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HomeMy WebLinkAbout04-06-20 Public Comment - J. Kauffman - Request Dismissal of HBP Appeal to Armory Hotel April 6, 2020 BY EMAIL Bozeman City Commission c/o Greg Sullivan, City Attorney 121 N. Rouse Bozeman, MT 59715 Re: Landowner’s Response to Appeal by 5 West Residential, LLC to Conditional Approval of Armory Hotel Modification Application No. 19410 Dear Commissioners: This letter follows, and supplements, our April 3, 2020 letter requesting that you dismiss the appeal filed by the attorney for 5 West Residential, LLC d/b/a HBP Residential Condominiums dated March 18, 2020 (“HBP and the “HBP Letter”) related to the Armory Project. Our office represents The Etha Hotel, LLC (the “Etha”), the owner of the Armory project. Our April 3 letter explained why HBP is not an eligible appellant in the first instance because it is not an “aggrieved person” as defined in section 38.700.020 of the Bozeman Municipal Code (the “Code”). The purpose of this letter is to address the substance of the HBP appeal, should the Bozeman City Commission (the “Commission”) decide to hear the appeal, despite HBP not being an eligible appellant. The HBP Letter seeks to appeal two aspects of the decision issued by Bozeman Community Development Martin Matsen (the “Director”) issued on March 4, 2020 (the “Director’s Decision”): (1) the location of the rooftop mechanical equipment (the “Rooftop Issue”) and (2) conditions imposed on the Armory Hotel’s lighting (the “Lighting Issue”). In sum, the HBP’s Rooftop Issue demands that the Commission require the Etha to move mechanical equipment from the 2nd and 3rd floor rooftops to the 8th floor rooftop so that HBP may have a view across Mendenhall of a pool (a very small pool), terrace and garden rather than screened equipment. The fundamental assumptions upon which the demand is made are based upon incorrect assumptions. In addition, the relief requested is not only impractical, but would be devastating to a project that has become an asset to downtown Bozeman. The Lighting Issue reflects a basic misunderstanding of the Director’s Decision and, in any event, is not an appealable issue. HBP’s demands are improper, impractical and not supported by the Code. April 6, 2020 Page 2 The Etha appreciates that members of the public, as compared to the landowner of a project, have the right to appeal the Director’s Decision, but it bears noting that HBP stands for “Homebase Partners”. Homebase Partners was the developer of 5 West and is managed by Andrew Holloran. Mr. Holloran is in the process of developing what he surely hopes will be a competing hotel (the proposed AC Hotel) across Mendenhall from the Armory Hotel.1 Neither issue raised in the HBP letter has anything to do with health or safety or practical issues, but rather HPB’s desire to control the cosmetics of someone else’s project. Though cosmetic in nature, the issues HBP appeals are clearly designed to have the most devastating impact on the Armory Hotel project possible. HPB asks the Commission to improperly deviate from the Code in an effort to harm the Armory Hotel project. The Commission should dismiss HBP’s appeal for the reasons set forth in our April 3 letter. Should the Commission consider the substance of the appeal, it should deny the same and affirm the Director’s Decision on the location of the rooftop mechanical equipment and conditions for lighting. I. ROOFTOP MECHANICAL ISSUE IMPROPER, IMPRACTICAL AND NOT BASED UPON ANY LAWFUL RIGHT ___ The HBP Letter demands that the Commission require the Etha remove the mechanical equipment on the 2nd and 3rd floor rooftops and replace it with a “pool, terrace and garden” because the rooftops are “highly visible from the HBP properties”. It claims that was the original plan, and the Etha should move the equipment to the “top floor of the Tower as originally designed and approved”. The mechanical equipment that has been installed on the 2nd and 3rd floor rooftops were not, however, originally depicted on the top of the Tower. The location of all of the rooftop mechanical equipment was ultimately depicted in plans submitted to the City in 2015. At that time the City approved the plans for construction. Thereafter, in reliance on the City’s approval, the Etha designed and constructed the substructure of the Armory Hotel to accommodate the equipment on the 2nd and 3rd floor rooftops and the equipment placed there. A. The HBP Appeal is Based on Three Incorrect Assumptions HBP’s attack on the Director’s Decision in support of the current location for the rooftop mechanical is fundamentally flawed. It is predicated on three incorrect assumptions: (1) it incorrectly claims the Etha “unilaterally decided to eliminate the pool, terrace and garden from the second and third floor rooftops” and replaced them with mechanical equipment; (2) it incorrectly claims the public had no input and the change violates the City’s Code, but notably cites no Code section; and, (3) as explained in our April 3 letter it incorrectly assumes HBP can 1 The “Noticing Materials” (N1 form) is certified by Lauren John. Ms. John does not appear as an owner of any property with 200 feet of the Armory Hotel but is an employee of Homebase Partners and Mr. Holloran April 6, 2020 Page 3 insist on a view of a rooftop pool/garden, force the City to require the Etha to provide the same and prevent the City from allowing a modification of an earlier plan. • Location Decision Was Not Unilateral - The Etha installed the mechanical equipment on the 2nd and 3rd floor rooftops pursuant to the plans it submitted to the City in 2015 and only after the City had reviewed and approved those plans. There was nothing unilateral about the change – the City approved the location. There is no reason whatsoever that the Etha would have devoted the resources or time to design the hotel to accommodate the mechanical equipment on the 2nd and 3rd floor rooftops, and install them there, without the City’s involvement and approval. • The Public Had Input - Despite the 2015 approval from the City, the City also provided the public the ability to comment on the location of the mechanical equipment when the modification addressed in the Director’s Decision was publicly noticed. It is untrue that the public had no input or chance to comment on the location of the mechanical equipment. Only after that public comment did the Director make his decision. • HBP Has No Right to A Rooftop View – HBP does not cite any provision in the that Code that gives anyone the right to demand a view of a pool, terrace or a garden on someone else’s property; nor does it cite any provision that guarantees any person to any permanent viewshed; or a Code provision that prohibits a property owner from modifying a plan with the City’s approval. No such provisions are cited because they do not exist. Neither HBP nor its members have a legal right to a rooftop view of a pool or garden. Moreover, it cites no provision that allows the City to impose such a condition on the Etha. The Code does, however, provide the City authority to require screening. The Etha has screened the equipment and will supplement the screening in accordance with the Director’s Decision. B. The Demand is Impractical and Would be Devastating Not only is the demand based upon false assumptions, it is designed to devastate the project as built and approved for no legitimate or legal reason. The very substructure of the Armory Hotel was designed and retrofitted to accommodate specific mechanical equipment on the 2nd and 3rd floor after the location had been approved. Even energy usage parameters were considered in designing and locating the equipment as it is currently configured. The specific equipment is also necessary to provide conditioned temperate space to the original Armory areas – basement through 2nd floor. The request that the Etha relocate the mechanical equipment from the 2nd and 3rd floor rooftops to the top of the Tower is a request that has no practical basis either, particularly after the ducting and majority of the interior is complete. The structural frame would need to be retrofitted to accommodate a new weight load in a different location. Such a change would also require significant de-construction of completed space on the exiting rooftop; a near impossible April 6, 2020 Page 4 modification to the structure itself to provide duct chases from the rooftop to the basement, main floor and 2nd floor and cause wasted space and energy in light of the need to maintain duct static pressure to deliver heated or cooled air over a greater distance. Thus, the request is not only improper, impractical, but also a waste of energy. The Director’s decision requires the Etha to “submit a new plan to screen the rooftop mechanical equipment located on the second and third floor rooftop of the Armory to comply with the requirements of §38.21.050.F of the Code.” The Etha has screened the sides of the mechanical equipment already, will supplement that screening and will comply with the condition set forth in the Director’s decision – screening is what the Code calls for. The public will have an opportunity to comment upon the new screening plan. However, suggesting that the Etha should or could move the mechanical equipment altogether from the 2nd and 3rd floor rooftops is improper, impractical and should be rejected. The Etha requests the Commission affirm the Director’s Decision on the location of the rooftop mechanical equipment. II. LIGHTING The HBP Letter takes issue with the conditions imposed upon the Etha for its exterior lighting “because there are no assurances or ongoing enforcement mechanisms to ensure the project complies with the very specific conditions set forth…”. It incorrectly contends that the light fixtures at issue are “not code compliant”. No issues related to lighting were raised during the public comment period and, as a result, the Lighting Issue is not properly before the Commission. See section 38.250.030(B) and 3/31/20 Staff Report on HBP appeal at 9-10. The HBP Letter recognizes this deficiency, but argues the company is not bound by that section of the Code and claims the case of Heffernan v. Missoula City Council, 2011 MT 91 supports its position. The Etha disagrees. Unlike HBP, the citizens (and citizen association) opposing the city council’s decision each timely raised their concerns during the public comment period. Id. ¶¶19-22. That is simply not the case here. The City is empowered to determine who may lodge an appeal. It has done so. There is no legitimate reason for the Commission to disregard the requirement in 38.250.030(B), a requirement that HBP has not met. Even if the Commission were to consider the Lighting Issues, the Etha’s lighting fixtures meet the lighting requirements in the Code. The conditions imposed in the Director’s Decision merely require the Etha to demonstrate in further detail how the fixtures meet the Code, which it can and will do. The HBP Letter also incorrectly alleges the conditions are unenforceable. If the details are insufficient then the Director, as a matter of enforcement, could determine that the conditions were not met. These details will be made available to the public as well. In addition, §38.570.090 of the BMC provides an enforcement mechanism if light installation “creates a safety or personal security hazard”. The Etha also requests the Commission affirm the Director’s Decision on the Lighting Issue. April 6, 2020 Page 5 III. CONCLUSION The Etha has repurposed an abandoned building in the heart of Bozeman that is undeniably beautiful and an asset to the community. HBP’s appeal simply seeks to derail that Armory Hotel project for no practical, legitimate or legal reason. The Etha respectfully requests the Commission dismiss HBP’s appeal because it is not an aggrieved person and/or deny HBP’s appeal for the reasons set forth above. The Director’s Decision on the location of the rooftop mechanical equipment and lighting should be affirmed. Sincerely, John M. Kauffman c. The Etha Hotel, LLC