DA 12 - 0072 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 150N JOHN DILLEY, Plaintiff and Appellant, v. CITY OF MISSOULA, Defendant and Appellee. APPEAL FROM: District Court of th e Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 11 - 1228 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD:

For Appellant: John Dilley(self

- represented litigant); Missoula, Montana For Appellee : James P. Nugent , City Attorney; Susan A. Firth, Chief Civil/ Administrative Attorney, Missoula, Montana Submitted on Briefs: June 12, 2012 Decided: July 10, 2012 Filed:

__________________________________________ Clerk July 10 20122

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court ’ s quarterly list of noncitable cases published in the Pacif ic Reporter and Montana Reports . ¶2 The FourthJ

udicial District Court, MissoulaC ounty, granted summar y judgment to the City of Missoula ( City) , concluding th at the City a c ted within its legal authority when it purchased the Missoula Civic Stadium (the stadium) with tax increment financing (TIF) fundsdesignated for urban renewal . Dilley appeals from this order. ¶3 The stadium was originally planned and develop edb y Play Ball Missoula, Inc. (Play Ball), a volunteer, non - profit corporationorg anized for the purpose of bringing a minor league baseball team to M issoula . In 2000, Play Ball and the City entered a development ag

reement thatp ermitted Play Ball to fin ance and construct a stadium on blighted City property and later convey the facility to the City. Financial difficulties and legal turmoil hav

e ensued since. See e.g. Fair Play Missoula, Inc. v. City of M is soula , 2002 MT 179 , 311 Mont. 22, 52 P.3d 926 . ¶4 Play Ball opened the stadium in 2004 , but construction cost overruns , litigation and the economic downturn forced a complicated series of transactionst o prevent foreclosure on the property. SeeMissoulian, Four loan guarantors say they were misled on Mi ssoula ballpark deal, refuse to pay , http://missoulian.com/news/local/3

article_ 351e91f8 - 3f3c - 11e1 - 9324 - 001871e3ce6c.html (January 15, 2012). In accordance with the negotiated transactions, the City ag reed to retirethe remaining debt encumbering the stadium upon its acquisition , using $2,000,000 in TIF rev enue and $1,555,000 in rev enue bonds paid off by the lease on the stadium . The assignment and bill of sale for the agreement were completed on February 17, 2012. ¶5 Dilley, a pro se litigant, filed suit p rior to the City ’ s acquisition of the stadium, alleging that the planned purchase using TIF fundscollected for urban renewal programs pursuant to Title 7, Chapter 15, Part 42 of Montana Code Annotated constituted an illegal payoff of private enterprise debt. Specifically, Dilley argued that the City violated § 7 - 15 - 4288, MCA, because the statute does not “ allow the payoff of private debt and the satisfaction of private creditors with TIF money. . . . ” I n issuing summary judgment in fa vor of the City, th e District Court found that § 7 - 15 - 4288, MCA, authorized such acquisit ion of recreational facilities and did not prohibit the City from discharging any debt associated with the property . The court noted that§ 7 - 15 -4288, MCA, “provides a broad spectrum of

both authority and flexibility for acquiring, preserving and maintaining public infrastructure buildings as well as public improvements[ .] ” ¶6 Dilley argues on appeal that the District Court erroneously failed to specify which provision of § 7 - 15 - 4288, MC A, “permits the payoff of private debt. ”He also argues that the City cannot make such an expenditure of TIF fundssimply because the practice is not specifically prohibited by statute . T o the contrary, the City argues that § 7 - 15 -4288 (4) , MCA, authorize sthe use of T IF money

t o pay for land acquisition, construction , or improvement of infrastructure for “ any public improvements authorized by Title 7,4

chapter 12, parts 41 through 45 . . . . ” Citing Fair Play Missoula, Inc. , the City arg ues that this C ourthas already held that the municipal urban renewal power sof incorporated cities are to be liberally construedand allow for the acquisition or construction of recreational facilities . ¶7 Indeed, weh eld in thatc ase , inter alia , that nothing in Montana ’ s statutory provision sregarding municipal acquisition of athletic fields and stadiums , § 7 - 16 - 4106, MCA , prev

ented the City from ma king the building of a stadium an urban renewal project . Fair Play Missoula , I nc ., ¶ 31 . While our inquiry in the case reflec ted the facts as they existed at the time

—that the stadium would be entirel y financed by Play Ball and donated to the City upon completion

— our interpretation of statutes controlling the municipal powers of

urban renewal remain sunchang ed. We held at that time that “ the decision to proceed with development [of the stadium] under the urban renewal provisions rests with the City, and we construe the City ’ s powers liberally. ” Fair Play Missoul a , Inc ., ¶ 31. Using

TIF money

to discharge the debt encumbering the stadium in order to effect its acquisitionwas a proper exercise of city urban renewal powers. ¶8 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opini ons . The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶9 Affirmed. /S/ MIKE McGRATH5

We concur: /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ BETH BAKER /S/ JAMES C. NELSON