HomeMy WebLinkAbout10-24-16 CC Mtg - A2. Provisional Adoption of Ordinances 1915 and 195916377, City Commission Staff Report for the Cash In-Lieu of Capital
Facilities and Intersection Level of Service Waiver Text Amendments
Public Hearing Dates: Zoning Commission and Planning Board public hearing was held October 4, 2016 at 6 pm. City Commission public hearing is October 24, 2016 at 6 pm.
Project Description: The establishment of criteria and procedures for accepting cash in-lieu of required construction of capital facilities and the establishment of standards for granting a waiver from the intersection level of service requirements.
Project Location: Applicable throughout the City of Bozeman
Recommendation: Approval
Recommended Cash In-Lieu of Capital Facilities Motion: “Having reviewed and considered the text of the ordinance, staff report, application materials, public comment, the deliberations and recommendations of the Zoning Commission and Planning Board at the October 4, 2016 joint public hearing and all information presented, I hereby adopt the findings presented in the staff report for text amendment Application 16377 and move to provisionally adopt Ordinance 1915, Cash In-Lieu of Capital Facilities.”
Recommended Intersection Level of Service Waiver Motion:
“Having reviewed and considered the text of the ordinance, staff report, application materials, public comment, the deliberations and recommendations of the Zoning Commission and Planning Board at the October 4, 2016 joint public hearing and all information presented, I hereby adopt the findings presented in the staff report for text amendment Application 16377 and move to provisionally adopt Ordinance 1959, Intersection Level of Service Waiver.”
Report Date: October 14, 2016
Staff Contacts: Mitch WerBell, Assistant Planner Chris Saunders, Interim Director of Community Development Craig Woolard, Director of Public Works
Agenda Item Type: Action - Legislative
EXECUTIVE SUMMARY
Unresolved Issues None at this time.
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Project Description and Background Subdivision and site development generate new demands on the City’s infrastructure (capital facilities). By law and municipal code, subdividers and other site developers must mitigate impacts to the City’s capital facilities. The Unified Development Code includes provisions for necessary mitigation including the construction of new capital facilities, extension of existing capital facilities and financial guarantees for completion of required capital facilities. The code also provides procedures for zoning and subdivision variances, which may create exceptions from public infrastructure requirements. When a variance to capital facilities is granted for a particular development, proportional impact mitigation does not occur. The City requires the construction of infrastructure to mitigate impacts and protect the public health, safety and welfare. Appendix B includes background policy information with packet materials from the July 25, 2016 Transportation Improvements Policy Discussion attached to this report.
Cash In-Lieu: On occasion, planned public works by the city may render the installation of capital facilities by private development fiscally disruptive and inefficient. The intent of this text amendment is to provide an additional option for private development to meet regulatory requirements for capital facility impact mitigation by request of the developer or direction by the City. There is a separate administrative manual which will help implement this ordinance. The most recent draft version is attached to this report. A summary of the cash-in-lieu of capital facilities text amendment follows: 1) Section 1 - Legislative findings for the changes. This does not amend the text. 2) Section 2 - Revise Section 38.39.070. – Payment for extension of capital facilities. a. Clarify that the City may require subdividers or other site developers to mitigate the impacts by the extension of existing capital facilities or the construction of new facilities. b. Establish that the review authority may determine on a case-by-case basis that payment of cash in-lieu of capital facilities is a method of meeting obligations for installation of infrastructure and ensures public health, safety and wellness. c. Include other site development with subdivision as land use actions that generate impacts. d. Establish that a variance is not required to be reviewed or approved as part of a cash in-lieu of capital facilities request. e. Establish the deadline for a submittal of such request and what constitutes a material change for such request. f. Establish that the City may choose to require payment of cash in-lieu. g. Establish the review authority’s procedures for reviewing, making findings on six criteria of evaluation and making a final decision to
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of Service Waiver Text Amendments Page 3 of 17 approve, approve with conditions or deny a cash in-lieu of capital facilities request. The findings of the review authority must be considered in any final action on a development application. h. Establish that cash paid in-lieu of capital facilities must be held in an appropriate fund dedicated to the type of work for which the cash was paid. i. Establish that the City may require the filing of special improvement district waivers as part of the request. j. Give authority to the City Manager to implement the program by administrative order. k. Establish the required costs and possible contingency amounts that must be included as part of the request. l. Establish situations where refunds would not be granted.
Intersection Level of Service Waiver: The Unified Development Code requires all arterial and collector streets and intersections with arterial and collector streets to operate at a minimum level of service (LOS) “C” as defined in the Highway Capacity Manual. Associated intersections must have a minimum LOS of “C” in the design year (15 years after private development approval). Current exceptions to this standard include existing intersection LOS variances and intersections constructed to maximum lane and turning movement capacity. The City has experienced an unprecedented amount of growth and, as a result, both population and trip generation have increased. Some proposed residential and supporting commercial and industrial developments cannot be completed based on a large number of roadways and intersections at or beyond capacity. The City Commission annually adopts a five-year capital improvements plan (CIP) that identifies transportation system projects, schedules and funding. A variety of sources including transportation impact fees and arterial and collector district assessments fund transportation system improvements. The Fiscal Years 2017-2021 Capital Improvements Program identifies failing roadways and intersections as transportation network priorities. CIP funding allows for significant improvements to the City’s overall street infrastructure; however, the current pace of development exceeds the rate of CIP transportation project completion. The Department of Public Works has taken a variety of measures to address development-related transportation impacts in conjunction with capital improvement projects. The proposed amendment to the intersection level of service requirements helps in addressing the City Commission’s transportation policy direction by authorizing the Director of Public Works to grant specific waivers to the minimum intersection level of service requirements under certain circumstances.
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of Service Waiver Text Amendments Page 4 of 17 A summary of the intersection level of service waiver text amendment follows: 1) Section 1 – Revise 38.24.060.B.3.b to establish procedures for an exception from intersections meeting minimum level of service standards in association with a development application. a. Establish that the review authority may grant a waiver from acceptable minimum level of service “C” for an intersection after determining that the granting is in the public interest and is not contrary to public health and safety; intersection improvements are scheduled for construction within three years on the adopted capital improvement plan; all right-of-way necessary for the intersection is secured by the City or Montana Department of Transportation; and a financing plan has been approved by the City Commission. b. Establish that a waiver is valid for the initial entitlement period for the associated project and only applies only to the property for which it was granted. c. Clarify the ability to pursue a variance if a waiver is not granted by the review authority. d. Specify that any variance granted applies only to the development for which it was granted. e. Remove references to existing criteria for review authority accepting a level of service less than “C” based on existing variance(s). 2) Section 2 – Revise 38.34.010.E to change the title of the director of public service to the “director of public works” as a review authority for specific development processes. a. Add the development process of cash-in-lieu of capital facilities to the review authority (director of public works). If the ordinance is not adopted, certain intersections operating at a level of service of less than “C” may be required to be improved by a private developer as an off-site improvement. As a result, current development, otherwise in conformance with the growth policy, can be delayed due to: 1) the wait period for intersection improvements by City according to capital improvement plan; and 2) significant costs to private developer to improve intersections not listed on capital improvement plan. If the City of Bozeman or Montana Department of Transportation does not possess necessary right-of-way for intersection improvements, a variance must be approved prior to development approval.
Advisory Board Actions The Zoning Commission and Planning Board considered these amendments and recommended approval. The video record of the October 4, 2016 joint Planning Board
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of Service Waiver Text Amendments Page 5 of 17 and Zoning Commission public hearing is available at http://www.bozeman.net/Departments/Administration/City-Commission/Streaming-Video/Archives. Draft meeting minutes are attached to this report.
Alternatives 1) Provisionally adopt the ordinances as written.
2) Direct use of alternative wording prior to final adoption. 3) Continue the public hearing and request additional information from staff. 4) Do not provisionally adopt the ordinances.
TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................................................ 1 Unresolved Issues ................................................................................................................................... 1 Project Description and Background .............................................................................................. 2 Advisory Board Actions ........................................................................................................................ 4 Alternatives ............................................................................................................................................... 5 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS .......................................................... 6 SECTION 2 - STAFF ANALYSIS AND FINDINGS .................................................................................. 6 Section 76-2-304, MCA (Zoning) Criteria ...................................................................................... 6 PROTEST NOTICE FOR ZONING AMENDMENTS ............................................................................ 11 Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations) ........... 11 Section 76-3-501, MCA (Subdivision Purposes) ...................................................................... 13 APPENDIX A - AFFECTED ZONING AND GROWTH POLICY PROVISIONS ............................ 15 APPENDIX B - POLICY BACKGROUND ................................................................................................ 15 APPENDIX C - NOTICING AND PUBLIC COMMENT ....................................................................... 16 FISCAL EFFECTS .......................................................................................................................................... 16 ATTACHMENTS ........................................................................................................................................... 16
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SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a text amendment, the Staff recommends approval as submitted. The Zoning Commission and Planning Board held a joint public hearing on the text amendments on October 4, 2016 and forwarded a recommendation of approval to the City Commission. Planning Board Resolution 16377 is attached to this report. The City Commission will hold a public hearing on the text amendments on October 24, 2016. The meeting will be held at 121 N. Rouse Avenue, Bozeman. The meeting will begin at 6 p.m.
SECTION 2 - STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission shall consider the following criteria. As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. The criteria below include separate findings for each text amendment where necessary. In considering the following criteria, the analysis must show that the amendment accomplishes zoning criteria A-D. Zoning criteria E-K must be considered and may be found to be affirmative, neutral, or negative. A favorable decision on the proposed application must find that the application meets all of criteria A-D and that the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In addition, the application must be evaluated against subdivision criteria 1-17. A favorable decision on the proposed application must find that the positive outcomes of the amendment outweigh negative outcomes for criteria 1-17.
Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy. Yes. The proposed text amendments are in accordance with the adopted growth policy. No conflicts with the goals and objectives of the Bozeman Community Plan have been identified. An analysis of consistency with several goals and objectives follows.
Objective G-1.2: Ensure that adequate public facilities, services, and infrastructure are
available and/or financially guaranteed in accordance with facility or strategic plans
prior to, or concurrent with, development.
Objective G-1.3: Require development to mitigate its impacts on our community as
identified and supported by evidence during development review, including economic,
health, environmental, and social impacts.
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of Service Waiver Text Amendments Page 7 of 17 The acceptance of cash in-lieu of constructing infrastructure will allow for an additional option for development to financially mitigate its impact on the community and for coordination with the City on projects scheduled for construction on the adopted capital improvements plan (CIP). These projects have secured financing. The intersection level of service (LOS) waiver amendment will ensure that intersection improvements have secured funding prior to development by linking the proposal with an intersection improvement scheduled for construction within three years on the CIP.
Objective LU-4.4: Review and revise the City’s regulations to encourage and support
sustainability in new construction and rehabilitation or redevelopment of existing
areas. The proposed amendments will encourage infill development and allow specific developments to proceed after meeting strict criteria. The cash in-lieu program will promote sustainability by allowing private development to contribute to planned public improvements by construction timing coordination and cost-sharing. The program will remove the fiscal and physical wastes associated with required installation of certain temporary improvements that are subsequently removed as part of a larger public project. The amendments will not affect the discretion of the review authority to require the installation of capital facilities where necessary.
Goal T-1: Transportation System – Maintain and enhance the functionality of the
transportation system.
Objective T-1.3: All development activity shall comply with the right-of-way standards,
road locations, and other policies set forth in the transportation facility plan to ensure
that an orderly, efficient, effective transportation system is continued and to avoid
future problems with inadequate transportation services and options.
Objective T-2.4: Seek and provide adequate funding to improve and maintain the
functionality of all elements of the transportation system. The criteria for accepting cash in-lieu of capital facilities and granting a LOS waiver includes conformance with projects scheduled for commencement of construction within three years on the CIP. By default, the coordination of installation with planned public improvement projects will require fewer disruptions in public services and will promote enhancement of transportation system functionality through larger stand-alone construction projects. This strategy eliminates the need for small piecemeal construction activity.
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of Service Waiver Text Amendments Page 8 of 17 With the acceptance of cash in-lieu in specific circumstances, the additional funding will aid in improving elements of the transportation system when timing is appropriate and maintaining functionality by delaying the installation of improvements. The amendments are in accordance with the Objectives T-1.3 and T-2.4 by allowing an alternative means of contribution towards an orderly, efficient and effective transportation system based on the standards and policies in the transportation plan. A project-specific waiver may be appropriate when funding and right-of-way have been secured.
Goal PS-1: Facilities and Services- All public facilities and services provided under the
authority of the City of Bozeman shall be provided in a reliable, efficient, cost-effective
and environmentally sound manner.
Objective PS-1.4: Balance maintenance of existing facilities with the need to provide
new facilities so that existing users do not suffer a reduction in service quality in order
to provide services to new development.
Objective PS-1.5: Provide for public central sewer collection and treatment facilities
for all existing and future land uses within the planning area
Objective PS-1.6: Provide for storm drain, flood control and treatment facilities for all
existing and future land uses within the planning area.
Objective PS-1.8: Provide for a safe and adequate water supply, distribution, storage
and treatment facilities to support water demand projected by planned land uses in
the planning area. The amendments will support the provision of reliable, efficient, cost-effective and environmentally sound public facilities by giving the review authority broad discretion to determine how to best provide public facilities in association with subdivision or other site development. Additional mechanisms may be employed to guarantee adequate streets, water, and sewer and stormwater facilities for all existing and future land uses.
Goal PS-3: Establish regular and sufficient funding sources to acquire, develop, and
maintain public services, and meet the community’s needs. The cash in-lieu of capital facilities program will generate additional funding to be used towards acquisition, design, construction and maintenance of public services.
Goal RCC-1: Coordinate policies and actions between public entities to increase
effectiveness and efficiency of implementation of the Bozeman Community Plan.
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Objective RCC-1.3: Coordinate planning activities and standards within the planning
area so that streets, parks, and other public services are adequately provided for and
the long term needs of the public are met. The proposed amendments will add greater flexibility to meeting regulatory impact mitigation standards by occasionally allowing coordination with planned public improvements. Coordination across public entities increases efficiency and effectiveness of public services.
B. Secure safety from fire and other dangers. Yes. The proposed text amendments secure safety from fire and other dangers. Funding and coordination with planned improvements to essential public services will balance development impact mitigation and security from fire and other hazards. Repeated disruption of services and interference with traffic due to construction increases the likelihood of crashes or other negative impacts. Coordination between public and private work lessens this hazard.
C. Promote public health, public safety, and general welfare. Yes. The proposed text amendments promote public health, public safety and general welfare. The Bozeman Community plan states, “Some level of risk is present in all locations and times despite efforts to prevent harm. Individual developments are not solely responsible for the correction of risks which are common to all. They should equitably participate in common solutions to common problems. However, the presence of common risks, such as inadequate public services, may prevent approval of a development until the hazard has been removed or corrected.” The cash in-lieu of capital facilities program will add an additional tool for private development to meet requirements for development mitigation and security of public health, safety and general welfare. Both amendments will require the review authority to formally determine that accepting cash in-lieu of capital facilities or granting an LOS waiver is in the public interest and is not contrary to protecting public health, safety and general welfare.
D. Facilitate the provision of transportation, water, sewerage, schools, parks and
other public requirements. Yes. The proposed amendments facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. The current code allows for the review authority to determine the applicability of public infrastructure requirements and specifically identify the circumstances under which extension or construction of capital facilities or its equivalent will be required. The establishment of the cash in-lieu of capital facilities program will offer an additional option, under
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of Service Waiver Text Amendments Page 10 of 17 certain circumstances, for a developer to meet public infrastructure requirements while mitigating impacts from a development. Providing an alternative to variances due to unreasonable burdens on individual developments ensure that development will be contributing to infrastructure needed for that development. If variances are granted all participation is typically lost. Both text amendments require the review authority to determine that proposals are consistent with planned public improvements on the adopted CIP through the review criteria language.
E. Reasonable provision of adequate light and air. Neutral. The proposed amendments do not address this issue.
F. Effect on motorized and non-motorized transportation systems. Yes. The proposed text amendments have a positive effect on motorized and non-motorized transportation systems. The amendments will allow the installation of street and intersection capital facilities to be coordinated with planned public improvements under specific criteria and when there will not be a negative effect on the transportation network. The review authority’s ability to require construction of transportation and intersection improvements when necessary will not be impacted by these amendments.
G. Promotion of compatible urban growth. Yes. The proposed amendments promote compatible urban growth. Additional options for meeting public infrastructure requirements in the city will reduce sprawl and incompatible growth. These processes will be linked to planned capital improvements which support the growing city. Development of land in the city will still be subject to the underlying growth policy and zoning which are adopted to promote compatible urban growth.
H. Character of the district. Neutral. The proposed amendments do not address this issue.
I. Peculiar suitability for particular uses. Neutral. The proposed text changes do not address uses for specific properties.
J. Conserving the value of buildings. Neutral. The amendments will likely not directly affect the value of existing buildings in a negative manner. Potential infill, redevelopment and approval of pending development applications may increase property values as a result of meeting infrastructure requirements with alternative options.
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K. Encourage the most appropriate use of land throughout the jurisdictional
area. Neutral. The proposed amendments do not address this issue.
PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF 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. Yes. The proposed amendments are in accordance with the adopted growth policy. No conflicts with the goals and objectives of the Bozeman Community Plan have been identified. An analysis of consistency with several goals and objectives is found under Zoning Criterion A.
Section 76-3-102, MCA (Subdivision Purposes)
2. Promote the public health, safety, and general welfare by regulating the subdivision of
land. Neutral. The Bozeman Municipal Code regulates and details procedures for subdivision. The proposed text amendments will not modify monumentation, public notice or design standards. The review authority’s decision to allow payment of cash in-lieu of constructing capital facilities or grant a waiver from the intersection level of service (LOS) requirements or will be made during the subdivision review process. Public health, safety and general welfare must be ensured with either proposal prior to a decision of approval or approval with conditions. If that determination cannot be made, the review authority will deny the proposal and require construction of capital facilities prior to the filing of the final plat.
3. Prevent the overcrowding of land. Neutral. Overcrowding occurs when demand for service exceeds the ability to meet that demand. Existing subdivision regulations require proportional matching of mitigation to proposed intensity of use. The proposed amendments will allow for alternatives to installation of facilities by subdividers through payment of cash or a waiver to intersection LOS requirements when planned improvements are scheduled for
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of Service Waiver Text Amendments Page 12 of 17 construction by the City. These amendments will not eliminate the requirement for installation of capital facilities when it is determined by the review authority that existing services do not have capacity for the proposed use.
4. Lessen congestion in the streets and highways. Yes. The proposed amendments lessen congestion in the streets and highways. The revisions will not eliminate the requirements for street or sidewalk improvements. The cash in-lieu program will allow for financial contribution and coordination with planned public improvements to create a more orderly, efficient installation and prevent disruptions in public street service from repetitive construction projects. The criteria for the granting of an intersection LOS waiver includes the requirement that intersection improvements to bring the LOS up to “C” or greater are scheduled for commencement of construction within three years on the most recently adopted capital improvement plan (CIP). Coordination of construction timing with planned public intersection improvements will reduce congestion in the streets. The review authority must find that the granting of a waiver will not be contrary to public health and safety and is in the public interest. The amendment will not remove the requirement of construction of intersection improvements when deemed necessary for safety and for the public interest of reducing transportation system congestion.
5. Provide adequate light, air, water supply, sewage disposal, parks and recreation areas,
ingress and egress, and other public improvements. Yes. The proposed amendments will provide adequate light, air, water supply, sewage disposal, parks and recreation area, ingress and egress, and other public improvements. The amendments will not change subdivision requirements for light, air and parks and recreation areas. There are many transportation network upgrade priorities that overlap infrastructure projects driven by subdivision and other site development. The revisions will provide an alternative means of development mitigation through payment of a proportional share of money which may be used for the street, water, sewer and stormwater improvements.
6. Require development in harmony with the natural environment. Neutral. The proposed amendments do not address this issue.
7. Protect the rights of property owners. Yes. The proposed amendments protect the rights of property owners. The revisions add alternative means of compliance with existing subdivision regulations. Due process procedures and protections are included in the text. Therefore, the amendments will not negatively impact procedural due process for property owners.
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8. Require uniform monumentation of land subdivisions and transferring interests in real
property by reference to a plat or certificate of survey. Neutral. The proposed amendments do not address this issue.
Section 76-3-501, MCA (Subdivision Purposes) This section requires local governments to adopt regulations that reasonably provide for:
9. Orderly development within the jurisdictional area. Yes. The proposed amendments reasonably provide for orderly development within the jurisdictional area. Repeated disruptions of facilities for small incremental projects or destruction of constructed improvements for subsequent incremental improvements are not orderly. Payment of cash in-lieu of capital facilities will offset impacts of certain subdivisions of land while minimizing the frequency of disruptions to service and facilities. A trend of recent development proposals has shown impact to multiple intersections operating at a LOS of less than “C” with each proposal. Many deficient intersections are not scheduled for priority funding and construction due to the number of capital improvements required across the city. The proposed amendment will allow certain subdivisions to receive a waiver from the intersection LOS requirement when funding is secured through impact fees and arterials and collector assessments on the CIP. Allowing an LOS waiver will permit certain subdivision and other site development to proceed in an orderly fashion, reserving variances for infrequent and truly limited proposals.
10. Coordination of roads within subdivided land with other roads, both existing and
planned. Yes. The proposed amendments reasonably provide for coordination of roads within subdivided land with other roads, both existing and planned. The cash in-lieu of capital facilities amendment will include eligibility for street improvements. The cash will be applied to financial programs dedicated to the same type of work which will help with future coordination of planned street construction and extension as part of overall transportation system upgrades. Generally, fewer disruptions in service will occur when street improvements are planned as part of a larger, single-phase project. The intersection LOS waiver will grant an exception to private development constructing off site intersection improvements when those improvements are planned for construction as part of the CIP.
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11. Dedication of land for roadways and for public utility easements. Neutral. The proposed amendments do not directly address this issue. The subdivision review process separately includes regulatory requirements for land dedication for streets and public utility easements. City possession of necessary right of way for projects for which cash in-lieu or waivers are requested is a required precondition of approval.
12. Improvement of roads. Yes. The proposed amendments reasonably provide for the improvement of roads. The cash in-lieu of capital facilities program will allow for an additional financial mechanism to fund public street improvements. The intersection LOS waiver amendment will only apply to those intersections that are funded and scheduled for construction, therefore supporting improvements to streets.
13. Provision of adequate open spaces for travel, light, air and recreation. Neutral. The proposed amendments will not alter the existing subdivision regulations which require the provision of adequate open spaces.
14. Adequate transportation, water and drainage. Yes. The proposed amendments reasonably provide for adequate transportation, water and drainage. The amendments will not invalidate existing code requirements from providing adequate transportation, water and drainage facilities when determined necessary by the review authority.
15. Regulation of sanitary facilities, subject to section 76-3-511, MCA. Neutral. The proposed amendments will not provide local regulations more stringent than state regulations. The revised language will allow for the City to require or subdividers to request the review authority allow payment of cash in-lieu of constructing sewer facilities under certain circumstances. This adds an alternative option for the sanitation requirements under the Bozeman Municipal Code but is not more stringent than Montana Code Annotated.
16. Avoidance or minimization of congestion. Yes. The proposed amendments reasonably provide for avoidance or minimization of congestion. The public will experience less frequent disruptions in service when capital projects are coordinated with planned transportation system improvements by the payment of cash in-lieu of capital facilities or the granting of an intersection LOS waiver. The amendments will not affect the ability of the review authority to require on-site or
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of Service Waiver Text Amendments Page 15 of 17 off-site public improvements when essential to protect public health, safety and general welfare and to mitigate development-initiated congestion.
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 proposed amendments reasonably provide for 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.
APPENDIX A - AFFECTED ZONING AND GROWTH POLICY PROVISIONS
Zoning Designation and Land Uses: Mitigation of subdivision and other site development impacts on capital facilities must be generally applicable to all forms of development review. The proposed amendments address all forms of development across all zoning districts and improve equity in mitigation.
Adopted Growth Policy Designation: The amendments apply to subdivision and other site development within the municipal limits of Bozeman. The growth policy designates future land uses in the planning area boundary which may exceed the current city limits. As new property is annexed, these amendments will apply to all future subdivision and development within the city. See Zoning Criterion A for analysis of conformance with the Bozeman Community Plan.
APPENDIX B - POLICY BACKGROUND The City continues to improve capital planning and funding. At the current pace of development and population growth, evolved mechanisms are needed to construct infrastructure and support public interest and private development. Expanded means of meeting regulatory requirements must ensure resource efficiency and public health, safety and general welfare. The two associated text amendments address two of the alternative infrastructure options recommended during the recent Transportation Improvements Policy Discussion. If adopted, the efficacy of the amendments will be evaluated in the future following a reasonable period of implementation and development. The adoption of these amendments will support policy directives as the City continues to evolve existing and develop new methods to address the infrastructure challenges facing Bozeman. If the
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of Service Waiver Text Amendments Page 16 of 17 ordinances are not adopted, additional policy guidance will be necessary to help with the generation and implementation of alternative solutions to public infrastructure challenges. The City may consequently experience a surge of variance requests if the City Commission does not adopt the intersection level of service waiver ordinance. Video and meeting minutes from the July 25, 2016 City Commission meeting and Transportation Improvements Policy Discussion may be located at https://media.avcaptureall.com/session.html?sessionid=534882f7-b783-4911-875b-25e0a2147ff9. The title of the proposed program was revised to “Cash In-Lieu of Capital Facilities” on October 17, 2016 following discussions with several City departments. The program was originally titled “Cash In-Lieu of Infrastructure” and was later revised to “Funds In-Lieu of Capital Facilities”. The replacement of “infrastructure” with “capital facilities” is consistent with terminology found in state statute and the Unified Development Code. The replacement of “funds” with “cash” was recommended by staff as a measure to promote consistency with existing terms in the Unified Development Code without functionally changing the type of mitigation required. Ordinance 1915 was accordingly revised on October 17, 2016 to reflect the “Cash In-Lieu of Capital Facilities” title.
APPENDIX C - NOTICING AND PUBLIC COMMENT Noticing for amendments to the municipal code is provided by publication of a legal ad in the Bozeman Daily Chronicle. Publication for these amendments was done on September 18 and October 2, 2016 at least 15 and not more than 45 days prior to the public hearings. Two public comments were received as of the writing of this report. The public comments are neutral in nature but do suggest revisions to the proposed language for clarity. The comments do not demonstrate opposition towards the intent of the cash in-lieu program and intersection level of service waivers. With the suggestions included in the public comments, staff made edits to draft Ordinances 1915 & 1959 to reorganize and improve clarity in the language. No substantive changes were drafted. The attached ordinances include the most recent revisions to the proposed language.
FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by these amendments. Future fiscal effects are expected to be neutral.
ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715.
Ordinance 1915
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Ordinance 1959
Planning Board Resolution 16377
October 4, 2016 Joint Zoning Commission & Planning Board Meeting Minutes
Public Comment
July 25, 2016 Transportation Improvements Policy Discussion Materials
Draft Administrative Manual
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Page 1 of 7
ORDINANCE NO. 1915
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING SECTION 38.39.070, BOZEMAN MUNICIPAL CODE, TO
AUTHORIZE PAYMENT OF CASH IN-LIEU OF CAPITAL FACILITIES TO SATISFY
REQUIREMENTS OF THE MUNICIPAL CODE UNDER DEFINED
CIRCUMSTANCES.
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 Sections 76-3-102 and 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 had land development regulations since at least 1934 and has
amended them from time to time to respond to changes in state law, legal decisions, and
changing community needs ; and
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
Legislative Findings:
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Ordinance No. 1915, Cash In-Lieu of Capital Facilities
Page 2 of 7
1. The city relies upon the standards and definitions within chapter 38 to enable the
development of the city 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. Subdivision and site development may generate new demands on the city’s existing
capital facilities; and
3. Installation of streets, water and sewer mains, and storm water facilities are an essential
element of a functional city and the city’s land development regulations; and
4. The city also maintains streets, water and sewer mains, and storm water facilities; and
5. The city is obligated to be fiscally responsible stewards of the public’s assets and funds;
and
6. The installation of facilities by private development may be fiscally inefficient unless
coordinated with work by the city;
7. The provision for cash in-lieu of capital facilities enables an option in the evaluation of
the developer’s preference in mitigating impacts of development; and
8. It is beneficial to establish a mechanism by which private development can meet its
regulatory requirements in coordination with the city’s scheduling of maintenance or
expansion of public facilities; and
9. As the steward of the public infrastructure and the public safety it is appropriate that the
decision to accept cash in-lieu of capital facilities be at the sole discretion of the city.
Section 2
The Bozeman Municipal Code is amended by revising Section 38.39.070 to read as
follows:
Section 38.39.070. – Payment for extension of capital facilities.
A. The city may require a subdivider or other site developer to mitigate the impacts of
subdivision or site development by the extension of existing capital facilities or the
construction of new capital facilities. The review authority, established in 38.34.010, may
determine that the payment or the guarantee of payment for the construction of capital
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Ordinance No. 1915, Cash In-Lieu of Capital Facilities
Page 3 of 7
facilities are appropriate measures to coordinate with the city’s planned capital facility
improvements and to ensure public health, safety and welfare. Payment of cash in-lieu of
constructing capital facilities by a subdivider or other site developer to the city is a
mechanism for meeting regulatory requirements and mitigating subdivision and other site
development impacts. The review authority, in its sole discretion, must determine the
appropriate mitigation for any subdivision or site development impacts.
B. The city may require a subdivider or other site developer to pay or guarantee payment for
part or all of the costs of extending capital facilities related to public health and safety,
including but not limited to public roads or streets, sewer mains, water supply mains and
stormwater facilities for a subdivision or other site development. The costs must reasonably
reflect the expected impacts directly attributable to the subdivision or other site development.
The city may not require a subdivider or other site developer to pay or guarantee payment for
part or all of the costs of constructing or extending capital facilities related to education.
C. The review authority may accept direct payment of cash in-lieu of public street, water, sewer,
and stormwater capital facilities required by this code. Should the review authority approve a
request to pay cash in-lieu, a subdivider or other site developer is not required to obtain a
variance from the requirement such facilities be constructed prior to development approval.
A request to meet the terms of chapters 38 and 40 by payment of cash in-lieu must be
submitted by an applicant prior to a determination of adequacy or any advisory body
recommendation during review of a development application. The city may choose to require
payment of cash rather than require the construction of capital facilities as determined by the
review authority. A request received after determination of adequacy or advisory body
recommendation is a material modification to the application.
1. The review authority, established in 38.34.010, must evaluate proposals of cash in-lieu of
capital facilities and make a decision to approve, approve with conditions or deny such
requests. In evaluating a request to pay cash in-lieu, the review authority must consider
the following criteria:
a. Whether there is a danger to public health and safety of accepting cash in-lieu rather
than constructing the capital facilities;
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Page 4 of 7
b. Whether the work described in the proposal is part of a project scheduled for
commencement of construction on the most recently adopted capital improvement
plan no later than three (3) years from the date of submittal;
c. Whether a public work is pending which would substantially damage the work
otherwise required to be constructed;
d. Whether the installation of the otherwise required capital facilities would be disruptive
to planned public improvements;
e. Whether the city has made a determination of the reasonableness of the cost estimate of
the work; and
f. Whether the payment would enable a more efficient installation of required capital
facilities.
2. The request to pay cash in-lieu of capital facilities and the findings of the review authority
must be considered in any final action to approve, approve with conditions, or deny a
development application.
3. All cash paid in-lieu must be held by the city in a fund dedicated to the work for which the
monies are paid.
4. As a condition of accepting cash in-lieu, the city may require the property owner to
execute a waiver of right to protest creation of a special improvement district, or other
legal instrument, assuring participation, on a fair share, proportionate basis, in future
capital facility improvements in the vicinity of the development proposal.
5. The city manager may adopt procedures by administrative order to implement this section.
6. The cash paid must include all component costs of the work deferred including but not
limited to design, permitting, traffic management, construction, and record drawings. The
cash paid must include a contingency amount to offset the uncertainty of cost estimating
and potential escalation of costs.
7. Issuance of a refund is a material modification of a development per 38.01.070. Refunds
of cash paid in-lieu are not available if:
a. A final plat which relied upon cash-in-lieu of facilities has been recorded;
b. If building permits for a non-subdivision development have been issued; or
c. If the City has published an invitation to bid on work which relies upon the paid
cash for project funding.
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Section 3
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
Section 4
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full
force and effect.
Section 5
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 6
Codification.
This ordinance shall be codified as indicated in Section 2.
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Ordinance No. 1915, Cash In-Lieu of Capital Facilities
Page 6 of 7
Section 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the _____ day of ________________,
2016.
____________________________________
CARSON TAYLOR
Mayor
ATTEST:
____________________________________
ROBIN CROUGH
City Clerk
174
Ordinance No. 1915, Cash In-Lieu of Capital Facilities
Page 7 of 7
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 2016. The effective date of this ordinance is __________, __, 201_.
_________________________________
CARSON TAYLOR
Mayor
ATTEST:
_______________________________
ROBIN CROUGH
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
175
Page 1 of 6
ORDINANCE NO. 1959
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING 38.34.010 AND 38.24.060, BOZEMAN MUNICIPAL CODE TO
PROVIDE STANDARDS FOR A WAIVER FROM THE LEVEL OF SERVICE
REQUIRED FOR INTERSECTIONS
WHEREAS, the Bozeman City Commission has established a level of service “C” as the
required level of service for intersections; and
WHEREAS, the Bozeman City Commission desires to provide the Director of Public
Works authority to grant waivers from the level of service if certain criteria are met.; and
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That 38.24.060, BMC be amended as follows:
Sec. 38.24.060. - Street improvement standards.
A. All street improvements shall be designed by and constructed under the supervision of a
professional civil engineer, registered in the state, and shall meet or exceed the right-of-way
and construction standards adopted by the city (including but not limited to an adopted
transportation plan or specifications manual) and required for the type of street to be
constructed.
B. Plans and specifications for all public or private streets (including but not limited to curb,
gutter, storm drainage, street lighting and sidewalks), shall be provided to and approved by
the review authority. The developer shall provide professional engineering services for
construction inspection, post-construction certifications and preparation of Mylar record
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Page 2 of 6
drawings. The plans and specifications shall be approved and a preconstruction conference
shall be conducted before any construction is initiated on the street improvements.
1. Surfacing. A pavement design report, based upon specific site soil data and design-year
traffic loading conditions, prepared by a professional engineer, or other qualified
professional approved by the review authority, shall be submitted to the review
authority for approval prior to plan and specification submittal if using the self-
certification process or with the plans and specifications if using the standard process.
Pavement design shall be in accordance with the city design standards and
specifications policy and the city modifications to state public works standard
specifications.
2. Alleys. In subdivisions where alleys are proposed, a 20-foot-wide right-of-way shall be
provided. The driving surface of the alley shall be 16 feet wide and shall be improved
with gravel.
a. Subdividers may elect to pave subdivision alleys provided that adequate
stormwater facilities are available.
b. Alleys shall be designed and constructed in accordance with the city design
standards and specifications policy and the city modifications to state public works
standard specifications, and subject to approval by the city engineer.
c. Alleys used for backing under 38.25.020.D shall be designed to provide the
required aisle width.
2. Traffic progression. Traffic progression will be of paramount importance.
Consequently, all potential intersections with signals will be placed on quarter-mile
points unless otherwise approved by the review authority.
3. Level of service standards. All arterial and collector streets and intersections with
arterial and collector streets shall operate at a minimum level of service "C" unless
specifically exempted by this subsection. Level of service (LOS) values shall be
determined by using the methods defined by the most recent edition of the Highway
Capacity Manual. A development shall be approved only if the LOS requirements are
met in the design year, which shall be a minimum of 15 years following the
development application review or construction of mitigation measures if mitigation
measures are required to maintain LOS. Intersections shall have a minimum acceptable
LOS of "C" for the intersection as a whole.
a. Exception: If an intersection within the area required to be studied by section
38.41.060.A.12 does not meet LOS "C" and the intersection has been fully
constructed to its maximum lane and turning movement capacity, then an LOS of
less than "C" is acceptable.
b. Exception: The review authority may grant a waiver from a accept an LOS of less
than "C" at a specific intersection if the review authority determines:
1) granting of a waiver from the level of service for the intersection would not be
contrary to public health and safety and is in the public interest;
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Page 3 of 6
2) improvements to the intersection to raise the overall level of service to a “C” or
better are currently scheduled for commencement of construction within three
(3) years as shown on the most recently adopted Transportation Capital
Improvement Plan;
3) all right of way necessary for the required intersection improvements have been
obtained by the City or by the Montana Department of Transportation; and
4) the Commission has approved a financing plan for the intersection
improvements.
A waiver granted under this subsection is valid for the initial entitlement period of
the project and applies only to the real property for which the waiver is granted. A
request for the extension of the initial development approval relying upon an
intersection level of service waiver is a material modification to the application per
38.01.070.
c. If the review authority does not grant a waiver from the level of service standard
under 38.24.060.B.4, a subdivider or other site developer may request a variance
from the requirements of this section. If a variance is granted from the requirements
of this section, the variance applies only to the specific development proposal for
which it was granted and shall not be considered evidence for any other
development proposal.
(1) A variance to allow a lesser LOS was approved not more than two years prior
to the date an application for development being reviewed is determined to be
adequate for review;
(2) The request was made in writing with the application; and
(3) The circumstances are in the professional judgment of the review authority
substantially the same as when the variance was granted.
Section 2
That 38.34.010.E, BMC, be amended as follows:
E. Subject to 38.24.060, Tthe director of public works service shall review and upon
recommendation from the applicable advisory bodies as needed approve, approve with
conditions or deny the following development elements and processes:
1. A waiver of the requirement to extend water, sewer, and streets to the perimeter of
property being developed per section 38.23.070;
2. Water rights as authorized in 38.23.180;
3. Exceptions to the level of service standards established in 38.24.060.B.4;
4. Payment of funds in-lieu of capital facilities established in 38.39.070.C.
Section 3
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Page 4 of 6
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances
of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
Section 4
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 5
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 6
Codification.
This ordinance shall be codified as indicated in Section 1 – 2.
Section 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
179
Page 5 of 6
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on
first reading at a regular session held on the _____ day of ________________, 2016.
__________________________________________
CARSON TAYLOR
Mayor
ATTEST:
_______________________________
ROBIN CROUGH
City Clerk
180
Page 6 of 6
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of
Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 2016. The effective date of this ordinance is __________, __, 201_.
__________________________________________
CARSON TAYLOR
Mayor
ATTEST:
_______________________________
ROBIN CROUGH
City Clerk
APPROVED AS TO FORM:
__________________________________________
GREG SULLIVAN
City Attorney
181
182
183
City Planning Board and Zoning Commission
Tuesday, October 04, 2016 6:00 PM
City Commission Chamber – 121 N. Rouse Ave.
A. 06:02:57 PM (00:00:24) Call meeting to order
Henry Happel - Present
Paul Spitler - Present
Paul Neubauer
George Thompson
Lauren Waterton
B. 06:03:15 PM (00:00:42) Changes to the Agenda
C. 06:03:20 PM (00:00:47) Public Comment – Please state your name and address in an audible
tone of voice for the record. This is the time for individuals to comment on matters falling within the
purview of the Committee. There will also be an opportunity in conjunction with each action item for
comments pertaining to that item. Please limit your comments to three minutes.
D. 06:03:26 PM (00:00:53) Action Items
1. Lakes at Valley West Phase 3 Subdivision,
Project Description: A Preliminary Major Subdivision application for the 3rd phase of a multi-
phase residential development located on 65 acres south of Durston Road, east and west of an
extension of Laurel Parkway. In association with a planned unit development. One phase with 56
lots and additional unplatted phases for future development. Eighteen relaxations are requested
with the PUD associated with this application. Project Location: Lot R2 of Phase 2 of the Lakes
at Valley West Subdivision, located in the NW ¼ of Section 9 Township 2S, Range 5E PMM City of
Bozeman, Montana. Located at 5600 Durston Road
184
06:03:31 PM (00:00:58) Tom Rogers begins presentation on the Lakes at Valley West Project for
Chris Saunders.
06:10:28 PM (00:07:55) Conclusion of staff presentation
Henry Happel questions if the relaxations requested are consistent with what’s happening in
Phase 1 and 2. Mr. Rogers confirms they are consistent.
06:11:18 PM (00:08:45) Applicant present begins – Mr. Statton.
06:18:43 PM (00:16:10) End of Applicant presentation
06:18:54 PM (00:16:21) George Thompson questions the square footage goals for the homes on
the lots being proposed. Applicant responds that they never committed to a square footage, but
the smallest home built so far is about 1,000sqft, most average under 2,000sqft. Applicant
states they are trying to stay in the $200,000-$400,000 price range. Currently a property is for
sale for $215,000, but had a lot of upgrades. He feels that they could get below $200,000
06:21:54 PM (00:19:21) Henry Happel questions where homes on Specific Street front – whether
it’s a city street or local street. Applicant responds some front a local street with access from the
City street. He states that the goal is to encourage parking in garage and driveways.
Paul Spitler questions the net density. Applicant responds that the overall gross is 3.3 units/acre
and 4.5 units/acre net for all phases combined. Further conversation between Mr. Spittler and
applicant regarding
06:24:53 PM (00:22:20) Paul Neubauer questions the maintenance of the woonerfs and if that
falls on the HOA. Applicant responds that it will be maintained by the HOA.
Mr. Neubauer questions the lift station needed. Applicant responds it is already in place, but
they will need to fund a portion of the costs.
06:26:10 PM (00:23:37) Lauren Waterton questions the high ground water and restriction on
basements. Applicant responds that they will not allow basements.
06:27:55 PM (00:25:22) Motion by George Thompson: Having reviewed and considered the
application materials, public comment and all the information presented, I hereby adopt the
findings presented in the staff report for application 16-320 and move to recommend approval
of the subdivisions with conditions and subject to all applicable code provisions.
Second by: Henry Happel
06:28:36 PM (00:26:03) George Thompson states that it’s an exciting project for Bozeman. He
feels the woonerf gives some opportunity in other projects, so is excited to see it implemented.
185
He is nervous with the high square footage homes, and supports smaller homes, especially on a
woonerf.
Henry Happel states that he visited the site a few days ago and likes what he saw. Questions
how it will look 30 years from now. He feels that from what he saw, that he walked away with
warm feelings.
06:30:31 PM (00:27:58) Paul Spitler states that he’d like to commend the applicant for the
thoughtfulness. However, he feels the project is far from town and that the project is really low
density, which is what we seem to be moving away from. He hopes we address these problems
in future projects. He realizes the project meets city requirements.
06:32:54 PM (00:30:21) Mr. Neubauer states that generally speaking he likes the project. He
feels that there have been a lot of relaxations that allowed the developer to make what they
wanted and he was hoping that the City would get more in the way of affordability. But he
understands the project costs money. He questions when a traffic study has lost its relevance.
He feels a lot has happened since the last traffic study in this area. He does not like the
developer signing a waiver of SID’s because that falls on new homeowners.
06:34:47 PM (00:32:14) Vote: Board Unanimously approves.
06:35:20 PM (00:32:47) Approval of meeting minutes: George Thompson moves to approves the
minutes from 5/17, 6/7, 6/21 and 8/2
Lauren Waterton Seconds
Lauren Waterton requests her name be corrected when noted at Laura.
Henry Happel requests that he be added as present on the minutes from one of the dates
approved.
06:37:18 PM (00:34:45) Board approves minutes with corrections – board unanimously
approves.
06:37:39 PM (00:35:06) Adds Zoning Commission to the meeting for the UDC discussion.
06:39:59 PM (00:37:26)
Erik Garberg
Julien Morrice
Henry Happel
Paul Spitler
Lauren Waterton
186
Paul Neubauer
George Thompson
Dan Stevenson
2. 15320 Amendment 2I
Administrative Text Amendments Addressing Covenants and Condominium Associations
06:40:23 PM (00:37:50) Mayana Rice begins presentation on Amendment 2I.
06:46:17 PM (00:43:44) Conclusion of presentation
06:46:23 PM (00:43:50) George Thompson questions the coordination of roads and naming of
roads. He questions if we can create consistency with how roads are named. Ms. Rice deflects
the response to Mr. Rogers who responds with information on how naming happens in the City.
Further discussion between Mr. Rogers and Mr. Thompson regarding street naming.
06:50:24 PM (00:47:51) Erik Garberg questions common areas being deeded to the HOA’s. He
questions if the property is deeded to the HOA, then it is essentially private property and how
some ordinances (such as off leash dogs) translates onto those properties. Ms. Rice responds
that if the HOA is maintaining, they can be more restrictive than the City, but not less restrictive.
06:52:52 PM (00:50:19) Julien Morice questions the same section and if there is more
information on park land specifically. Ms. Rice states there is more information on parkland in
other parts of the code.
06:54:27 PM (00:51:54) Julien Morice questions the requirement for HOA’s to meet regularly to
be maintained. He states that if the HOA doesn’t meet regular and maintain, then covenants
may not be valid. Ms. Rice states that it is an issue if they go obsolete. Ms. Rice states that it has
been proposed to create large districts for those spaces to be included in those districts for the
City to maintain, however, this is not on the table now.
06:56:11 PM (00:53:38) Julien Morice states that improvements need to be agreed upon up
front, so they don’t get pushed off until the last phase or the final phases don’t happen and so
improvements do not get made.
06:57:54 PM (00:55:21) henry Happel questions the procedure by which the ordinance revisions
being brought to the board are being drafted by staff, legal, etc. He feels they should see these
in semi-final form. He questions the process for which they come to the board. Ms. Rice
responds in detail about the process.
187
07:00:11 PM (00:57:38) Mr. Happel questions if there will be a final sign off before it goes to the
City commission. Ms. Rice says that yes, staff and legal will have a final look before going to the
commission.
07:00:28 PM (00:57:55) Dan Stevenson questions amendments to the language that will take
place after the board reviews it, specifically as it applies to conditions the board may propose.
Mayana Rice suggests they could recommend that staff reviews their comments and makes sure
it is included in an area of the code.
07:02:22 PM (00:59:49) Paul Neubauer suggests a grammatical correction.
Discussion regarding whether this is a public hearing – which would mean public comment. Tom
Rogers clarifies it is a public hearing and that the board should also review the final version of
the code before it goes into effect at the end of the process.
No Public Comment
07:05:36 PM (01:03:03) Motion by Julien Morice for the Zoning Commission: 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 15-320 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.
Second by: George Thompson
07:06:11 PM (01:03:38) Julien Morice states that he thinks there are some things that need to
be cleaned up a little, but all in all it looks good. He thinks we should move towards looking at
how we maintain parks in the future.
07:06:56 PM (01:04:23) Dan Stevenson agrees with Julien Morice’s comments. He suggests City
Staff look into the parks portion. He likes the idea of clarifying/defining common property and
the city’s requirements and desires of owning parkland in the conclusion of HOA’s.
Zoning Commission votes to unanimously approve.
07:07:56 PM (01:05:23) Motion by Julien Mo for the Zoning Commission: Having reviewed and
considered the application materials, public comment, and all the information presented, I
hereby adopt the findings presented in the staff report for application 15-320 and move to
recommend approval of the text amendment.
Second by George Thompson
07:08:33 PM (01:06:00) Lauren Waterton states that this seems mostly to be a house keeping
item, and seems to be in keeping with other items they’re working on.
188
Henry Happel comments that on a substantive level, this seems just fine. However, in looking at
the language to be included in the ordinance. He thinks in the future we will not remember all of
the meetings and all that will be left will be the language. He does not feel it is as well thought
out as it should be – he feels it could be more polished. He does not feel the board should spend
too much time on the technical language of the draft, but that it should be brought to them
more polished. It should be as clear and consistent as possible when it gets to them. He does not
think that if it were up to him, that he would not approve this language. He thinks the city
attorney or whomever should review it and a more polished version should be presented to the
board.
Mr. Neubauer states that he appreciates Mr. Happel giving it such a fine level of scrutiny to it.
He agrees that he shares some of his concerns and that they should receive a more finalized
document, but that he trusts that it will be more polished in the end.
Mr. Happel finalizes his statement saying that he just would prefer to see a closer to final
version before approval.
Vote on the motion: Approved by: Paul Spitler, Paul Neubauer, George Thompson, Lauren
Waterton. Not approved by: Henry Happel Motion Passes.
3. 07:13:27 PM (01:10:54) 16377 Funds In-Lieu of Capital Facilities and
Intersection Level of Service Waiver Text Amendments
The establishment of standards for accepting funds in-lieu of required construction of
capital facilities and the establishment of procedures and criteria for granting a waiver
from the intersection level of service requirements.
07:14:35 PM (01:12:02) Mitch WerBell beings presentation on the Funds in Lieu of Capital
Facilities and Intersection Level of Service Waiver Text Amendments.
07:23:41 PM (01:21:08) End of presentation by Mr. WerBell.
Mr. Neubauer questions what he meant as provisional adoption. Mr. WerBell states that there
are a number of projects in the pipeline that this would apply to, so they are hoping to get this
into effect prior to the rest of the UDC update.
07:24:36 PM (01:22:03) Lauren Waterton questions how often the CIP is updated. Clarification
that it is updated annually.
Ms. Waterton questions when the request for cash-in-lieu should be made. Mr. WerBell
responds it could be during concept review, but needs to be done before the Development
Review Committee makes a recommendation on the project. Clarification between Ms.
Waterton and Mr. WerBell about the process.
189
07:25:55 PM (01:23:22) Ms. Waterton question who the review authority is. Mr. WerBell
responds that it would be the Director of Public Works.
07:26:16 PM (01:23:43) Mr. Happel questions if there will be a case where cash-in-lieu would be
suggested by the City. Mr. WerBell states that there may be cases, but they are not going to be
frequent. The goal is for them to be able to consolidate projects into one larger project instead
of piecing things together.
Mr. Happel states that he would like that to be clearer in the document. He feels most of the
language seems to imply that the suggestion comes from the applicant.
Mr. Happel questions to what level they need to specify in advance where the cash-in-lieu will
be used.
Mr. WerBell questions where Mr. Happel would like to see his suggestion added. Mr. Happel
states that he feels it will be best for the City Attorney to add that language where he sees fit,
but it should be clarified.
Craig Woolard responds that they will need to have something more than just a concept. He
states that they don’t want to take cash-in-lieu and then not be able to cover the cost of the
infrastructure needed. So, there would be an understanding of the ultimate costs for the project
before agreeing on an amount.
Mr. Woodlard states that this needs to be a fairly flexible project to make it work. If it is
narrowed down too tight, then it will be difficult for it to be functional. So, there is some
flexibility to allow director input.
07:31:11 PM (01:28:38) Mr. Happel questions some ambiguity with the language. He states that
he feels that needs to be clarified before they’re asked to vote on it as a board. Mr. Woolard
responds that the goal with this is that there is 3 year CIP plan. The goal here is to be able to
take cash-in-lieu for projects that they know are coming up in the three year plan, to make a
cleaner project.
07:33:57 PM (01:31:24) Mr. Happel states issues with the intersection language as well –
whether “scheduled in three years” means the start of construction of the completion. He feels
it needs to be clear to not be sideways with a developer.
Mr. Woolard states that if he had to pick, it would be projects that would start in 3 years. He
wants to be able to have a project start with a plan to fix a deficiency in the near future. He’s
hoping to have good development occur.
07:35:35 PM (01:33:02) Mr. Garberg questions the appendix referenced. It appears it’s not
created yet. He’s just curious if they’ve finalized this yet or if it’s still being worked on.
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Mr. WerBell points out where the appendix is included and discusses its content. Mr. Garberg
states it’s not appendix A-F, but does see where the information is included.
07:38:13 PM (01:35:40) Julien Morice states that this funds-in-lieu will be going towards a
funding area. He questions what the funding area is – with specific dimensions. How do they
determine what is in a reasonable proximity.
Mr. WerBell states that he feels there is flexibility for the Director of Public Works. Mr. Woolard
gives an example of how he is able to use his discretion, but that the funds must directly be used
on a project related to that development.
Mr. Stevenson comments that to put specific dimensions or distances would be hard codify
since some projects may not be close to a specific project, but still necessary as a result of the
project.
Mr. Garberg questions what happens if the increase in infrastructure benefits more than the
development in question. Mr. Woolard stated they will have to explore that very carefully.
Mr. Garberg questions what the case is when a project is not part of the CIP. Mr. Woolard states
that it will not be eligible for the program. This program is for the 3 year CIP budget.
Mr. Morice questions how far they can work together projects to make this work for multiple
developments at once. Also, how can the City determine the variables in how much of the
improvements can be attributed to a specific project?
Mr. Woolard states that for the example that Mr. Morice presented, he would not use Cash-in-
lieu for that. It would be too complex and over too long of a period of time. Mr. Woolard
provides a more realistic example of when they would use the program.
Mr. Woolard provides additional examples of good examples of cash-in-lieu at Mr. Morice’s
request. Specifically short sections of sidewalks and chunks of roads.
07:50:40 PM (01:48:07) Mr. Thompson questions what happens if there are changes to the CIP.
Mr. Woolard states that they are changing the way CIP’s are done and how they are working to
avoid that. The goal is to have funding in place for the 3 year plan of Capital Improvements,
regardless of what happens. Certainty in the plan gives them more certainty which allows them
to entertain this idea of cash-in-lieu.
07:54:03 PM (01:51:30) Mr. Neubauer questions the waiver of right to protest SID’s. He states
that it is unfair to new homeowners buy into a neighborhood with infrastructure that is not
sufficient and need to be updated immediately. The developer is waiving the right for the future
homeowner.
He questions Mr. Woolard on his thoughts about deleting the portion about developers waiving
their right to protest SID’s.
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Mr. Woolard responds that the SID is a tool to get funding for improvements, but does
recognize that it is burdensome. He’s reluctant to take away this tool.
Discussion continues between Mr. Neubauer and Mr. Woolard regarding the right to protest
SID’s and what SID’s are used for.
Mr. Morice states that SID’s are typically highlighted in the buy/sell agreement. But he
recognizes that there can be some cases where and SID is unknown at the time of sale.
08:02:53 PM (02:00:20) Mr. Garberg points out that putting cash-in-lieu into the bank could
alleviate some of the burden of SID’s in the future.
08:03:57 PM (02:01:24) Mr. Morice questions if he sees potential for this to expand beyond
small projects to be a big development tool.
Mr. Woolard states that it could be a tool for bigger projects if they got a firm grasp on it, but
there are a lot of legal questions that would play into it. He feels the cash-in-lieu is a very small
step of getting a better grasp on infrastructure.
08:06:31 PM (02:03:58) Mr. Happel questions the refund provisions in the ordinance. Mr.
Woolard offers clarification with regards to refunds.
Further clarification on wording within the ordinance between board members.
08:08:59 PM (02:06:26) End of questions for staff.
08:09:08 PM (02:06:35) No Public Comment
08:09:35 PM (02:07:02) Motion by Julien Morice for Zoning Commission Having reviewed and
considered the text of the ordinance, staff report, application materials, public comment, all
information presented, I hereby adopt the findings presented in the staff report for application
16-377 and move to recommend the City Commission approve the funds-in-lieu of capital
facility use text amendment.
Second by Erik Garberg
08:10:10 PM (02:07:37) Erik Garberg comments that he feels there was a lot of drilling of the
staff and thinks that’s a good thing. But he feels that this would be a good tool.
Julien Morice states he thinks it’s a great starting point and that it could grow into something. It
will keep projects from being over-charged for some improvements and help people develop.
08:11:28 PM (02:08:55) Dan Stevenson states that there needs to be clarification that the city
can require cash-in-lieu instead of construction and secondly clarification of the language in the
refund section
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08:12:05 PM (02:09:32) Zoning Commision approves unanimously
08:12:17 PM (02:09:44) Motion by Lauren Waterton for the Planning Board Having reviewed
and considered the text of the ordinance, staff report, application materials, public comment,
all information presented, I hereby adopt the findings presented in the staff report for
application 16-377 and move to recommend the City Commission approve the funds-in-lieu of
capital facility use text amendment.
Second by George Thompson.
08:13:10 PM (02:10:37) Mr. Neubauer would like to amend the document to exclude the
portion about developers waiving the right to protest SID’s.
08:13:47 PM (02:11:14) No second by the board – amendment gets dropped.
08:14:03 PM (02:11:30) Back to the original motion. Mr. Neubauer comments that he feels it will
be a great tool and it’s a great step forward.
08:14:27 PM (02:11:54) Mr. Happel agrees that he thinks it’s a good program. He thinks the
draft ordinance is deficient. He thinks its deficient enough that it should not have been brought
to them in this state and should have been more polished. He gave examples of where there is
some inconsistency or poor layout or wording of the document and suggestions for
improvement. He feels it is poor drafting. He doesn’t feel it’s the Community Development
department’s responsibility, but perhaps the City attorney’s office.
08:17:58 PM (02:15:25) Vote on the motion: Approved by: Paul Spitler, Paul Neubauer, George
Thompson, Lauren Waterton. Not approved by: Henry Happel Motion Passed
08:18:59 PM (02:16:26) Motion by the Zoning Commission: Dan Stevenson: having reviewed
and considered the text of the ordinance, staff report, application materials, public comment
and all information presented, I hereby adopt the findings presented in the staff report for
application 16-377 and move to recommend the City Commission approve the intersection
level of service waiver text amendment.
Second by Erik Gargberg
08:19:44 PM (02:17:11) Mr. Garberg comments that using the level of service C to determine if a
project requires improvements is a bit myopic. However, he will support the motion.
08:20:07 PM (02:17:34) Julien Morice states that he supports the motion.
08:20:21 PM (02:17:48) Vote by the Zoning Commission: Board unanimously approves.
08:20:29 PM (02:17:56) Planning Board motion presented by Lauren Waterton: having
reviewed and considered the text of the ordinance, staff report, application materials, public
comment and all information presented, I hereby adopt the findings presented in the staff
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report for application 16-377 and move to recommend the City Commission approve the
intersection level of service waiver text amendment.
Second by: Henry Happel
Vote by Planning Board: Motion passes unanimously.
4. 08:21:15 PM (02:18:42) 14642 Subdivision Review Process Text Amendment
A revision to multiple sections of Chapter 38, BMC to amend procedures for review of
major and minor subdivisions and required associated supporting materials. Applicable
in all subdivisions and development city-wide.
08:22:12 PM (02:19:39) Mr. Rogers indicates that the only board that needs to review this is the
Planning Board, so if anyone from the Zoning Commission needs to leave, they are excused.
08:23:16 PM (02:20:43) Zoning Commission adjourns.
08:23:45 PM (02:21:12) Mr. Rogers begins presentation on the Subdivision Review Process Text
Amendment.
08:33:43 PM (02:31:10) Conclusion of presentation – open for questions of staff.
08:33:54 PM (02:31:21) George Thompson questions section 5 of the document. He requests
that Mr. Rogers expand on the requirements regarding rent or lease. Mr. Rogers explains.
08:36:48 PM (02:34:15) Paul Spitler questions if there are just procedural changes and not
necessarily substantive. Mr. Rogers states that is in the eye of the beholder. He feels they are
procedural.
Mr. Spitler questions how these changes are more equitable. Mr. Rogers states he’s not sure as
Mr. Saunders wrote that portion, but any time a process becomes more transparent, it can be
more equitable. The goal of this whole code update is to make it more transparent and easy to
understand for everyone.
Mr. Spitler questions if this is the right place to comment on the density. Mr. Rogers responds
that perhaps it is, but the growth policy dictates the density we are hoping for and zoning
classifications determine density requirements.
Mr. Spitler questions where in the subdivision review process are those densities spelled out by
the applicant and whether it’s part of the subdivision review process and should it be. Mr.
Rogers responds that upon subdivision and zoning density is set, and the applicant is required to
do those calculations as part of their application.
08:42:32 PM (02:39:59) End of questions for staff.
08:42:38 PM (02:40:05) No public comment.
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08:43:11 PM (02:40:38) Motion by Mr. Spitler: Having reviewed the application and materials,
public comment and all the information presented, I hereby adopt the findings presented in
the staff report for application 14-642 and move to recommend approval of the text
amendment.
Second by George Thompson
08:43:33 PM (02:41:00) Mr. Spitler states he feels this is good housekeeping in keeping up with
state and case law. He feels that they have done a thorough job.
08:43:55 PM (02:41:22) Mr. Happel comments that the effort is good. He questions what we are
doing here. He doesn’t really know if these amendments are all appropriate and covering
everything that needs to be covered and whether substantive changes should be made. He
thinks the City asking for their approval on this is going beyond their purview. He feels the City
attorney’s office should come with approval from him, not the planning board. It would take a
lot of time for him to go through the text completely and make sure he truly agrees with it. In
this circumstance, he would like to say he’s not able to vote on this, but he votes against it as a
sort of recognition that he doesn’t necessarily agree.
08:46:49 PM (02:44:16) Lauren Waterton states that to comment to Mr. Happel’s comment, she
does a lot of subdivision law review and they get sent down every couple of years and need to
be adopted, we can’t necessarily select which we want to approve and which we don’t. He
trusts staff is doing a pretty complete evaluation.
Mr. Neubauer states that the board puts a lot of faith in the staff to do a good job and present
them with a complete staff report. He states primarily their charge is to point out things that
conflict with the growth policy. He feels a lot of what they do is final stage subdivision review.
He thinks while re-doing the UDC it gives them a voice in what shapes the process. As the
growth policy gets updated, it’s another opportunity to shape the community.
Mr. Happel agrees, but to really get his head around the document, he’s just concerned that
he’s being asked to approve it and there’s a lot to review.
George Thompson states that he agrees with Mr. Happels concerns. But he’s agreeing to a
portion of the document that states that this document brings us in compliance with the state’s
requirements. He’s not sure what the state’s requirements are, so it’s an implicit trust in the
staff.
Discussion continues regarding approving the documents.
08:53:12 PM (02:50:39) Vote on the motion: Approved by: Paul Spitler, Paul Neubauer, George
Thompson, Lauren Waterton. Not approved by: Henry Happel Motion Passed.
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E. 08:53:39 PM (02:51:06) FYI/Discussion
Mr. Rogers comments that he has been appointed the Planning Board and Zoning Commission
staff liaison. He states that he is responsible for providing information to the board on what
their role is.
Mr. Rogers provides some updates on what is happening with long range planning and how it
will interact with the Planning Board.
Further information to the board about their role in the process.
08:57:35 PM (02:55:02) Mr. Spitler questions when updating the community plan, they’re going
to be in the same situation they are here, and that they might see the first level, and that they
won’t have time to review it. He’s hoping there will be more time in the future when making a
growth plan. Mr. Rogers responds.
Further discussion regarding plans for updating the community plan.
F. 09:09:09 PM (03:06:36) Adjournment
For more information please contact Alicia Kennedy at akennedy@bozeman.net
This board generally meets the first and third Tuesday of the month at 7:00pm
Committee meetings are open to all members of the public. If you have a disability and require
assistance, please contact our Interim ADA coordinator, Chuck Winn at 582-2307 (TDD 582-2301).
196
From:Henry H Happel
To:Mitchell WerBell
Cc:Tom Rogers
Subject:Cash-in-Lieu Ordinance
Date:Thursday, October 06, 2016 4:52:54 PM
Mitchell—
I had another look at the proposed Ordinance 1915 concerning establishment of a cash-in-lieu program. I frankly think this Ordinance is something of a mess. If it were me, I’d re-write it along the following lines:
Section 38.39.070. - Cash-in-lieu of construction of facilities.
A. Notwithstanding the provisions in this Article 39 which require a developer to
construct improvements to mitigate the increased demand on public facilities of a
proposed development, the City may require, or the developer may request, that
the mitigation be satisfied by the payment by the developer to the City of an up-
front cash sum in lieu of the construction of some or all of such improvements.
Such cash-in-lieu program may be proposed by either the City or the developer,
but in either event must be approved by the City, which approval shall be in the
City’s sole discretion. A developer’s request to utilize the payment of cash in lieu
must be submitted prior to a determination of adequacy or any recommendation by
an advisory board during the view of a development application. A request
received after determination of adequacy or advisory body recommendation is a
material change to the application.
[Describe how the amount of the cash in lieu payment would be determined and
when and how it would be paid.]
[Insert the substance of what's in Subsections C.1 – C.6. of the current draft]
[Insert a section concerning the issuance of either a full or partial refund of a cash-
in-lieu payment already made. I think this needs to be more completely spelled out
then what is in the proposed Subsection C.7.]
Hap
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From:Henry H Happel
To:Mitchell WerBell
Cc:Tom Rogers
Subject:Intersection Level of Service Ordinance
Date:Thursday, October 06, 2016 4:52:49 PM
Mitchell—
I had another look at Ordinance 1959 that the Planning Board considered on Tuesday evening. I think this Ordinance is, for the most part, just fine. I do think that in Sec. 38.24.060.B.3.b.2 the language ought to clarify whether the improvements must be scheduled for the commencement of construction or the completion of construction within three years.
I realized in looking the Ordinance over again that I don’t quite understand what the import of the waiver sentence is: “A waiver granted… is valid for..one (1) year from the date of the waiver…” Does that mean that the intersection must meet LOS “C” by then? What happens if it doesn’t? Does this need to be spelled out?
Thanks,Hap
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Craig Woolard, Director of Public Works
SUBJECT: Transportation Improvements Policy Discussion
AGENDA ITEM TYPE: Action
MEETING DATE: July 25, 2016
KEY ISSUES AND RECOMMENDATIONS:
Over the past several years, important improvements to planning and funding Bozeman’s
transportation system have occurred that include:
• A complete assessment of pavement condition.
• The local street reconstruction policy (and the reconstruction of two streets – Story and
Wallace).
• Additional funding for pavement maintenance.
• The creation of an arterial and collector district to provide funds, through a city-wide
assessment, to augment impact fees to complete construction of arterial and collector
roadways and intersections.
• Improved processes for proposing and approving entire corridor designs.
• An update of the transportation master plan (in progress).
The 5-year capital improvement plan (CIP) allocates impact fees and transportation assessments to projects that improve Bozeman’s transportation system. The improvements in transportation funding have allowed a CIP to be developed that addresses priority needs in the transportation
network rather than projects driven by specific development projects. Projects in the current
capital plan primarily address roadways and intersections at or beyond capacity with a failing
level of service.
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Despite improved funding and scheduled capital improvement, Bozeman’s transportation system
continues to be stressed by the pace of development. While the arterial and collector district
assessment, when combined with impact fees, improves transportation system funding, it only addresses a portion of the transportation network needs. Recent traffic counts and modelling
efforts conducted as part of the transportation master plan (TMP) update indicate a system with
multiple current and projected failures that remain as unfunded improvements.
Figure 1 shows the current level of service for 63 intersections that were evaluated within the TMP planning area. These data represent the most current system wide information available on
the performance of Bozeman’s network. 20 Intersections currently operate at or below the City’s
current level of service (LOS) “C” standard, 7 of which are to be upgraded per the City’s 5-year
CIP. Figure 2 shows the projected future (2040) conditions based on percentage growth rates
from travel demand modeling, assuming the current capital projects are completed. In 2040, 40 intersections in the planning area fail the LOS standard. These projections assume completion of
the projects in the current 5 year CIP. At the current pace of infrastructure improvements, and
assuming arterial and collector district funding and impact fee funding continue as planned and
keep pace with inflation, approximately half of the of the required intersection upgrades will
occur from 2021 to 2040.
Figure 1. Current Intersection Level of Service
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Figure 2. Projected Intersection Level of Service in the Year 2040
The current intersection LOS status of Bozeman’s transportation system, the requirements in the current development code and the pace of growth have created a situation where clear policy guidance from the Commission is required.
Bozeman’s Unified Development Code (UDC) Section 38.24.060.B.4 requires that all
intersections within one-half mile of a proposed development meet a LOS of “C” over a 15 year planning period. Should traffic studies indicate that that LOS cannot be met, the LOS deficiencies must be resolved before the development project can be completed.
When the data shown in Figures 1 and 2, the UDC language and the currently annexed land
available for development are considered together, clear implications for future development projects become apparent. The cumulative impact of delaying or deferring transportation
improvements while allowing development to occur has resulted in a situation where few new
development projects can occur without impacting an intersection that is failing or projected to
fail. Some, but not all, of the failing intersections are in the current 5-year CIP and will be
completed over the next several years. However, these projects are not keeping pace with new development. Many intersections that are impacted by development are not on the current 5
year CIP, and considering the number of projected intersections failures and the projected
funding for these improvements, many failing intersections may not be scheduled for
improvements for many years.
Public Works staff have been operating under the broad guidance to resolve infrastructure issues
for proposed developments. And as a result, creative solutions have facilitated private
development. Examples include allowing development (i.e., building permits) to proceed
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concurrently with roadway and intersection improvements. Provisions for these deviations from
the Unified Development Code (UDC) have been presented to the Commission as part of the
development review packages. The administrative authority provided to the Public Works
Director in section 38.34.010.E.3 of the UDC has also been used to facilitate development. The primary use of that discretion has been to consider any failing intersection identified and funded
on the 5-year CIP as meeting the LOS standard within the planning horizon thus eliminating the
need for that deficiency to be addressed by the proposed development.
To date, resolving development related transportation impacts using these approaches has been ad hoc. However, over the last several months, nearly every proposed development impacts
multiple failing intersections. The needed improvements are off-site improvements for nearly
every development. In most cases, at least one intersection is impacted where there is no
foreseeable plan to address the LOS deficiency. Based on the current pace of development and
the status of the transportation network, staff anticipates this trend to continue. Continued use of an ad hoc approach under these circumstances is inappropriate.
Following the UDC as written requires developers to remedy these deficiencies before
development could be approved. Most developers assert that (1) these additional costs cannot
be economically born by their projects alone and (2) they are only partially responsible for the deficiencies in the arterial and collector system and should not be required to remedy the entire
deficiency before development can occur. In the majority of cases, the impact of any single
proposed development is a small part of the overall traffic demand of an intersection. But the
cumulative impact of multiple projects has resulted in failing intersections and associated road
sections.
Both staff and the development community need to understand the will of the Commission as to
developments that impact failing intersections. Staff recommends that the Commission formally
adopt a policy that recognizes intersections and associated roadways on the 3 year CIP (funded
through a combination of impact fees and arterial and collector assessments) as meeting the LOS standard. Proposed development could proceed immediately without contributing to these off-
site improvements. Staff recommends allowing the Public Works Director to grant a LOS
waiver under these conditions and limit the use of variances to for truly exceptional
circumstances as they were intended. Draft ordinance language codifying this approach is
attached for your review. Upon receiving Commission direction and comment, staff will proceed with an ordinance change.
Beyond this policy recommendation, staff suggests the following as potential options for the
Commission to consider in providing direction.
• Adhere to the UDC as written and require failing intersections to be corrected before
development can occur (i.e., before development approval). This option will require the
developer to either wait for improvements to be made as part of the capital program, or
remedy the failure before development can proceed. For some developments, we
anticipate that the required improvements will be off site and in some cases required right
of way may not be dedicated.
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• Relax the LOS standard for intersections and allow development to proceed without
addressing current LOS deficiencies. For intersections that are complete, relaxation of
the LOS standard acknowledges that no further improvements are planned for completed
intersections. Relaxing LOS standards on incomplete intersections defers improvements
to the future with no formal plan to remedy the deficiencies may make completion of the
facility more difficult in the future and effect future impact fee assessments.
• Develop a cash-in-lieu of infrastructure program that allows the developer to make a
proportional contribution to the required improvements before significant building can
occur. Such a program could accelerate capital improvements in some situations. But
establishing a simple and easily administered program will be challenging because
varying patterns and status of development make every situation unique. And a cash-in-
lieu program that funds only partial intersection improvements will still require funding
from impact fees and/or the arterial and collector assessments that is inadequate to meet
the projected needs.
• Create Special Improvement Districts (SID) to address deficiencies before development
can proceed. In addition to being administratively burdensome, SID’s can be protested
and it is not clear what the extent of an SID would be for an arterial and/or collector
intersection. Due to the administrative challenges, historically only one intersection
upgrade has been completed in the City using an SID.
• Increase the level of funding in existing programs.
UNRESOLVED ISSUES: As discussed above.
FISCAL EFFECTS: No changes to existing transportation funding mechanisms or levels are
being proposed as part of the staff policy recommendation. Commission direction on how to proceed with unfunded improvements could have significant staffing and financial implications.
ALTERNATIVES:
Adopt Staff recommendations.
Other alternatives as suggested by the Commission.
Attachments: Draft Ordinance Language for Section 38.24.060 – Street Improvement
Standards
I. Suggested adjustments to 38.34.010:
E. Subject to 38.24.060, Tthe director of public service shall review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following
development elements and processes:
1. A waiver of the requirement to extend water, sewer, and streets to the perimeter of property
being developed per section 38.23.070;
2. Water rights as authorized in 38.23.180;
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3. Exceptions to the level of service standards established in 38.24.060.B.4.
II. Suggested adjustments to 38.24.060:
Sec. 38.24.060. - Street improvement standards.
A. All street improvements shall be designed by and constructed under the supervision of a
professional civil engineer, registered in the state, and shall meet or exceed the right-of-way and construction standards adopted by the city (including but not limited to an adopted transportation
plan or specifications manual) and required for the type of street to be constructed.
B. Plans and specifications for all public or private streets (including but not limited to curb, gutter, storm
drainage, street lighting and sidewalks), shall be provided to and approved by the review authority. The developer shall provide professional engineering services for construction inspection, post-
construction certifications and preparation of Mylar record drawings. The plans and specifications shall be approved and a preconstruction conference shall be conducted before any construction is
initiated on the street improvements.
1. Surfacing. A pavement design report, based upon specific site soil data and design-year traffic
loading conditions, prepared by a professional engineer, or other qualified professional approved by the review authority, shall be submitted to the review authority for approval prior to
plan and specification submittal if using the self-certification process or with the plans and specifications if using the standard process. Pavement design shall be in accordance with the
city design standards and specifications policy and the city modifications to state public works standard specifications.
2. Alleys. In subdivisions where alleys are proposed, a 20-foot-wide right-of-way shall be provided. The driving surface of the alley shall be 16 feet wide and shall be improved with gravel.
a. Subdividers may elect to pave subdivision alleys provided that adequate stormwater facilities are available.
b. Alleys shall be designed and constructed in accordance with the city design standards and specifications policy and the city modifications to state public works standard
specifications, and subject to approval by the city engineer.
c. Alleys used for backing under 38.25.020.D shall be designed to provide the required aisle width.
3. Traffic progression. Traffic progression will be of paramount importance. Consequently, all
potential intersections with signals will be placed on quarter-mile points unless otherwise approved by the review authority.
4. Level of service standards. All arterial and collector streets and intersections with arterial and
collector streets shall operate at a minimum level of service "C" unless specifically exempted by this subsection. Level of service (LOS) values shall be determined by using the methods defined by the most recent edition of the Highway Capacity Manual. A development shall be
approved only if the LOS requirements are met in the design year, which shall be a minimum of 15 years following the development application review or construction of mitigation measures if mitigation measures are required to maintain LOS. Intersections shall have a minimum acceptable LOS of "C" for the intersection as a whole.
a. Exception: If an intersection within the area required to be studied by section 38.41.060.A.12 does not meet LOS "C" and the intersection has been fully constructed to
its maximum lane and turning movement capacity, then an LOS of less than "C" is
acceptable.
b. Exception: Pursuant to 38.24.060, he Director of Public Works review authority may grant a waiver from the accept an LOS of less than "C" at a specific intersection if the Director
determines:
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1) granting of a waiver from the level of service for the intersection would not be contrary to public health and safety and is in the public interest;
2) improvements to the intersection to reduce the overall level of service to a “C” or better are currently scheduled for construction within three (3) years as shown on the most
recently adopted Transportation Capital Improvement Plan;
3) all right of way necessary for the required intersection improvements have been obtained
by the City or by the Montana Department of Transportation;
4) the Commission has approved financing plan for the intersection improvements; and
5) the Director of Administrative Services has indicated all financing for the intersection improvements has been obtained.
A waiver granted under this subsection is valid for a period of one (1) year from the date of the waiver and applies only to the property for which the waiver is granted.
c. If the Director of Public Works does not grant a waiver from the level of service standard under 38.24.060.B.4, a Developer may request a variance from the requirements of this
section. If a variance is granted from the requirements of this section, the variance applies only to the specific development proposal fro which it was granted and shall not be
considered evidence for any other development proposal.
(1) A variance to allow a lesser LOS was approved not more than two years prior to the date an application for development being reviewed is determined to be adequate for
review;
(2) The request was made in writing with the application; and
(3) The circumstances are in the professional judgment of the review authority substantially the same as when the variance was granted.
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Administrative Order 16-XXXX
Page 1 of 7
CASH IN-LIEU OF CAPITAL
FACILITIES ADMINISTRATIVE
PROCEDURES MANUAL
CITY OF BOZEMAN, MONTANA
June 19, 2015 [draft 1]
November 2, 2015 [draft 2]
October 14, 2016 [draft 3]
206
Administrative Order 16-XXXX
Page 2 of 7
TABLE OF CONTENTS
1. PURPOSE ............................................................................................................................3
2. DEFINITIONS .....................................................................................................................3
3. APPLICATION PROCESS .................................................................................................4
I. Timing of Application..............................................................................................4
II. Criteria of Review ....................................................................................................4
III. Contents of Application ...........................................................................................4
IV. Review of Application .............................................................................................5
4. DETERMINATION OF COST TO BE PAID ....................................................................5
5. COLLECTION OF CASH-IN-LIEU ...................................................................................6
6. USE OF CASH ....................................................................................................................6
7. REPORTING AND DATA MANAGEMENT ...................................................................7
8. APPEALS ............................................................................................................................7
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1. PURPOSE
This document shall be referred to as the Cash In-Lieu of Capital Facilities
Administrative Procedures Manual, hereinafter known as the "Manual." The following
administrative procedures contained in this Manual are intended to provide guidance to staff in administering the option to pay cash in-lieu of constructing or expanding capital facilities required by the City. The option is codified in Section 38.39.070 of the
Bozeman Municipal Code, hereinafter known as the "Ordinance." It was originally
adopted by Ordinance 1915. The Section may be amended from time to time. If there is a
conflict between this manual and the Ordinance, the Ordinance shall prevail.
This manual must be adopted by administrative order of the City Manager.
The purpose of the capital facilities installation requirements for streets, water
mains, sewer mains, and stormwater facilities is to protect the public health, safety, and
welfare by providing the necessary utilities to support new development within the City.
This purpose shall be achieved through the physical construction of street infrastructure, water infrastructure, sewer infrastructure, and stormwater infrastructure to be transferred to the City; or the payment of cash to the City to be used to construct such improvements.
The purpose for allowing Cash In-Lieu of Capital Facilities is to:
• Provide a more orderly installation of facilities so that the residents of
development receive higher quality of service;
• Provide a fewer disruptions in street or utility services;
• Allow for cost efficiencies by reducing redundant efforts and coordinating
multiple smaller projects into a single larger project; and
• Reducing damage to public facilities from repeated private construction; and
• Enable private development to reasonably mitigate impacts of development
rather than being exempted from participation by grant of a variance due to
overly burdensome requirements for installation of capital facilities.
Participation in Cash In-Lieu of Capital Facilities by private developers is
voluntary. The Review Authority may choose to require payment of cash to the City. The
Review Authority possesses sole discretion to determine when use of Cash In-Lieu of
Capital Facilities is appropriate to an application.
2. DEFINITIONS
In addition to the above and to terms and phrases defined in the Ordinance, the following terms or phrases are defined for use in this manual:
A. Cash In-Lieu of Capital Facilities means funds paid to the City for the purpose of
meeting a development’s obligation to provide street, water, sewer, or
stormwater infrastructure.
B. Consistent with Section 1.01.100, BMC all references to Director of Public Works also includes designated agents.
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C. Project related improvements has the same meaning as in Paragraph
2.06.1630.A.14, BMC.
D. Review Authority (Director of Public Works) is the decision making entity established in Section 38.34.010, BMC.
3. APPLICATION PROCESS
I. Timing of Application
A. A request for consideration of Cash In-Lieu of Capital Facilities must be
submitted by the applicant prior to a development application being deemed adequate for
review or prior to any advisory body recommendation during the review of a development application.
B. If it is not, an application for consideration of Cash In-Lieu of Capital
Facilities must not be accepted after a development application has been deemed
adequate for review unless the applicant grants a written extension to any review period.
The extension must be of adequate duration to enable the City to reexamine the project with request for Cash In-Lieu of Capital Facilities. Based upon the reexamination recommended conditions of approval may be altered, removed, or added.
C. If a request for Cash In-Lieu of Capital Facilities is submitted after a
determination of adequacy or advisory body recommendation, the Review Authority may
determine that it is a material modification of the project per Section 38.01.070.
II. Criteria of Review
A. Whether there is a danger to public health and safety of accepting cash in-
lieu rather than constructing the capital facilities; and
B. Whether the work described in the proposal is part of a project scheduled
for commencement of construction on the most recently adopted capital improvement plan no later than three (3) years from the date of submittal; and
C. Whether a public work is pending which would substantially damage the
work otherwise required to be constructed; and
D. Whether the installation of the otherwise required capital facilities would
be disruptive to planned public improvements; and
E. Whether the City has made a determination of the reasonableness of the cost estimate of the work; and
F. Whether the payment would enable a more efficient installation of
required capital facilities.
III. Contents of Application
A. An application for Cash In-Lieu of Capital Facilities must include:
1. A preliminary engineering report description with graphics and text of the
facilities for which payment rather than construction is sought.
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2. A bid or an engineer’s estimate of the anticipated cost of the project and
the basis for the costs used for the estimate.
3. The name of the project and the project number if the project is listed on the City’s capital improvement program.
4. Whether other development within the vicinity is dependent on the
completion of the infrastructure.
5. A detailed written response to the criteria of review established in Section
3.II.
IV. Review of Application
A. The Review Authority, established in 38.34.010, must evaluate proposals
for Cash In-Lieu of Capital Facilities and make a final decision to approve, approve with
conditions or deny such requests. In evaluating a request to pay cash rather than install
capital facilities, the review authority must provide written findings. The findings of the review authority for a cash in-lieu of construction of capital facilities proposal must be
considered in any final action to approve, approve with conditions, or deny a
development application.
4. DETERMINATION OF COST TO BE PAID
A. Timing. In the event the Review Authority established in Section
38.34.010, BMC determines that cash in-lieu is appropriate a value must be established. Cash in-lieu must be paid at the rate established at the time of application for final development approval.
B. Determination of Cost. Costs shall include all component costs of the
work including but not limited to design, permitting, traffic management, construction
and record drawings.
1. If the project for which Cash In-Lieu of Capital Facilities is sought is already designed and bid then the amount of the project cost proportional to the project
related improvements must be used.
2. If the City has design plans in hand for the project those plans must be
used in evaluating costs and determination of what is a project related improvement. If design plans are not in hand the applicant must prepare plans sufficient in detail for use in determining costs. If the City has established a standard unit cost, such as for sidewalk
replacement, the City and applicant may agree to use that cost.
3. The approval of Cash In-Lieu of Capital Facilities means the City has
accepted financial risk in the completion of the infrastructure improvements. Due to the uncertainty in future costs it is appropriate to establish a contingency factor to be applied to Cash In-Lieu of Capital Facilities to mitigate this risk. A cost escalation factor may be
applied for each year or fraction thereof for which the project construction is delayed.
The City may decline to allow Cash In-Lieu of Capital Facilities if the project is
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excessively delayed or the bidding environment too uncertain. As a guiding principle,
delays beyond two years are of concern and beyond five years are not acceptable.
4. Basis for escalation of costs.
a. Projects for which a construction contract has been awarded are not
subject to escalation.
b. Projects for which design is finalized and bids are being solicited may
be subject to an additional contingency of 10%.
c. Projects for which design is finalized are subject to a contingency of 10%, plus for each year of expected delay the average of the last three years of the
Engineering News Record Construction Cost Index.
d. Projects for which design is not finalized are subject to a contingency of
25%, plus for each year of expected delay the average of the last three years of the
Engineering News Record Construction Cost Index.
5. COLLECTION OF CASH-IN-LIEU
A. Payment of Cash In-Lieu of Capital Facilities by the developer to the City is required prior to final development approval.
B. Timing. If the development is a subdivision then final development
approval is approval of the final plat. If the development is a site plan or other non-
subdivision review then final development approval is final plan approval.
6. USE OF CASH
A. Payments received by the city. All cash paid to the city pursuant to the Ordinance and this Manual must be paid to the designated fund specific to the type of
infrastructure. All money paid to the City pursuant to the Ordinance and this Manual
must be used by the City to construct the improvements for which the money was paid.
B. Refunds. No refunds of money paid in-lieu shall be allowed if a final plat
which relied upon Cash In-Lieu of Capital Facilities has been recorded, if building permits for a non-subdivision development have been issued, or if the City has published
an invitation to bid on work which relies upon the paid money for project funding.
1. Consequence of refund. Issuance of a refund is a material modification of
the project per Section 38.01.070, BMC. Therefore, the project is no longer in
conformance with the municipal code and the City can require physical installation of the infrastructure which was originally the basis for the Cash In-Lieu of Capital Facilities
request.
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7. REPORTING AND DATA MANAGEMENT
A. The Department of Public Works will identify any proposed projects to be
funded with Cash In-Lieu of Capital Facilities during the upcoming fiscal year as part of
the budget process.
B. The Department of Public Works will coordinate with the Finance Department to develop a Cash In-Lieu of Capital Facilities map to show developments
which have paid Cash In-Lieu of Capital Facilities. The map and related documentation
will identify the development which paid Cash In-Lieu of Capital Facilities, the facilities
for which it was paid, the amount paid, and the date the money was received by the City.
C. The City will maintain records of when and for what infrastructure Cash In-Lieu of Capital Facilities funds are spent and any refunds issued.
8. APPEALS
A. Any determination by the Review Authority established in Section
38.34.010, BMC may be appealed in accordance with Sections 38.35.040 and 38.35.080,
BMC as may be applicable.
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