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HomeMy WebLinkAbout2002-09-03 Minutes, City CommissionMINUTES OF THE MEETING OF THE CITY COMMISSION BOZEMAN, MONTANA September 3, 2002 The Commission of the City of Bozeman met in regular session in the Commission Room, Municipal Building, on Tuesday, September 3, 2002, at 7:00 p.m. Present were Mayor Steve Kirchhoff, Commissioner Marcia Youngman, Commissioner Lee Hietala, Commissioner Jarvis Brown, Commissioner Andrew Cetraro, City Manager Clark Johnson, Planning Director Andy Epple, Staff Attorney Tim Cooper and Clerk of the Commission Robin Sullivan. The meeting was opened with the Pledge of Allegiance and a moment of silence. None of the Commissioners requested that any of the Consent Items be removed for discussion. Minutes - January 18, 2000, and May 13, August 19 and August 26, 2002 It was moved by Commissioner Youngman, seconded by Commissioner Hietala, that the minutes of the meeting of August 26, 2002, be approved as amended. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Youngman, Commissioner Hietala, Commissioner Brown, Commissioner Cetraro and Mayor Kirchhoff; those voting No, none. Mayor Kirchhoff deferred action on the minutes of the meetings of January 18, 2000, and May 13 and August 19, 2002, to a later date. Consent Items City Manager Johnson presented to the Commission the following Consent Items. Acknowledge receipt of petition for annexation - Tickco Holdings, LLC - 2.33-acre parcel described as Lot 3A, Block 4, Walker Property PUD (1121 Reeves Road West) Acknowledge receipt of staff report - request for annexation of 2.33-acre parcel described as Lot 3A, Block 4, Walker Property PUD (1121 Reeves Road West) (A-02004) Authorize City Manager to sign - Tschache Lane Street/Utility Easement and Temporary Cul-de-Sac Easement on Lot 2, COS No. 2089 - Home Depot U.S.A., Inc. (west side of North 19th Avenue between Tschache Lane and Baxter Lane) Ordinance No. 1572 - Zone Map Amendment - from "BP" to "B-2" on 20.33 acres described as Certificate of Survey No. 331 (Rolfe property on west side of North 19th Avenue); finally adopt Authorize City Manager to sign - Sewer and Water Pipeline and Access Easement and Aqreement- Farmhouse Partners - College L.P. - 30-foot-wide easement across Lot 5, Block 2, Triangle Area Annexation (for Bridger Apartments) Authorize City Manager to sign - Sewer and Water Pipeline and Access Easement and Agreement - West End Professional Center - 30-foot-wide easement across Tract 4 (for Bridger Apartments) Claims 09-03-2002 -2- It was moved by Commissioner Hietala, seconded by Commissioner Brown, that the Commission approve the Consent Items as listed, and authorize and direct the appropriate persons to complete the necessary actions. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. Public hearing - request for annexation of 7.836 acres described as Parcel B1, COS No. 1790B - C&H Engineering for Bill Phillips and Bart Manion (parcel Ivincl between South Rouse Avenue and South Church Avenue at Accola Street extended) (A-02006) This was the time and place set for the public hearing on the request for annexation of 7.836 acres described as Parcel B1, Certificate of Survey No. 1790B, as established by Commission Resolution No. 3534, entitled: COMMISSION RESOLUTION NO. 3534 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION OF THE CITY OF BOZEMAN, THE INHABITANTS THEREOF AND THE INHABITANTS OF A TRACT OF LAND CONTIGUOUS TO SAID CITY OF BOZEMAN, AND HEREIN MORE PARTICULARLY DESCRIBED, TO EXTEND THE BOUNDARIES OF SAID CITY OF BOZEMAN SO AS TO INCLUDE SAID CONTIGUOUS TRACT WITHIN THE CORPORATE LIMITS THEREOF. Mayor Kirchhoff opened the public hearing. August 16. Included in the Commissioners' packets was a memo from Assistant Planner Susan Kozub, dated 28, requesting that the public hearings on this and the next agenda item be continued to September Mr. Bart Manion stated that, while he still has a financial commitment, he is no longer involved in the proposed project. He then indicated that he will be out of town when the upcoming meetings regarding this application are to be held. It was moved by Commissioner Brown, seconded by Commissioner Cetraro, that the public hearing be continued to September 16, per staff's request. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Brown, Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala and Mayor Kirchhoff; those voting No, none. Public hearing - Zone Map Amendment - establish initial zoning designation of "R-3" on 7.836 acres described as Parcel B1, COS No. 1790B- C&H Engineering for Bill Phillips and Bart Manion (parcel lying between South Rouse Avenue and South Church Avenue at Accola Street extended) (Z-02135) This was the time and place set for the public hearing on the Zone Map Amendment requested by C&H Engineering for Bill Phillips and Bart Manion under Application No. Z-02135, to establish an initial zoning designation of "R-3" Residential-Medium-density, on 7.836 acres described as Parcel B, Certificate of Survey No. 1790B. The subject property lies between South Rouse Avenue and South Church Avenue at Accola Street extended. Mayor Kirchhoff opened the public hearing. Included in the Commissioners' packets was a memo from Assistant Planner Susan Kozub, dated August 28, requesting that the public hearings on this and the previous agenda item be continued to September 16. It was moved by Commissioner Cetraro, seconded by Commissioner Youngman, that the public hearing be continued to September 16, per staff's request. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala, Commissioner Brown and Mayor Kirchhoff; those voting No, none. 09-03-2002 -3- Continued public hearin.q - Amendment to preliminary plat for Minor Subdivision No. 99 of Advanced Technoloqy Park Subdivision - Bill and Cheryl Roller - to remove "no access easement" on south side of Lot 3, Block 2, Minor Subdivision No. 99, alon.q Garfield Street (2048 Analysis Drive) (P- 02029) This was the time and place set for the continued public hearing on the amendment to the preliminary plat for Minor Subdivision No. 99 of the Advanced Technology Park Subdivision, as requested by Bill and Cheryl Roller under Application No. P-02029, to remove the "no access easement" on the south side of Lot 3, Block 1. The subject property is located along the south side of West Garfield Street and is known as 2048 Analysis Drive. Mayor Kirchhoff opened the continued public hearing. Planning Director Andy Epple presented the staff report on behalf of Assistant Planner Jami Morris. He characterized this as a simple amendment in conjunction with the site plan review which was recently completed. He stated that this lot, which is located in the southeast corner of the Advanced Technology Park, is the only one on which a one-foot no access strip along Garfield Street was recorded. The Planning Director noted that during site plan review, the Development Review Committee (DRC) identified the need for a second access to the property. At the present time, the applicant has an easement with the adjacent property owner that allows access from one parking lot to the other parking lot to provide the second access, but both the applicant and the DRC would prefer a direct access onto Garfield Street. Planning Director Epple stated that staff has reviewed this application in light of the applicable criteria and forwarded a recommendation for approval. He stated that, following its review of this request at its August 20 meeting, the Planning Board concurred in staff's recommendation. Responding to Commissioner Brown, the Planning Director stated there is an intervening parcel owned by Montana State University between South 19th Avenue and the Advanced Technology Park. As a result, he estimated the distance between an access from this lot and South 19th Avenue at between 150 and 200 feet. Neither the applicant nor any representatives of the applicant were present. No one spoke in support of or in opposition to the requested amendment. Since there were no Commissioner objections, Mayor Kirchhoff closed the public hearing. It was moved by Commissioner Youngman, seconded by Commissioner Hietala, that the amendment to the preliminary plat for Minor Subdivision No. 99 of the Advanced Technology Park Subdivision, as requested by Bill and Cheryl Roller under Application No. P-02029, to remove the "no access easement" on the south side of Lot 3, Block 1, be approved subject to the following condition: The final plat shall conform to all requirements of the Bozeman Area Subdivision Regulations and the Uniform Standards for Final Subdivision Plats and shall be accompanied by all required documents, a platting certificate, and all required certificates. The final plat application shall include two (2) signed reproducible copies on a stable base polyester film (or equivalent); two (2) digital copies on a double-sided, high-density, 3Y2-inch floppy disk; and five (5) paper copies. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Youngman, Commissioner Hietala, Commissioner Brown, Commissioner Cetraro and Mayor Kirchhoff; those voting No, none. 09-03-2002 -4- Public hearing - request for annexation of 0.275__. acres described as Tract 1, Van Horn Subdivision - Edward L. and LeEtta L. Loterbauer (3324 West Babcock Street) (A-02007) This was the time and place set for the public hearing on the request for annexation of an 0.275+- acre parcel described as Tract 1, Van Horn Subdivision, as established by Commission Resolution No. 3530, entitled: COMMISSION RESOLUTION NO. 3530 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION OF THE CITY OF BOZEMAN, THE INHABITANTS THEREOF AND THE INHABITANTS OF A TRACT OF LAND CONTIGUOUS TO SAID CITY OF BOZEMAN, AND HEREIN MORE PARTICULARLY DESCRIBED, TO EXTEND THE BOUNDARIES OF SAID CITY OF BOZEMAN SO AS TO INCLUDE SAID CONTIGUOUS TRACT WITHIN THE CORPORATE LIMITS THEREOF. Mayor Kirchhoff opened the public hearing. Associate Planner Chris Saunders presented the staff report on behalf of Senior Planner Dave Skelton. He stated the subject parcel is located at the southeast corner of the intersection of West Babcock Street and Fowler Avenue and contains a single-family residence. He indicated that the City recently acquired right-of-way adjacent to this parcel and, in consideration of that acquisition, City staff indicated that annexation would be given beneficial consideration. He noted the subject parcel is surrounded on three sides by city limits, touching the county on the north only. The Associate Planner indicated that staff has reviewed this application in light of the four goals and eleven policies contained in Commission Resolution No. 3137, and staff's comprehensive findings are contained in the written staff report. He noted that, due to the small size of this parcel and the fact that it is already developed, no requirement for affordable housing is proposed. He then forwarded staff's recommendation for approval, contingent upon the following issues being addressed prior to or in the Annexation Agreement: That the applicant execute at the Gallatin County Clerk and Recorder's Office a waiver of right-to-protest creation of SIDs for a City-wide Park Maintenance District, which would provide a mechanism for the fair and equitable assessment of maintenance costs for City parks as part of the Annexation Agreement. That provisions for acquisition of right-of-way or easements be provided in the Annexation Agreement whereby upon sale or further development of the property, the applicant shall provide a public street and utility easement or dedication for one- half (50 feet from the centerline) of the future right-of-way for Fowler Avenue. That provisions for water rights or cash-in-lieu of water rights in an amount determined by the Director of Public Service be provided in the Annexation Agreement whereby at such time that said property is either sold or further developed said payment of calculated cash-in-lieu of water rights shall be made, prior to the City Commission adopting the Resolution of Annexation and accepting the Annexation Agreement. That at the time of any new development on the property the land owners and their successors shall pay all fire, street, water and sewer impact fees required by Chapter 3.24, Bozeman Municipal Code, as agreed upon in the acquisition of West Babcock Street right-of-way. An Annexation Map, titled "Loterbauer Annexation Map" with a legal description of the property shall be submitted by the applicant for use with the Annexation Agreement. The map must be supplied on a mylar for City records (18 inches by 24 inches), a reduced 8Y2-inch by 11-inch or 81/2-inch by 14-inch exhibit for filing with the Annexation Agreement at the Gallatin County Clerk and Recorder, and a digital copy for the City Engineer's Office. This map must be acceptable to the Director of 09-03-2002 -5- Public Service and the City Engineer's Office, and shall be submitted with the signed Annexation Agreement. That the applicant executes all contingencies and terms of said Annexation Agreement with the City of Bozeman within one (1) year of approval by the governing body, or annexation approval shall be null and void. Neither the applicant nor any representatives of the applicant were present. No one spoke in support of or in opposition to the requested annexation. Since there were no Commissioner objections, Mayor Kirchhoff closed the public hearing. It was moved by Commissioner Hietala, seconded by Commissioner Brown, that the request for annexation of an 0.275+-acre parcel described as Tract 1, Van Horn Subdivision, be approved and that staff be directed to bring back an Annexation Agreement for Commission consideration. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. Public hearing - Zone Map Amendment - establish initial zoning designation of "R-3" on 0.254-acre parcel described as Tract 1, Van Horn Subdivision - Edward L. and LeEtta L. Loterbauer (3324 West Babcock Street) (Z-02141) This was the time and place set for the public hearing on the Zone Map Amendment requested by Edward L. and LeEtta L. Loterbauer under Application No. Z-02141, to establish an initial zoning designation of "R-3", Residential-Medium-density, on an 0.254-acre parcel described as Tract 1, Van Horn Subdivision. The subject property is located at 3324 West Babcock Street. Mayor Kirchhoff opened the public hearing. Associate Planner Chris Saunders presented the staff report on behalf of Senior Planner Dave Skelton. He indicated that the requested "R-3" zoning designation is consistent with the surrounding zoning designations as well as with. the existing development of this site. He stated that staff has reviewed this application in light of the twelve criteria set forth in the zone code, and staff's comprehensive findings are contained in the written staff report. He noted that, following its public hearing on August 26, the Zoning Commission concurred with staff's recommendation for approval. Neither the applicant nor any representatives of the applicant were present. No one spoke in support of or in opposition to the requested zone map amendment. Since there were no Commissioner objections, Mayor Kirchhoff closed the public hearing. It was moved by Commissioner Brown, seconded by Commissioner Cetraro, that the Zone Map Amendment requested by Edward L. and LeEtta L. Loterbauer under Application No. Z-02141, to establish an initial zoning designation of "R-3", Residential-Medium-density, on an 0.254-acre parcel described as Tract 1, Van Horn Subdivision, be approved subject to the following conditions: That the Ordinance for the Zone Map Amendment shall not be adopted until the Annexation Agreement is signed by the applicant and formally approved by the City Commission and the Resolution of Annexation is adopted. If the annexation is not approved, the application shall be null and void. That the applicant submit a zone amendment map, titled "Loterbauer Zone Map Amendment", on a 24-inch by 36-inch mylar, 81/2-inch by 11 -inch, or 8Y2-inch by 14- inch paper exhibit, and a digital copy of the area to be zoned, acceptable to the Director of Public Service, which will be utilized in the preparation of the Ordinance to officially amend the City of Bozeman Zoning Map. Said map shall contain a 09-03-2002 -6- metes and bounds legal description of the perimeter of the subject property, total acreage of the property and adjoining rights-of-way and/or street access easements. o That the Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides a metes and bounds legal description and map of the area to be rezoned, which will be utilized in the preparation of the Ordinance to officially amend the zone map. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Brown, Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala and Mayor Kirchhoff; those voting No, none. Continued public hearing - Major Site Plan - TriStar Communications for Barry Brown and Jerry Locati - allow development of 180-foot-tall telecommunications tower with associated support equipment on portion of Block 49, Northern Pacific Addition (Jayhawk Tower, 528 North Broadway Avenue) (7-02144) This was the time and place set for the continued public hearing on the Major Site Plan requested by TriStar Communications for Barry Brown and Jerry Locati under Application No. Z-02144, to allow development of a 180-foot-tall telecommunications tower with associated support equipment on a portion of Block 49, Northern Pacific Addition. The subject project is known as the Jayhawk Tower, and is located at 528 North Broadway Avenue. Included in the Commissioners' packets were a memo from Associate Planner Chris Saunders, dated August 15, forwarding responses to some of the issues raised during the previous public hearing; a letter from Yellowstone Holding Company received on August 26; and information from a website forwarded by Yellowstone Holding Company, also received on August 26. Mayor Kirchhoff reopened the continued public hearing. City Manager Johnson noted that, distributed just prior to the meeting, was a written request from the applicant that this hearing be continued to September 16. Responding to Mayor Kirchhoff, Mr. J.R. Reger, applicant, stated he has requested the continuance to give him an opportunity to address the condition upon which denial of the Lux Tower at last week's meeting was based. He indicated his intent to propose a 100-foot tower, expandable to 180 feet as the need arises; and that will require some additional changes in his application. He then asked the Commission to reconsider the decision on the Lux Tower if at all possible, indicating it would be his intent to submit a similar proposal for that tower. Staff Attorney Cooper stated that, even if the Commission does not choose to reconsider the Lux Tower, the applicant can submit a new application for the same property, with more attention paid to a particular issue. It was moved by Commissioner Cetraro, seconded by Commissioner Youngman, that the public hearing be continued to September 16, per the applicant's request. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala, Commissioner Brown and Mayor Kirchhoff; those voting No, none. Public hearing - proposed Ordinance No. -extendinq urgency interim zoning ordinance to temporarily prohibit construction of wholesale or retail structures that are equal to or greater than 50,000 gross square feet This was the time and place set for the public hearing on the proposed ordinance extending the urgency interim zoning ordinance to temporarily prohibit construction of wholesale or retail structures that are equal to or greater than 50,000 gross square feet, entitled: 09-03-2002 -7- ORDINANCE NO. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, EXTENDING THE URGENCY INTERIM ZONING ORDINANCE, AS ORIGINALLY ADOPTED BY ORDINANCE NO. 1561, TO PROHIBIT USES OF WHOLESALE OR RETAIL STRUCTURES THAT ARE EQUAL TO OR GREATER THAN 50,000 GROSS SQUARE FEET, FOR A PERIOD OF ONE (1) YEAR FROM THE EFFECTIVE DATE OF THIS ORDINANCE OR UNTIL AN ORDINANCE SUPPLANTING THIS ORDINANCE BECOMES EFFECTIVE, WHICHEVER OCCURS FIRST. Mayor Kirchhoff opened the public hearing. City Manager Johnson indicated that Ordinance No. 1561 expires on September 25; and a permanent ordinance will not be in place by that date. As a result, staff is recommending adoption of this ordinance, which provides for a one-year extension of the urgency interim zoning ordinance, to allow for completion of a permanent ordinance. He indicated that if the permanent ordinance is adopted in less than one year, the urgency interim ordinance will be terminated. Mr. Greg Hamlin asked if the adoption of this ordinance will impact the new 84,000-square-foot addition to the hospital; Planning Director Epple responded that this ordinance applies only to retail and wholesale structures and, therefore, will not impact the hospital. Responding to Commissioner Hietala, City Manager Johnson indicated that a permanent ordinance could possibly be drafted within the next three weeks; however, it could not be adopted and effective by the termination of the existing ordinance. He then acknowledged that staff has the information needed to draft an ordinance and that the Commission had previously indicated it wanted the process completed under the original ordinance. As a result, this will become a top priority for staff. Commissioner Cetraro noted that staff forwarded the task force's recommendations to the Commission on July 29 and asked when the Commission can anticipate seeing the ordinance that enacts those recommendations. He then questioned why the Commission should extend the moratorium for one year, suggesting a shorter period would be more appropriate. Staff Attorney Cooper stated that, by State law, the initial urgency interim zoning ordinance may be six months, and two one-year extensions may be granted thereafter. He then noted that, even if the ordinance had been prepared immediately following the task force's recommendations, it would not have been effective until after expiration of the first ordinance. Since there were no Commissioner objections Mayor Kirchhoff, closed the public hearing. It was moved by Commissioner Youngman, seconded by Commissioner Hietala, that Ordinance No. 1576, extending the urgency interim zoning ordinance to temporarily prohibit construction of wholesale or retail structures that are equal to or greater than 50,000 gross square feet, be adopted. Commissioner Youngman stated that she is committed to getting the permanent ordinance adopted as quickly as possible, noting that she hopes that can be accomplished within two months. She then acknowledged that the Commission's priorities and demands are part of the reason that this process has been slowed, and she wants to see the ordinance receive the proper scrutiny rather than being rushed. Commissioner Brown indicated that he, too, would prefer to see a shorter extension. He voiced support for adoption of the ordinance as drafted, noting it is important to honor the intent of the task force recommendations. Commissioner Hietala stated he does not feel he has a clear answer on the length of the moratorium. He also questioned why the Commission is being asked to adopt this ordinance at this time, when the original ordinance is effective for another three weeks. Mayor Kirchhoff stated he prefers to adopt this ordinance to ensure there is no gap in regulations and noted he is fairly confident the permanent ordinance will be completed in a short period of time. O9-O3-2O02 -8- Commissioner Youngman indicated a willingness to wait until September 23 to act on this ordinance, if there is a commitment to its adoption at that time. In light of the above discussion, Commissioner Youngman withdrew the motion. It was moved by Commissioner Hietala, seconded by Commissioner Brown, that the public hearing on the urgency interim zoning ordinance be reopened and continued to September 23. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. Public hearin.q - Albert and Penelope Foster - variance from Section 18.20.050 of the Bozeman Municipal Code to allow photovoltaic array to continue to encroach 14 feet into required 20-foot front yard setback and 2 feet into required 5-foot side yard setback on Lot 1, Block 3, University Subdivision (1502 South Black Avenue) (C-02006) This was the time and place set for the public hearing on the variance from Section 18.20.050 of the Bozeman Municipal Code to allow the existing photovoltaic array to continue to encroach 14 feet into the required 20-foot front yard setback and 2 feet into the required 5-foot side yard setback on Lot 1, Block 3, University Subdivision, as requested by Albert and Penelope Foster under Application No. C-02006. The subject property is located at 1502 South Black Avenue. Mayor Kirchhoff opened the public hearing. Associate Planner Chris Saunders presented the staff report. He stated the subject property is located at the northeast corner of the intersection of South Black Avenue and East Lincoln Street and is outside all overlay districts within the city. He reviewed the surrounding land uses, which include residences on three sides and Christie Park to the south. The Associate Planner reviewed the requested variance, noting that the actual point of contact with the ground does not encroach into the setback, but the panels do. He indicated that staff has reviewed this application in light of the three criteria set forth by the Montana Supreme Court, and staff's findings are contained in the written staff report. He stated that, based on those findings, staff has recommended denial of this application. He noted that staff has identified four options for the Commission to consider: (1) deny the variance; (2) approve the variance after making a finding that the variance meets the required criteria; (3) find by interpretation that the photovoltaic array is a utility use; or (4) deny the variance and direct staff to prepare an amendment to allow erection of such structures within yards and delay any required compliance until that amendment has been processed. In response to questions from Commissioner Hietala, Associate Planner Saunders reviewed the definition for "essential services," noting the Commission would need to determine if this application meets that definition. Mr. Albert Foster, applicant, stated that the photovoltaic array is tied to a community grid, and the power passes through an inverter and then either into their home or into the grid. Through the use of this array, he stated they are doing their part to stop coal-fired power plants at Roundup and oil and gas drilling projects in the Bridger Canyon through tapping into renewable energy sources and through energy conservation. He indicated that they do not anticipate recouping their initial $17,000 investment. Mr. Foster provided a review of the events, which began last November, leading up to this public hearing. He indicated that in November, he retained a contractor and relied on him to obtain the necessary permits from the City and Montana Power Company. After being assured by the Chief Building Official that only an electrical permit was needed for the installation, they proceeded with purchase and installation of the photovoltaic array; and a site inspection by a Building Inspector on January 24 did not reveal an improper installation. Mr. Foster acknowledged that the integration of residential-scale renewable energy systems into existing home sites is a new frontier and that, as a result, mistakes will occur. He asked that, in this instance, the requested variance be granted. He indicated that he feels all of the criteria for granting of the variance are met, particularly in light of the existing structure and landscaping on the site. He cautioned that 09-03-2002 -9- moving the array so it is within the yard setbacks would result in cutting down a 40-year-old blue spruce tree, which would have more impact on the site and the area than allowing the array to remain in its existing location. He concluded by noting that the photovoltaic array has been in place for eight months, and only positive public comments about the array are on file in the Planning Office. Mr. Dave Ryan, Sr., distribution engineer with NorthWestern Energy and current President of the Montana Renewable Energy Association, spoke in support of the requested variance. He indicated that a portion of the costs of this project were covered through an MCAT grant from Universal Systems Funds, and relocation of the photovoltaic array would result in harming the ratepayers of the electrical system. He further noted that the array is interconnected to the distribution system and provides power for other customers. He recognized there are a lot of barriers to solar electricity, among them cost, interconnection, and difficulty in working with an unmotivated utility company. He concluded by asking that the Commission not be another barrier in this process. Mr. Phil Knight stated that he and his wife, Alaina, are NorthWestern Energy ratepayers. He voiced support for the requested variance, noting it allows for retaining an important alternative energy source while protecting the existing mature vegetation on the site. Mr. Tony Boniface, contractor, stated this system was installed with every consideration being given to national electrical code requirements, City code requirements, and the appropriate location for solar collection. He indicated that on this site, there were few options for the installation; and they chose the one with the least impact on the neighborhood. Also, the applicants chose a smaller system to minimize the impacts even further. He concluded by characterizing his work as a reflection of his values and ethics and encouraged approval of the application. A neighbor of the applicants stated that Mrs. Foster is a wonderful resource for the community. He noted that this panel promotes clean and green energy and encouraged approval of the variance. Mr. Joe Schwalm, NorthWestern Energy repair, commended the applicants for installing the photovoltaic array and contributing to the electrical grid in a renewable way. He cautioned that removing the tree in conjunction with relocation of the array would result in a loss of beauty on the site. As a result, he encouraged approval of the variance. Mr. Brad Herzog encouraged approval of the variance, noting that addressing alternative energy sources for the future is important. Associate Planner Saunders reminded the Commission that consideration of variance requests is a quasi-judicial function, which is substantially different from the legislative role in which Commissioners typically find themselves. Mr. Albert Foster stated that approval of this variance will not set a precedent, since he does not anticipate the Commission will be asked to consider already-installed photovoltaic arrays very often. He concluded by suggesting that he is "the bow of a ship that shouldn't be blamed for going into uncharted waters." Since there were no Commissioner objections, Mayor Kirchhoff closed the public hearing. Mayor Kirchhoff recognized that misdirection and lack of communication can result in an awkward position for the code enforcement officer and the Commission. He concurred with most of the applicant's testimony and staff's finding that Criteria A and C are met. He then turned his attention to Criterion B, stating that the 40-year-old mature vegetation on the site as well as the location of the house are characteristics unique to the property. He suggested that disturbing the landscaping to relocate the array would be less advantageous to both the applicant and the public than allowing the array to remain in its present location. Commissioner Hietala voiced is concurrence with the Mayor's comments. Commissioner Youngman stated the array is an asset to the community and responds to the Bozeman 2020 Community Plan and the zone code by providing alternative energy. She noted that its location also allows for preserving the existing mature vegetation. She recognized that a roof-mounted 09-03-2002 10- location would be preferable; however, in this instance, the house faces the wrong direction for a roof- mounted installation. The shading effect of adjacent properties and the Foster's house itself preclude location of the photovoltaic array in the rear yard. She suggested that, given the built and landscaped environment, Criterion B for consideration of a variance is met. She then indicated that she could also support interpreting a photovoltaic array as a utility use, thus eliminating the need for a variance. Commissioner Brown recognized that relocation of the array could result in lower efficiency. He indicated that he is not inclined to deny this variance; however, he asked that staff follow up on some of the alternatives suggested to ensure this type of situation does not arise again. Commissioner Cetraro stated support for the variance, particularly in light of the mature vegetation on the site. He also acknowledged that this could possibly be interpreted as a utility use. It was moved by Commissioner Brown, seconded by Commissioner Cetraro, that the variance from Section 18.20.050 of the Bozeman Municipal Code to allow the existing photo-voltaic array to continue to encroach 14 feet into the required 20-foot front yard setback and 2 feet into the required 5-foot side yard setback on Lot 1, Block 3, University Subdivision, as requested by Albert and Penelope Foster under Application No. C-02006, be approved. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Brown, Commissioner Cetraro, Commissioner Youngman, Commissioner Hietala and Mayor Kirchhoff; those voting No, none. Commissioner Youngman asked if the Commissioners are interested in a work session on photovoltaic arrays this fall; a majority of the Commissioners indicated they are. Appointments to Zoning Commission Included in the Commissioners' packets was a memo from Clerk of the Commission Sullivan, dated August 29, forwarding an application for the Zoning Commission. Commissioner Hietala distributed copies of an application from Wayne Jennings, which he received this afternoon. It was moved by Commissioner Cetraro, seconded by Commissioner Youngman, that Wayne Jennings be appointed to replace Todd Buchanan on the Zoning Commission, with a term to expire on January 31, 2004. The motion failed by the following Aye and No vote: those voting Aye being Commissioner Cetraro and Commissioner Hietala; those voting No being Commissioner Youngman, Commissioner Brown and Mayor Kirchhoff. It was moved by Commissioner Youngman, seconded by Commissioner Hietala, that Mark Haggerty be appointed to replace Todd Buchanan on the Zoning Commission, with a term to expire on January 31, 2004. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Youngman, Commissioner Brown and Mayor Kirchhoff; those voting No being Commissioner Hietala and Commissioner Cetraro. Discussion - FYI Items The following "For Your Information" items were forwarded to the Commission. (1) Letter from Nancy DeGroot, 80221 Gallatin Road, dated August 22, regarding big box stores. (2) Copy of a flyer announcing the 9-11 Memorial Service to be held at the Willson Auditorium at 7:00 p.m. on Wednesday, September 11. (3) Memo from Fire Marshal Megaard announcing that the ban on open burning was lifted as of 1:00 p.m. on Monday, August 26. (4) Information on a grant writing workshop scheduled for September 26 and a survey development and design workshop scheduled for October 2 in Helena. 09-03-2002 -11 - (5) Updated listing of planning projects, dated August 22, to be considered at upcoming Commission meetings. (6) Agenda for the County Commission meeting held at 9:00 a.m. on Tuesday, September 3, in Manhattan. (7) Agenda for the Development Review Committee meeting held at 10:00 a.m. on Tuesday, September 3, at the Professional Building. (8) Agenda for the City Planning Board meeting to be held at 7:00 p.m. on Wednesday, September 4, in the Commission Room, and a memo announcing there is no Zoning Commission meeting for that day due to the lack of agenda items. (9) Minutes from the City-County Board of Health meeting held on July 25, 2002. (10) City Manager Johnson stated that, under the Commission's rules of procedure, the Commission could request that reconsideration of a previous action be placed on the agenda and, if approved, the item could then be placed on an upcoming agenda for further action. (11 ) City Manager Johnson asked that the Commission consider scheduling of a special meeting for 3:00 p.m. on Monday, September 16, to conduct employee evaluations, particularly in light of the heavy schedules for upcoming meetings. The Commissioners agreed to the requested special meeting. Mayor Kirchhoff suggested that, when there are five Mondays in a month, the fifth Monday meeting be cancelled if at all possible. (12) Commissioner Brown indicated that he may soon be going to California, on short notice, for adoption of a granddaughter. (13) City Manager Johnson distributed copies of the book Governing Montana at the Grass Roots, written by Dr. Ken Weaver, characterizing it as good information for beginning Commissioners. (14) The City Manager announced that several City management staff members attended a 4 Roles of Leadership workshop last Wednesday, at which Mr. Roger Merrill, author of many of Steven Covey's books, spoke. (15) Responding to City Manager Johnson, Commissioner Youngman stated she does not know the status of the park grant application for the Front Street right-of-way immediately east of North Wallace Avenue, but will seek an answer. (16) Planning Director Epple announced that Candace Honatke, a landscape architect with several years' experience, began work today as the City's new Urban Designer. (17) Commissioner Youngman asked if any City representatives should attend the special County Commission meeting on Thursday regarding the 100-acre park in Baxter Meadows. Planning Director Epple indicated that the County Commission has preliminarily endorsed the expenditure of $2.3 million in open lands monies for acquisition of the park but has also retained outside counsel to advise them of all contingencies and potential future costs. (18) Commissioner Youngman invited Commissioners to attend a public meeting on the Library site, scheduled for September 13. She indicated that rough ideas on various designs will be presented and public comment solicited. (19) Commissioner Youngman indicated that neighborhood meetings for the transfer station have been tentatively scheduled for September 24, 25 and 26. She noted a citizen has suggested that all five Commissioners attend those meetings so they can hear the public comments. 09-03-2002 -12- (20) Mayor Kirchhoff announced that he will be roughly a half hour late for next week's Commission meeting, since he will be attending a centennial celebration for Maude Hoell and Bertha Clow at Mountain View Care Center. (21) Mayor Kirchhoff requested that Commissioners submit their evaluations to him by next Monday, so he has time to compile them prior to the September 16 meeting. (22) Mayor Kirchhoff stated he has received a suggestion from the public that the "FYI Items" format be revised to provide for public access to the Commission in a less formal structure. In response to this suggestion, he proposed a new agenda item at the beginning of the meeting for unscheduled issues and public input. Commissioner Cetraro stated he likes the way meetings are currently conducted; and he is concerned that this type of agenda item could take a substantial amount of time and detract from the efficiency of the remainder of the meeting. Adjournment - 9:10 p.m. There being no further business to come before the Commission at this time, it was moved by Commissioner Hietala, seconded by Commissioner Brown, that the meeting be adjourned. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Hietala, Commissioner Brown, Commissioner Cetraro, Commissioner Youngman and Mayor Kirchhoff; those voting No, none. A-I-I-EST: Clerk of the Commission STH~VFtN R. ~I'RC. HHOFF, MayC, r'// 09-03-2002