10/07/02 Kalvig/Recission of Master Plan AmendmentLAW OFFICES OF
Leonard L. Kaufman
James E. Vidal
Daniel W. Hileman
James M. Ramlow
Tia R. Robbin
Shelly F. Brander
Ken A. Kalvig
22 Second Avenue West
P.O. Box 728
Kalispell, MT 59903-0728
October 7, 2002
Mayor Pam Kennedy and City Council Members
City of Kalispell
312 1 st Avenue East
Kalispell, MT 59901
Re: Rescission of Wolford Master Plan Amendment
Dear Mayor Kennedy and City Council Members:
Telephone:
406-755-5700
Fax:
406-755-5783
kalvig a Bent I el.net
I am writing you concerning the agenda for tonight's city council meeting, which includes
discussion on and possible action to rescind the Wolford master plan amendment approved on
July 1, 2002. Wolford Development opposes rescinding this master plan amendment.
It is Wolford Development's understanding that this rescission may in part be driven by
the petition for referendum on this matter as well as the recent opinion from the Montana
Attorney General regarding issues with Senate Bill 97. It would set very poor precedent if the
city council rescinded its earlier decision based upon a petition signed by only 15% of the
registered voters in the City of Kalispell. Successful completion of the petition should not be
interpreted to mean that most city residents are against the resolution passed. It is important to
Wolford Development, as well as any other applicant, that the governing body will stand by its
decisions. Furthermore, rescission based on application of the Attorney General's opinion is not
justified because the Attorney General is not the final authority on the interpretation of Senate
Bill 97 and likely may not have the last word on it. Unfortunately, there are still questions about
land use and zoning that persist or were raised by the Attorney General's opinion. Taking any
action to rescind your earlier resolution, based solely on this opinion, seems premature
questionable.
Wolford Development spent considerable amounts of time and money seeking to get the
master plan amended. Additionally, the Tri-City Planning Office, several members of the city
staff, and planning board members worked hundreds of hours and sat through lengthy public
hearings and meetings to get this approval. In part, this effort was expended at the advise of the
city attorney. In a letter dated April 11, 2002 Mr. Harball offerer?. the opinion that the master plan
October 7, 2002
Page 2
was still a valid, governing document and that it could be amended. Wolford Development
subsequently submitted its application for master plan amendment. Having previously discussed
the City's request for an opinion from the Attorney General, the letter states in part:
We can not simply now wait for that opinion to arrive and I therefore
recommend that we continue to operate much in the same manner as the City of
Missoula has continued to operate. That means that unless and until we adopt a
growth policy to replace it, we will assume that our existing Master Plan is the valid
global document to which we will look.
To illustrate the process, I will use the example of a landowner with property
outside the city seeking a plan amendment and annexation. The developer will come
to the City with applications for plan amendment and ... annexation. The plan
amendment . . . would be reviewed and heard by the City Planning Board.
Recommendations for approval of the plan amendment and PUD would be
contingent upon the approval of the annexation request. Because the property will
be brought into the City, the City assumes jurisdiction ....
Wolford Development followed the process provided by the City and incurred considerable expense
going through that process.
If the Attorney General opinion turns out to be final word on this subject and Kalispell had
no master plan to amend, then it seems unnecessary to rescind your earlier resolution. On the other
hand, if the Attorney General opinion is not the final word on the subject, and your approval was
valid, then you have unnecessarily rescinded your approval and Wolford Development would go
back to square one with the City. I do not think it is prudent to assume that the Attorney General's
opinion is the last word on this subject. There are parts of the opinion that are somewhat difficult
to reconcile. For example, if we can rezone property without a growth policy (which the opinion
allows), and Montana case law for the past 20+ years has tied zoning decisions to a master plan or
comprehensive plan, has the Attorney General just done away with over 20 years of case law? If you
speak to Rich Weddle, this is exactly why Senate Bill 97 should be construed to not have done away
with Master Plans --we need some kind of plan to continue to guide the zoning decisions that are still
permitted under the Attorney General opinion. It is entirely possible for these types of issues to be
addressed by a court of law or the legislature.
Not only did the City Council give its approval of the master plan amendment specifically
sought by Wolford Development, but, with its vote, also made a statement about having that kind
of commercial development be a part of Kalispell's future. If the City Council believed its decision
was justified, it should continue to support it. Rescinding the master plan amendment sends a
negative message to Wolford Development as well as any other commercial developer.
Finally, the. Attorney General opinion potentially also affects zoning decisions that the City
has made since October 1, 2001. If the City considers it necessary to rescind the Wolford master
plan amendment, it should also simultaneously be reviewing and making decisions on these zone
changes. Not addressing any questionable zoning decisions at the same time it rescinds the Wolford
October 7, 2002
Page 3
master plan amendment, gives the appearance, once again, that the City of Kalispell is not committed
to working with Wolford Development.
I ask that you carefully consider your vote on this tonight.
Sincerely,
KAUFMAN, VIDAL & HILEMAN, P.C.
c t
Ken Kalvig
cc: Chris Kukulski, City Manager
Charlie Harball, City Attorney