Repeated requests were made by citizens of Bozeman and the Save Bozeman organization when the Cit Commission was asked to correct the mistake made in 2015 when citizens were not engaged in the process whereby "temporary" changes made to the NCOD (Neighborhood Conservation Overlay District). The lawsuit was filed as a last resort. Save Bozeman wanted to give the City the opportunity to "right the wrong" and involve the citizens of Bozeman in the revisions to commercial design guidelines affecting their properties and neighborhoods.
Lawsuit – Catch 22: The lawsuit was filed by Save Bozeman in late Spring of 2017, charging 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 advanced notice 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 the 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, even though we did not discover the activities of the city’s task force and illegal notice until March 2017. It was a catch 22. How could we challenge notice when we were not actually given notice? Unfortunately the Bozeman Chronicle wrongly reported that the judge ruled that the City had given adequate notice. This was completely untrue. Had the judge ruled on the merits of the case, that inadequate notice was given (undisputed facts), 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 development decisions. So the City Commissioner took action to ensure that the NCOD changes could be used by projects like the Black-Olive. They announced a last minute, sham process to make the NCOD changes “permanent” over a rushed, short 10 day period where citizen and city boards met almost daily to vote on 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.
City’s End Run Around Further Legal Action: After this the City reaffirmed and made the NCOD changes permanent over a 10-day period, the City then “claimed” they gave ample opportunity for public participation on the vote to reaffirm (make permanent) the NCOD changes. 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 be too slow to stop the out-of-state development money flooding downtown. At that point, we placed our emphasis on again, opposing the Black-Olive project. But, once again, the City Commissioners (except Cyndi Andrus) didn’t listen and voted to approve the Black-Olive project despite overwhelming public opposition and the legal discretion they had to deny the permit based on public input even though it met the newly reaffirmed NCOD zoning guidelines.