Dog And Pony Show

Ladies and Gentlemen, Boys and Girls, Children of all Ages, welcome to the greatest show on earth!

So bring on the haute ecole horses and on with the show!

Monday the Great Falls Board of Zoning Adjustments held a public hearing to listen to the Great Falls Public School District explain their request to exempt their four major bond projects from City zoning laws. The District’s request invoked Montana MCA statute 76-2-402, which allows agencies to “use land contrary to local zoning regulations”.

76-2-402. Local zoning regulations — application to agencies. Whenever an agency proposes to use public land contrary to local zoning regulations, a public hearing, as defined below, shall be held.

(1) The local board of adjustments, as provided in this chapter, shall hold a hearing within 30 days of the date the agency gives notice to the board of its intent to develop land contrary to local zoning regulations.

(2) The board shall have no power to deny the proposed use but shall act only to allow a public forum for comment on the proposed use.

The City lead off the meeting with their interpretation of the statute given by the District with their own citation of MCA 76-2-301, which states:

76-2-301. Municipal zoning authorized. For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council or other legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lot that may be occupied; the size of yards, courts, and other open spaces; the density of population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.

To further explain the City’s position, “Staff finds a clear distinction between Zoning as it is defined in MCA 76-2-301, and the development standard variances that GFPS seems to be asserting through the hearing procedure here today.” And went on to say, “Staff reserves the right to require review and approval of all GFPS projects, both previously permitted and those under current review for conformance to all titles contained in the official City code of the City of Great Falls.”

In other words, and to reference a previous E-City Beat post, the school district will have to follow the same “stinking rules” that any other developer who builds in Great Falls has to follow. I agree with the City’s conclusion, and interpretation of Montana Statutes.

So why does GFPS want to be exempt from following City codes like the requirement of sidewalks, landscaping (removal of City trees without a permit), parking, buffer zones, and setbacks?

As Superintendent Tammy Lacey explained, “I would prefer to spend bond money on educational spaces”. Does that mean that the District’s projects are over budget, or that pre-bond construction estimates were low, or that the District’s representatives didn’t accept the City’s numerous invitations to discuss the projects before the construction process began?

It is important to note that the superintendent is but the face and the voice of the District and has no real experiential knowledge of architecture or construction and can be likened to the circus ringmaster. There are many “cirkys” working for the “gaffer” (circus manager) behind the scenes. In the case of the GFPS district, a Billings construction company was hired to be the gaffer. The Billings construction company staff are not licensed architects, professional engineers, historic architectural advisers, or professional planners. The gaffers were hired by the District and were charged with developing strategies, estimating construction costs, soliciting design professionals, scheduling, and instituting the alternative project delivery contracts for District. They were also responsible for general construction contracts that do not require conventional general contractor competitive bidding as authorized by MCA 18-2-502.

18-2-502. Alternative project delivery contract — authority — criteria. (1) Subject to the provisions of this part, a state agency or a governing body may use an alternative project delivery contract.

I believe that it is also possible that the previously mentioned Billings company suggested using MCA 76-2-402 as a means to avoid certain City “development standards” that are typically enforced in Great Falls. I think all taxpayers and citizens should thank City staff for saying, “Oh no you don’t” to GFPS and the horse they rode in on.

“I believe that it is also possible that the previously mentioned Billings company suggested using MCA 76-2-402 as a means to avoid certain City “development standards” that are typically enforced in Great Falls. I think all taxpayers and citizens should thank City staff for saying, “Oh no you don’t” to GFPS and the horse they rode in on.”

A similar issue exists with the District’s purchase of the Campfire property where the District plans to demolish the historic structure, which is an integral part of the Great Falls High School history, and develop a small parking lot, that if City regulations are applied, would only yield a total of 9 parking spaces at what I estimate could cost up to $22,000 per space.

In my opinion, the purchase could have very well been an illegal if the property was not specifically identified in the bond ballot language and is not contiguous to the GFHS property under Montana Statute MCA 20-6-621, which reads as follows:

20-6-621. Selection of school sites — approval election. (1) (a) Except as provided in subsection (1)(b), the trustees of a district may select the sites for school buildings or for other school purposes, but the selection must first be approved by the qualified electors of the district before a contract for the purchase of a site is entered into by the trustees. (Emphasis added.)

(b) The trustees may purchase or otherwise acquire property contiguous to an existing site that is in use for school purposes without a site approval election. The trustees may take an option on a site prior to the site approval election. (2) The election for the approval of a site must be called under the provisions of 20-20-201 and must be conducted in the manner prescribed by this title for school elections. An elector who may vote at a school site election is qualified to vote under the provisions of 20-20-301. If a majority of those voting at the election approve the site selection, the trustees may purchase the site. A site approval election is not required when the site was specifically identified in an election at which an additional levy or the issuance of bonds was approved for the purchase of the site. (Emphasis added.)

(3) Any site for a school building or other building of the district that is selected or purchased by the trustees must:

(a) be in a place that is convenient, accessible, and suitable;

(b) comply with the minimum size and other requirements prescribed by the department of public health and human services; and

(c) comply with the statewide building regulations, if any, promulgated by the department of labor and industry.

Further reference:

20-6-603. Trustees’ authority to acquire or dispose of sites and buildings — when election required. (1) The trustees of a district may purchase, build, exchange, or otherwise acquire, sell, or dispose of sites and buildings of the district. Action may not be taken by the trustees without the approval of the qualified electors of the district at an election called for the purpose of approval unless: (Emphasis added.)

(a) a bond issue has been authorized for the purpose of constructing, purchasing, or acquiring the site or building; (b) an additional levy under the provisions of 20-9-353 has been approved for the purpose of constructing, purchasing, or acquiring the site or building;

(c) the cost of constructing, purchasing, or acquiring the site or building is financed without exceeding the maximum general fund budget amount for the district and, in the case of a site purchase, the site has been approved under the provisions of 20-6-621; or

(d) money is otherwise available under the provisions of this title and the ballot for the site approval for the building incorporated a description of the building to be located on the site.

(2) Except for land that is granted to or held by the state in trust or land acquired by conditional deed under the provisions of 20-6-605, the trustees may, upon approval by the electorate, accept as partial or total consideration for the exchange of the land a binding written agreement by a public or private entity seeking the exchange to use the property to provide a service that benefits the school district. The deed for the exchange of land must contain reversionary clauses that allow for the return of the land to school district ownership if the binding written agreement is not complied with.

(3) When an election is conducted under the provisions of this section, it must be called under the provisions of 20-20-201 and must be conducted in the manner prescribed by this title for school elections. An elector qualified to vote under the provisions of 20-20-301 may vote in the election. If a majority of those electors voting at the election approve the proposed action, the trustees may take the proposed action.

The Campfire property was not “specifically identified” in the 2016 bond ballot language. Therefore, the purchase would not have been permitted unless the property is “contiguous” to the school district’s currently held property. By commonly accepted definition, I believe the Campfire property is not contiguous to the District’s GFHS property based upon the following:

42.13.111 : DEFINITIONS – Administrative Rules of the State of Montana 42.13.111 DEFINITIONS

The following definitions apply to this chapter:

(3) “Contiguous” means touching or sharing a common border.

Further, from a real estate attorney:

“If there is a dedicated street between the two lots, they are not contiguous because they do not touch each other at a common boundary line. If the “street” is actually just an easement over one or both parcels, then the two lots are contiguous.

Richard A. Rodgers, Esq. …”

The sale was effected on March 19, 2018 and was based on a Buy-Sell agreement dated January 17, 2018 and the parties to the agreement were the seller Campfire USA, and the buyer Blum Holdings, LLC. GFPS was not a party to the Buy-Sell Agreement.

While “straw man” purchases are not illegal, one would ask why all the secrecy? Here is the District’s Email response to the question dated May 30, 2018.

“The payment for the Campfire property was made out to Stewart Title as they were the company that handled the closing on the property. Blum Holdings LLC initially purchased the property, then assigned the contract over to the district, with the district closing on the property as the Buyer. $1,000 earnest money was provided to Blum Holdings for reimbursement for earnest moneys paid per the initial contract. Blum Holdings LLC never owned the property. This allowed the district to get the best possible deal on the purchase of the property.

Brian Patrick”

According to the seller of the Campfire property it wouldn’t have mattered had they known the true purchaser, or not. They also commented that they would like to see the historic building saved and re-purposed as a refreshment and gathering place for GFHS students.

Ultimately, and in order to save this important part of GFH history, the validity of the purchase may have to be decided by a court of law. If you would like to aid in the effort, please go to our Go Fund Me page and consider a donation to cover legal costs. 

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Philip M. Faccendahttp://www.straymoose.com
Philip M. Faccenda is an AIA award-winning architect and planner. He is the Editor-in-Chief of E-City Beat.

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