Citizens of Bozeman and the Save Bozeman organization repeatedly asked the Bozeman City Commission to correct mistakes made in 2015 when citizens were not included in decisions to "temporarily" changes the NCOD (Neighborhood Conservation Overlay District). Save Bozeman filed a lawsuit as a last resort, in August 2017, after asking the City for months to "right the wrong" and directly involve the citizens of Bozeman in revising commercial design guidelines that affect their properties and neighborhoods.
Here is a synopsis of the Black-Olive Challenge, the basis of the lawsuit, the City's response and the ultimate result and impact.
Lawsuit – Catch 22: The lawsuit was filed by Save Bozeman in late Spring of 2017, alleging that the City of Bozeman did not provide “actual legal” notice (written notice to landowners about zoning guideline changes) or “timely” notice (15 days in advance of zoning guideline adoption) when “temporary” changes were made to the NCOD in May 2015. These facts of illegal notice were not challenged by the City of Bozeman or Judge Brown, the judge presiding over the lawsuit. Instead, Judge Brown ruled that the statute of limitations (2 years from the date the temporary NCOD changes were made in May 2015) had run out, though the public was unaware of the NCOD changes until March 2017. It was a catch 22. How could we challenge the changes to the NCOD when we were not actually given notice of those changes? Had the judge ruled on the merits of the case, that inadequate notice was given (undisputed facts) in a timely fashion, we believe that Save Bozeman would have prevailed.
The City Makes Temporary NCOD Changes Permanent: The “temporary” nature of the NCOD changes was a problem for the city in the context of the Black-Olive decision. They could not justify using temporary NCOD zoning changes in a development decision. So the City Commissioner took action to ensure that the NCOD changes could be used by projects like the Black-Olive. The sham process to make the NCOD changes “permanent” over a rushed, short 10 day period where citizen and city boards met almost daily reaffirming the NCOD changes in order to make them “permanent” just in time for the Black Olive vote. In spite of citizen-led Design Review Board and Historic Preservation Board Opposition, the City Commissioners voted overwhelmingly to make the NCOD design guidelines permanent, just prior to approving the Black Olive project.
City’s End Run Around Further Legal Action: Because the City reaffirmed and made permanent the NCOD changes with more than 15 days notice, they argued that there had been ample opportunity for public participation. At that point, Save Bozeman set aside its lawsuit, because the legal appeal to yet another process that allowed limited time for public input, would lengthy, requiring too much time to stop the out-of-state development money flooding downtown. At that point, we placed our emphasis on our continued opposition to the Black-Olive project and precedent it would set. The City Commissioners (except Cyndi Andrus) voted to approve the Black-Olive project because it met zoning guidelines, despite overwhelming public opposition and the legal discretion they had to deny the permit based on public input.