HomeMy WebLinkAbout20099 Staff Report FINAL 3-31-20
Commission Memo
Armory Hotel Modification Appeal by 5 West Residential, LLC
Appeal number 20099
March 31, 2020
Report To: Mayor and City Commission
From: Marty Matsen, Community Development Director
Subject: Appeal #20099 Filed by 5 West Residential, LLC d/b/a HBP
Residential Condominiums Seeking to Overturn Conditions of
Approval Related to Placement and Screening of Mechanical
Equipment and Exterior Lights
Meeting Date: April 6, 2020
Agenda Type: Action
Project Location: 24 West Mendenhall, Bozeman, MT
CITY COMMISSION ACTION:
At the conclusion of consideration of the appeal, the City Commission may uphold,
amend, or overturn the administrative project decision for Modification to Approved
Site Plan Application 19410. The decision may be overturned or amended upon the
finding that such final administrative decision was erroneous.
Report Date: March 31, 2020
EXECUTIVE SUMMARY:
This appeal seeks to overturn two aspects of the director’s decision conditionally
approving application 19410 for modifications of an approved site plan (decision). First,
Appellant requests the City Commission overturn the decision’s Phase 1 approval of items
3 and 4 and the associated condition of approval for Phase 1, regarding relocating the
mechanical equipment to the second and third story Armory building rooftop, which were
approved in the original site plan application to be located on the top of the tower1.
Appellant also contends the condition of approval to submit a new plan to screen the
mechanical equipment is inadequate to address its concerns and seeks to overturn it.
Second, Appellant seeks to overturn the decision’s approval of Phase 2, item 3.a. and the
associated conditions of approval found in Phase 2, conditions 1-4, to allow light fixtures
L18, L19, L6, L21 and L28.
1 The “second and third story Armory building rooftop” refers to the historic Armory Building, while “tower”
refers to the new hotel tower placed above the Armory.
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The project at issue is a 19,319 square foot hotel commonly referred to as the Armory
Hotel located in the Neighborhood Conservation Overlay District (NCOD) in downtown
Bozeman, which is directly adjacent to the building in which Appellants own property or
reside located at 5 West Mendenhall.
This application for appeal was submitted by:
Alan McCormick on behalf of 5 West Residential, LLC, P.O. Box 7377, Bozeman, MT 59771
(Appellant). The corporation’s two assumed business names, HBP Residential
Condominiums and 5 West Residential Condominiums, are identified as Condominium
Associations.
Appeals of administrative project decisions are governed by 380.250.030 BMC. For a
discussion of the procedures governing this appeal, see below.
According to the appeal application materials submitted, Appellant bases its appeal on
several grounds. First, Appellant objects to the visual and noise impacts on its members of
locating the mechanical equipment on the second and third story of the Armory building
rooftop. Even with screening, as the director’s conditional approval requires, the Appellant
asserts the impacts to the view and expected noise are not acceptable. Second, Appellant
asserts that portions of the lighting will create a hazard and significant adverse effects on
adjacent properties and that the Director’s conditional approval of the lights is inadequate
because there is no mechanism to enforce the condition to ensure continued compliance.
Only “aggrieved persons” may appeal an administrative decision in accordance with section
38.250.030.A BMC. Appellant contends that it is an aggrieved person as defined in section
38.700.020 BMC2 because it represents the interests of its members who are owners of
property directly adjacent to the Armory Hotel project. As such, appellant’s view is directly
affected by the Director’s decision and its members “stand to incur impacts including the
value and quality of their ownership interests.” If the City Commission determines that 5
West Residential, LLC qualifies as an “aggrieved person” for the purposes of 38.250.030.A
BMC, it may proceed with the hearing.
Appeals are limited to specific issues raised during the public comment period. The City of
Bozeman received one public comment on behalf of 5 West Residential Condominium. The
comment addressed the relocation of the exterior mechanical systems to the second and
third floor of the Armory building, the relocation of the pool to the top of the tower, and
2 Aggrieved person. A person, as defined in this division 38.700, who has a specific, personal and legal interest
in the final decision of an agency, board or commission, as distinguished from a general interest such as is the
concern of all members of the community, and which interest would be specifically and personally prejudiced
by the decision or benefited by its reversal.
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that the current screening of the mechanical units is inadequate. Appellant’s public
comment did not raise an issue with the light fixtures proposed in the modification
application. Prior to hearing the merits of the appeal regarding the light fixtures, the
Commission must determine whether appellants have met the requirements of
38.250.030.B. to raise the issue on appeal. This issue is further discussed in the
“Unresolved Issues” section below.
At the conclusion of consideration of the appeal, the City Commission may uphold, amend,
or overturn the administrative project decision for Modification to Approved Site Plan
Application 19410. The decision may be overturned or amended upon the finding that
such final administrative decision was erroneous.
Consider the Recommended Motion:
Having reviewed and considered Appeal number 20099 of the decision of the Director of
Community Development regarding modifications to the Armory Hotel, the Director’s decision
dated March 4, 2020, the record of review, the presentation of staff and the Appellant, public
comment, and all information presented, I move to uphold the decision of the Director of
Community Development reflected in his March 4, 2020 letter.
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Table of Contents
EXECUTIVE SUMMARY: ........................................................................................................................................ 1
TABLE OF CONTENTS: .......................................................................................................................................... 3
BACKGROUND:……………………………………………………………………………………………………….….5
Modification to Approved Site Plan, Application 19410…………………………………………5
Timeline of the Armory Hotel Site Plan Approval and Modification Request…………..5
Staff Evaluation and Director’s Conditional Approval of the Modification………………6
APPEAL OF THE ADMINISTRATIVE DECISION:………………………………………………………….7
BASIS OF THE APPEAL:……………………………………………………………………………………………..7
APPEAL PUBLIC NOTICE:………………………………………………………………………………………….8
APPEAL PUBLIC COMMENT:……………………………………………………………………………………..8
EVALUATION OF THE APPEAL:…………………………………………………………………………………8
Authority of the City Commission under the Bozeman Municipal Code…………………8
City Commission May Act as a Board of Adjustment…………………………………………….8
APPEAL PROCEDURE:………………………………………………………………………………………………9
UNRESOLVED ISSUES:………………………………………………………………………………………………9
ALTERNATIVES:……………………………………………………………………………………………………..10
FISCAL EFFECT:………………………………………………………………………………………………………10
ATTACHMENTS:……………………………………………………………………………………………………..11
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BACKGROUND:
Modification to Approved Site Plan, Application 19410
The original site plan for the Etha Hotel was approved by the City Commission in 2013,
with final site plan approval in December 2014 under application Z13064. The application
was for a conditional use permit, certificate of appropriateness, and deviations. A building
permit was issued in 2014 based on this approved site plan.
Property owner, The Etha Hotel, LLC, submitted an application to the Community
Development Division to modify several aspects of its approved site plan on September 10,
2019 (Application 19410). At the City’s suggestion, the application was divided so the
requested modifications were addressed in two phases. Phase 1 included, among other
things, removing the stairs, outdoor terrace, and pool from the second and third floor
rooftop of the Armory building and replace them with rooftop mechanical units.
Modifications to the originally approved exterior lights were included in Phase 2 of the
application.3 The Design Review Board (DRB) recommended approval of the Phase 1
modifications and denial of the Phase 2 modifications.
Timeline of the Armory Hotel Site Plan Approval and Modification Request
Final Site Plan approval, Application Z13064 December 8, 2014
Building Permit Issued November 21, 2014
Submission of modified building plans to Building Division 2015
Handwritten date on “approved for construction” stamp on revised building plans
August 8, 2015
19410 Modification Application Submitted September 10, 2019
Incomplete Application notice and request for more information October 1, 2019
Modification revision and correction 1 submitted October 9, 2019
Meeting between City and Applicant October 22, 2019
Letter from Director to Applicant regarding deficiencies October 25, 2019
Modification revision and correction 2 submitted October 30, 2019
Inadequacy determination by City November 14, 2019
Modification revision and correction 3 submitted November 26, 2019
Inadequacy determination by City December 19, 2019
Modification revision and correction 4 submitted December 26, 2019
Modification revision and correction 5 submitted January 7, 2019
Adequacy determination by City January 13, 2020
Public comment period February 5–27, 2020
Staff memorandum to the Design Review Board February 12, 2020
3 A complete list of the requested modifications included in Phase 1 and Phase 2 are described in the Staff
Memorandum to the DRB dated February 12, 2020, which is attached to this memorandum.
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Design Review Board meeting February 12, 2020
Final staff report prepared for Director March 2, 2020
Director issues decision conditionally approving application March 4, 2020
Appeal period open March 4, 2020
Appeal 20096 submitted by The Etha Hotel, LLC March 17, 2020
Appeal 20099 submitted by 5 West Residential, LLC March 18, 2020
Appeal period closed March 18, 2020
Notice of appeal hearing and public comment period March 19, 2020 to
April 6, 2020
Commission Hearing April 6, 2020
Staff Evaluation and Director’s Conditional Approval of the Modifications
1. Mechanical Equipment Location and Screening
As described in the Staff Report to the Director, staff found that it was permissible to
relocate the mechanical units to the second and third floor rooftop of the Armory building,
but that the requested modification did not meet standards that require such equipment to
be inconspicuous and not damage or obscure character-defining historic features of the
building. Therefore, staff recommended denial of the proposed modification because the
mechanical equipment, as proposed, was not properly screened to comply with applicable
standards. In addition to the standards requiring mechanical equipment to be
inconspicuous, City code requires mechanical equipment to be concealed.
The Director’s decision requires, as a condition of approval, that the mechanical equipment
screening must meet standards and the code provision. The condition of approval requires
that:
Applicant must submit a new plan to screen the rooftop mechanical equipment
located on the second and third floor rooftop of the Armory to comply with
requirements of section 38.21.050.F BMC (2013). Specifically, applicant’s new plan
must provide full screening of the sides of the rooftop mechanical equipment and a
proposal to address the visual impacts of the top of the equipment to shield it from
view of adjacent properties and the public way. The applicant’s plan will be subject
to a 15 day public comment period, after which the Director of the Community
Development Division must issue a decision on the proposed plan to screen the
second and third floor rooftop mechanical equipment.
2. Exterior Light Fixtures
The Staff Report to the Director concluded that many of the exterior lights proposed in the
modification application complied with code, however, some did not. Specifically, the Staff
report found that lights L6, L18, L19, L21, and L28 do not comply with relevant subsections
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of 38.23.150 BMC (2013) because they change color or illuminate broad portions of the
building.
The Director’s decision requires the lights to be in compliance during operation of the
building by imposing the following conditions of approval:
1. Proposed light fixtures L18 and L19 must not, during operation of the building,
change or vary in color to comply with 38.23.150.D.7.h BMC (2013).
2. Proposed light fixtures L6, L19 10 degree accent light, and L21 must not, during
operation of the building, illuminate the entire façade of the Armory to comply
with 38.23.150.D.7.a BMC (2013) and 38.23.150.D.7.g BMC (2013).
3. Prior to receiving a Certificate of Occupancy, proposed light fixture L28 Canopy
light must meet “full-cutoff” criteria, which means the light source and
associated lenses shall not protrude below the edge of the light fixture, and shall
not be visible from adjacent streets or properties in compliance with 38.23.150.F
BMC (2013).
4. Proposed light fixture L28 Canopy light must not, during the operation of the
building, emit horizontal light from a 90 degree plane, in compliance with
38.23.150.D.7.g BMC (2013).
APPEAL OF THE ADMINISTRATIVE DECISION:
The deadline for submission of an appeal application for the Conditional Approval was
March 18, 2020.
On March 18, 2020, the City Clerk’s Office received an appeal from 5 West Residential, LLC,
pursuant to Section 38.250.030 BMC, “Administrative project decision appeals.” Staff
reviewed the appeal application materials and found that the application met all submittal
requirements for processing the appeal. The Appellant was notified on March 19, 2020
that the appeal was complete and that a hearing on the appeal before the City Commission
on April 6, 2020 was scheduled.
BASIS OF THE APPEAL:
Appellant seeks to overturn the Director’s approval of the location of rooftop mechanical
equipment on the second and third floors of the Armory, found in Phase 1 items 3 and 4, as
well as the condition of approval for Phase 1. Appellant also seeks to overturn approval of
Phase 2 item 3.a. and conditions of approval 1-4 for Phase 2.
Locating the mechanical equipment on the rooftop of the Armory building, Appellant
contends, will present a “major visual impact that is not acceptable to HBP and its
members” even with the screening required by the condition of approval. 5 West
Residential, LLC asserts that “moving such equipment from the top of the Tower where it is
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not visible and where noise impacts are dispersed to the second and third floor in place of a
pool, terrace and garden, has the potential to create significant impacts.”
Appellant agrees with findings in the February 12, 2020 staff report that “certain portions
of the lighting as installed creates a hazard and significant adverse effects on adjacent
properties, including the 5 West building.” Noting that the light fixtures are not code
compliant, Appellant requests that the developer “eliminate or replace these fixtures with
code compliant lighting that ensures the lighting of the Armory Hotel is subtle, accented
and code compliant, consistent with the original Design Review Board approval.” Appellant
asserts the conditions of approval are intended to bring the fixtures “into some form of
compliance,” but “there are no assurances or ongoing enforcement mechanisms to ensure
the project complies” with the conditions of approval.
APPEAL PUBLIC NOTICE:
Notice of the appeal hearing was completed in conformance with 38.220 BMC,
“Applications and Noticing.” Notice was posted on the site, mailed to property owners
within 200 feet, and published in the Bozeman Daily Chronicle on March 22, 2020 and
March 29, 2020. The notice on the project site was posted on March 20, 2020 and will
remain posted until the City Commission hearing on April 6, 2020.
APPEAL PUBLIC COMMENT:
The City has received seven comments from the public at the time of this staff report. Any
further public comment received will be forwarded to the City Clerk’s office for
Commission consideration. Public comment relating to this modification application and
appeal are available at:
http://weblink.bozeman.net/WebLink8/Browse.aspx?startid=204607&row=1&&dbid=0
EVALUATION OF THE APPEAL:
Authority of the City Commission under the Bozeman Municipal Code
The City Commission has the authority to uphold, amend, or overturn the Director’s
decision expressly in section 38.250.030.J BMC.
City Commission May Act as a Board of Adjustment
The City of Bozeman does not have a Board of Adjustment as described in Montana Code
Annotated section 76-2-321. Rather, the City Commission has reserved for itself the
powers of a board of adjustments through Resolution 4419 in 2012. The City Commission
may choose to exercise its powers as a Board of Adjustments4, separate from those
expressly provided under the BMC.
4 Section 76-2-323, Montana Code Annotated provides:
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APPEAL PROCEDURE:
The City Commission must comply with the procedures for appeal as set forth in section
38.250.030.I BMC. During the appeal, the Commission will first hear from the
administrative staff who are required to give an “explanation of the application and nature
of the appeal.” Next, the appellants will have an opportunity to present their position. If
requested, the landowner may then make a presentation. Then, the Commission will hear
public comment regarding the appeal from any proponent or opponent. At the close of
public comment, the Commission must consider the merits of the appeal, including
considering motions, discussion, and taking a vote. During the process, no person making a
presentation may be subject to cross-examination. However, Commission members and
the City Attorney may ask questions for the purpose of eliciting information or clarifying
information presented.
UNRESOLVED ISSUES:
As noted above, after the conclusion of the public hearing and prior to making any decision
on the merits of the appeal, the Commission must determine whether appellant qualifies as
an “aggrieved person.”
The Commission must consider and determine whether appellant may raise issues
regarding the light fixtures on appeal because it did not submit public comment on the
issue when the modification was being considered. The administrative decision appeal
codes state:
Failure to raise an issue during the provided public comment opportunity, in person
or in writing, or the failure to provide statements or evidence sufficient to afford the
administrative review authority an opportunity to respond to an issue, precludes an
76-2-323. Powers of board of adjustment. (1) The board of adjustment shall have the following powers:
(a) to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or
determination made by an administrative official in the enforcement of this part or of any ordinance adopted
pursuant thereto;
(b) to hear and decide special exceptions to the terms of the ordinance upon which such board is
required to pass under such ordinance;
(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not
be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions
of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed
and substantial justice done.
(2) In exercising the above-mentioned powers, such board may, in conformity with the provisions of this
part, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination
appealed from and may make such order, requirement, decision, or determination as ought to be made and to
that end shall have all the powers of the officer from whom the appeal is taken.
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appeal based on that issue, unless the issue could not have been reasonably known
by any party during the time of the public comment opportunity.
38.250.030.B. BMC
The one public comment that the City received on behalf of 5 West Residential
Condominiums (an assumed business name of HBP Residential Condominiums, which is in
turn an assumed business name of Appellant, 5 West Residential, LLC), succinctly
addresses the location of the mechanical units on the second and third story rooftop of the
Armory building and states that the current screening is inadequate. The comment does
not address any of the lights on the Armory Building. Additionally, several individual
residents or owners in the 5 West building submitted public comment on their own behalf,
but none makes mention of the light fixtures. The only public comment received objecting
to the light fixtures was from Chris Ryan, who is not a resident of the 5 West building. The
grounds for his objection were adverse impacts to the dark night sky. The public comment
did not address the impacts of the lights on adjacent buildings. The appeal incorporates
findings of fact relevant to the light fixtures in the February 12, 2020 Staff report as
evidence of its client’s concerns.
If the City Commission determines that issues regarding the proposed light fixtures were
not adequately raised during the consideration of the modification application, pursuant to
the requirements found in 38.250.030.B, it must not proceed to hearing the merits of this
portion of the appeal.
ALTERNATIVES:
The City Commission has the following alternative actions available:
1. Uphold the condition of approval as written in the Director’s Conditional
Approval of Armory Hotel Modification to Approved Plan,
Application 19410.
2. Amend the condition of approval after making findings as to which of the criteria
are met or not met, modify the conditions of approval, and approve the amended
Conditional Approval of Armory Hotel Modification to Approved Plan,
Application 19410.
3. Overturn the condition of approval. Find that the Director’s decision was in
error, make alternative findings, and deny the modification request regarding
the relocation of the mechanical units and exterior lights L6, L18, L19, L21, and
L28 found in the Modification to Approved Plan, Application 19410.
FISCAL EFFECT: Costs of potential litigation for further appeals. An estimate of those costs
is not possible at this time.
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ATTACHMENTS:
20099 Appeal filed by 5 West Residential, LLC – submission materials and
communications
19410 Director’s Decision Letter Conditionally Approving the Armory Hotel
Modification to Approved Plan
March 2, 2020 Staff Report for Application 19410
19410 Design Review Board Minutes – February 12, 2020. AV Capture Link:
https://www.bozeman.net/services/city-tv-and-streaming-audio
Bozeman Municipal Code Sections
February 12, 2020 Staff Memorandum to Design Review Board
(see http://weblink.bozeman.net/WebLink8/0/fol/206300/Row1.aspx for attachments to
Staff Memorandum)
Public Comment Received During the Public Comment Period between February 5,
2020 and February 27, 2020. Found at:
http://weblink.bozeman.net/WebLink8/Browse.aspx?startid=204607&row=1&&dbid=0
Full application and file record: available to view by contacting the Community
Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Brian Krueger at
bkrueger@bozeman.net or 406-582-2259 to make arrangements to view the file.