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HomeMy WebLinkAbout20035 Ord 2043 Water Adequacy 3-11-2020 PUBLIC HEARINGSPage 1 of 8 ORDINANCE NO. 2043 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 38.410.130 OF THE BOZEMAN MUNICIPAL CODE TO REVISE WATER ADEQUACY REQUIREMENTS AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Bozeman (the “city”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Sections 76-2-304 and 76-3-102, MCA; and WHEREAS, Sections 76-2-304 and 76-3-102, MCA identify provision of adequate water supply as a purpose for municipal zoning and subdivision regulations; and WHEREAS, it is in the interests of the city and public welfare to ensure that provision of water is done in a manner that is timely and proportionate to demand for services; and WHEREAS, the city has identified water conservation as an important element of meeting future water needs and the city’s land use regulations need to be revised to facilitate conservation and recognize the influence of conservation on reducing water demand from development. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 2 of 8 Section 1 That Section 38.410.130 of the Bozeman Municipal Code be amended as follows: Sec. 38.410.130. - Water rights. A. Prior to a final approval of all development reviewed as a site plan, conditional use permit, planned unit development, or subdivision and prior to an annexation of any land, one of the following must occur: 1. Payment must be made to the city of a payment-in-lieu of water rights, calculated based on the annual demand for volume of water the development will require multiplied by the most current annual unit price; or 2. The city may elect to accept a transfer to the city of ownership of water rights if the water rights proposed to be transferred are legally and physically adequate as determined by the city to provide the annual volume of water the development will require. A transfer of ownership of water rights must be in a form and manner suitable for municipal purposes and as approved by the review authority. 3. In addition to but notwithstanding the above, a development may propose the installation of non-potable water systems for irrigation or other approved uses. The installation of a non-potable water system may result in a reduction in the payment required under subsection A.1 or amount of water rights under subsection A.2. To receive credit against the water demand calculation, the development must meet all physical requirements for such systems as established by the city and must comply with all applicable administrative requirements. B. If adequate water rights were transferred or a payment-in-lieu was previously provided to the city for the subject property, evidence of those rights or payment-in-lieu may be offered to demonstrate compliance with this section. If the expected demand for water by the proposed development increases by more than one acre-foot over that for which water rights or payment-in-lieu of water rights were previously provided, additional water rights or payment-in-lieu of water rights pursuant to subsection A equal to the Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 3 of 8 difference between the previously provided water rights or payment-in-lieu and the estimated current demand or payment-in-lieu price must be provided. C. Provision of water rights or payment-in-lieu may be deferred: 1. By phase for phased developments. 2. For annexations of vacant land when the annexation is in excess of ten acres. 3. For annexation of parcels of ten acres or less, or for any size parcel if development exists on the area being annexed prior to the annexation and provision of water rights or payment-in-lieu pursuant to subsection A is provided at the time of annexation for the uses present on the site at the time of annexation. Subsequent development is subject to the provisions of subsection A. 4. For additional development beyond one dwelling unit per lot for lots zoned residential within a subdivision if water rights or payment-in-lieu is provided pursuant to subsection A prior to final plat for at least one residential unit on that lot. Additional development requires compliance with this section. A notice of restriction on future development in a form acceptable to the city must be recorded with the Gallatin County Clerk and Recorder prior to the city granting a waiver under this section. 5. For commercial, industrial and institutional uses, until final site plan approval or the issuance of any building permit, whichever occurs first. D. The city manager must adopt administrative procedures to implement this section. The director of public works must adopt standards for the calculation of demand for water use. The unit cost for payment-in-lieu must be established by commission resolution. The administrative procedures must include but need not be limited to standards governing acceptance of water right transfers, and a means to establish credits against the transfer of excess rights. The standards governing acceptance of water right transfers may enable a deferral of payment-in-lieu, provided that the party obligated for the payment-in-lieu executes a fee deferral agreement and related documents as approved by Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 4 of 8 the city attorney to be recorded at the Gallatin County Clerk and Recorder's office securing the amount due. E. The amount paid for a payment-in-lieu must be calculated using the per unit price in effect on the date the payment-in-lieu of water rights is to be made to the city. The director of public works must make proper distribution to the funds for which such payments are made of all money collected. Sec. 38.410.130. - Water adequacy. A. As a condition precedent to the review and final approval of the following developments, the developer must provide the city with a municipal water supply volume adequate to meet the annual water demand of the development: 1. building permit; 2. site plan; 3. conditional use permit; 4. special use permit; 5. planned unit development; 6. subdivision; or 7. annexation. B. The city must determine the adequate volume of municipal water supply required under subsection A, and that volume of water must be offset through one or more of the following means: 1. Transfer into city ownership of water rights appurtenant to the land being developed, or other water rights as may be available for transfer, that the city determines to be useful. 2. Implementation of water efficiency and conservation projects that reduce the annual water demand on the municipal water supplies of the city by one or more of the following methods: a. Indoor water-saving fixtures, appliances, and products that are more efficient than adopted plumbing code or state or federal standards. b. Privately maintained non-potable water system for irrigation purposes. c. High-efficiency irrigation components. d. Other water efficiency and conservation methods proposed by the applicant for development that the city may at its discretion approve. 3. Payment to the city of cash-in-lieu of water rights, calculated as the identified volume of water not offset by subsections B.1 and B.2 multiplied by the current annual unit cost. C. One or more of the following may be offered to demonstrate partial or complete compliance with this section: Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 5 of 8 1. Historical municipal water use metered at the subject property prior to the development occurring under subsection A. 2. Evidence of offset credits having been applied to the subject property. 3. Evidence of water rights having been transferred to city ownership for the subject property. 4. Evidence of payment in lieu of water rights and conservation having been provided to the city for the subject property. D. This section applies to a development with an annual water demand determined by the city to be more than 0.25 acre-feet over the demand for which adequate water has been previously provided in accordance with this section, or to a development for which none of the provisions of this section can be previously evidenced, equal to the overage. E. Subject to subsection F, the requirements of subsection A may be deferred: 1. For future phases of phased developments. 2. For annexations that expressly defer this section pursuant to the annexation agreement. 3. For additional development beyond one dwelling unit per lot for lots zoned residential within a subdivision if the requirements of subsection A are fulfilled prior to final plat approval for at least one residential unit on the applicable lots. 4. For commercial, industrial, or institutional uses within a subdivision, until final site plan approval or the issuance of any building permit, whichever occurs first. F. Subsequent or additional development requires compliance with this section. A notice of restriction on future development in a form acceptable to the city must be recorded with the Gallatin County Clerk and Recorder prior to the city granting a deferral under subsection E. G. The unit cost for payment of cash-in-lieu of water rights must be established by commission resolution. H. The payment of cash-in-lieu of water rights must be calculated using the unit cost effective on the date the payment is made to the city. The director of public works must deposit all payments received under this section, upon receipt, in the cash-in-lieu of water rights fund. I. The city manager must adopt, and may from time to time amend, administrative procedures to implement this section. The director of public works must establish standards for the calculation of annual demand for water use and of demand reductions from water efficiency and conservation projects, and must determine the means by which to establish offset credits for the demand reductions. The administrative procedures must include, but need not be limited to, standards governing acceptance of water right transfers, the means by which to establish offset credits for water right transfers, and a process that provides for administrative appeals of determinations made by the city under this section as well as criteria which may allow the city to waive this section. The standards governing acceptance of water right transfers or offset credits may enable a deferral of payment of cash-in-lieu of water rights, provided that the party obligated for the payment executes a fee deferral agreement and related documents as approved by the city attorney to be recorded at the Gallatin County Clerk and Recorder's office securing the amount due. Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 6 of 8 Section 2 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 3 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full force and effect. Section 4 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 5 Codification. This Ordinance shall be codified as indicated in Section 1. Section 6 Effective Date. Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 7 of 8 This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ______th day of ____________, 2020. ____________________________________ CHRIS MEHL Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 2020. The effective date of this ordinance is ______________, 2020. _________________________________ CHRIS MEHL Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ Ordinance 2032, Amending 38.410.130 of the Bozeman Municipal Code for Water Adequacy Page 8 of 8 GREG SULLIVAN City Attorney