Loading...
HomeMy WebLinkAbout02-26-18 Public Comment - J. Bremer, Gallik, Bremer & Molloy, P.C. - Hoover Way Subdivision PUD 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 February 26, 2018 Mayor Cyndy Andrus City Commissioners City of Bozeman 121 N. Rouse Ave. Bozeman, MT 59715 Re: Use of Baxter Square Park Dedication:for Hoover Way Subdivision and PUD Dear Mayor Andrus and City Commissioners: We represent Baxter Square Partners, LLC, developer of Baxter Square Phases 1, 2 and 3, and Ami Grant Sayer, the managing partner. They are not opposed to HRDC's planned townhouse development, however, they are opposed to the use of Baxter Square's park dedication to benefit an unrelated subdivision. Based on the following, we respectfully request that the City Commission not apply the Baxter Square Subdivision's park dedication to the Hoover Way Subdivision. Since the proposed Hoover Way Subdivision is not a part of the Baxter Square Subdivision, this attempt to use the Baxter Square park dedication for a separate and unrelated subdivision is unlawful. Background Baxter Square was originally planned for four(4) phases, only two (2) of which were completed under the original subdivision and Planned Unit Development ("PUD") approval in 2003. The park dedication for what was originally contemplated for all four (4) phases was provided with the development of the first two phases as a combination of land donation and cash donation, as required by the PUD process. That PUD approval expired with only two (2) phases complete, yet the Baxter Square park dedication remained. While the Master Park Plan for Baxter Square may not have expired, the underlying subdivision and PUD as originally planned no longer exist. When Ms. Sayer proposed to develop one of the remaining tracts, formerly Phase 3 of Baxter Square, it was reviewed as a new subdivision. For the new subdivision to benefit from the previous park dedication of land and cash, it was required to annex into the existing Baxter Square Subdivision. As noted in the Baxter Square Phase 3 Staff Report, "the subdivision will annex into the existing Baxter Square POA and contribute to the ongoing maintenance and upkeep of existing parks and open space." See page 21 of 29, a copy of which is included as Exhibit A and incorporated by reference. While the park dedication was satisfied, Phase 3 was 1 Mayor Cyndy Andrus City Commissioners February 26, 2018 Page 2 also required to install a public access trail, vegetative ground cover, boulevard trees, and irrigation system, as well as shrubbery as a buffer with the residential lots. Id. The Hoover Way Subdivision is not Phase 4 of Baxter Square Subdivision, nor is it being required to annex into Baxter Square Subdivision. It is an unrelated new subdivision and should be required to annex into Baxter Square Subdivision, if it intends to benefit from the park dedication made for that Subdivision. Park Dedication Statute State law provides the authority for the park dedication requirement. See Section 76-3- 621, MCA. In pertinent part, that statute provides as follows. 4) The governing body, in consultation with the subdivider and the planning board or park board that has jurisdiction, may determine suitable locations for parks and playgrounds and, giving due weight and consideration to the expressed preference of the subdivider, may determine whether the park dedication must be a land donation, cash donation, or a combination of both. When a combination of land donation and cash donation is required, the cash donation may not exceed the proportional amount not covered by the land donation. § 76-3-621(4), MCA (emphasis added). The clear intent is the subdivider's expressed preference be taken into consideration with respect to the park dedication. Ami Grant Sayer, through Baxter Square Partners is the original subdivider of Baxter Square' and contributed the land donation and cash-in-lieu for the Baxter Square Subdivision. That money and land dedication shall be used to serve Baxter Square Subdivision as required by state law, that is: (5) (a) In accordance with the provisions of subsections (5)(b) and (5)(c), the governing body shall use the dedicated money or land for development, acquisition, or maintenance of parks to serve the subdivision. (b) The governing body may use the dedicated money to acquire, develop, or maintain, within its jurisdiction, parks or recreational areas or for the purchase of public open space or conservation easements only if: (i) the park, recreational area, open space, or conservation easement is within a reasonably close proximity to the proposed subdivision; and (ii) the governing body has formally adopted a park plan that establishes the needs and procedures for use of the money. Ami Grant Sayer was the managing partner of Baxter Square Partners, LLC and ABV Development, and she and her husband Joe Sayer are the current partners in Baxter Square Partners, LLC. Mayor Cyndy Andrus City Commissioners February 26, 2018 Page 3 (c) The governing body may not use more than 50% of the dedicated money for park maintenance. § 76-3-621(5), NICA (emphasis added). The legislature used no uncertain words, rather it declared how the park dedication was to be used, employing the mandatory word "shall." Based on the plain language of the statute, the park dedication "shall" be used for development, acquisition, or maintenance of parks to serve the subdivision. "The subdivision" is Baxter Square. Because you are sitting in a quasi-judicial capacity when making your decision in this matter, Montana law governing statutory construction applies. To this end, "in the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." § 1-2-101, MCA (emphasis added). In addition, "[w]ords or phrases used in the statutes of Rlontana are construed according to the context and approved usage of the language...." § 1-2-106, MCA. Consistent with these canons of construction, the word "shall" is, not surprisingly, mandatory in form. See Black's Law Dictionary, Fifth Edition, at page 1233 ("As used in statutes . . . this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term `shall' is a word of command, and one which has always or which must be give a compulsory meaning; as denoting an obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears." People v. O'Rourke, 124 Ca1.App. 752, 13 P.2d 989, 992.) The Montana Supreme Court's interpretation is consistent. In construing the meaning of a statute, we presume "that the terms and words used were intended to be understood in their ordinary sense." The word "may" is commonly understood to be permissive or discretionary. In contrast, "shall" is understood to be compelling or mandatory. Gaustad v. City of Columbus (In re City of Columbus Police Dep't), 265 Mont. 379, 381-382, 877 P.2d 470, 1994 Mont. LEXIS 135, 51 Mont. St. Rep. 544 (internal citations omitted). The Montana Supreme Court has determined that, While there is no absolute test by which to distinguish mandatory from director provisions of a statute, language, however mandatory in form, may be deemed Mayor Cyndy Andrus City Commissioners February 26, 2018 Page 4 directory whenever "the legislative intent does not require a mandatory construction." (59 C.J. 1073.) "Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results." (59 C. J. 1074.) Chicago, M., S. P. &Pac. Ry. v. Fallon County, 95 Mont. 568, 574-575, 28 P.2d 462, 1933 Mont. LEXIS 158. That the park dedication serve the subdivision for which is was dedicated is "of the essence of the thing required" and not "a mere matter of form" nor convenience. It is not immaterial and the subdivider's rights depend on statute. A mandatory construction of the word "shall" is also necessary to carry out the legislative intent of Montana's Subdivision and Platting Act. In pertinent part, It is the purpose of this chapter to: (1) promote the public health, safety, and general welfare by regulating the subdivision of land; (2) prevent overcrowding of land; (4) provide for adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public requirements; (6) promote preservation of open space; (7) promote cluster development approaches that minimize costs to local citizens and that promote effective and efficient provision of public services; (8) protect the rights of property owners; § 76-3-102, MCA ("Statement of Purpose") Applying these fundamental canons of statutory construction to the facts before you requires that the park dedication money or land dedicated by Baxter Square Partners "shall"be used to develop, acquire, or maintain parks "to serve the subdivision" not some other subdivision. The dedication can only be used for Baxter Square Subdivision, not an unrelated subdivision being subdivided separately and apart from Baxter Square and under a different planned unit development. Mayor Cyndy Andrus City Commissioners February 26, 2018 Page 5 As noted previously, Baxter Square Phase 3 was required to annex into the existing Baxter Square Subdivision. If Hoover Way Subdivision expects to benefit from the park dedication made for Baxter Square, it too must annex into that Subdivision and contribute to the ongoing maintenance and upkeep of the existing park from which it seeks to benefit. City Code The Planning Board Staff Report refers to Sec. 38.27.100.A.7 as allowing the waiver of required park dedication for the Hoover Subdivision. See as follows: If a tract of land is being developed under single ownership as a part of an overall plan, and part of the tract has previously been subdivided or developed, and sufficient park land dedication or cash donation in-lieu of land dedication has been provided from the area that has been previously subdivided or developed to meet the requirements of this section for the entire tract being developed, the city commission shall issue an order waiving the land dedication and cash donation requirements for the subsequently developed area. As Ms. Sayer explained in her August 23, 2017 letter to you, the Hoover Way Subdivision is not Phase 4 of Baxter Square, nor is it a part of the Baxter Square Subdivision, which now includes Phases 1, 2 and 3. It is not being developed under single ownership as part of an overall plan as the original PUD has expired, and HRDC purchased the remaining tract so it is under different ownership. Hoover Way Subdivision is not being required to annex into Baxter Square, and become a part of that Subdivision in order to benefit from its park dedication. Hoover Way Subdivision is a new subdivision and PUD, so it should be treated as such. Conclusion Based on the foregoing, we respectfully request that the City Commission not apply the Baxter Square Subdivision's park dedication to the Hoover Way Subdivision, an unrelated and separate subdivision that is not a part of Baxter Square nor its overall plan of development. Thank you. Sincerely, GA I JrMER&MOLLOY,P.C. Je n B mer Encl. c: Client City Attorney Greg Sullivan Marty Matsen, Director of Community Development P14040,Staff Report BAXTER SQUARE PHASE 3 MAJOR SUBDIVISION Page 21 of 29 An Open Space Tract with a public access trail corridor is shown in the north\%est corner of the property. This will connect to the existing trail in the park and extend it to the north property line providing trail connectivity for future development to the north. Installation of vegetative ground cover. boulevard trees, and an irrigation system will be done prior to final plat along all external perimeter streets and adjacent to public parks. This subdivision "ill annex into the existing Baxter Square POA and contrlbUte the ongoing maintenance and upkeep ofthe existing parks and open space. The proposed park area has less than 100% street frontage as required. The city may consider and approve the installation of streets long less than 100 percent, but not less than 50 percent, of the perimeter when necessary due to site constraint as in the case with this project. The project also provides for direct pedestrian access to the perimeter without street frontage with a trail connection. As there are private properties adjacent to the park the character of that boundary is important. Condition six requires regular spacing of acceptable shrub species shall be installed along the south side of Lots 5D, 5C, 513, and 5A to create a buffer between residential lots and parkland and shall be shown on the final landscape plan. Adjacent Private Frontage vs Street Frontage Map tq.Ct .i4R ,�9.rn �vmq __�•aw e i I s 71 1Di49••, Uffd `,'r.:' Key I/7 Y-1/ Y I lOr. .+ Z UT_. o� Street Frontage 1 fl1 Ze,M rM � i 1 lOTyu\, j, >_ Private Lot Frontage n11 .Y [m,,.,, €N Public access Z L01 3 Easement & trail connection Eowuwe wear v.aa 7 I iat a.... fir CAE..9.EE//!'veCK.CUSS\ LOT IV r,o lI to 1C _____ --------- ---- . . Eol 19 AX S UA E �II E 1 D 3" 4) The effect on the Natural environment This property is located in an area of the City which has been identified and developed for residential uses at urban density and no changes are proposed that would impact the natural E IBIT s 104