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HomeMy WebLinkAbout07-21-17 Public Comment - Gallik, Bremer & Molloy, P.C. - UDC Update Noticing • �1 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 21, 2017 COPY Greg Sullivan City Attorney City of Bozeman 121 N.Rouse Ave. Bozeman,MT 59715 HAND DELIVERY Re: Uniform Development Code— Ongoing Revisions —Deficient Notice Dear Mr. Sullivan: This letter follows Mayor Carson Taylor's July 18'h response to our letter of July 12,2017. We understand from that response that the City Commission has scheduled discussion of a final draft of the Uniform Development Code ("UDC") on August 17, 2017, and that"[a]s always all of the public is invited to attend." The purpose of this follow up letter is to provide notice to the City that our clients also object to the process by which the City is adopting the revisions to the UDC. That process is unlawful for many of the same reasons as was the adoption of Resolution 4598. The UDC revisions should be placed on hold until the City provides a lawful process that provides notice to property owners within 150 feet of the revisions to allow them the opportunity to meaningfully protest such revisions as allowed by statute. The revisions to the UDC will effect substantive changes in applicable zoning regulations, and, as noted in our July 121h letter, the City is obligated to comply with applicable statutes and ordinances. 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). 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."While that portion of the statute may have been met with respect to the UDC revisions, 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). Mayor Carson Taylor July 21, 2017. Page 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 "[njotice 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. (Emphasis added.) 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 Our clients who are within 150 feet of the proposed revisions to the UDC have not received actual notice of the proposed UDC revisions, although some are aware of the UDC revisions due to ongoing communications with Marty Matsen, Community Development Director. With adequate notice,property owners within 150 feet the proposed UDC revisions would have the opportunity to exercise their protest rights and, in doing so, and may have the opportunity to defeat the proposed revisions. We do not believe that newspaper notices of the proposed UDC revisions published by the City are sufficient with respect to the Right to Participate and Right to Know requirements under Montana Constitution Article II, sections 8 and 9. The proposed revisions to the UDC will substantially impact landowners within 150 feet of the areas included in the revision, as well as many other citizens of Bozeman. To have a meaningful opportunity to participate and exercise their rights to protest the proposed revisions or amendments, the property owners must receive adequate and timely notice. Absent actual notice, property owners within 150 feet of the proposed amendments will be deprived of notice and correspondingly their constitutional rights to know and participate. As we advised previously, our clients support continued, orderly development and growth in Bozeman, and revisions to the UDC—so long as stakeholders, including residents and owners in residential districts and neighborhoods who may be impacted by the UDC amendments, are actively and constructively engaged and included in a dialogue addressing potential adverse impacts to those residential districts, neighborhoods, and individual properties resulting from the UDC revisions. We and our clients are prepared to engage constructively with the City and all stakeholders, including developers. However, the City must provide property owners within 150 feet actual notice and we request that the City provide such notice prior to the City Commission proceeding with a hearing consider the adoption of such revisions. If the City continues to pursue the UDC revisions absent such notice, this leaves our clients with no option other than to seek relief from the Court. While we appreciate Mayor Taylor's response Mayor Carson Taylor July 21, 2017 Page 3 on July 18, 2017, we respectfully request a more substantive written response to this letter by no later than Friday,July 28, 2017. Specifically,please advise whether or not the City will be providing actual notice to property owners within 150 feet of the proposed revisions to the UDC. Thank you. S' GALLIK,7ENIER& OLLOY,P. JameMolloy' J cyn remer c: Mayor Carson Taylor Deputy Mayor Cindy Andrus City Commissioner Jeff Krauss City Commissioner Chris Mehl City Commissioner I-Ho Pomeroy Dennis Taylor, Interim City Manager Marty Matsen, Director of Community Development