City attorney to look into complaints of bias against Historic Preservation Commission

By Martin Kidston/MISSOULA CURRENT

Developers seeking a demolition permit for the vacant Mercantile continued their allegations Monday that several members of the Missoula Historic Preservation Commission have publicly moved to block or deny their permit, and should recuse themselves from the hearing process.

HomeBase, which is looking to construct a $30 million custom hotel on the corner of Higgins Avenue and Front Street, shared its concerns Friday in a letter to City Attorney Jim Nugent.

In his response, Nugent asked the developers to submit evidence supporting their concern that certain members of the HPC have demonstrated bias regarding the application.

“The applicant is entitled to certain procedural and substantive due process rights in its request for a permit,” HomeBase attorney Alan McCormick wrote in his letter to Nugent. “Unfortunately, we no longer believe such rights are being afforded the applicant (HomeBase).”

McCormick noted that one member of the commission has resigned and another has been recused from voting. He lauded the decision, calling it the correct course of action when the beliefs of a member of a public body conflict with his or her duty to remain objective.

But in his letter, McCormick said several other members of the HPC have actively sought to scuttle the permit, often doing so in the public realm. At least two members have signed a petition advocating against the permit while three have actively opposed the application on social media.

“Another has been actively working with a group of private individuals to develop a competing plan for the development of the property,” McCormick said, referring to commission member Steve Adler. “These actions are counter to a fair, objective process. They do not afford the public a reasonable opportunity to have their views heard. They do not afford the applicant its required due process.”

If the HPC members accused of demonstrating bias are recused from the application process, McCormick said, it could leave the commission without a quorum.

“Too many have spoken out publicly and stated they are no longer objective about this,” McCormick said Monday. “Without a quorum, they can no longer take action.”

In his response, Nugent asked McCormick to provide evidence supporting his applicant's concerns. Over the past several weeks, the City Attorney's Office has advised members of the commission to withhold opinions to avoid any perception of bias.

The same charge has been issued to the Missoula City Council.

“It is disappointing to learn of your concerns that apparently several HPC members as potential decision makers with respect to an applicant’s land use private property rights have failed to remain neutral, impartial, unbiased, fair and objective,” Nugent wrote.

Nugent said the HPC serves as a quasi-judicial body when making a decision regarding the rights of a private property owner. Because of that, he said, it's imperative that HPC members remain neutral throughout the process.

“The alleged conduct of HPC members that you express concern about is also a concern to city of Missoula elected officials and staffs,” Nugent wrote. “We will attempt to provide more legal attention to the conduct of the HPC members, including reviewing whether any additional members of the HPC, through their own conduct, have basically disqualified themselves from being a neutral, impartial, unbiased, fair and objective HPC member.”

The concerns, reported in a Missoula Current story published last week, come days before Thursday night's meeting of the HPC, during which it will decide whether to approve or deny the Mercantile permit, or postpone the decision to another date. The application will automatically be approved in early June if the HPC takes no action.

While Nugent couldn't speak toward the Mercantile application, he said the perception of bias could open the door for an appeal.

“What it does, it sets the table for people to be able to appeal the public body's decisions, because they haven't been objective, unbiased and impartial,” Nugent said. “They've made themselves ineffective, because it sets the table for appeal to the next level, in this case the City Council and District Court.”

This Wednesday, the City Council's Land Use and Planning Committee will hold an informational hearing on the evolving design of the proposed Marriott hotel. The itinerary suggests the facade's design has evolved in response to community feedback.

Andy Holloran of HomeBase confirmed Monday that the design continues to change.

“We had presented our next iteration of design a couple weeks ago,” said Holloran. “This is a continuation of that to keep them informed, listening and finding a design that everyone likes, if we're fortunate enough to get our application to proceed.”