Cemetery District Survey result changed by statute: District goes to ballot

By: 
Eleanor Guerrero
CCN Senior Reporter

A previous mailout was undertaken by the County this summer to ask possible District members whether they were in support of or in opposition to forming the Cemetery District to give them an opportunity to protest. The inquiry was statutorily required.
The final results do not reflect the actual physical checkmarks made by people who marked for, or against, the district due to an unusual statutory requirement in how the responses or nonresponses are tallied which dramatically changed the outcome.
Providing citizens subject to the potential tax increase a chance to protest through a “protest form” is required by state statute. People must get the form before any attempt to tax for the program or improvements in the proposed Special District.
In doing so, 4,267 letters were mailed out. There were 595 physical responses received. There were 345 physical responses checking they were in Opposition to creating the district and 250 physical responses checking they were In Support of creating the district. However, this was not the official result –officially, a huge majority of the property owners approved the district.
A positive majority of responses was required for the cemetery district to be put on the ballot this fall in a special election. This result was obtained by the statutory requirement-not by the actual responses checked off which showed that it would not have been approved.
In 2015, the Montana legislature passed Statute 7-11-1008. It sets forth the significant manner in which the final tally must be calculated by the County in that should no response to the County’s mailout be received it is counted as a response of “Support.” If a response is returned but without a mark it is counted as “Opposition.”
Many citizens did not return their protest forms at all. Each unreturned response was counted as support of the District.
By this statutory standard, for the official tally, 92 percent approved the district and only 8 percent were against it regardless of the actual marked yeas and neas checked responses received.
When this statutory detail (that makes a response of approval for a District’s creation out of a failure to respond) was explained to one person living in the proposed district she was shocked. She said, “It’s like saying Hillary should be President” (because all those who didn’t vote in the Presidential election but would have voted for Hillary should be counted).
The precise way the “Protest Form” was identified to property owners and its impact was not required by statute.
The statute requires that “The governing body shall send each person referred to…a protest form.”
In the county’s two page cover letter there was no mention of the details of how a failure to respond or an incomplete response would impact the results although it was mentioned on the form itself. The County cover letter simply mentions a protest form is enclosed.
However, the third page in the mailing that contained the required information for a Protest Form was not entitled “Protest Form” but was entitled “Comment form required by Montana Code Annotated 2015-Seciton 7-11-1008 in reference to the creation of the Carbon County Cemetery District No. 8-Red Lodge.”
Below the heading, the form has space for responding with a check in support or opposition to the District.
It also has a space for comments.
This is followed in the bottom half with a place for the property owner’s signature and the return date deadline.
At the very bottom of the page, the full language of the impact of failure to respond is set out along with the full language of responding without a mark.
Here, for the first time the word “protest” is mentioned on the form where it states that an improper mark on a returned form would be “construed as a protest to the creation of the district.”
Should there have been more notice to citizens of the impact of not responding?
The Commissioners were asked whether the statement at the bottom of the form regarding failure to respond or failure to respond correctly was sufficient notice. They were asked whether notice should have been in the cover letter or whether page 3 should have been labeled “Protest Form” in view of the great significance of the form and the need to return it.
No response was received by press time.
In the final responses, the County received about four pages of comments against the District and one and a half pages of comments in support.
Some of the comments in opposition to the creation of the District included:
“City Land should be covered by city funding; Not willing to take on the city’s costs; no more taxes! ; There is lack of evidence in terms of how the funds will be specifically spent… ; …need to collect funds from families who have members buried there. That is the way most cemeteries work. ; We will not use the cemetery; Unscrupulous; I am not in favor of bailing out Red Lodge for 122 years of benign neglect!...There was money set aside, no doubt squandered somewhere; function of town government; taxes already excessive; should be parks budget…; …building of a slush fund that drives a growing pot of money without much oversight…; if the Commissioners were part time, as they should be, there would be plenty of money for items like this and should be a flat fee not based on the value of the property. “
Some of the comments in favor said:
“Yes, it’s long overdue; It’s about time; ...fair and right thing to do; I believe in creating district but seems like a very high amount to start-from nothing to 6 mils which will likely go up; we believe that it is the obligation of the community to maintain Red Lodge Cemetery in perpetuity; will vote if costs are reasonable; Hope you can do this and Finally, a long time coming!”
The Cemetery District will go to ballot before the end of the year in a Special Election.
The mail out results with all comments is public information.

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