HomeMy WebLinkAbout08-16-17 Public Comment - T. Murphy - Links AppealFrom:Cyndy Andrus
To:Agenda
Cc:Greg Sullivan
Subject:FW: Links Appeal
Date:Wednesday, August 16, 2017 12:05:07 PM
Attachments:2007 OCTOBER 25 LINKS PUBLIC ACCESS EASEMENT.pdf
From: thomas murphy [bridgercenterllc@gmail.com]Sent: Wednesday, August 16, 2017 11:56 AMTo: Cyndy AndrusSubject: Links Appeal
Dear Cyndy,
I will be in appearing before the Bozeman City Commission on August28th, 2017. The purpose will be to appeal an administrative decision.Since this has been an long, arduous, and costly process, I wanted toprovide the commissioners with a synopsis of the grounds and basis ofour appeal.The Bozeman City Engineer’s and the Development ReviewCommittee’s decision to require Golf Course Partners to onlyprovide a utility easement is completely inconsistent with not alsorequiring street access, as the code for both is parallel andvirtually identical.
Sec. 38.23.070(A) (3) – Municipal water, sanitary sewer and storm sewer systems.
When a proposed development adjoins undeveloped land, and municipal infrastructure mains would
reasonably pass through the new development to the undeveloped land, municipal infrastructure mains
shall be arranged to allow the suitable development of the adjoining undeveloped land. Municipal
infrastructure mains within the proposed development shall be constructed to the boundary lines of the
tract to be developed, unless prevented by topography or other physical conditions. An exception to this
standard may be granted upon written request of the applicant, if the applicant demonstrates during the
development review process that more efficient design can be accomplished without jeopardizing the
public's health, safety and welfare, the intent of this chapter, or the intent of the city's growth policy.
Sec. 38.24.010. (A)(1) Streets, General, Relation to undeveloped areas.
When a proposed development adjoins undeveloped land, and access to the undeveloped land would
reasonably pass through the new development, streets within the proposed development shall be
arranged to allow the suitable development of the adjoining undeveloped land. Streets within the
proposed development shall be constructed to the boundary lines of the tract to be developed, unless
prevented by topography or other physical conditions. If the development being reviewed is a subdivision,
a request for an alteration of this standard shall be processed as a subdivision variance. If the
development being reviewed is not a subdivision a request for an alteration of this standard shall be
reviewed against the criteria of 38.35.070.B but shall not otherwise alter the review authority who would
otherwise decide upon the application.
Secondly the Bozeman Municipal Code on access to undevelopedland, is very simple, and has only four elements:
New Development (Links) adjoins undeveloped land?
Yes, it adjoins Bridger Center land.
Access to adjoining land would reasonably pass through the proposed development (Links)?
Yes, access to adjoining land would reasonably pass through the proposed development (Links)
Streets within the proposed development (Links) shall be arranged to allow suitable development of
adjoining undeveloped land (Bridger Center).
No, streets within the proposed development (Links) have not been arranged to allow suitable
development of adjoining undeveloped land (Bridger Center), because Bozeman Municipal Code
38-24-10 (A)(8a) requires that all developments shall be provided with a second means of
access. Bridger Center only has one. Also, Bozeman Design Standards restrict cul de sac
lengths to be less than 500 ft. and the existing cul de sac, just to arrive to the entrance of the
adjoining undeveloped land (Bridger Center), is already over 950 ft.
Streets within the proposed development (Links) shall be constructed to the boundary line of the tract to
be developed (Bridger Center/Links), unless prevented by topography, or other physical conditions.
No, the streets within the proposed development (Links) are not constructed to the boundary line
of the tract to be developed (Bridger Center/Links), and this is in no way prevented by
topography or other physical conditions.
Although, the Commission’s final decision can be based solely on these four elements that the
Bozeman Municipal Code requires, there are a lot more reasons to reverse the D.R.C. decision and
require access.
1. Safety
Gallatin County/Bozeman Area Plan (adopted November 1, 2005) for promoting the public health,
safety, and general welfare. In accordance with 76-2-203(1), MCA, Regulations are designed to
1. Secure safety from fire, and other dangers
These regulations are intended to implement the objectives, goals, and policies of the Gallatin
County/Bozeman Area Plan and Future Land Use Map.
A. This Bridger Center property is not currently protected by a rural fire department and
although surrounded by properties in the City of Bozeman, it has never had fire protection.
It is an accident waiting to happen. Woods and grassland could easily catch on fire at any
time endangering businesses and nearby residents. At one time, I was told by the Bozeman
Fire Chief “Because of insurance reasons, if there happened to be a fire on the property, the
City Fire Department could not enter onto the Bridger Center property. He said “they could
go to adjoining City property lot lines and shoot water onto the Bridger Center property, but
they are not allowed to set foot there.”
Last year we requested fire protection from the City of Bozeman, however, we were refused
unless the property was annexed into the City. Bozeman now has its chance to insure
annexation, simply by following its own Municipal Code and requiring a street access through
the Links, thereby improving public safety and fire protection.
B. Bridger Center undeveloped land has only one entrance, while Bozeman Municipal Code
requires at least two. One can assume that fire and emergency services are the main cause
of this requirement. To do away with this safety requirement, the city would need to grant a
variance. There is no assurance that this variance should or will be given. A recent example
of this happening occurred in the county, just last year when an affordable housing project in
Big Sky was denied for only having one entrance. Bozeman should enforce its Municipal
Code to ensure that this undeveloped property has more than one entrance, thus protecting
the public safety of present and future residents.
C. Having only one entrance affects the length of cul de sac. The existing entrance to the
Bridger Center property is already at the end of a 950 ft. cul de sac. Extending this access
into the property would greatly increase this already nonconforming cul de sac length.
Bozeman Design Standards limits cul de sac lengths to 500 feet, again, the reason for this
standard is for public safety. If in an emergency, the only access into a cul de sac is blocked,
fire trucks may not be able to pass, so the length of the fire hoses limits who can be
protected from fire. Again, why should Bozeman not enforce its Municipal Code, especially
when it would help to insure public safety?
D. Access between two warehouses into a Commercial Zone with Industrial traffic. In the
County’s review of the access the County planner noted:
“The subject property is currently vacant land with only one access easement between
two existing businesses. Any increase in traffic through a single point of access could be
a potential safety concern for the businesses located immediately adjacent to the
access easement and for any pedestrian traffic between businesses or from a residential
development.”
Bozeman Planning Board, on January 4th, 2006, Resolution P-05067, decided to not
allow the previous owner to amend the land use designation from Industrial to
Residential in large part because Board members were, especially concerned about
access. This clearly indicates that not providing a second means of access does not
allow “suitable” development and in so doing creates a public safety concern.
2. “Annexation of County Islands Brings a Great Public Benefit” is a headline from an
editorial that I-Ho Pomeroy penned for the Bozeman Chronicle in 2015. It serves to repeat
her words now:
“Environment: Bozeman has higher standards, exemplified by stream set-back
requirements, signage and lighting standards.
Safety: Among its many services, Bozeman has a unified department and central
sewage.
Comfort: Bozeman has ordinances protecting residents from excessive noise.
Chronicle police reports show that the city police respond quickly to complaints of
raucous parties.
Protecting property values: Bozeman protects property values with long-term
planned zoning. Variances can be given when circumstances make them sensible.
Efficiency: The “islands” scattered throughout Bozeman hamper safety forces from
being most efficient, requiring complicated maps to ensure Bozeman’s residents
good service.
Financially: Bozeman residents pay city assessments while “islands” pay no city
property taxes or street/tree maintenance fees. Making boundaries contiguous by
annexation means all service users pay their fair share for these benefits.”
By simply following its Municipal Code, Bozeman can insure this “county island”
finally becomes part of the City.
3. Infill housing. Bozeman Growth Plan calls for Residential use of this property. By abiding
by its Municipal Code, Bozeman can pave the way for an infill project close in to town which
expands its tax base, with less infrastructure costs, traffic and pollution.
Thank you for your consideration. I look forward to our meeting with the City Council . If you
have any questions or would like to discuss anything please feel free to contact me.
Sincerely,
Tom Murphy
406-595-1495
PS. If you feel you need more depth on the subject, I have included a rebuttal of Staff’s
evaluation of the appeal, as well as attaching a copy of the Links public access easement for
a roadway to this email.
Staff evaluation and Director’s approval of the site plan application:
(Comments by staff in black, my comments in red)
Note: Staff’s current comments and choice of language justifying the decision are
completely different than those previously presented in explanations of that decision.
Staff reviewed the site plan and developed the findings presented in the staff report for the
application. The staff recommendation did not include a requirement to extend streets to
the Bridger Center, LLC adjacent undeveloped property because:
1. The Links Condominiums development site is located on a public street, Birdie Drive,
with two points of access. (All developments in Bozeman are required to be located on a
public street by code, so this item has absolutely no bearing in this appeal)
2. The lot on which the Links Condominiums are proposed to be developed is a legal lot
and has adequate and code compliant frontage on Birdie Drive, a public street. (All lots to
be developed are required to have code compliant frontage on public street, all
developments are done on a legal lot or a consolidation of legal lots, so this item has
absolutely no bearing in this appeal)
3. The Links condominium units are accessed via a drive aisle with a public access
easement. (Curious choice of language here. In the staff report on the project, the term
“private drive access” was used, in the initial explanation of the engineer’s decision the term
“private access” was used. None of these terms used by staff: “private drive”, “private drive
access”, “private access”, “aisle” nor “drive aisle” is defined in the UDC MC Definitions
38.42.010. Perhaps these alternate terms are being used to avoid using the defined terms
of “street”, “roadway” or “private street”?)
The public access easement mentioned above, granted to the City in the Links by Golf
Course Partners Inc is described in the easement itself as a “public access easement for
a roadway” (see #8 below for an excerpt of the easement)
Sec. 38.42.2730. - Roadway.
That portion of the street or road right-of-way which is improved or is proposed to be improved to carry
traffic and provide for the on-street storage of automobiles; where curb is provided, the roadway is
measured from back-of-curb to back-of-curb.
4. The drive aisle and public access easement are existing. (Again, using the undefined
term “drive aisle”, the “roadway” and the “public access easement for a roadway” is
existing. Bozeman UDC of the Municipal Code does not differentiate between existing and
not existing. Not requiring connection to adjoining undeveloped land is inconsistent with
Municipal Code in either case.
By the same token, the utility easements are also existing, yet the city required GCP to
extend access of utilities to the abutting undeveloped property. So, to be logically and
legally consistent, the City can not require it in the one instance and not the other.
5. There are no streets within the Links Condominiums development.
False, The Links Condominiums development has a “private street”.
From the previous Staff report 16374:
“The engineering division required sewer and water access to the property. (Bridger
Center) No public street access was required with this project. (Links) This development is
accessed and serviced via a private drive access with a public easement. The home
owner’s association maintains the private drive access. The private drive access is not
a public street right of way. (It is a “private street” with a public right of way. These points in
no way affect the requirement for the street to be connected to the abutting undeveloped land because
the definition of “street” includes both “public streets” and “private streets”.)
Sec. 38.42.2460. - Private street.
A right-of-way usable by the public but maintained by a property owner’s association.
Sec. 38.42.2720. - Right-of-way.
A linear public way established or dedicated for public purposes by duly recorded plat, deed, easement,
grant, prescription, condemnation, governmental authority or by operation of the law and intended to be
occupied by a street, crosswalk, railroad, electric transmission lines, water line, sanitary sewer line,
storm sewer line or other similar uses.
6. Each Links Condominiums unit has direct access to the drive aisle from the unit. (False,
again the misleading and undefined language “drive aisle”, each unit has direct access to a
“private street”, but this is of no bearing in this appeal)
7. Condominium units, unlike townhouses, are not located on a separate lot for each unit,
but are configured with multiple units on one lot with common elements, including the drive
access aisle. (Again, the use of misleading and undefined term “drive aisle” instead of
“private street”. The UDC MC does not differentiate between the development of
condominiums or townhomes in terms of requiring connectivity to abutting undeveloped
land, further evidenced by the City requiring Golf Course Partners Inc. to provide access to
utilities for the abutting undeveloped land, even though there are no separate lots.
Obviously, fire doesn’t differentiate between whether the homes in a development are
called condominiums or townhomes and timely access to emergency services is just as
critical to both)
8. A street is defined in Section 38.42.2960 BMC as “A right-of-way, dedicated or otherwise
legally established, for public use by motorized and nonmotorized vehicles and pedestrians,
usually affording the principal means of access to abutting property.” (This is the basis for
the appeal. What they refer to as an “aisle” or “drive aisle” is legally established and
dedicated “private street” with a “public access easement for a roadway for the use of
the public”. Yet, they did not require Golf Course Partners Inc. to provide any means of
access to abutting undeveloped property as required by code.
Sec. 38.42.820. - Dedication.
The deliberate appropriation of land by an owner for any general and public use, reserving no rights
which are incompatible with the full exercise and enjoyment of the public use to which the property has
been devoted.
Excerpt of the Easement granted to Bozeman in the Links (full easement in attachment)
“Golf Course Partners Inc., GRANTOR for good and valuable considerations, a receipt of
which is acknowledged, grants the City of Bozeman, a Municipal Corporation of the State of
Montana, with offices at 411 East Main, Bozeman, Montana 59715, GRANTEE, it’s
successors and assigns, a public access easement for a roadway for the use of the
public in, though, and across a 42’ wide strip of land situated in Gallatin County, Montana,
which is located on the following described property”
9. The only street related to the Links site plan application is Birdie Drive, an existing public
street, which provides the means of access to the Links development site. (False, the
“roadway” within the Links is a “private street”.)
10. The site plan did not require additional streets to provide access to the Links
Condominiums property and no streets were proposed on the Links Condominiums site.
(The fact that no additional streets were proposed with the current application is an omission of a
code-required access to abutting undeveloped property. It’s the City’s job to identify errors and omissions
in the application, and require changes to bring it into compliance with City regulations).
11. Street access to the Bridger Center, LLC adjacent undeveloped property would not
reasonably pass through the development. (This is an interesting interpretation of
“reasonable.” The existing private street within the Links heads 400 feet due west, directly
toward the abutting undeveloped land, and dead-ends less than 150 feet from it.
Continuing west from the dead end, the ground is relatively flat, there are no physical
obstructions, and street extension to the property line would be very simple. This extension
could very simply and logically connect to future streets within the undeveloped property. It
almost seems as if the road was aligned, in part, to allow a simple and logical future
extension. City code requires a connection unless prevented by topography or other
physical condition, of which there are none.)
The Director of Community Development concurred with the staff report andrecommendation. I initially, received a completely different account of why the city didn’t require thestreet connection, which I have included below:10/3/16
Tom,
I am under the understanding that the Fire Department will allow the single access that you proposed in
July, which is not dependent on a private street connection through the Links property. That assumption
is based on the attached email from you and the easement available through the Bridger Center
Subdivision (see attached easement).
Additionally, a private access through the Links property would not provide a secondary access to your
property. There would still be a dead-end lane at the end of your property near Boylan Road, but as
indicated in the attached email from you, a single access into your property has been worked out with the
Fire Department. The City of Bozeman municipal code does not require a street connection to your
property from the Links property. However, a requirement for a water main extension through the Links
property was summarized at the DRC Meeting on 9/21/16.
Thanks,
City of Bozeman MT
XXXXXXXXXX, PE| Engineering Department
406.582.2280
This justification completely disappeared in the staff reports that later followed. Probablybecause someone realized, it was completely indefensible. First, the proposal I made inJuly of last year was just one possible way of developing the property. There are literallyunlimited ways of developing the property as it is a blank slate. Bridger Center LLC may noteven be the entity that ends up developing it. So, basing the decision to not provide arequired secondary access on the fire department’s opinion of a hypothetical layout iscompletely unwarranted. Any development of the property, will either require a secondaryaccess or to be granted a variance by the City Commission which may well never begranted. By not abiding by Municipal Code and provide a secondary access this could wellbe considered a taking.The second defense of the decision is also indefensible. The length of the existing deadend cul de sac to the entrance to my property is over 950 ft., well above the 500 ft. that theCity restricts the lengths of cul de sacs to be. Requiring a second entrance through theLinks abides by the code and greatly decreases the lengths of all the cul de sacs. Greatlyimproving public safety, not just to my development but to the Bridger Center commercialdevelopment, as it currently has an only one entrance.Finally, Bozeman Municipal Code does quite clearly require not only utility connection butalso a street connection to my undeveloped abutting property. The entire premise of notrequiring an access to abutting undeveloped land is contrary to the clear intent ofconnectivity in the UDC MC. By the City’s errant position in this case, any developer couldcircumvent Sec.38.24.010 (A)(1) and the cost involved of connecting the streets to abuttingundeveloped land, simply by building condominiums and private streets.I encourage the City Commissioner’s to follow the intent and purpose of the U.D.C. M.C.
(see below) and protect the public health, safety, and general welfare by requiring GolfCourse Partners to provide access as required by Municipal Code Sec.38.24.010 (A)(1).Unified Development Code Sec. 38.01.040. - Intent and purpose of chapter.
A.
The intent of this unified development chapter is to protect the public health, safety and general welfare;
to recognize and balance the various rights and responsibilities relating to land ownership, use, and
development identified in the United States and State of Montana constitutions, and statutory and
common law; to implement the city's adopted growth policy; and to meet the requirements of state law.
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