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HomeMy WebLinkAbout07-12-17 Public Comment - Gallik, Bremer & Molloy, P.C. - Resolution 4598, NCOD Guidelines GALLIK, BREMER & MOLLOY, P.C. Attorneys at Law 777 East Main Street, Suite 203 Post Office Box 70 Bozeman, Montana 59771-0070 (406)404-1728 July 12, 2017 Mayor Carson Taylor City of Bozeman 121 N. Rouse Ave. Bozeman, MT 59715 HAND DELIVERY Re: Bozeman City Commission Resolution 4598 Dear Mayor Taylor: On behalf of our clients, including many concerned citizens and Save Bozeman,the purpose of this letter is to provide notice to the City that our clients object to the validity of the City's actions in adopting Resolution 4598, as well as the approval of any proposed projects pursuant to the revised guidelines implemented by Resolution 4598. As explained below, our clients only recently became aware of Resolution 4598 in April of 2017 during the proceedings relating to the pending application for approval of the proposed Black-Olive project. Since that time, several community members on numerous occasions have asked the City's Planning Department and the City Commission to address their concerns with respect to the adoption of this Resolution, to no avail. Resolution 4598 revised the Bozeman Guidelines for Historic Preservation&the Neighborhood Conservation Overlay District("NCOD Guidelines"). The purpose of Resolution 4598 was to amend the NCOD Guidelines to "address impediments to the redevelopment of the B-3 area outside of the Main Street Historic District," according to the May 18, 2015 Commission Memorandum from Wendy Thomas, then Director of Community Development. See page 452. That Resolution resulted in the Subchapter 4B addendum to NCOD Guidelines Chapter 4, which altered the Commercial Character design requirements for commercial development of properties zoned B-3 surrounding the Main Street Historic District,many of which abut residential neighborhoods. Neither the Resolution,nor the Subchapter 4B Addendum,nor the process the City undertook to adopt them took into consideration whether the community of Bozeman found the NCOD Guidelines to be impediments to redevelopment. To the contrary, "preserving Bozeman's heritage remains a primary goal of the community"and the NCOD Guidelines are safeguards to preserve"the many historic districts and older traditional neighborhoods that remain as reminders of the City's heritage."See NCOD Guidelines, Introduction,page 3. The NCOD Guidelines were properly adopted in 2006 through an inclusive,public process: Mayor Carson Taylor July 12,2017 Page 2 The City of Bozeman resolved to create an interactive process for the Neighbor- hood Conservation Overlay District Design Guidelines project, through which the residents of Bozeman, the Historic Preservation Advisory Board (HPAB) and Design Review Board (DRB) expressed their concerns and expectations for the final product. The result has been a cooperative system of dialogue and values- clarification from which the City determined relevant concerns and goals for the District. This was accomplished through several public workshops. At these sessions, participants discussed positive attributes of the City's historic neighborhoods and identified design issues that cause concern about future development. By completing exercises and discussions, the Bozeman residents took an active role in shaping the guidelines for the District. See NCOD Guidelines, Introduction, page 3. In contrast, as discussed below, Resolution 4598, amending the NCOD Guidelines,was adopted through an expedited process that did not include Bozeman residents and did not conform with applicable law. The relevant facts relating to the development and adoption of Resolution 4598 include the following: ➢ In late 2014, the Downtown Bozeman Partnership ("DBP") requested that the City create a Task Force of architects and developers to revise the NCOD Guidelines. The apparent motivation for this request was a recognition that the then-existing policies set forth in the NCOD Guidelines, including among other things, the block character design requirements, were an impediment to certain types of projects that developers wished to pursue in the B-3 District outside the Main Street Historic District. ➢ On March 16, 2015, then-Mayor Krauss proposed that changes to B-3 Commercial design guidelines be pursued, and the City Commission approved his motion to that effect. Shortly after that meeting, architects and developers were invited to participate in a Task Force, the purpose of which was to develop proposed changes to the NCOD Guidelines. There were no community stakeholders who were not architects or developers invited to participate on the Task Force. ➢ In April 2015, the Task Force met and discussed potential changes to NCOD Guidelines block character,height transition and other requirements of the NCOD Guidelines. In doing so, the Task Force used the SOBO and Black-Olive projects as two of four case studies for illustrating the need for changes to the NCOD Guidelines. ➢ On April 26, 2015, the Task Force and City Planning Department presented an initial draft`B-3 Design Guidelines Conflicts"to City Commissioners. o With respect to the initial draft, the April 26, 2015 Staff Report prepared by then Director of Community Development Wendy Thomas and Development Review Mayor Carson Taylor July 12, 2017 Page 3 Manager Brian Krueger expressly recognized that"[t]he resulting convening of a task force and the drafting of an amended chapter to the Design Guidelines is recognized by all participant(sic) to be a solution intended to temporarily bridge the gap between currently adopted planning documents and future,more permanent, solutions."See page 2/123. o That staff report further recognized that: ■ Where the B-3 interfaces with the historic neighborhoods in (sic) a critical area, Staff recommends that additional text be added to the Task Force Chapter to address this interface in order to allow all property owners the use and enjoyment of their property. It is critical to realize that all property owners within the NCOD have a stake in these guidelines and no property owner(s) should have an unfair benefit or burden due to the revision of the guidelines. See page 6/127. ➢ On May 4, 2015,the Planning Department presented a Staff Memorandum`B-3 Design Guideline Conflicts"to the City Commission. ➢ On May 13 and 17, notices were apparently published in a newspaper of general circulation, indicating that the proposed amendments to the NCOD Guidelines would be considered at the next City Commission meeting on May 18. These notices were published only 5 days and 1 day prior to the City Commission meeting at which Resolution 4598 was adopted. ➢ At the May 18, 2015 City Commission meeting,then Community Development Director Wendy Thomas again recognized that property owners have a stake in the proposed amendments, in particular owners of property where there is no separation between B-3 and residential properties. She further advised that consideration should be given to these abutting property owners and showed examples of development of the B-3 zoned lots that would have an adverse impact on those residential property owners as well as property values. Ms. Thomas also advised that she saw the amendments as a band aid and that they not to be left in place for an extended period of time.' ➢ Landowners within 150 feet of the area included in the amendments to the NCOD Guidelines were not given actual or reasonable notice of the proposed amendments to the NCOD Guidelines. 1 See video segment of the public hearing at the following link. https://www.youtube.com/watch?v=IoOSzgFJuDM&feature=youtu.be(accessed July 6, 2017). Mayor Carson Taylor July 12, 2017 Page 4 ➢ In the process of monitoring the City's consideration of the pending application for approval of the Black-Olive Development, neighboring property owners first learned of Resolution 4598. Based on the foregoing facts,we believe Resolution 4598 was unlawfully adopted. We further believe any development projects that are approved based on the amendments adopted by Resolution 4598 are invalid. The reasoning provided for the amendments to the NCOD Guidelines was that"[t]he existing Design Guidelines prioritize consideration of existing neighborhood (sic)throughout Bozeman's Neighborhood Conservation Overlay District. This has worked well in the majority of the NCOD,particularly in residential areas; however it is problematic in the B-3 commercial core." See B/3 Design Guidelines conflict(sic)April 26, 2015 Staff Report,page 4/125. Perhaps the NCOD Guidelines were problematic for developers and architects,but they were working for the rest of the community—who were conveniently not included in the Task Force convened by the City to revise those Guidelines, nor properly noticed of the amendments prior to the adoption of Resolution 4598. In describing the amendments, the April 26, 2015 Staff Resort acknowledge that"[t]he Task Force focused on areas where they felt there was a clear need for revision or clarification." See Page 6/127. The Task Force undoubtedly focused on self-serving areas, and it and the City Commission failed to address the"critical area", as recognized by Planning staff, "[w]here the B- 3 (sic) interfaces with the historic neighborhoods," despite Planning Staff s acknowledgment that "all property owners within the NCOD have a stake in these guidelines and no property owner(s) should have an unfair benefit or burden due to the revision of the guidelines." Id. The Subchapter 4B addendum was tacked on to Chapter 4, Guidelines for Commercial Character Areas, as opposed to being adopted by a thorough and comprehensive amendment to that Chapter or the entirety of the NCOD Guidelines. Perhaps this was due to the"temporary"nature of those amendments. Though intended to be temporary, they are being used today—two years later—to justify projects to the detriment of residential districts. Clearly,Resolution 4598 made substantive changes to existing regulatory provisions applied by the City of Bozeman through the NCOD Guidelines. Otherwise,there would have been no reason to change the NCOD Guidelines. The changes, among other things, eliminated the requirement that block character2 be considered in determining whether a proposed project satisfies applicable standards, despite the fact that the NCOD Guidelines recognize expressly that "[a] primary design goal for Bozeman is to preserve the integrity of its individual historic structures and the character of its streetscapes in the Neighborhood Conservation Overlay District." See NCOD Guidelines, Introduction,page 3. The design guidelines for the 2 According to the May 18, 2015 Commission Memorandum from Wendy Thomas, then Director of Community Development, the direction given to staff and the Task Force was to remove reference to block character. See page 452. Mayor Carson Taylor July 12, 2017 Page 5 neighborhood conservation overlay district are incorporated by reference into the Unified Development Code("UDC")by Section 38.16.050.D. That section further requires that"[w]hen reviewing a contemporary, non-period, or innovative design of new structures or addition to existing structure, the review authority shall be guided by the design guidelines for the neighborhood conservation overlay district to determine whether the proposal is compatible with any existing or surrounding structures." See UDC, Section 38.16.050.D. Describing the substantive changes as"guidelines"does not control in determining whether Resolution 4598 was properly adopted. Rather, the controlling issue is whether the amendments adopted by Resolution 4598 effected substantive changes in applicable regulatory standards. Cf. Southern Mont. Tel. Co. v. Mont. PSC, 2017 MT 123, 2017 Mont. LEXIS 324 (May 30, 2017)(declaring invalid a policy adopted as a"rubric"by the PSC,because the policy was a rule as defined by Montana's Administrative Procedure Act, and was not properly adopted). Because Resolution 4598 effected substantive changes in applicable zoning regulations, the City was obligated to comply with applicable statutes and ordinances. Specifically, MCA § 76-2- 303(2),requires that a zoning regulation or boundary"may not become effective until after a public hearing...at which parties in interest and citizens have an opportunity to be heard....At least 15 days'notice of the time and place of the hearing must be published in an official paper...of general circulation in the municipality." (Emphasis added.) In addition, MCA § 76-2-305(1) specifies that the requirements of section 76-2-303(2) apply equally to changes or amendments to zoning requirements. It further provides that an "amendment may not become effective except upon a favorable vote of two-thirds of the present and voting members of the [city commission] if a protest against [an amendment] is signed by the owners of 25% or more of ..(b) those lots...150 feet from a lot included in a proposed change." MCA § 76-2-305(2). Consistent with this statutory provision, Section 38.36.040 of the UDC provides that in the"case of protest against [such amendments] signed by the owners of 25 percent or more of either the area of the lots included in any proposed change, or those lots 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two-thirds of the present and voting members of the city commission." The intent of the City's noticing provisions is to "provide for adequate notice of governmental actions to those affected by such actions," and further acknowledge"[n]otice is required in order for citizens to participate in decision making which affects their interests and provides opportunity to receive information pertinent to an application that would not otherwise be available to the decision maker." See UDC, Section 38.40.010. However, the City's notice requirements for text amendments do not comply with state law, as notice is not required for property owners within 150 feet from a lot included in a proposed change. Absent such notice, such property owners are deprived of their right to protest and Right to Participate and Right to Know requirements under Montana Constitution Article II, sections 8 and 9 Bozeman violated statutory and its own municipal provisions by failing to provide the required notice at least 15 days in advance of the May 18, 2015 City Commission meeting at which Mayor Carson Taylor July 12, 2017 Page 6 Resolution 4598 was adopted, amending the NCOD Guidelines. Additionally, we understand that B-3 property owners in the area impacted by the amendments were given actual notice (by mailed postcard) of the Commission's consideration of Resolution 4598. See Sec. 38.40.20, Bozeman City Code. No such actual notice was provided,however, to those owners of lots within 150 feet of the area included in the proposed amendments, including one of our clients, Lisa Kirk and her husband Allan Kirk, as well as Sommer and William("Will") Bucossi, Cindi and Doug Clingner, Suzanne Held and Mike Herring, Mary Soete and Martin Holtmeyer, and John Shankland, among others. With adequate notice,property owners within 150 feet of a B-3 zoned property would have had the opportunity to exercise their protest rights and, in doing so, would have had the opportunity to defeat the proposed amendments by convincing enough members of the City Commission to vote no. We also do not believe the late newspaper notices published by the City comply with the Right to Participate and Right to Know requirements under Montana Constitution Article II, sections 8 and 9. The amendments adopted by Resolution 4598 will substantially impact those landowners within 150 feet of the area included in the amendments, as well as many other citizens of Bozeman. In order to have a meaningful opportunity to participate and exercise their rights to protest the proposed amendments, the property owners must receive adequate and timely notice. With respect to the adoption of Resolution 4598,property owners were deprived of this notice and correspondingly their constitutional rights to know and participate. Finally,based on the above points, we object to the City proceeding with consideration of applications for development of properties zoned B-3 under the amendments adopted by Resolution 4598. Our clients support continued, orderly development and growth in Bozeman. They do not oppose development projects,but projects should be consistent with the policies, regulations, and guidelines that have been important in preserving and enhancing the livability of our City. As stated by the NCOD Guidelines, "[w]hile change continues to occur in response to varying community goals and economic conditions,preserving Bozeman's heritage remains a primary goal of the community." NCOD Guidelines, Introduction,page 3. That is the primary goal of Save Bozeman as well. The NCOD Guidelines further state that"[t]hese design guidelines are written for use by City Staff,property owners,residents and others to foster the preservation of historic residential and commercial districts and to maintain the traditional character of the broader Neighborhood Conservation Overlay District." Id. The amendments to the NCOD Guidelines that were improperly adopted by Resolution 4598 undermine the preservation of Bozeman's historic districts and maintenance of the traditional character of the broader Neighborhood Conservation Overlay District. We have also been advised that the unlawfully adopted amendments to the NCOD Guidelines are now being incorporated in some form into the UDC by way of the City's Code update. We and our clients are prepared to engage constructively with the City and all stakeholders, including developers. We therefore request that the City Commission take the following actions: Mayor Carson Taylor July 12, 2017 Page 7 1. Temporarily stay the application of the amendments to the NCOD Guidelines that were improperly adopted through Resolution 4598 and apply the NCOD Guidelines in effect just prior to the adoption of that Resolution; 2. Return to the process originally undertaken to adopt the NCOD Guidelines when considering changes to the NCOD Guidelines, with notice, outreach and input from a broader range of stakeholders to include not only developers and architects, but property owners and other community stakeholders; 3. Initiate revisions to Subchapter 4B of the NCOD Guidelines concurrent with the UDC update to ensure consistency and compatibility. 4. Place a temporary moratorium on consideration of pending and future applications for projects that would rely upon the Resolution 4598 amendments to the NCOD Guidelines for approval. 5. Refrain from considering and adopting amendments to the UDC as part of the current Code update to the extent such amendments memorialize the unlawfully adapted amendments to the NCOD Guidelines unless and until the stakeholders of residential districts who may be impacted by such amendments are actively and constructively engaged and included in a dialogue addressing potential adverse impacts to those residential districts and individual properties within the NCOD. As indicated, we and our clients prefer to pursue an open process of constructive and positive engagement. However, our clients must consider other options if the City intends to continue to apply the unlawfully adopted amendments to the NCOD Guidelines to approve projects in the B- 3 Commercial District, and continues to proceed with the UDC amendments to the extent those amendments memorialize those unlawfully adopted amendments to the NCOD Guidelines. Accordingly, we respectfully request a written response to this letter by no later than July 21, 2017. Thank you. Sincerely, GALLIK,BREMER&MOLLOY,P.C. Jap es . Moll f � Jecyn remer c: Deputy Mayor Cindy Andrus City Commissioner Jeff Krauss City Commissioner Chris Mehl City Commissioner I-Ho Pomeroy City Attorney Greg Sullivan Marty Matsen, Director of Community Development