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HomeMy WebLinkAbout11-04-19 Public Comment - T. DePuy (on behalf of K. and L. Marr)-2 - Transitional Housing SUPFrom:Tara DePuy To:Sarah Rosenberg; Agenda Subject:Public Comment SUP Application 19438 Date:Monday, November 04, 2019 9:21:23 AM Attachments:Marr Pubic Comment Letter SUP Application 19438.pdf Ms. Rosenberg, Please find attached the adjoining neighbors public comment etter to the HRDC Transitional Housing Special Use Permit Application 19438. Please let me know that this comment letter has been received. Thank you. Tara --------------------------------- Tara DePuy Attorney at Law, PLLC PO Box 222 Livingston, MT 59047 406.223.1803 406.223.7865 (fax) attorney@riverworks.net   Confidentiality Notice:  If you are not the intended recipient(s) of this e-mail, please destroy all copies of the original e-mail and attachments and notify the sender.  The contents of this e-mail and attachments may be client-attorney protected information or confidential information and any use, dissemination, forwarding, printing or copying of the e-mail and attachments is strictly prohibited without permission. Tara DePuy, Attorney at Law, PLLC PO Box 222 Livingston, MT 59047 (406) 223-1803 attorney@riverworks.net (406) 222-7865 (fax) November 4, 2019 By regular mail and e-mail to sroseberg@bozema.net City of Bozeman Department of Community Development ATTN: Sarah Rosenberg PO Box 1230 Bozeman, MT 59771-1230 Re: HRDC Transitional Housing Special Use Permit Application 19438 Dear Ms. Rosenberg: This letter is public comment from Keith and Lisa Marr, adjoining/abutting neighbors, to the proposed HRDC transitional shelter at 3025 Westridge, Bozeman, Montana. See attached Exhibit A. (Google map of 3025 Westridge and Marr residence). Noticing Issues The Notice of A Special Use Permit mailed to the Marrs contains incorrect and incomplete cites to the Bozeman Municipal Code. The Notice fails to note the specific reference to the index of supplemental use criteria for transitional and emergency housing special use permits special standards adopted by the Bozeman City Commission, Ordinance 1997, effective on April 18, 2018, and codified at 38.360.135 BMC as well as the specific procedures and application requirements for a Special Use Permit, Sec. 38.230.120 BMC. Further, the Notice references that issues not raised during public comment period may not be raised on appeal citing 38.250.070B BMC. The correct cite is 38.250.030B BMC. Vague Review Criteria and Shifting of Burden of Proof 38.230.120C, Special Use Permits, BMC, incorporates the review criteria set forth for conditional use permits in 38.130.100.E through I, BMC. 38.130.100E.2 BMC states “That the proposed use will have no material adverse effect upon the abutting property. Persons objecting to the recommendations of review bodies carry the burden of proof.” (emphasis supplied). Page Two November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 The BMC does not define “material adverse effect”. This is a vague and discretionary standard and the determination of what is a material adverse effect can vary from review to review, depending on the discretion of the reviewer of the application. Zoning standards should not be vague; there should be specific criteria that can be evaluated based on the application and public comment. What the Marrs believe is a material adverse effect on their property and lives, may be discounted by a reviewer. For example, the Marrs who have lived on their property since 1990, believe that a 36 person transitional housing shelter adjoining their property will devalue their property and that this is a material adverse effect. Zoning, if adopted and implemented correctly, should maintain or improve property values. The reviewer, in the reviewers’ discretion, may believe that property value is not material to the decision on an application. The public should not have to guess what the reviewer believes is a “material adverse effect”; there should be specific criteria that the Marrs and the public can provide factual information on and the reviewer’s decision on the application should be made on facts; not discretion. Further 38.130.100E.2. BMC shifts the burden of proof from the applicant to the adjoining neighbors if they disagree with the reviewer’s discretionary decision that there is no material adverse effect to their “abutting property”. The applicant should have to provide factual information on specific criteria to prove that the granting of the application is not detrimental to abutting property. 38.130.100E.2 shifts the burden to the adjoining neighbor to prove that a vague discretionary standard of no “adverse material effect” to their property as determined by the reviewer is incorrect when the applicant should have the burden of proving the application will not affect the abutting property based on specific review criteria in the BMC. Overreach of Ordinance No. 1997 Ordinance No. 1997 which amended the City of Bozeman Unified Development Code, Chapter 38 of the Municipal Code to Add Transitional and Emergency Housing as an Authorized [sic] Use is overly broad in its scope and as applied in this specific situation. [Transitional and Emergency Housing are not an Authorized Use; Transitional and Emergency House are a “Special Use”.] Ordinance No. 1997, does not appear to be in conformance with Bozeman Community Plan 2009 (aka Growth Policy) which includes land use principles for the preservation of existing neighborhoods. A residential low density district (R- 1) is intended for primarily single-household residential development with community facilities and services as will serve the area’s residents while respecting the residential character and quality of the area. Transitional and Emergency Housing are allowed as a Special Use in all residential areas from R- Page Three November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 1 Residential Single Household, low density district, to R-4 Residential high density district without any analysis as to the impact of how transitional or emergency housing differs in an R-1 zoning district compared to an R-4 zoning district. The current application is in an R-1 zone that has limited community facilities and services, other than public schools which it appears the transitional families will not attend. The application to allow 36 persons plus staff to reside between 7 pm and 7 am in a single-family residence in an R-1 zone does not take into account the drastic increase in density this application will have in this R-1 zone and the associated impacts on the neighborhood. It is apparent that in a rush to provide much needed transitional and emergency housing in the City of Bozeman, the City did not consider how a change in density would affect each of the different types of residential zones, whether the change would preserve the residential quality and character of the different types of residential zones and whether there were adequate services, i.e. public transportation, in the different zoning districts that would serve the transitional/homeless population. Further, it is unknown why only governmental and non-profit agencies are allowed to provide transitional and emergency housing in the City of Bozeman, thus disqualifying and discriminating against other entities who may wish to serve this population. 38.360.135 Transitional and Emergency Housing Criteria C.6. Required Standards: Management Plan  The Management Plan fails to adequately address whether two staff and/or volunteers is adequate to manage 36 persons who may have disabilities at one time while some may be out on smoking breaks and others will be inside the proposed transitional housing shelter.  The Management Plan is not clear as to whether the proposed transitional housing shelter may at times be staffed only by volunteers and does not provide for how volunteers will be trained to manage 36 persons at the residence who may have disabilities.  The Management Plan fails to address how it will handle Level I and Level II Sex Offenders who may request shelter at the proposed transitional housing shelter and the impacts this may have on the neighborhood. The Management Plan does not address Level III sex offenders, however, a HRDC October 24, 2019 letter and additional information mailed to the adjoining neighbors states that Level III sex offenders will not be allowed in the proposed transitional shelter. See Exhibit B, HRDC October 24, Page Four November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 2019 letter and additional information. The Management Plan should be clear as to how all levels of sex offenders will be screened and managed.  The Management Plan fails to address how it will prevent second hand smoke from infiltrating the neighborhood and the Marrs residence immediately adjacent to proposed transitional shelter.  The Management Plan fails to address security measures for persons who show up at the proposed transitional housing shelter are refused entry or who are discharged from the proposed transitional housing shelter for failure to abide by the client code of conduct. It appears these persons, who may have conduct issues, will be left to wander the neighborhood to find their own shelter wherever they can.  The Management Plan fails to address security measures to the adjacent neighbors and neighborhood when persons are refused entry to the proposed transitional housing shelter because they do not meet the criteria for entry or who are discharged for failure to abide by the client code of conduct and may pose a threat or risk to the adjacent neighbors and neighborhood.  The Management Plan fails to address security measures within the proposed transitional shelter such as alarm systems to notice someone has exited the residence through either doors or windows, including the egress windows in the basement. D. Additional Criteria  The reviewing authority should apply the additional criteria of the proposed transitional housing shelter being within ¼ of a mile of a sheltered public transit stop as persons may be refused entry to the shelter or discharged from the shelter without transportation. The nearest sheltered public transit stop is approximately a mile from the proposed transitional housing shelter.  The reviewing authority should apply the additional criteria of the limitation on the maximum occupancy and/or number of beds provided by the facility to be no more than 18 occupants. The proposed transitional housing shelter in the past was used as a group home with approximately 9 occupants. Even a doubling of the number of occupants will have adverse material impacts on the adjoining neighbors and neighborhood, but a quadrupling of the number of occupants to 36 will have serious adverse material impacts on the adjoining neighbors and neighborhood as set forth below. Page Five November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 38.230.100 Plan Review Criteria 1. Conformance to the Growth Policy  As set forth above, the approval of a transitional shelter in an R-1 zoning district does preserve the existing neighborhood. The Growth Policy states that the neighborhood unit helps provide the sense of familiarity and intimacy which can be lacking in larger communities. Chapter 3: Land Use Intent and Background Land Use Principles. The introduction of an additional 36 residents who may or may not be the same 36 residents from the previous day does not preserve the sense of familiarity and intimacy in the neighborhood. 6. Conformance with the Community Design Provisions a. Transportation facilities and access  The application states all residents will be transported by bus to the proposed transitional housing shelter and that the 3 parking spots (two on the property and one on the street) are adequate to service the 36 residents and two staff and/or volunteers. The Management Plan indicates that there will be a change in staffing midway through the 12 hours the residents are at the proposed transitional housing shelter. There will need to be communication between the staff and/or volunteers during the shift change which will then necessitate parking for four volunteers and/or staff which does not exist at the proposed transitional housing shelter.  The proposed transitional housing shelter is located adjacent to a very busy school cross-walk. Students and school staff use this cross-walk at various hours of the day; not merely after 7 am and before 7 pm. The circulation between 36 residents arriving and leaving at the proposed transitional housing shelter intermingling with students and school staff creates a safety issue within the site and between properties and activities within the neighborhood area.  As noted above, there is a lack of adequate connection and integration of pedestrian and vehicular transportation systems in this neighborhood and in adjacent developments in that the closest sheltered public transportation site is approximately one mile away from the proposed transitional housing shelter. Page Six November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 10. Other related matters, including relevant comments from affected parties. The Marrs are the closest adjoining neighbor, living approximately ten feet to the north of the proposed transitional housing shelter. The Marrs have the following concerns regarding the proposed transitional housing shelter:  Second hand smoke. With the previous group home, the Marrs could smell cigarette smoke in their bedrooms when somebody smoked in the driveway or backyard of the proposed transitional housing shelter. If the residents smoke on the other side of the shelter, children on their way to or from school may be exposed to secondhand smoke. Secondhand smoke can stay in the air for several hours and travel over 20 feet. The effects of 10 – 30+ people smoking next to the Marrs’ residence will increase the effects of secondhand smoke as well as the risk of a fire hazard. A smoking area must be designated on the property and the location must not have material adverse impacts on adjoining neighbors and pedestrians.  Nothing prevents homeless people living in their vehicles from driving to the proposed transitional housing shelter, parking in the neighborhood and attempting to gain entry to the proposed transitional shelter, even if they are turned away. This will increase the lack of parking in the neighborhood and the three spaces (two on the property and one on the street) will not be adequate.  Westridge and Graf is a dangerous intersection, with a lot of buses and school drop-off and pickup traffic.  Westridge becomes a one lane street at times, especially when there is a lot of snow on the street.  No access to amenities, convenience stores, or other services in the neighborhood.  No screening for Level 1 and Level II Sex Offenders, background checks, or other measures to ensure neighborhood safety.  Morningstar School is very close and Sacajawea Middle School is only two blocks away from the proposed transitional housing shelter and an influx of every changing residents in the proposed transitional housing shelter will affect the public health and safety of these children.  The Marrs young son has a slight disability, cannot run fast, is kind of clumsy and awkward and would never be able to run away or defend himself if need be.  Drugs/needles/weapons/knives, even if stored on-site at the proposed transitional housing shelter during occupancy, are returned to the Page Seven November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 occupants when leaving the proposed transitional shelter or if the person is turned away or discharged for failure to comply with the code of conduct. These persons are then on-foot in the neighborhood with drugs/needles/weapons/knives.  This property has been minimally maintained: snow removal is sporadic or lacking, the lawn is full of weeds, the landscaping has not been watered/pruned or maintained, and the home exterior is dilapidated.  Noise. The Marr’s son has a bed-time of 8 pm. Residents will be up and outside smoking until 1 am in the morning and then allowed to freely come and go from the residence starting at 5 am. See Exhibit B, Executive Summary.  Decrease in property values.  “Open” signs on the proposed transitional housing shelter. If the residents are all transported by bus to the proposed transitional housing shelter there is no need for an “open” sign.  Non-residents are allowed to store possessions at the proposed transitional housing shelter even if they are not staying at the shelter. The Management Plan does not address how these non-residents transport their belongings to the shelter, where they park if driving an automobile, and how many non-residents will be coming and going from the shelter on a daily basis. 38.230.110.E [38.230.100C. requires a special use permit to meet the review criteria set forth in 38.230110.E through I] 1. The proposed transitional housing shelter site does not have adequate setbacks, walls, fences, parking and loading to adequately and properly relate to use of the property by 36 daily residents and is not compatible with the single- family dwelling uses in the vicinity of this neighborhood. The Marrs’ property is a mere 10 feet from the proposed transitional housing shelter and the use of the property by 36 daily residents makes the 10 foot distance not an adequate setback, even though it is within the standard of the 5 foot setback in the R-1 zoning district as the R-1 zoning district contemplates single-family dwellings; not 36 residents of a transitional housing shelter. Also as set forth previously, parking and loading is not adequate as there is a lack of parking spaces and the property is adjacent to a very busy intersection and school crosswalk. 2. The proposed use will have a material adverse effect upon the abutting property owners, the Marrs as set forth above in 10. Other related matters, including relevant comments from affected parties. Each and every one of the Page Eight November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 comments set forth above in 10. will materially adversely affect how the Marrs live their daily lives on their property as well as impact the value of their property. 3. Additional conditions to protect public health and safety should be imposed if the proposed transitional housing shelter is approved. The BMC defines public health and safety as a condition of optimal well-being, free from danger or injury, for a community at large, not merely for an individual or small group of persons. These additional conditions, if the SUP application is conditionally approved, should at a minimum include:  Conditions that address how residents who are turned away or discharges from the transitional shelter are safely removed from the neighborhood.  Special setbacks, spaces and buffers to prevent second hand smoke from impacting adjoining neighbors and the community at large.  Special setbacks, spaces and buffers to allow the use of the school cross-walk without any impediments by the proposed transitional shelter and impede traffic at the intersection of Graff and Westridge.  Requirement for maintenance of the grounds and residence.  Requirements for the regulation of noise from the grounds and residence.  Prohibition of signs on the residence.  Prohibition of non-residents storing possessions at the residence.  Requirements for the regulation of odors from the grounds and residence.  Regulation of hours or outdoor activities at the residence, including smoking breaks, to not be later than 9 pm and residents not allowed to wander in and out of the residence until 6 am.  Regulation of the dates of use of the proposed transitional shelter to be only from November 1 to March 31 of each year.  Review of all requirements imposed on the SUP each year with public notice and public comment and the right to impose new conditions.  Limitation of the SUP to the applicant and that the approval of the SUP does not run with the land.  Compliance with all requirements for fire codes for housing 36 residents in a single-family residence, with six bedrooms and presumably 24 people housed in the basement. Page Nine November 4, 2019 Marr Public Comment Transitional Housing Special Use Permit Application 19438 Prior to a decision being made on this SUP application, all public comment should be analyzed and a record made of that analysis. Based on the issues with the noticing of this SUP application, the vague standards for reviewing whether or not there is a material adverse impact to abutting neighbors, the overreach of Ordinance No. 1997 and the fact that the SUP application does not meet many of the basic criteria to receive a SUP for a transitional housing shelter, Transitional Housing Special Use Permit Application 19438 should be denied. Sincerely, Tara DePuy c: Clients