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The long arm of the law reaches into council chambers

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City attorney Nugent provides legal guidance when politics and property rights clash

Photo by Jeff Powers

Urban Planning

City attorney Jim Nugent sits at Missoula City Council meetings with a phalanx of books in front of him, each decorated with multi-colored placemarks and sticky notes.

He sits there as the voice of the law, the man elected officials are supposed to turn to when their exercise of political mandate runs up against the cold, hard facts of the Montana Code Annotated. When it comes to issues related to urban planning, Nugent says, his job as a legal check against the balance of power limits his perspective. In best-case scenarios, planning issues never make it to his desk.

"We just see these issues when they become legal disputes," he says. Usually, the Office of Planning and Grants, guided by established regulations, works out solutions to developers" problems before such questions even make the council"s agenda. In cases involving open space, density, traffic, pollution and the other perpetual hot buttons of urban design, though, developers frequently get crosswise of political winds and sentiments that aren"t always informed by the law.

"I think the staff, city staff, understands property rights better than the average elected official," Nugent says. "We point to the state statutes, as well as the state and U.S. Supreme Court rulings, to guide their decisions."

But according to Nugent, political pressure can sometimes push elected decision-makers into stances above and beyond their legal authority, and that can lead to lawsuits in which his office must defend the city. Once he gets going on the subject, it"s fairly plain that he wishes people would remember the rules and regulations when grappling with contentious planning issues.

"In most cases, people just want to be able to know that they"ll be evaluated according to criteria that are not made up in the political process," he says. "That seems to be fair. They want to know, what are the guidelines? I think that"s common sense.

"A lot of the frustrations arise from the pressures that are applied in the political arena."

Nugent understands the forces at work in the sometimes-heated realm of public hearings, close votes and passionate arguments over the city"s future. But he also notes that basic legal rights, like the presumption that people can, within reasonable limits, do as they wish with their property, get trampled.

"People are always trying to tell other people that they can"t build on their property, especially when it"s right next-door," he says. "You already have your house, and you want the lot next to it to remain open space. But we must remember basic equity, basic fairness. If you want that land open, fine. Buy it."

Missoula is hardly alone in struggling with planning issues. Whenever and wherever the body politic tries to regulate activities on private land, freedom-loving Americans tend to bare their fangs. It"s no surprise, then, that the nation"s highest court frequently rules on planning and property cases. Nugent, naturally, watches these Supreme Court fiats closely and cites them as an essential guide for the city"s decisions.

Their meaning, he says, is simple to sum up, if tricky to remember when discussions get overwrought.

"You have to allow people a reasonable use of their land," he says. "In one particular case, the Supreme Court decided that you can"t extract a 15-foot public easement along a beach without compensation. In another case, a woman simply wanted to expand her already-existing hardware store, and the local government wanted to establish a pedestrian/bicycle corridor along a near-by stream, right through her property. The Court decided that there was no way there was direct proportionality between the land being taken and the compensation offered.

"Basically what they"re saying is that you have to pay people if you"re going to take their land."

To Nugent, the bottom line is that this country has enshrined property rights as a cornerstone of its constitutional and social order. Good intentions aside, the best-laid plans for shaping Missoula"s urban environment must respect a basic rule: If you"re going to restrict someone"s use of his or her land beyond the bounds of reason, it"s called a "taking" and you"ve gotta pay for the privilege.

"You can"t take somebody"s land without just compensation," he says, noting that Montanans" property rights are particularly strong. "In this state, it"s unconstitutional to damage somebody"s property without compensation. The Montana Constitution is much broader than the U.S. Constitution on the subject of takings, and when regulations render a piece of land useless to the owner, that is a taking."

The balance that politicians and planners must strike is a delicate one, but Nugent says that if the city wants to have its rules respected, those rules must be consistently and objectively enforced. Messing around with the process midstream, he says, not only leads to lawsuits, but also a general weakening of the political dimension of planning.

"Most developers, I think, realize that there have to be reasonable regulations," he says. "But they do want them to be reasonable, objective and uniformly applied. They want standards and criteria you can know when you walk in the door, rather than conditions that are imposed in the middle of the process.

"Put yourself in their shoes, as though you were a property owner. Some of these people have saved this property for their retirement or their childrens" college educations or what have you. And it comes time that they want to do what they want to do, and all of a sudden there are people trying to prevent it.

"I think that if you can always step back and remember that if the public wants the land as open space or some other use, they have to buy it. After all the brouhaha, that"s what it all comes down to."

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Mayor Mike Kadas confers with city attorney Jim Nugent
during a discussion over conditions for the council's
approval of the Mansion Heights development. (Jeff Powers)

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