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Montana Administrative Register Notice 8-112-125 No. 11   06/12/2014    
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BEFORE THE DEPARTMENT OF COMMERCE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 8.112.101, 8.112.102, 8.112.105, 8.112.106, 8.112.109, 8.112.110, 8.112.201, 8.112.202, 8.112.205, 8.112.206, and 8.112.209 pertaining to the Montana Heritage Preservation and Development Commission

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

 

TO: All Concerned Persons

 

            1. On July 2, 2014, at 3:00 p.m., the Department of Commerce will hold a public hearing at the Rehearsal Hall, 316 W. Idaho Street, Virginia City, Montana, to consider the proposed amendment of the above-stated rules.

 

2. The Department of Commerce will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Commerce no later than 5:00 p.m., June 27, 2014, to advise us of the nature of the accommodation that you need. Please contact Bonnie Martello, Department of Commerce, 301 South Park Avenue, P.O. Box 200523, Helena, Montana 59620-0523; telephone (406) 841-2596; TDD 841-2702; fax (406) 841-2771; or e-mail bmartello@mt.gov.

 

3.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

8.112.101  DEFINITIONS  The following definitions shall be used in these rules, unless context clearly indicates otherwise.

(1) remains the same.

(2)  "Bovey assets" means the inventory prepared at the time of purchase generally known as the Gordon inventory.

(2) through (4) remain the same but are renumbered (3) through (5).

(6)  "Personal Property Sales Committee" means the committee charged with reviewing and recommending the sale of personal property to the commission. Membership of the Personal Property Sales Committee shall include an equal number of members of the Montana Historical Society Board of Trustees and commission members.

 

AUTH:  22-3-1003, MCA

IMP:  22-2-1003, MCA

 

REASON: "Bovey assets" are not defined in the rules and need to be so that the procedures to dispose of said assets are followed accurately while keeping those things that are not Bovey assets outside of the process. The definition of "Personal Property Sales Committee" was moved from ARM 8.112.209 to the definition section.

 

8.112.102  ACQUISITION PROCEDURE  (1) remains the same.

(2)  With respect to the proposed acquisition of real property, public notice and the opportunity for hearing will be given in the geographical area of the proposed acquisition. The notice will be published twice, with at least 6 days separating publication.

(a)  Publication must be in a newspaper meeting the following qualifications, except if no newspaper meets these qualifications, publication must be made in a qualified newspaper in an adjacent county. If there is no qualified newspaper in an adjacent county, publication must be made by posting the notice in three public places in the county where the property to be considered for acquisition is located, as designated by resolution of the commission. The newspaper must be:

(i)  of general paid circulation with a second-class mailing permit;

(ii)  published at least once a week; and

(iii)  published in the county where the property to be considered for acquisition is located.

(b)  The first publication must be no more than 21 days prior to the hearing and the last no less than 3 days prior to the hearing. The published notice must contain:

(i)  the date, time, and place of the hearing;

(ii)  a brief statement and description of the property considered for acquisition; and

(iii)  the address and telephone number of the person who may be contacted for further information on the hearing or the property.

(3)  After notice has been given, the public hearing will be held in the general geographic area where the property considered for acquisition is located. At the hearing, the public and officials from affected local governments and the state shall be given the opportunity to make written and verbal comments on the proposed acquisition.

(4) The assessment of properties for acquisition will be based upon consideration of the criteria listed in these rules and, where applicable, consideration of comments from affected local government officials, recommendations from professional historians, and comments from the public at large.

(5) remains the same but is renumbered (4).

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: This proposed change removes overly complicated notice and hearing provisions from the rules. The change will allow the commission to decide to acquire real property after notice and a public hearing in the geographic area where the property is located. If the commission decides to acquire real property, there will be another opportunity for hearing and public comment before the Board of Land Commissioners makes the final decision on behalf of the state.

 

8.112.105  UNCONDITIONAL CONVEYANCE  (1)  It is preferred that All acquisitions are conveyed, sold, granted, or devised must be made unconditionally to the commission. The commission may, nonetheless, in its discretion, decide to make an acquisition which has reasonable conditions.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: Through experience, the commission has determined that conveyances to the commission should be made unconditionally and prefers to remove the exception.

 

8.112.106  HISTORIC AND CULTURAL CONSIDERATIONS (1)  In assessing whether the property represents the state's culture and history, and whether the property lends itself to programs to interpret Montana history, the commission shall may consider the quality of the significance of the property in Montana history including, but not limited to, the property's authenticity and integrity of location, design, setting, materials, and workmanship; its age; and its aesthetic or historic sense of place or period of time. The commission shall may also consider whether the property:

(a)  is associated with events that have made a significant contribution to Montana history and prehistory;

(b)  is associated with the lives of a person or persons who were significant in Montana history;

(c)  embodies distinctive characteristics of a type, period, or method of construction representing an event, way of life, groups of persons, or trends in Montana history; or

(d)  has yielded or is likely to yield information important to Montana history or prehistory.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The commission considers the proposed change advisable as it will give the commission discretion regarding the factors it takes into account in evaluating property under its control. Some property should certainly be evaluated based upon the listed criteria and may require additional considerations. Through experience it has been shown that some property does not require this level of scrutiny.

 

8.112.109  THE PROPERTY AS SELF-SUPPORTING (1)  In assessing whether the property is self-supporting, the commission shall may consider:

(a)  the location of the property and its proximity to population centers, to other areas of historical and popular interest, and to standard tourist routes;

(b)  the difficulty or ease in access to the property;

(c)  the likelihood of individual, corporate or other financial support;

(d)  the estimated cost of restoration, rehabilitation or maintenance of the property;

(e)  the degree of popular and educational interest in the property; and

(f)  the current and projected revenues and expenses associated with the property.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The commission considers the proposed change advisable as it will give the commission discretion regarding the factors it takes into account in evaluating property under its control. Some property should certainly be evaluated based upon the listed criteria and may require additional considerations. Through experience it has been shown that some property does not require this level of scrutiny.

 

8.112.110  EDUCATIONAL RESOURCE (1)  The commission shall may consider whether the property is an educational resource for the study and interpretation of Montana history.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The commission considers the proposed change advisable as it will give the commission discretion regarding the factors it takes into account in evaluating property under its control. Some property should certainly be evaluated based upon the listed criteria and may require additional considerations. Through experience it has been shown that some property does not require this level of scrutiny.

 

8.112.201  DEFINITIONS  The following criteria shall receive careful consideration by the commission in evaluating property for proposed sale:

(1) and (2) remain the same.

(3)  "Executive Committee" means the committee appointed by the commission chair, made up of the current commission chair, a recent past chair (if available), and the secretary-treasurer.

(4) through (8) remain the same.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The commission has determined that an executive committee can be a valuable asset in getting work done in order to make recommendations on a variety of issues to the full commission. The language in rule is limiting in that the executive committee is realistically a committee of two since the past chair is not necessarily available for participation. Giving the commission chair the latitude to appoint an executive committee will help the commission function more effectively.

 

8.112.202  SALE CRITERIA  (1)  The following criteria shall receive careful consideration by the commission in evaluating property for proposed sale:

(a)  whether the property represents the state's culture and history;

(b)  whether the property can become self-supporting;

(c)  whether the property can contribute to the economic and social enrichment of the state;

(d)  whether the property lends itself to programs to interpret Montana history;

(e)  whether the sale will create significant social and economic impacts to affected local governments and the state;

(f)  whether the sale is supported by the Director of the Montana Historical Society;

(g)  whether the commission should include any preservation covenants in a proposed sale agreement for real property;

(h)  whether the commission should incorporate any design review ordinances established by Virginia City or any other community where the commission owns property into a proposed sale agreement for real property;

(i)  a summary analysis of the costs and benefits of retaining or selling the property. Cost of retaining the property should include maintenance, upkeep, and other long-term or ongoing costs to the commission. Costs of selling the property should include advertising, appraisals, legal fees, and title searches;

(i)  whether the property lends itself to curation by another entity; and

(j)  compliance with the Montana Antiquities Act (22-3-421, et seq., MCA) and any implementing or related administrative rules, including but not limited to ARM 10.121.901, et seq.; and

(k) (j)  other matters that the commission considers necessary or appropriate.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The commission should consider design review ordinances in each community that it owns property, not just Virginia City. The commission considers the proposed change advisable as it will give the commission discretion regarding the factors it takes into account in evaluating property under its control. Some property should certainly be evaluated based upon the listed criteria and may require additional considerations. Through experience it has been shown that some property does not require this level of scrutiny. A request was made at the commission meeting in evaluating the current rules that the possibility of curation by another entity be considered for inclusion.  Compliance with the Montana Antiquities Act is required by law and does not need to be included in the commission rules.

 

8.112.205  PUBLIC NOTICE PRIOR TO DECISION TO SELL REAL PROPERTY (1)  For those properties approved to proceed to the commission for consideration in accordance with these rules, an opportunity will be provided for the public to comment. A date, time, and location will be established for a public hearing in the geographic area of the proposed sale. A deadline will be established for the receipt of written comments.

(2)  Notice of the hearing shall be made as follows:

(a)  Publication in at least one newspaper of general circulation in the geographic area of the proposed sale. Notice shall be published twice, with the first publication no more than 21 days prior to the hearing, and the second publication no less than three days prior to the hearing, and at least six days separating each publication.

(b)  Posted on the commission's web site. The published notice shall contain:

(i)  date, time, and place of the hearing;

(ii)  brief statement and description of the property considered for sale;

(iii)  name, address, and telephone number of the person who may be contacted for further information on the hearing or the property; and

(iv)  deadline for written comments and an address where comments may be sent.

(c)  A copy of the report(s) required to be prepared under these rules will be posted on the commission's web site. Paper copies of the report shall be made available for review upon request.

(d)  The public hearing will be chaired by the commission chair or his/her designee and at least one of the members of the Real Property or Personal Property Sales Committee, as applicable, established herein shall also attend. Paper copies of the report shall be made available at the hearing.

(e)  The commission may, at its discretion, conduct additional types of public notice and opportunities for public comment.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: This proposed change removes overly complicated notice and hearing provisions from the rules. The change will allow the commission to decide to sell real property after notice and a public hearing in the geographic area where the property is located. If the commission decides to sell real property, there will be another opportunity for hearing and public comment before the Board of Land Commissioners make the final decision on behalf of the state.

 

8.112.206  SALE PROCEDURES - REAL PROPERTY  (1) The commission shall prepare a report that addresses the criteria established in ARM 8.112.202. Following review of the information in the report, the commission may vote to proceed to a public hearing for additional comment on the proposed sale. Following a public hearing on the proposed sale, the commission may recommend to the Land Board that a parcel or parcels of real property be sold.

(1)  Initial recommendations from the Real Property Sales Committee and review by Executive Committee:

(a)  A Real Property Sales Committee shall be established by the commission to review real properties for possible sale, and to make initial recommendations on such sales to the Executive Committee. Members of the Real Property Sales Committee shall be appointed by the Commission Chair. At any time in the review process, the Real Property Sales Committee may request commission staff to assist in preparation of reports, or in other capacities.

(b)  Such recommendations will take into consideration the criteria outlined in ARM 8.112.202.

(c)  The Real Property Sales Committee may make real property sale recommendations to the Executive Committee at any meeting properly noticed and with the discussion of sales included on the agenda. All recommendations will include a review of the extent to which the proposed sale meets the criteria in ARM 8.112.202. The Real Property Sales Committee shall prepare its recommendation to the Executive Committee in writing.

(d)  On each real property sale under consideration, the Executive Committee shall decide whether to:

(i)  proceed to the next level of review as detailed in (2);

(ii)  request additional information regarding the criteria in ARM 8.112.202;

(iii)  forward a recommendation directly to the commission for its consideration; or

(iv)  deny the recommendation.

(e)  The Real Property Sales Committee shall report to the commission as needed on all real properties managed by the commission, identifying which, if any, properties are currently being reviewed by the Real Property Sales Committee or are scheduled to be reviewed.

(2)  Detailed review of real properties approved by the Executive Committee to be further considered for sale:

(a)  For real properties approved by the Executive Committee to proceed to the next level of review, the Real Property Sales Committee shall prepare a written report for each property that addresses the following:

(i)  The report shall address the quality of the significance of the property in Montana history, including, but not limited to, the following:

(A)  association with events that have made a significant contribution to Montana history and prehistory;

(B)  association with the lives of a person or persons who were significant in Montana history;

(C)  embodiment of distinctive characteristics of a type, period, or method of construction representing an event, way of life, groups of persons, or trends in Montana history;

(D)  whether the property has yielded or is likely to yield information important to Montana history or prehistory;

(E)  the property's authenticity and integrity of location, design, setting, materials, workmanship, age, and its aesthetic or historic sense of place or period of time; and

(F)  whether the sale would have indirect adverse effects to the property proposed for sale, or to any remaining property acquired or managed by the commission.

(ii)  The report shall assess whether the property can become self-supporting, including consideration of:

(A)  the location of the property and its proximity to population centers, to other areas of historical and popular interest, and to standard tourist routes;

(B)  the difficulty or ease in access to the property;

(C)  the likelihood of individual, corporate, or other financial support;

(D)  the estimated cost of restoration, rehabilitation, or maintenance of the property;

(E)  the degree of popular and educational interest in the property; and

(F)  the current and projected revenues and expenses associated with the property.

(iii)  The report shall assess the economic and social benefits the property provides to the public in its current use, compared with potential economic and social benefits to the public possible with private ownership. The assessment shall compare public availability of educational/interpretive aspects of the property, and economic advantages/disadvantages of public versus private ownership.

(iv)  The report shall identify whether the property is an educational resource for the study and interpretation of Montana history, assessed in the context of other existing or planned interpretive programs wherever possible, and including a discussion of any existing or unique interpretive factors associated with the property.

(v)  The report shall identify local governments and state agencies with operations or facilities in the area of the proposed sale. The report shall identify how these government entities would be affected by the sale, how they were notified of the potential sale, and shall include a copy of any comments or responses received from these entities.

(vi)  The report shall consider the need for any preservation covenants in a proposed sale agreement to preserve the historic qualities of the property after transfer to private ownership, who would enforce the covenants, and how any maintenance or other costs required thereunder would be paid.

(vii)  The report should discuss whether and why any design review ordinances established by Virginia City should be incorporated into a proposed sale agreement for the property.

(viii)  The report shall include a written letter of support by the Director of the Montana Historical Society, or an explanation of why such support has not been obtained.

(ix)  The report shall include a record of compliance with the Montana Antiquities Act (22-3-421, et seq., MCA), including a letter signed by the State Historic Preservation Officer indicating whether he/she supports or does not support the proposed sale and a summary of the rationale for that decision.

(b)  The Real Property Sales Committee shall present the report and their recommendations to the Executive Committee in writing at any meeting properly noticed and with the discussion of sales included on the agenda.

(c)  The Executive Committee shall decide whether to:

(i) proceed to the public notice and hearing process specified in these rules; 

(ii) request additional information regarding the criteria in ARM 8.112.202; or

(iii)  deny the recommendation.

(3)  Commission decision to proceed or not to proceed with a proposed sale:

(a)  The commission shall make a decision to proceed or not proceed with a proposed sale at a properly noticed meeting, after an opportunity for public comment has been provided, based upon consideration of the criteria in ARM 8.112.202 as set forth in the report(s) required herein, any comments from affected local government officials, recommendations from professional historians, and comments from the public at large.

(b)  For approved proposals for the sale of real property, the commission shall recommend the approved proposal, together with any covenants or conditions attached thereto, to the Board of Land Commissioners, per 22-3-1003 and 77-2-301, et seq., MCA.

 

AUTH:  22-3-1003, MCA

IMP:    22-3-1003, MCA

 

REASON:  Before recommending the sale of real property, the commission is required to evaluate certain criteria enumerated in statute. The commission is then required to provide notice and conduct a public hearing after which time it can make a recommendation to the Board of Land Commissioners to sell the property. The Board of Land Commissioners also follows a public process in making its decision. The complexity found in existing rules is difficult to understand and challenging to accomplish.

 

8.112.209  SALE PROCEDURES - PERSONAL PROPERTY

(1)  Recommendations to sell personal property:

(a)  The Personal Property Sales Committee shall review and recommend the sale of personal property. Members of the Personal Property Sales Committee shall include an equal number of members of the Montana Historical Society Board of Trustees and commission members, as specified in 22-3-1003, MCA. Such review must consider the criteria in ARM 8.112.202.

(b)  The Personal Property Sales Committee shall identify whether the property being considered for sale is from the former Bovey assets acquired by the 55th Legislature (the Bovey assets). All funds from the sale of personal property from the Bovey assets must be placed in a trust fund, and interest from the trust fund must be used to manage, protect, and directly care for the remaining personal property acquired and managed by the commission, as required by 22-3-1003, MCA.

(c)  Prior to forwarding a recommendation to the Executive Committee to sell personal property item(s), the Personal Property Sales Committee shall consider the criteria in ARM 8.112.202, and provide an estimated dollar value of the item(s) and/or an estimated cost of a third-party appraisal. The subcommittee shall prepare its recommendation to the Executive Committee in writing.

(d)  At any time in the review process, the Personal Property Sales Committee may direct commission staff to assist in preparation of reports or in other capacities.

(e) (c) Only those personal property item(s) for which a recommendation to sell is supported by a majority of the Personal Property Sales Committee members shall be forwarded to the Executive Committee or commission for consideration.

(f)  On each personal property sale under consideration, the Executive Committee shall by vote decide to:

(i)  proceed to the next level of detailed review as detailed in (2);

(ii)  request additional information regarding the criteria found in ARM 8.112.202;

(iii)  forward a recommendation directly to the commission for its consideration; or

(iv)  deny the recommendation.

(2)  Detailed review of personal property approved by Executive Committee to be further considered for sale:

(a)  For personal property item(s) approved by the Executive Committee to proceed to the next level of review, the Personal Property Sales Committee shall prepare a written report for each item that considers the criteria in ARM 8.112.202 in accordance with the criteria set forth in (2) of ARM 8.112.206. The report shall also include an estimated dollar value of the item(s) and/or an estimated cost of a third-party appraisal.

(b)  The Personal Property Sales Committee shall submit the report and its recommendations to the Executive Committee in writing at a meeting properly noticed and with the discussion of sales included on the agenda.

(c)  The commission shall decide to:

(i)  proceed to the public notice and hearing process specified in these rules;

(ii) request additional information regarding the criteria stated in ARM 8.112.202; or

(iii)  deny the recommendation.

(3)  The commission shall make a decision to proceed or not proceed with a proposed sale at a properly noticed meeting, after an opportunity for public comment has been provided, based upon consideration of the criteria found in ARM 8.112.202 as set forth in the report(s) required herein, any comments from affected local government officials, recommendations from professional historians, and comments from the public at large.

 

AUTH:  22-3-1003, MCA

IMP:  22-3-1003, MCA

 

REASON: The definition of the Personal Property Sales Committee is moved to ARM 8.112.101. The complexity found in existing rules for the sale of personal property is difficult to understand and challenging to accomplish. The Personal Property Sales Committee as outlined in statute should be able to make a recommendation directly to the commission without multiple additional steps and review in between. The commission can then make a decision to proceed with the sale in a publicly noticed meeting of the commission with the opportunity to comment.

 

            4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to the Department of Commerce, 301 South Park Avenue, P.O. Box 200523, Helena, Montana 59620-0523; telephone (406) 841-2770; TDD 841-2702; fax (406) 841-2771; or e-mail bmartello@mt.gov, and must be received no later than 5:00 p.m., July 10, 2014.

 

5. Garrett Norcott, Legal Counsel for the Montana Heritage Commission, Montana Department of Commerce, has been designated to preside over and conduct this hearing.

 

6.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact listed in 4 above or may be made by completing a request form at any rules hearing held by the department.

 

7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ G. Martin Tuttle                                        /s/ Douglas Mitchell                        

G. MARTIN TUTTLE                                   DOUGLAS MITCHELL

Rule Reviewer                                             Deputy Director

                                                                      Department of Commerce

           

Certified to the Secretary of State June 2, 2014.

 

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