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HomeMy WebLinkAbout08-28-17 Public Comment - T. Murphy - Links Appeal t p 7ffru--RIVE August 28 h, 2017 AUG 2� 201� Dear Bozeman CityCommissioner's, DEPARTMENT OF COMMUNITY DEVELOPMEN! I will be in appearing before the Bozeman City Commission on August 28th, 2017. The purpose will be to appeal an administrative decision. Since this has been an long, arduous, and costly process, I wanted to provide the commissioners with a synopsis of the grounds and basis of our appeal. The Bozeman City Engineer's and the Development Review Committee's decision to require Golf Course Partners to only provide a utility easement is completely inconsistent with not also requiring street access, as the code for both is parallel and virtually 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 38.35.070.13 but shall not otherwise alter the review authority who would otherwise decide upon the application. Secondly the Bozeman Municipal Code on access to undeveloped land, is very simple, and has only four elements: 1. New Development (Links) adjoins undeveloped land? Yes, it adjoins Bridger Center land. 2. 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) 3. 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. 4. 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 appea,l 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 and recommendation. I initially, received a completely different account of why the city didn't require the street 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, PEA Engineering Department 406.582.2280 This justification completely disappeared in the staff reports that later followed. Probably because someone realized, it was completely indefensible. First, the proposal I made in July of last year was just one possible way of developing the property. There are literally unlimited ways of developing the property as it is a blank slate. Bridger Center LLC may not even be the entity that ends up developing it. So, basing the decision to not provide a required secondary access on the fire department's opinion of a hypothetical layout is completely unwarranted. Any development of the property, will either require a secondary access or to be granted a variance by the City Commission which may well never be granted. By not abiding by Municipal Code and provide a secondary access this could well be considered a taking. The second defense of the decision is also indefensible. The length of the existing dead end cul de sac to the entrance to my property is over 950 ft., well above the 500 ft. that the City restricts the lengths of cul de sacs to be. Requiring a second entrance through the Links abides by the code and greatly decreases the lengths of all the cul de sacs. Greatly improving public safety, not just to my development but to the Bridger Center commercial development, as it currently has an only one entrance. Finally, Bozeman Municipal Code does quite clearly require not only utility connection but also a street connection to my undeveloped abutting property. The entire premise of not requiring an access to abutting undeveloped land is contrary to the clear intent of connectivity in the UDC MC. By the City's errant position in this case, any developer could circumvent Sec.38.24.010 (A)(1) and the cost involved of connecting the streets to abutting undeveloped 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 Golf Course 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.