Saturday, August 1, 2009

Is Hamilton a legal entity? By Michael Howell

Is Hamilton a legal entity? It’s a question that keeps surfacing at Hamilton City Hall. The Local Government Review Study Commission raised the issue back in 2005. It’s been a constant refrain from one Hamilton resident, Michael Spreadbury, who recently declared his candidacy for Mayor. It popped up recently once again during public comment on a recent resolution concerning zoning policy.

The idea is that since there are no incorporation papers on file with the State of Montana establishing the City of Hamilton as an incorporated city, then it is not one. And, therefore, it is not a legitimate legal entity and has no authority to make or enforce any laws.

In September of 2005 the Local Government Review Study Commission wrote the County Clerk and Recorder about their concerns. After a futile search for Articles of Incorporation for the city in state records, the group found, after consulting with the Attorney General’s office, that municipalities do not form corporations the way other businesses do by filing with the state.

“Instead, the incorporation would be done by the actual citizens themselves, first with a petition, and then through the election process,” the letter states.

In a letter to the Hot Springs City Attorney in August, 2005, Assistant Attorney General Candace West made this point clear in her advice in relation to the legal status of Hot Springs. The city attorney had asked about its status, since it had acted as an incorporated city for 80 years but had never filed incorporation papers with the Secretary of State’s Office.

West wrote that “your question arises from a local government study that led to an erroneous inquiry regarding the current status of the municipality with the Secretary of State’s Office… Quite simply put, the city did not fail to register its incorporated status with the Secretary of State’s Office because there is no requirement to do so.”

West then outlines the procedure by which people may petition a county to hold an election to form a municipality. It requires a house-to-house census and must involve over 300 inhabitants, and other restrictions.

The Hamilton Study Commission accepted this interpretation but then expressed concern about the local county records.

The only evidence of that process having taken place, that they could find, was a couple of pages of handwritten notes in the Commissioners Journal of July 16, 1894. In those notes A.M. Mittower approved the boundary description of the town and referred to the successful election in favor of incorporation.

The Study Commission called the evidence of the commissioners’ journal “compelling” but questioned why other evidence, such as the actual petition or a canvass of records of the vote, is not to be found.

In response to the issue City Clerk Rose Allen is attempting to compile copies of all records that can be found related to the city’s founding days. Some were on file at the County. Some were found in newspaper articles of the day preserved in the Ravalli County Museum. Some are in the city vault.

Aside from the Commissioners’ Journal there is also, in the city vault, the original Book of Minutes with records of every city council meeting. The first meeting was held on September 24, 1894. There is also an Ordinance Book showing the Town’s boundaries at the time. It is followed by ordinances creating wards and creating the positions of town officers and the form of government.

“If there was no petition and no election then why would one of the County Commissioners note on July 16, 1894 that there was a successful election to incorporate Hamilton?” asked Allen. As to why there is no official petition on file or canvass report for the vote, Allen shrugs. Things get lost sometimes.

“But just because you may not have an official birth certificate, does that mean that you weren’t born?” she asks.

Convinced that the elections must have happened, Allen went to the Ravalli County Museum to search through old newspapers and found a little more evidence, although admittedly not the kind of documentation being sought by critics.

In the July 18, 1894 edition of the Western News it states:

“At the incorporation election held at the school house last Saturday, 107 votes were cast, 102 being for incorporation, three against and two ballots thrown out on account of improper marking.

This is conclusive evidence that the people of Hamilton want incorporation. The commissioners for canvass, who will order the election of town officers to be held thirty days after canvassing the vote.”

Allen thinks the circumstantial evidence is compelling that Hamilton was incorporated in 1894, whether or not the actual petition or canvassing records are ever found.

Allen also remarked that the county itself faced allegations recently that it was not a legal entity because there was no documentation of it having changed its form of government to the one that it now holds. In that case the court found that the county, primarily due to the fact that it operated as a certain form of government for over a hundred years, was a legal entity.

“We’ve been operating as an incorporated city for over a 100 years and we are going to continue to do so,” said Allen.

Hamilton won’t zone outside city limits

By Michael Howell
At a special meeting last Tuesday, June 9, the Hamilton City Council passed a resolution proclaiming in no uncertain terms that it has no intention of doing any extra-territorial zoning outside the city limits. The resolution was meant to address the fears, expressed by several county residents at the last meeting when the Council adopted a growth policy, that the city planned on extending its zoning powers outside the city limits. The Growth Policy adopted showed a planning area extending two miles outside the city limits.

Mayor Jerry Steele said that the city has never had the intention of zoning outside the city limits. He said that if they did it could have been done so at any time after adopting a growth policy in 2003. But instead, the City passed an ordinance explicitly limiting its jurisdiction for zoning matters to within the city limits.

That ordinance is currently on the books. But he was willing to entertain a resolution stating that it was also the City’s policy not to zone outside the city limits if it would help allay the fears expressed by some county residents when it adopted an amended growth policy the previous week.

The proposed resolution originally read “it is the policy of the Hamilton City Council to zone only property within the city limits and not to extend zoning beyond the present City limits except in those cases where property owners voluntarily request to annex property to the City, where property is entirely surrounded by the City or in order to preserve the health, safety and welfare of the residents of the City of Hamilton.”

However, Councilor Nancy Hendrickson quickly raised an objection about the wording and suggested putting the last phrase, about health, safety and welfare, at the beginning of the sentence instead of the end. Councilor Joe Petrusaitis agreed and then suggested that it might even be left out completely.

Special Projects Director Dennis Stranger said that the language was put in there by the City Attorney in case of an emergency.

Hendrickson said that she understood Stranger’s explanation but agreed with Petrusaitis that the words should be stricken from the resolution. Petrusaitis seconded the amendment and it passed unanimously.

There was some discussion about the Growth Policy being only a planning document with no regulatory powers, but being necessary to guide planning of the City’s infrastructure.
Several county residents expressed concern about the extension of a planning area to the county. Some claimed to have been unaware that the Growth Policy was being considered and that it might include them. Some expressed appreciation to the council for clarifying their intent not to zone outside the city limits with the new resolution.

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