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HomeMy WebLinkAbout02- Cattail Creek Subdivision, Phase 1 . . . BEFORE THE BOZEMAN CITY COMMISSION IN THE MATTER OF THE APPLICATION OF FINDINGS OF FACT SANDAN, L.L.C., FOR PRELIMINARY PLAT REVIEW AND ORDER OF CATTAIL CREEK SUBDIVISION, PHASE I, CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA PURSUANT to the Montana Subdivision and Platting Act, Section 76-3-101 through 76-3-625, Montana Codes Annotated, and the Bozeman Area Subdivision Regulations, a public meeting and public hearing were scheduled, after notice given, before the Bozeman Planning Board on May 21, 2002, and before the Bozeman City Commission on June 3, 2002, on the above-entitled application. The purpose of the public meeting and public hearing was to review the applicant's request for variances to the Bozeman Area Subdivision Regulations and to modify conditions of approval for a previously approved Preliminary Plat application for Cattail Crcek Subdivision, Phase I, together with the required supplementary plans and information, to determine if the information submitted meets the requirements of the Bozeman Subdivision Regulations, and to consider all relevant evidcnce relating to public health, safety, and welfare, including the required environmental assessment and recommendation of the Planning Board, and to determine whether the plat should be approved, conditionally approved, or disapproved. It appeared to the City Commission that all parties and the public wishing to appear and comment wcre given the opportunity to do so, and therefore, being fully advised of all matters having come before it regarding this application, the City Commission makes the following Findings of Fact, as rcquired: I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 1 . , . FINDINGOF FACT I. The complete application for the preliminary subdivision plat rcview of Cattail Creek Subdivision, Phase I, to modify three (3) conditions of preliminary plat approval for mixed-use major subdivision and requested variances to Section 16.16.01O.H "Secondary or Emergency Access" and ScctionI67.16.080.A "Improvement Standards Within the City" of the City of Bozeman Interi m Subdivision Regulations, was submitted to the Bozeman Planning Office on April 9, 2002. The preliminary subdivision plat application, as proposed, will allow the applicant to modify thc following conditions of preliminary plat approval: I) Condition Three to install City sidewalks for the subdivision on the third anniversary of the filing of the final plat or at the time of issuance of building pcrmits, whichever comes first, 2) Condition Eight to waive review of required improvements by the Montana Department of Transportation, and 3) Condition Nine to construct Cattail Street, in-lieu of Dcadman's Gulch as a secondary access street for the major subdivision. II. Notice of a public meeting before the Bozeman Planning Board and public hearing before the Bozeman City Commission was published in the Bozeman Daily Chroniclc on May 5, 2002, and the notice was posted at the site and mailcd by Certified mail, return receipt requested, to all adjoining propelty owners. III. The matter of preliminary subdivision plat review was heard by the Bozeman Planning Board on May 21, 2002. The Planning Staff reviewed the project at that time and outlined the applicant's requested modifications to the previously approved preliminary plat application, the two variances to the Bozeman Area Subdivision Regulations, and further commented on the recommended conditions of the Development Review Committee. I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 2 The Planning Staff reported that no public testimony on this matter had been received as of the public meeting before the Planning Board with exception to Bob Davis, 13920 Thcisen Road, who just prior to the meeting before the Board expressed an objection to the closure of an existing irrigation ditch which he has water rights to irrigate adjoining property to the north of the proposcd major subdivision. Dave Crawford of TD&H, Inc., representing the applicant, Sandan L.L.c., discussed the construction and time schedule for the complction of Davis Lane as a secondary access for the major subdivision, in-lieu of the original condition that required Deadman's Gulch to be constructed and extended to the intersection with North 19th A venue. IV. The public meeting portion on this matter was opened, upon which Bob Davis, 13920 Theisen Road, President of Farmer's Canal, expressed his concern to the closure of an existing irrigation ditch for the construction of Cattail Street and is requesting a guarantee that the flow of 200-300 inches of water would be available along the north of the proposed subdivision and when the guarantee would happen. David Crawford of TD&H, Inc., stated methods to solve the irrigation ditch issue and how shares of water rights follow the share-owner and how they can be transferred. Mr. Crawford further stated that the applicant offered to place a diversion structure in the Section Line ditch to divert water to the adjoining property in question. Sandy Hamilton and Dan Madison, representing SANDAN, L.L.c., stated thcrc was no water passing through the property when they purchased it and had offered to install a ditch beside Cattail Street to carry the needed irrigation for Mr. Davis. Mr. Madison further stated that the irrigation ditch has not been used for thc last five years and that Mr. Davis had commented that it had been 25 or 30 years since water had been in the irrigation ditch. I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 3 --- --------- , . After hearing no further public testimony, the Planning Board closed the public portion of the informational meeting on said matter. V. After finding that the Preliminary Plat was properly submitted and reviewed under the procedures of the Bozeman Area Subdivision Regulations, the Bozeman City Zoning Ordinance, and the Bozeman Area Master Plan, the Planning Board reviewed and considered the facts against the criteria established by the Planning Office. The Planning Board considered the recommended conditions prepared by the Planning Staff and Development Review Committee, and discussed the time schedule to complete the construction of Davis Lane and resolving the irrigation ditch issue identified by Mr. Davis. The Board further commented that it was not their responsibility to resolve the matter of the irrigation ditch identified by Mr. Davis based on the language recommended by City staff. VI. The Planning Board found that with the attached conditions, the subdivision would comply with the primary review criteria, and therefore voted 5-0 to forward a recommendation of conditional approval to the Bozeman City Commission in Planning Resolution No. P-02002A with a revision to condition #2 stating that the commencement of construction of improvements to Davis Lane shall begin no later than September 1, 2002, and completed by September 30, 2003, or the financial guarantee shall be forfeited. VII. The matter was considered at a public hearing before the City Commission on Monday, June 3, 2002. The Planning Staff reviewed the project at that time and forwarded the Planning Board's recommendation of conditional approval to the City Commission. I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 4 . . Dave Crawford of TD&H, Inc., applicant's representative, stated his concurrcnce with the staff report and the recommended conditions of approval as presented. VIII. The public hearing portion on this matter was then opened. Mr. Bob Davis, 13920 Theisen Road, expressed concern that a portion of the irrigation ditch across said propcrty that provides irrigation to the adjoining north property had been filled in and requestcd that steps be taken to ensure water is delivered to the southern corner of his property. Mr. Mike Lilly, attorney representing the applicant, stated the water rights issue should be addresscd when the final plat is filed. He further stated that in the past five years since the applicant purchased the property at no time has there been water through the ditch and, according to Mr. Davis, thcrc has not been water in the ditch for the past twenty years. Furthcrmore, Mr. Lilly noted that Mr. Davis did not reserve an easement for said irrigation ditch or the right to use the ditch; and the first time the applicant heard about the ditch was when the applicant began filling it in a few weeks ago. Mr. Lilly stressed that this is a civil litigation issue between the private parties and is not pal1 of the application before the Commission at this time. IX. After closing the public hearing portion on this matter the City Commission discussed the potential impacts if the City is involved in a lawsuit over the ditch issue and a need for the applicant to provide a ditch if Section 16.14.050.C of the subdivision rcgulations is deemed applicable in the case of this preliminary plat application. X. The City Commission then considered the minutes of the Planning Board, public record, Resolution of the Planning Board, staff report, developcr's tcstimony, and weighed the applicant's request for variances to Section ] 6.] 6.01O.H "Secondary or Emergency Acccss" and Scction I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 5 . 167.16.080.A "Improvement Standards Within the City" of the City of Bozeman Interim Subdivision Regulations against 76-3-506, MCA, and found as follows: 1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties. The applicant notes that 85% of the anticipated traffic from the subdivision will use Catron Street as the principal access with Davis Lane serving as the secondary access to the site. With only 15% of the calculated trip generations from the subdivision anticipated to use Davis Lane, the interim gravel standard during the summer season, should not noticeably affect the use of the road as a secondary road for use by emergency and private vehicles. Two access points would still be available to the subdivision. The applicant has agreed to financially guarantee the pavement of Davis Lane and understands that paving improvements to the street must be initiated by no later than September of 2002. 2. Because of the particular physical surroundings, shape or topographic conditions of the specific property involved, an undue hardship to the owner would result if strict interpretation of these Regulations is enforced. The existing physical constraints of the site involve the presence of irrigation ditchcs in the area of Davis Lane that are peak use during the summer months. As a result, reconstmction and paving of Davis Lane can not occur until such time that the demand for irrigation no longer exists or is very limited; thus, limiting any construction activity along Davis Lane unit the fall of this year. The City Engineer's Office and City staff are fully aware of the complications with the impact on downstream water facility user's rights and road constmction activity with Cattail Creek Subdivision, Phase 1, and therefore can generally support the request for a variance with the stipulations on: I) limitation on the time frame in which improvements to Davis Lane must proceed, and 2) ensuring that completion of the subdivision's street network system will not effect any irrigation ditches, streams, or other water courses in the area as prescribed in Section 16.14.050 of the subdivision regulations. 3. The variance will not cause a substantial increase in public costs. City staff has not identified any increase in public costs with the granting of this variancc. The applicant has agreed to execute an Improvements Agreement with thc City of Bozeman and financially guarantee the Davis Lane improvements at 150% of the estimated cost for improvements in order to proceed with the filing of the final plat and obtain building permits to proceed with constmction on the individual lots. 4. The variance will not, in any manner, place the subdivision in nonconformance with any adopted zoning regulations or comprehensive plan. The granting of this variance would not place this subdivision in nonconformance, if the request were perceived as an interim measure to complete the area's infrastructure and street network system, as long as provisions are in place to guarantee that Davis Lane will be improved prior to the beginning of the winter season. The variance would further achieve a reasonable time schedule to implement the area's infrastructure (i.c., water and sanitary sewer) and transportation network system. With the development of Baxter Meadows Subdivision and Cattail Creek Subdivision, a joint effort by the two developers and the City of Bozeman has been initiatcd to improve Davis Lane and extend municipal water and sanitary services in I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 6 . the area. The fallback on this joint effort, if the implementation schedule fails, is the rcstrictions placed on the two developers to limit further development with future phases for both subdivisions. XI. Aftcr considering all matters of record presented at the public hearing and meeting, the Commission found that applicant's request for varianccs to Section 16.16.01 O.H "Secondary or Emergency Access" and Section] 67.16.080.A "Improvement Standards Within the City" of the City of Bozeman Interim Subdivision Regulations, would comply with the requirements of 76-3-506, MCA and the criteria set forth the Bozcman Area Subdivision Regulations if ccrtain conditions were imposed. XII. The City Commission then considered the minutes of the Planning Board, public record, Rcsolution of the Planning Board, staff report, developer's testimony, and weighed the applicant's request to modify three (3) conditions of preliminary plat approval proposed subdivision against the findings of thc Planning Office, and found as follows: Condition #3: The applicant has request to modify the condition to achieve similar language to that proposed in Section 16.14.040 "Sidewalks" of the new Bozeman Subdivision regulations, which states: "City standard sidewalks (including a concrete sidewalk section through all private drive approaches) shall be constructed in all subdivisions on all public and private street frontages prior to occupancy of any structure on individual lots. Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who has not constructed said sidewalk shall, without further notice, construct within 30 days, said sidewalk for their (Jots), regardless of whether other improvements have been made upon the lot." The D.R.C. has found this modification acceptable based on the anticipated amendments to the Bozeman subdivision regulations. Condition #8: Based on written testimony provided by the Montana Department of Transportation, dated May 9, 2001, the state agency has not expressed any concerns over the traffic this development will add to the local and state transportation systems (see Attachment "E"). Therefore, the D.R.C. concurred with the findings of M.D.a.T. and concludes that said condition of approval is no longer applicable with this phase of the subdivision. Condition #9: The applicant has requested to modify this condition whereby construction of paving improvements on Davis Lane, from Cattail Street to Baxter Lane, will scrvc as the secondary access to this major subdivision in-lieu of Deadman's Gulch. Based on the proposed improvements to Davis Lane outlined by the applicant, the D.R.C. concluded that the developer has met the requirement of Section 16.16.01 O.H "Second or Emergency Access" for a secondary access to the mixed-use major subdivision. I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 7 . . XIII. After considering all matters of record presented at the public hearing and meeting, thc Commission found the applicant's request to modify three (3) conditions of preliminary plat approval proposed subdivision, would comply with the requirements of the Bozcman Area Subdivision Regulations and the Montana Subdivision and Platting Act if certain conditions were imposed. ORDER IT IS HEREBY ORDERED, on a vote of 4-0, that applicant's request for variances to Section 16.16.01 O.H "Secondary or Emergency Access" and Section 167.16.080.A "Improvement Standards Within the City" of the City of Bozeman Intcrim Subdivision Regulations, has been found to meet the requirements of 76-3-506, MCA and the criteria set forth the Bozeman Area Subdivision Regulations, subject to the conditions listed below in this Order. IT IS HEREBY FURTHER ORDERED, on a vote of 4-0, that the preliminary plat application, Planning Application No. P-02002A, to modify three (3) conditions of preliminary plat approval for Cattail Creek Subdivision, Phase I, has been found to meet thc primary critcria outlined in the findings of the Planning Office, and is therefore approved, subject to the conditions listed below in this Order. The evidence as stated in the Findings of Fact, justifies the conditions imposcd on the subdivision to ensure that the final plat complies with all applicable regulations, and all required criteria, that appropriate and safe vehicular and pedestrian circulation is provided, adequate infrastmcture and public services are provided, and adequate public access, utility easements, and rights-of-way are provided. This City Commission order may be appealed by bringing an action in the Eighteenth District court of Gallatin County, within 30 days after the adoption of this document by thc City Commission, by following the procedures of Section 76-3-625, M.C.A. I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 8 . , . .. I. The proposal to utilize Cattail Street and Davis Lane for a secondary access is acceptable to this office. 2. Davis Lane shall be improved to one half of a divided minor arterial standard or financially guaranteed prior to filing of the plat for phase I of this subdivision. If the improvements are financially guaranteed, building permits will be issued pnor to completion of the improvements. Construction of said improvements shall commence no later than September of 2002 or the financial guarantee will be forfeited. 3. If applicable, Section 16. ] 4.050 of the Subdivision Regulations shall be complied with. 4. That the final plat contains a notation stating that all downstream water user facilities will not be impacted by this subdivision and that it be noted accordingly in the by-laws and protective covenants of the homeowners' association. 5. That the developer shall enter in an Improvements Agreement with the City of Bozeman guaranteeing the completion of all improvements in accordance with the preliminary plat submittal information and conditions of approval. If the final plat is filed prior to installation of all improvements, the developer shall supply the City of Bozeman with an acceptable method of security equal to one hundred fifty (150) percent of the cost of the remaining improvements. The preliminary approval of this subdivision shall be effective for three (3) years from the date of Preliminary Plat approval, June 3, 2005. At the end of this period the City Commission may, at the request of the subdivider, extend its approval for not more than one (J) calendar year. However, preliminary approval may be extended for more than one (]) calendar year if the developer enters into, and secures, an Improvements Agreement for the Subdivision. DA TED this] 2th day of August, 2002. BOZEMAN CITY COMMISSION ATTEST: APPROVED AS TO FORM: /-') /'- / ) ~J~ / ~~y Robin Sullivan, Clerk of the Commission I Request for Modifications to Cattail Creek Subdivision, Phase I, - Findings of Fact and Order 9