exh. 24.) At the time of City Council hearing, once the hearing room filled up, members of the public filled the adjoining hallway, and additional members of the public were forced out onto the sidewalk. Although one video monitor of the public hearing was placed in the adjoining hallway, dozens of people were unable to get into that hallway and therefore were unable to observe the City Council meeting or participate in the hearing at all. (Exh. 25.) 98. The Kalispell City Council's July 1, 2002, decision should be voided, pursuant to § 2-3-213, MCA, due to the Kalispell City Council's violation of the requirements of the open meeting statutes and the Montana Constitution, Art. II, Sec. 9. LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WXTFUMH�'� 99. All paragraphs above are incorporated by this reference. 100. The Kalispell City Council and Mayor have violated clear legal duties under Montana's planning statutes, the laws governing emergency ordinances, the Montana Constitution's guarantees of a clean and healthful environment, and Montana's constitutional provisions and statutes governing public participation and open meetings. Plaintiffs have no plain, speedy and adequate remedy in the ordinary course of law. Pursuant to the provisions of § 27-26-101, et seq, MCA, alternative and peremptory writs of mandamus should issue directing the Kalispell City Council and Mayor to consider the application for the proposed Glacier Mall Mixed Use Development amendment to the Kalispell City -County Master Plan in accordance with Montana law. 101. All paragraphs above are incorporated by this reference. 102. The Kalispell City Council and Mayor have failed to regularly pursue their authority under Montana's planning laws, the laws governing emergency ordinances, the Montana Constitution's guarantees of a clean and healthful environment, Montana's constitutional provisions and statutes governing public participation and open meetings. Plaintiffs have no appeal and there is no plain, speedy and adequate remedy. A writ of review should issue directing the Kalispell City Council to certify to the Court the record of the proceedings complained of so that the legality of same may be reviewed by the Court, pursuant to the provisions of § 27-25-101, et seq, MCA. Declaratory Judgment 103. All paragraphs above are incorporated by this reference. 104. A controversy has arisen between plaintiffs and the Kalispell City Council and Mayor regarding the rights under and construction ofthe statutes, ordinances, resolutions and LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 33 1 constitutional provisions referenced herein and implicated by passage of Kalispell City 2 Resolution No. 4717, which passed on a 5-4 vote of the City Council on July 1, 2002. 3 Plaintiffs seek the Court's declaration oftheir rights and defendants' violations oftheir duties 4 under the statutes, ordinances, resolutions and constitutional provisions referenced herein. 5 PRAYER FOR RELIEF 6 WHEREFORE, the plaintiffs pray for relief against the defendants as follows: 7 1. For an Order declaring void ab initio the Kalispell City Council's and Mayor's 8 July 1, 2002, approval of the Glacier Mall Mixed Use Development amendment to the 9 Kalispell City -County Master Plan. 10 12. For alternative and peremptory writes of mandamus directing the Kalispell City 11 Council and Mayor to withdraw the Glacier Mall Master Plan amendment granted on July 1, 12 2002, and directing the Kalispell City Council and Mayor to conduct any further proceedings 13 in regards to the proposed Glacier Mall Mixed Use Development amendment to the Kalispell 14 City -County Master Plan in accord with the provisions of the Montana planning statutes, § § 15 76-1-101, et seq, MCA, and the Montana Constitution; and directing the Kalispell City 16 Council and Mayor to afford the plaintiffs and the public reasonable opportunity to 17 participate in and observe the deliberations ofthe Kalispell City Council, and assisting public 18 participation prior to the Kalispell City Council making a final decision on the Glacier Mall 19 Master Plan amendment application. 20 3. For a writ of review directing the Kalispell City Council and Mayor to certify 21 to the Court, at a specified time and place, the record of the proceedings complained of so 22 that the legality of same may be reviewed by the Court. 23 4. For a declaration that 1) pursuant to §§ 76-1-105, -504, -601, and -604, MCA, 24 the Kalispell City Council and Mayor lack the required statutory power and jurisdiction when 25 it took unilateral action on July 1, 2002, purportedly approving the Glacier Mall amendment 26 to the 1986 Kalispell City -County Master Plan, and the Kalispell City Council's action is LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 W: 19 20 21 22 23 24 25 26 therefore null and void; 2) pursuant to § § 76-1-105, -106, -601, and -604, MCA, and § 7-5- 104, MCA, and Kalispell City Ordinance Sec. 2-26, the Kalispell City Council and Mayor lacked the requisite recommendation of a validly acting planning board, and the action taken by the Kalispell City Council and Mayor on July 1, 2002, purportedly approving the amendment of the 1986 Kalispell. City -County Master Plan is null and void; 3) the review, recommendation of approval, and purported approval of the Glacier Mall amendment to the Kalispell City -County Master Plan does not comply with the requirements of § 76-1-601, and-601(2)(f)(ii), MCA, and § 76-1-305(1)(2), MCA, and the purported amendment to the Kalispell City -County Master Plan is null and void; 4) the findings of fact adopted by the Kalispell City Council and Mayor are not supported by substantial evidence, are arbitrary and capricious, and otherwise contrary to law, and are null and void; 5) the Glacier Mall amendment to the Kalispell City -County Master Plan does not substantially comply with and is not consistent with the goals and objectives of the Master Plan and the action taken by the Kalispell City Council and Mayor on July 1, 2002, purportedly approving the Glacier Mall amendment to the Master Plan is null and void; 6) pursuant to the Montana Supreme Court decision of MEIC v. DEQ and Art. II, Sec. 8, and Art. IX, Sec. 1(1), Sec. 1(3) of the Montana Constitution, the City of Kalispell has violated the plaintiffs' rights to a clean and healthful environment in approving the Glacier Mall Master Plan amendment, and Resolution No. 4717 purportedly approving the Glacier Mall Master Plan amendment is null and void; 7) pursuant to the Montana Public Participation Act, §§ 2-3-101, et seq, MCA, and § 7-1-4142, MCA, and Art. II, Sec. 8 of the Montana Constitution, the Kalispell City Council failed to properly allow, encourage and consider public comment, and to properly document and evaluate for the public the environmental, economic and social impacts of the proposed Glacier Mall Master Plan amendment, and therefore the action taken by the Kalispell City Council and Mayor on July 1, 2002, purportedly approving the Glacier Mall Master Plan amendment is null and void; 8) pursuant to the Montana Open Meeting Act, §§ 2-3-201, et seq, MCA, §§ LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA Complaint and Application for Writ of Mandate and Writ of Review 35 1 2 3 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES McGARVEY, HEBERLING, SULLIVAN & McGARVEY KALISPELL, MONTANA 7-1-4141, and -4143, MCA, and Art. II, Sec. 9 ofthe Montana Constitution, the Kalispell City Council and Mayor, during the course of their consideration of the Glacier Mall Master Plan amendment to the Kalispell City -County Master Plan, violated the above -referenced laws, and the July 1, 2002, action purportedly approving the Glacier Mall Master Plan amendment is null and void. 5. For reasonable attorneys fees and litigation expenses as damages under mandamus, § 27-26-402, MCA. 6. For reasonable attorneys fees under the Open Meeting Act, § 2-3-221, MCA. 7. For reasonable attorneys fees under the private attorney general theory and as otherwise may be provided by law. 8. For costs of suit. . 9. For such further relief as the Court deems equitable and just. Dated this 31 st day of July, 2002. McGARVEY, HEBERLING, SULLIVAN 4, 44c^ 33ARVEY, P.C. Roger M. Sulli REYNOLDS, MOIL AND SHERWOOD, P.L.L.P. B \ -- David K.W. Wilson, Jr. Attorneys for Plaintiffs Complaint and Application for Writ of Mandate and Writ of Review 36