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15-320, Amendment 2I, Staff Report for Administrative Text Amendments Addressing
Covenants and Condominium Associations
Public Hearing Dates:
Zoning Commission and Planning Board joint public meeting Tuesday, October 4th,
2016
City Commission public hearing Monday, October 24, 2016
Project Description: A text amendment to amend the Bozeman Municipal Code (BMC) to
revise the covenants and condominiums requirements.
Project Location: Applicable throughout the entire corporate limit of Bozeman as it exist
now and as it evolves through annexation over time, and applies to all properties.
Recommendation: Approval
Recommended Motions:
Having reviewed and considered the application materials, public comment, recommendation
of the Zoning Commission, and all the information presented, I hereby adopt the findings
presented in the staff report for application 15320 and move to approve the text
amendment and direct staff to integrate these provisions as part of the update to the
unified Development Code amendment.
Report Date: September 27, 2016
Staff Contact: Mayana Rice, AICP; Associate Planner
Agenda Item Type: Action (Legislative)
EXECUTIVE SUMMARY
Unresolved Issues
None identified at this time.
Project Summary
These text amendments are a part of the City of Bozeman Unified Development Code
(UDC) update. The amendment is identified as a number and letter code as the ordinance
adoption will occur in early 2017 for the entire UDC.
The proposed amendments address three primary areas in section 38.38, BMC. The first
change adds “irrigation systems” to the definition of “common property”. Current
development code requires installation of irrigations systems to maintain public and/or
subdivision healthy landscaped areas. Common property: lighting, streets, centers,
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landscaping and irrigation systems in street boulevards, park land or pathways,; property
owners association bylaws or the declaration of covenants, conditions and restrictions must
be prepared and recorded with the final plat.
The second change to Article 38.38 is the clarification of the process to create property
owners associations for multiphase projects. For a multiphase project, the property owners
association shall be created for the entire project with the first phase. No property shall be
removed from the property owners association without prior approval by the city to ensure
continued maintenance of common areas and facilities, and on-going fulfillment of all
obligations.
The third set of changes intend to clarify code language and clean up of grammatical
changes, additions and removals.
Additional background information can be found in Appendix B.
Zoning Commission
TBD
Alternatives
Alternatives for Commission action are:
1) Accept the recommendation as written.
2) Direct use of alternative wording.
3) Continue the item and request additional information from staff.
4) Do not adopt the amendments and leave the language as it exists.
TABLE OF CONTENTS
Executive Summary ........................................................................................................................ 1
Unresolved Issues ....................................................................................................................... 1
Project Summary ......................................................................................................................... 1
Zoning Commission .................................................................................................................... 2
Alternatives ................................................................................................................................. 2
Table of Contents ............................................................................................................................ 2
Section 1 - RECOMMENDATION AND FUTURE ACTIONS ................................................... 3
Section 2 - STAFF ANALYSIS AND FINDINGS ........................................................................ 3
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Section 76-2-304, MCA (Zoning) Criteria ................................................................................. 3
PROTEST NOTICE FOR ZONING AMENDMENTS ................................................................. 5
APPENDIX A –Affected ZONING AND GROWTH POLICY provisions .................................. 8
appendix B – detailed project description and background ............................................................ 8
APPENDIX C – NOTICING AND PUBLIC COMMENT ........................................................... 8
Appendix D - Owner Information and Reviewing Staff ................................................................. 9
Fiscal effects ................................................................................................................................... 9
ATTACHMENTS ........................................................................................................................... 9
SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS
Amendment 2I, Staff Report for Administrative Text Amendments Addressing Covenants
and Condominiums
Having considered the criteria established for a municipal code amendment, the Community
Development Staff recommends the approval of the text amendments.
The Zoning Commission and Planning Board will hold a joint public hearing on the proposed
amendments on October 4, 2016.
The City Commission will hold a public hearing on the amendments on October 24, 2016.
SECTION 2 - STAFF ANALYSIS AND FINDINGS
In considering applications for approval under this title, the advisory boards and City
Commission shall consider the following:
Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy.
Yes. An underlying principle of the Bozeman Community Plan is to ensure that all regulatory
and non-regulatory implementation actions undertaken by the City to achieve the goals and
objectives of this plan are effective, fair, and are reviewed for consistency with this plan on a
regular basis.
Chapter 15 of the plan states: Creation of a subdivision often precedes or accompanies a
change in the use of that land. A subdivision generally remains in perpetuity and continues to
influence the location and intensity of land uses within and adjacent to the subdivision.
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As this states, the influence of a subdivision is beyond the physical boundaries of the project.
Ensuring that the rules governing the subdivision ordinance are clear and encompassing
ensure compatibility within and adjacent to the subdivision.
Objective G-2.1 states that development requirements and standards are efficiently
implemented, fairly and consistently applied, effective, and proportionate to the concerns
being addressed. The intent of both ordinances is to improve City processes in a fair,
equitable and transparent manner to insure consistency.
This plan provides overarching policy direction for all City actions. Therefore, all actions
taken to implement this plan must be reviewed to ensure compliance.
Further under this goal, the Plan includes Objective G-2.4, which states: “Develop a balanced
system of regulatory requirements, programs, and incentives to ensure that development
within the Planning Area is in compliance with the Bozeman Community Plan.” Improving
language governing subdivisions and condominium association language will continue to
support balanced regulatory requirements.
B. Secure safety from fire and other dangers.
Yes. The proposed amendments do not change the breadth of tools available to the City in
identifying and mitigating risk from land use and development.
C. Promote public health, public safety, and general welfare.
Yes. The proposed amendments do not change the requirements for provision of water or
sewer systems, provision of emergency response capability, or similar existing standards.
The proposed amendments do not eliminate any required standards currently adopted by the
City.
D. Facilitate the adequate provision of transportation, water, sewerage, schools, parks
and other public requirements.
Yes. The proposed text amendments will not affect publicly required transportation, water,
sewerage, schools, parks and other systems if and when development occurs. Established
procedures will provide for mitigation of impacts as they occur. Improving language
governing subdivisions and condominium association language will ensure phased projects
continue to comply at each phase.
E. Reasonable provision of adequate light and air.
Neutral. The proposed text amendments will not affect reasonable provisions of adequate
light and air. The text amendments are designed to improve review processes and create
efficiencies in achieving the over goals of the City.
F. The effect on motorized and non-motorized transportation systems.
Neutral. No changes to transportation standards are proposed.
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G. Promotion of compatible urban growth.
Yes. The proposed text amendments will promote compatible urban growth improving
review processes. Improving language governing subdivisions and condominium association
language will ensure phased projects continue to comply at each phase.
H. Character of the district.
Neutral. The proposed amendments do not make material changes to the character of the
established zoning districts. Any development may be subject to the provisions being
amended if required. The actions and processes involved do not directly impact character of a
district.
I. Peculiar suitability for particular uses.
Neutral. The proposed amendments do not make material changes to land uses. The more
intensive uses are still reserved for appropriate zoning districts.
J. Conserving the value of buildings.
Neutral. The proposed amendments do not make material changes to building requirements
or standards.
K. Encourage the most appropriate use of land throughout the jurisdictional area.
Neutral. The proposed amendments do not make material changes to the zoning districts.
PROTEST NOTICE FOR ZONING AMENDMENTS
IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE
OWNERS OF 25% OR MORE OF EITHER THE AREA OF THE LOTS WITHIN THE
AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT
INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME
EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT
AND VOTING MEMBERS OF THE CITY COMMISSION.
Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations)
1. Subdivision regulations adopted after a growth policy has been adopted must be
made in accordance with the growth policy.
The amendment is in accord with the growth policy. See discussion under Criterion A above
for details.
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Section 76-3-102, MCA (Subdivision Purposes)
2. Promote the public health, safety, and general welfare by regulating the
subdivision of land.
Neutral. The City’s subdivision regulations already include regulations and procedures for
subdividing land. The amendments will ensure those owners associations are created and
continue to comply at each phase of development.
3. Prevent the overcrowding of land.
Yes. Lands become overcrowded when the intensity of use is greater than the services
provided to the property. The amendments will ensure those owners associations are created
and continue to comply at each phase of development.
4. Lessen congestion in the streets and highways.
Neutral. The proposed revisions do not change the requirement for street frontage,
construction of sidewalks, or incorporation of trails in parks. Therefore, no impact is
expected to this criterion.
5. Provide adequate light, air, water supply, sewage disposal, parks and recreation
areas, ingress and egress, and other public improvements.
Yes. The revisions apply specifically to owners associations and not other municipal
services. This criterion repeats several of the criteria for zoning review which are analyzed
above. See criteria D-F above for details.
The revisions include a requirement for review by the community development department
for any changes to the owners association.
6. Require development in harmony with the natural environment.
Neutral. The proposed does not alter the basic standards for development.
7. Protect the rights of property owners.
Yes. The procedural requirements of the City’s subdivision regulations protect rights. The
proposed regulations provide restrictions ensuring that phased developments are structured to
benefit all of the phases.
8. Require uniform monumentation of land subdivisions and transferring interests
in real property by reference to a plat or certificate of survey.
Neutral. The amendments do not address this criterion.
Section 76-3-501, MCA (Subdivision Purposes)
This section requires local governments to adopt regulations that reasonably provide for:
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9. Orderly development within the jurisdictional area.
Yes. The amendments ensure the continued protection of infrastructure within subdivisions
and condominium.
10. Coordination of roads within subdivided land with other roads, both existing
and planned.
Neutral. The amendments do not address this criterion.
11. Dedication of land for roadways and for public utility easements.
Neutral. The amendments do not address this criterion.
12. Improvement of roads.
Neutral. The amendments do not address this criterion.
13. Provision of adequate open spaces for travel, light, air and recreation.
Yes. The amendments ensure the continued protection of adequate open spaces within
subdivisions and condominiums.
14. Adequate transportation, water and drainage.
Neutral. The amendments do not address this criterion.
15. Regulation of sanitary facilities, subject to section 76-3-511, MCA.
Neutral. The amendments do not address this criterion.
16. Avoidance or minimization of congestion.
Neutral. The amendments do not address this criterion.
17. Avoidance of subdivision which would involve unnecessary environmental
degradation and the avoidance of danger or injury to health, safety, or welfare by
reason of nature hazard or the lack of water, drainage, access, transportation, or other
public services or would necessitate an excessive expenditure of public funds for the
supply of such services.
Yes. The amendments ensure the continued protection of infrastructure within subdivisions
and condominiums.
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APPENDIX A –AFFECTED ZONING AND GROWTH POLICY
PROVISIONS
Zoning Designation and Land Uses:
The development of residential and commercial properties with common areas creates the
need to develop owners associations. These amendments apply to all zoning districts within
the City. These amendments are a part of the Unified Development Code Update.
Adopted Growth Policy Designation:
The proposal applies to all covenants created anywhere in the city. For discussion on accord
with the growth policy see zoning criterion A.
APPENDIX B – DETAILED PROJECT DESCRIPTION AND
BACKGROUND
Project Description
The City seeks to revise the development code in a two-step process. Phase one focused on
the North Seventh Avenue corridor and urban renewal/tax increment district (TIF). Phase
two expands the focus to the entire City.
Amending language for the subdivision and condominium covenants is part of the phase two
process.
Bozeman initially adopted zoning in 1934. Bozeman’s current UDC structure which includes
zoning, subdivision, and infrastructure standards was established in 2004. Many older
elements and standards were carried forward in 2004. The present text therefore does not
always reflect best zoning, planning and infrastructure practices.
The amendments to the subdivision and condominium covenants section will ensure that
phased projects are protected by covenants in a timely manner and fully cover all of the items
that are managed by an association.
APPENDIX C – NOTICING AND PUBLIC COMMENT
Table 38.40.040, BMC lists notice requirements for all types of applications.
The notice was submitted Thursday, September 15, 2016 for publication as a legal ad on
Sunday, September 18 and 25, 2016. Notice of the public workshops and hearings were
posted City’s website.
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Notice was provided at least 15 and not more than 45 days prior to the Zoning Commission
on Tuesday, October 4, 2016 and City Commission public hearing on Monday, October 24,
2016.
As this Text Amendment applies to the entire corporate limits of Bozeman as it exists now
and evolves over time through annexation, and it applies to all properties, there is no
requirement for posting specific properties.
No public comment has been received as of the writing of this report.
APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF
Applicant: City of Bozeman, PO Box 1230, Bozeman MT 59771
Representative: Department of Community Development
Report By: Mayana Rice, AICP; Associate Planner
FISCAL EFFECTS
No fiscal effects have been identified. No presently budgeted funds will be changed by this text
amendment.
ATTACHMENTS
The full application and file of record can be viewed at the Community Development
Department at 20 E. Olive Street, Bozeman, MT 59715.
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Ord 1916
Page 1 of 8
(Unified Development Code revision element 2I, Covenants & Condominium Provisions)
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING ARTICLE 38.38, OF CHAPTER 38, UNIFIED
DEVELOPMENT ORDINANCE, BMC, REGARDING COVENANTS AND PROPERTY
OWNER ASSOCIATIONS.
WHEREAS, The City of Bozeman (the “City”) is authorized by the City Charter and
Montana law to regulate the subdivision of land to promote public health, safety and welfare and
otherwise execute the purposes of Section 76-3-102, MCA; and
WHEREAS, The City is authorized by the City Charter and Montana law to adopt
subdivision regulations and provide for the enforcement and administration of subdivision
regulations and otherwise reasonably provide for the intentions of Section 76-3-501, MCA; and
WHEREAS, The City is authorized by the City Charter and Montana law to adopt
zoning regulations and provide for the enforcement and administration of zoning regulations and
otherwise reasonably provide for the intentions of Section 76-2-304, MCA; and
WHEREAS, The City has previously adopted regulations regarding property owner
associations and covenants as they interact with other land use and development regulations
adopted under various City authority; and
WHEREAS, It has become apparent that changes to these regulations are required; and
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NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
Legislative Findings:
1. The City relies upon the standards within Chapter 38, BMC to enable the development of
the community in a manner which avoids conflicts, enables public notice of and comment
on development which may affect residents and land owners, and provide predictability
in government actions.
2. Many new subdivisions and site development rely upon covenants and property owner
associations to satisfy land development regulatory requirements.
3. It is necessary to ensure that covenants and property owner associations are as reliable as
possible in executing these regulatory compliance duties.
4. Coordination across phases of multi-phase development is essential to enable reasonable
development patterns and that beneficiaries of facilities participate in their maintenance.
5. The sale or other loss of control of future phases can negatively impact the planned
location, size, and function of proposed and approved parks, stormwater controls, and
other facilities which are necessary for the public health, safety, and welfare and
configuration of which the City has relied upon in approving development applications.
Section 2
That the Bozeman Municipal Code be amended by revising Section 38.38.020 to read as
follows to include changing the comma to a semi-colon before ‘property owners association’ in
38.38.020.A:
A. General. If common property is toCommon property shall be deeded to the property owners
association or similar organization, of ifand the property owners association will be
responsible for the maintenance of the development's common property: lighting, streets,
centers, landscaping and irrigation systems in street boulevards, park land or pathways,;
property owners association bylaws or the declaration of covenants, conditions and
restrictions must be prepared and recorded with the final plat.
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B. Bylaws or covenants, conditions and restrictions contents. The property owners' association
bylaws or declaration of covenants, conditions and restrictions shall contain the following
information:
1. Membership. Automatic and mandatory membership for each property or unit buyer
and any subsequent buyer.
2. Common property: land/facilities. The legal description of the common land and a
description of common facilities.
3. Enforcement. Persons or entities entitled to enforce the restrictions, responsibilities and
payment of assessments, including the city.
4. Perpetual reservation. Perpetual reservation and limited use of common property.
5. Right to use. The right of each property or unit owner to use and enjoyment of any
common property or facility.
6. Responsibility. Responsibility for liability insurance, any applicable tax assessments
and the maintenance of any common property or facilities to be placed in the
association.
7. Assessments. A mechanism to assess the common expenses for the land or facilities
including upkeep and maintenance expenses, real estate taxes and insurance premiums.
Assessments shall require each property or unit owner to pay a pro rata share of the cost
of any common expenses, with any assessment charged by the association becoming a
lien where necessary on individual parcels. Safeguards against unreasonably high
charges and provision to adjust assessments may be provided.
8. A mechanism for resolving disputes among the owners or association members.
9. The conditions and timing of the transfer of ownership and control of land facilities to
the association.
10. Any other matter the developer or the city deems appropriate.
11. In the event it becomes necessary for a property owners association to retain an attorney
to enforce any of the association bylaws or covenants, conditions and restrictions, then
the prevailing party shall be entitled to reasonable attorney's fees and costs.
C. If the property owners association fails to install or maintain improvements according to
approved plans, the city may, at its option, complete construction of improvements and/or
maintain improvements in compliance with section 38.38.030 and article 39 of this chapter.
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The city's representative, contractors and engineers shall have the right to enter upon the
property and perform such work, and the property owners association shall permit and
secure any additional permission required to enable them to do so. The city shall bill the
property owners association for any costs associated with the installation or maintenance of
improvements.
D. For a multiphase project, the property owners association shall be created for the entire
project with the first phase. No property shall be removed from the property owners
association without prior approval by the city to ensure continued maintenance of common
areas and facilities, and on-going fulfillment of all obligations.
Section 3
That the Bozeman Municipal Code be amended by revising Section 38.38.030.A to read
as follows:
A. The city may require covenants to be recorded with the final plat when it is determined they
are necessary for the protection of the public health, safety and general welfare. All
covenants shall be considered to run with the land. If the covenants are not marked or noted
on the final subdivision plat or other final approval document, they shall be contained in a
separate instrument which shall be recorded with the final plat or prior to final approval of
other applications. The covenants may be required to include, but are not limited to, the
following provisions:
1. That all county declared noxious weeds will be controlled.
2. A section addressing agricultural uses of neighboring properties in the following form:
"Lot owners and residents of the subdivision are informed that adjacent uses may
be agricultural. Lot owners accept and are aware that standard agricultural and farming
practices can result in dust, animal odors and noise, smoke, flies, and machinery noise.
Standard agricultural practices feature the use of heavy equipment, chemical sprays and
the use of machinery early in the morning and sometimes late into the evening."
3. That all fences bordering agricultural lands shall be maintained by the landowners in
accordance with state law.
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4. The property owners association shall be responsible for the maintenance of subdivision
streets, common open space, centers, pathways, landscaping and irrigation systems in
street boulevards and/or parks, or other items included in 38.39.090.A.
5. That any covenant which is required as a condition of the preliminary plat approval and
required by the city commission may not be amended or revoked without the mutual
consent of the owners in accordance with the amendment procedures in the covenants,
and the city commission.
6. The condition and timing of the transfer of the property owners association from
developer to the subsequent purchasers.
7. Common area and facility maintenance plan. The developer shall submit a legal
instrument setting forth a plan providing for the permanent care and maintenance of
common areas and facilities. These common areas and facilities shall include but are not
limited to commonly owned open spaces, recreational areas, facilities, private streets
and parking lots. These common areas and facilities shall also include but are not
limited to public parks, squares, open space, recreation areas, irrigation systems, trails,
as well as any public streets, avenues and alleys not accepted by the city for
maintenance. The same shall be submitted to the city attorney and shall not be accepted
by the city until approved as to legal form and effect. If the common areas are Common
areas shall be deeded to a property owners association, the applicant shall record the
proposed documents governing the association at the time of final plat filing. Such
documents shall meet the following requirements:
a. The property owners association must be established before any residences or other
properties are sold;
b. Membership in the association must be mandatory for each property owner with a
specified method of assigning voting rights;
c. Open space restrictions must be permanent and not for a period of years;
d. The property owners association must be made responsible for liability insurance,
taxes, and maintenance of common facilities;
e. The association must have the power to levy assessments which can become a lien
on individual premises for the purpose of paying the cost of operating and
maintaining common facilities; and
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f. The governing board of any such association shall consist of at least three members
who shall be owners of property in the development.; and
g. For a multiphase project, the property owners association shall be created for the
entire project with the first phase. No property shall be removed from the property
owners association without prior approval by the city to ensure continued
maintenance of common areas and facilities, and on-going fulfillment of all
obligations.
8. Common area and facility maintenance guarantee. In the event the organization or any
successor organization established to own and maintain common areas and facilities,
shall at any time fail to maintain the common areas or facilities in reasonable order and
condition in accordance with the approved plan, the city may cause written notice to be
served upon such organization or upon the owners of property in the development. The
written notice shall set forth the manner in which the common areas or facilities have
failed to be maintained in reasonable condition. In addition, the notice shall include the
demand that the deficiencies noted be cured within 30 days thereafter and shall state the
date and place of a public meeting to be held within 14 days of the notice. At the time of
public meeting, the city commission may modify the terms of the original notice as to
deficiencies and may extend the time within which the same may be cured. If the
deficiencies set forth in the original notice or modifications are not cured within the
time set, the city may enter upon such common facilities and maintain the same for a
period of one year, in order to preserve the taxable values of properties within the
development and to prevent the common facilities from becoming a public nuisance.
Such entry and maintenance shall not vest in the public any right to use the common
facilities not dedicated to public use. Before the one year period expires, the
commission shall, upon its own initiative or upon written request of the organization
theretofore responsible for maintenance, call a public meeting and give notice of such
meeting to the organization responsible for maintenance or the property owners of the
development. At the meeting, the organization responsible for maintenance and/or the
residents of the development may show cause why maintenance by the city should not
be continued for a succeeding year. If the city commission determines that it is not
necessary for the city to continue such maintenance, the city shall cease such
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maintenance at the time established by the city commission. Otherwise the city shall
continue maintenance for the next succeeding year subject to a similar meeting and
determination at the end of each year thereafter.
a. The cost of maintenance by the city shall be a lien against the common facilities of
the development and the private properties within the development. The city
commission shall have the right to make assessments against properties in the
development on the same basis that the organization responsible for maintenance of
the facilities could make such assessments. Any unpaid assessment shall be a lien
against the property responsible for the same, enforceable the same as a mortgage
against such property. The city may further foreclose its lien on the common
facility by certifying the same to the county treasurer for collection as in the case of
collection of general property taxes.
b. Should the property owners association request that the city assume permanent
responsibility for maintenance of facilities, all facilities shall be brought to city
standards prior to the city assuming responsibility. The assumption of responsibility
must be by action of the city commission and all costs to bring facilities to city
standards shall be the responsibility of the property owners association. The city
may create special financing mechanisms so that those properties within the area
affected by the property owners association continue to bear the costs of
maintenance.
c. These common areas and facilities shall include but are not limited to commonly
owned open spaces, recreational areas, facilities, irrigation systems, private streets
and parking lots. These common areas and facilities shall also include but are not
limited to public parks, squares, open space, recreation areas, trails, as well as any
public streets, avenues and alleys not accepted by the city for maintenance.
d. The city shall assume permanent responsibility for maintenance of public areas and
facilities when a dedicated funding mechanism is adopted.
9. Guarantee for open space preservation. Open space shown on the approved final plan or
plat shall not be used for the construction of any structures not shown on the final plan.
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10. Covenants may not contain provisions which inhibit compliance with the requirements
of chapter 10, article 8, for those developments subject to chapter 10, article 8. Some
examples are: privately required minimum home or lot sizes which can not be met.
11. Covenants and condominium declaration documents shall require condominiums to be
assigned street addresses in compliance with chapter 10, article 7 BMC. Addressing
shall not use X or other generic statements. Draft documents submitted for review prior
to final approval shall include correct addresses.
4. Stormwater facilities maintenance required. All stormwater facilities in park land or
common areas shall be the sole maintenance responsibility of the developer, property
owners association, or other final custodian. Stormwater facilities shall be maintained to
function in the manner and at the capacity for which they were designed.
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