The Stevensville Town Council has not legally met since March 20, 2020, the day it adopted its COVID-19 emergency declaration suspending all regular meetings in the face of a looming pandemic. Although the Governor of Montana issued guidelines instructing local government how it could go about holding meetings, including over the internet on Zoom, to avoid a government shutdown, council members expressed reluctance to use the available options because of safety concerns and concerns that going to fully digital meetings would deprive members of the public of the right to participate. The council gave the mayor authority to carry on essential business and pay claims. The claims would be approved retroactively when the council was able to meet again. That still hasn’t happened, but a meeting has been scheduled for June 4th to be held in the North Valley Public Library’s public meeting room.
In the meantime, a couple of the council members apparently felt the urge to discuss some town business on the internet without any public notice. In a social media discussion on a Facebook page named Citizens of Stevensville, some council members were posting comments and questions about a $10,000 grant from the state Main Street Program and who the grant money might be given to.
The Bitterroot Star contacted the Local Government Center at Montana State University inquiring about the legality of the Facebook discussion and sent the Town a letter on May 1, stating that the newspaper’s understanding was that the Facebook discussion was “clearly illegal.”
Here’s what the law says:
Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Here is how the Montana Code Annotated defines a meeting:
2-3-202. Meeting defined. As used in this part, “meeting” means the convening of a quorum of the constituent membership of a public agency or association described in 2-3-203, whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the agency has super-vision, control, jurisdiction, or advisory power.
In conclusion the letter stated, “Therefore, anytime a quorum of the governing body is ‘hearing’, ‘discussing’ OR ‘acting’ on a matter of public interest and is within their jurisdiction the meeting should be noticed to the public 48 hours in advance and with enough detail for the public to know what it is the council will “hear, discuss or act” upon. Meeting minutes and public comment are also required.
“We ask you to discontinue these illegal communications immediately.”
The newspaper got no response from the town, although the correspondence was read into the record. The Facebook site, which had been operating in an open format, was subsequently privatized.
According to Mayor Brandon Dewey, he was working with the council members to try and develop a satisfactory way to hold meetings under the Phase 1 restrictions following the Governor’s directions and the Council had decided to give the method a trial run by using it at the next meeting of the Board of Adjustments, which is comprised by all the council members and the mayor. That meeting was held on May 21 through Zoom.
At that meeting it was disclosed that a couple of the council members on the Board had apparently been having “ex parte communications,” that is undisclosed private communications, with Dave Laursen, a property owner seeking a variance before the Board. The property is located at 106 4th Street, across the back alley from CJ’s restaurant in Stevensville. Prior to Laursen’s purchase of the property a couple of years ago, the building housed an auto body shop.
Laursen stated that he had been using the building as “a hobby shop” but had plans to expand it and use it as a storage place for his tax forms and some equipment and to do some personal projects which he did not want to discuss. One problem with the plan is that the area has been zoned C-1 commercial and that the proposed expansion of the building would not leave room for the required 10 parking spaces. This is what brought Larson before the Board seeking a variance for the offsite parking requirements.
According to Mayor Dewey, who sits on the Board and serves as the zoning administrator, the problem with granting such a variance is that the Town’s current building codes don’t allow it. He said the town would either have to change its zoning regulations or potentially grant a conditional use permit, but it could not simply grant a variance to the code. He said a variance is granted based on undue hardship, he said, but no evidence of hardship had been presented. He said a variance was not an appropriate avenue to address the issue.
Councilor Dempsey Vick asked if Laursen would need a business license to operate a hobby shop in a C-1 zone and Dewey stated that the code does not require a business license for a hobby shop.
“But ‘storage’, the stated purpose of the building expansion on the application, is not allowed,” he said.
Laursen complained at the meeting about the fact that he had already been issued a building permit and started on the construction by digging a hole for the foundation. William Schrock with Schrock Construction, the company that Larson hired to work on the project, spoke up saying Laursen “wants to improve the appearance of this area and add to it. I’ve talked to him about it not being a personal use area and all that. We talked about that fact that some day, when the property sold, that someone would come in and start a business.”
Schrock said he advised Laursen to go ahead and improve it and ask for a variance on some parking spaces to make it better for a future business or whatever. That it would be a good thing for the Stevensville community to have that and for the town of Stevensville to have that tax base.
“So, I think it’s a wonderful thing to do in the community. My feeling is that it will someday be used for the zone that’s there, but for now it may be that there is not a business moving in. But it’s possible in the long run that it will be that,” said Schrock.
Councilor Jaime Devlin asked if the storage plan was short term or long term and about his intent. “What is your intent down the road? What is your intent as far as complying with C-1 zoning?”
Laursen said, “Let’s clarify what storage is, maybe to some people in common place and then to me in particular. There is what it means commonly and then what it means to me. I’m not going to fill this thing full of household goods like a mini-storage. Storing household goods and other things. I have a minimum amount of things, small corner worth of seven years of tax records.”
He said right now he goes down there and “hobbies around,” He said he’d pulled in an old vehicle and put a couple of cargo boxes on it. He said the paint booth will remain. He said he stored some tools and other equipment there.
“I’d like to build my little granddaughter a playhouse,” he said. “It’s personal use space but it is not a storage place. [Councilors] Michalson and Vick were in there. What they saw is going to continue to be seen,” he said.
“So you have been using that space for the last two or three years and now you want to enlarge the building and continue using it in the same way?” asked Devlin.
“In a similar fashion, yes,” Laursen said.
Councilor Vick said, “My definition of storage would be a permanent storing of vehicles and what not. So that’s not your intent?”
“I’m going to wash and wax a vehicle and basically play around,” said Laursen.
Dewey stated that whether a use is permanent or temporary, it is a use, and whether its tools or vehicles or whatever, it is storage. “I appreciate the merits of improving the lot but I don’t see the latitude to permit that use. I don’t see the latitude within our code to permit that use.”
Councilor Bob Michalson said he had received a call from the town’s attorney, Scott Owens. He said the attorney told him that “there is email somehow that got to him that has to do with my personal email to [Councilor] Robin Holcomb. All it said basically is ‘FYI I’ll be asking the Mayor to waive the $450 variance fee but also Mr. Laursen has been treated very unfairly in this process’. I did send that to Mrs. Holcomb on Town email. But in no way was any decision made in that correspondence.”
He said the town attorney “wanted me to put this out there so that if there are any litigation issues or which way the vote may go or not go, that it would keep the town out of litigation.”
Michalson then read a letter from the Potton Insurance Agency, a Main Street business, which stated, “It has come to our attention that the Mayor has decided to deny a variance to the off-street parking requirements to Mr. Laursen. No less than ten spots must be available. Personally, I think this is one of the most ridiculous decisions ever made by the Stevensville Zoning Commission.” He said the town received and reviewed plans for the building and has a history of allowing non-compliance and estimates half the businesses in town don’t comply.
Michalson went on to refer to support that had been received from four other business owners in town.
Laursen said, “I’m concerned about the next step. Are you going to give me notice to get out, to sell my property or to put a business in it?” He said the town was not giving up any control. He said the town could still deny a business license if the building doesn’t meet code.
“That speaks to my point about the variance,” said Dewey. “You are asking for a variance to allow something that is not permitted by code. We might like to see you have your hobby shop, but we don’t have the authority to allow it under the code.”
Michalson said there had been lots of variances to the code granted and mentioned a couple.
Devlin said, “They were granted a variance. But were they within code?”
Michalson said, “The reason why variances come before the Board for variances is because to look things over and to make decisions like this that are hard to make. And since we are a municipality, we draw our own laws and we can vote in favor of this and it would go against a developmental code, Jaime [Devlin], but it would not go against us because we are looking at the evidence to weigh or to allow this.”
Devlin asked if the mayor could explain how exceptions were made.
Dewey said when a use isn’t compliant with zoning regulations, “our chart shows we had a permitted use, a conditionally permitted use, or no permit at all. A conditional use permit permits a use that ordinarily would not be permitted and it goes to the Zoning Board.”
“A variance,” he said, “appeals a hardship and comes before the Board of Adjustments.”
Michalson said, “Mayor Dewey is making it sound like we cannot vote on this, that we can’t do this, but we can. We are the governing body of the Town. Our decision holds. It may not go by what Mr. Buxton says, but it goes by what we say and what we perceive it to be.”
He added, “And also why are we doing this now when building permits and everything else were granted? In my experience the variance was granted first because when it gets to this stage and this council says no and this guy has footings poured, he’s got building permits and paid a ton of money. That’s not fair to him and we can right this tonight.” He also stated that the town’s codes were not being enforced anyway.
Councilor Holcomb said, “Why can’t we just re-zone it and allow him to make a home out of it?”
Schrock said, “We thought we were all good to go, but then this parking issue came up.”
Dewey said there was a lot of confusion over the permit process.
“It sounds like a great project for the community, but it is not about the merits of the project. Flexibility doesn’t exist in code. It doesn’t mean the code can’t be changed someday. But right now, you have what’s written in the book,” he said. “The problem is the use being requested is not allowed. If this were to be approved and then challenged, that’s my concern. I have grave concerns that the use as described doesn’t meet the zoning requirements. And a hardship has not been completely described for a variance.
Laursen said he was about $40,000 in the hole. “Why didn’t you send me to get a variance first before giving me a permit,” he asked.
Dewey said he asked in the beginning about the use of the building and provided zoning information to the applicant and the first concept plan was returned with a letter that mentioned parking and other requirements including use.
Holcomb said she supports Laursen and thinks the re-zoning must be figured out “since he’s already put so much money into the project.”
Michalson moved to approve the variance to the off-street parking requirements and Holcomb seconded.
Michalson voted yes.
Holcomb said, “Yes, Michalson did send me an email. I did not respond to it. There was no other conversation. So what I’m voting tonight is on what I heard at this meeting. With that I’m voting yes.”
Vick stated that his central issue is the lawful use of the property.
Devlin said, “I need to abstain.” She said she could not be a part of the decision since it involves some ex parte communication by council members. She said it is illegal to have any discussion outside a formal hearing about a decision that might occur between applicant and council members.
“I have in my hand emails from Dave Laursen to you both,” she said to Holcomb and Michalson. “Robin, you had more information than you just stated. Bob, we are supposed to come into these meetings without a decision already at hand. That’s our duty.” She quoted some instances in the emails were Michalson states:
“The mayor is cuckoo. He’s getting personal and it’s a bad deal. If you have a permit in hand, I would say to start building” and later the same day, “Dave, did you get a permit? If so, then I would say build.”
“So when you make ex parte communications,” concluded Devlin, “you must abstain and I’m abstaining.”
Holcomb said, “Yes I’ve been in communication with Mr. Laursen for several months because he could not get any information from the mayor. He was upset and he was sending me emails.”
“I want to rescind my vote because I do not want to cause any problems,” she continued, “because I never thought that the communications between me and Mr. Laursen were an issue. So at this moment I’m going to have to rescind my vote.”
Michalson said, “Jamie, I don’t know how you got those emails. They were my personal emails to Dave Laursen. What I do there is between me and them and I won’t get into that. But due to this major screw up then I guess I’m going to have to rescind my vote too.”
Mayor Dewey said, “We’ve never had anyone rescind their vote before. I’m puzzled. I’m disappointed to hear the remarks by Mr. Michalson in the emails. I don’t think that those were fair. I don’t think it was appropriate for him to use the language that he did. And I don’t think it’s appropriate for him to use his personal emails to conduct town business. Mr. Buxton’s report outlines a lack of sufficiency in the application. There’s the land use issue that probably needs to be vetted. I support the development in this community. I have a track record of being pro-business. I don’t see any reason to abstain from the vote, so I vote no.”
“So that’s two recissions, two no’s and an abstention. Variance fails,” said Dewey.
Laursen said he was disappointed. “Do you want me to change my usage and let me build and find a tenant for this building or do you want me to fill in the hole, leave a vacant lot and you won’t get your sidewalk? Which do you prefer? Do you want me to go forward and complete the building and look for a tenant compliant with C-1 zoning and extricate myself because I’m obviously in non-compliance? That’ll be the next thing a I get, a knock on the door about. What do you want to do here?”
Mayor Dewey stated that it was not the Town’s part to direct Mr. Laursen’s actions. He said if Mr. Laursen wanted to pursue a zoning change request or a conditional permit of some sort that the office was open and available to consider it, but it was a decision Mr. Laursen would have to make.