HomeMy WebLinkAbout21- Findings of Fact - South University District Amended Phase 3 Subdivision and VariancePage 1 of 23
21066, City Commission Findings of Fact for the South University District Amended
Phase 3 Subdivision and Variance
Public Hearing Dates:Planning Board, April 19, 2021 at 6:00 pm. Via WebEx.
City Commission, April 20, 2021 at 6:00pm. Via WebEx.
Project Description: The amended subdivision is a ten lot major subdivision preliminary plat of
a 74.87-acre lot to create one lot for commercial development, three restricted
development lots, four open space lots, two city park lots and dedicated rights-of-way
within the boundaries of the South University District Master Plan. The amendment
requests to revise existing conditions of approval and code requirements and includes a
subdivision variance to 38.270, Improvements and Guarantees, Bozeman Municipal
Code. The purpose of the amendment and variance is to enable phased construction of
infrastructure and flexible timing of on-site construction within the subdivision. The
subject property is zoned REMU, Residential Emphasis Mixed Use.
Project Location:The subject parcel is located southeast of the Intersection of Kagy Blvd. and
S. 19th Avenue. It is legally described as Lot 2, Phase 2, South University District
Subdivision, situated in the Northwest One-Quarter (NW ¼), Section 24, Township Two
South (T2S), Range Five East (R5E), P.M.M., Gallatin County, Montana.
Action: Approval with conditions and code requirements
Planning Board Motion: Having reviewed and considered the application materials, public
comment, and all the information presented, I hereby adopt the findings presented in the
staff report for application 21066 and move to recommend approval of the subdivision
with conditions and subject to all applicable code provisions.
City Commission Motion: Having reviewed and considered the application materials, public
comment, and all the information presented, I hereby adopt the findings presented in the
staff report for application 21066 and move to approve the subdivision variance to Article
38.270 with conditions and subject to all applicable code provisions.
City Commission Motion: Having reviewed and considered the application materials, public
comment, and all the information presented, I hereby adopt the findings presented in the
staff report for application 21066 and move to approve the subdivision with conditions
and subject to all applicable code provisions.
City Commission Action Date: April 20, 2021 (Quasi-Judicial)
Staff Contact:Chris Saunders, Community Development Manager
Karl Johnson, Engineer
Agenda Item Type: Action (Quasi-judicial)
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 2 of 23
EXECUTIVE SUMMARY
Unresolved Issues
None.
Project Summary
This application is to modify conditions of approval and phasing of the development from the
original application of a subdivision (19090) for which the Findings of Fact were approved on
December 15, 2020. The applicant, RTR Holdings II, LLC proposes to divide the existing 74.87-
acre Lot 2 of the South University District, Phase 2 Minor Subdivision into ten lots and rights of
way. A subdivision variance is also requested relating to the timing of installation of
infrastructure and ability to draw a building permit.
The intent is to plat all lots with development restrictions to enable transfer of lots to fund
installation of the infrastructure to support the development. The four blocks which will be
created are all large in size and will require additional development review before being able to
begin construction. Phasing of infrastructure is an essential element of this application.
The City of Bozeman Department of Community Development received a preliminary plat
application on February 16, 2021, requesting a modification to the major subdivision as it was
initially approved by City Commission. The application was deemed adequate on March 17, 2021
and review continued. The final decision for a Major Subdivision must be made within 60 working
days of the date it was deemed adequate, or in this case, by June 9, 2021.
The City Commission unanimously approved the initial preliminary plat on October 21, 2019.
Planning Board
The Planning Board held a public hearing on April 19, 2021. After consideration of the application,
staff analysis, and presentations the Planning Board recommended approval of the subdivision on
a vote of 5-0.
City Commission Action
The City Commission held a public hearing on April 20, 2021. One public comment in support
was received. After consideration of the application, staff analysis, and presentations the City
Commission approved the subdivision variance and the amended plat of the subdivision on a vote
of 5-0.The recording of the meeting is available at
https://bozeman.granicus.com/player/clip/79?view_id=1&redirect=true.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 3 of 23
TABLE OF CONTENTS
EXECUTIVE SUMMARY........................................................................................................... 2
Unresolved Issues............................................................................................................... 2
Project Summary................................................................................................................. 2
Planning Board.................................................................................................................... 2
City Commission Action..................................................................................................... 2
SECTION 1 - MAP SERIES.......................................................................................................... 4
SECTION 2 - CONDITIONS OF APPROVAL............................................................................. 7
SECTION 3 – REQUIRED CODE PROVISIONS.................................................................... 10
SECTION 4 - RECOMMENDATIONS AND ACTIONS ........................................................ 10
SECTION 5 - STAFF ANALYSIS AND FINDINGS ............................................................... 10
Applicable Subdivision Review Criteria, Section 38.240.130, BMC............................... 10
Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 12
Preliminary Plat Supplements........................................................................................... 15
Subdivision Variance........................................................................................................ 15
SECTION 6 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS ......................... 18
APPENDIX A –PROJECT SITE ZONING AND GROWTH POLICY................................... 20
APPENDIX B – NOTICING AND PUBLIC COMMENT ....................................................... 22
APPENDIX C - OWNER INFORMATION .............................................................................. 22
FISCAL EFFECTS...................................................................................................................... 23
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 4 of 23
SECTION 1 - MAP SERIES
Zoning Map of Subject Property
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 5 of 23
Map of Future Land Use
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 6 of 23
Approved South University District Master Site Plan
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 7 of 23
Plat of overall development
SECTION 2 - CONDITIONS OF APPROVAL
Please note that these conditions are in addition to any required code provisions identified in this
report. This application proposes phases. Unless a condition is specific to an individual phase, all
comments and code requirements apply to any final plat of all phases.
This amended preliminary plat is to modify conditions of approval and phasing. Only those
conditions which are the specific focus of the review are changing. Unless specifically listed
below the conditions of approval remain as adopted in the findings of fact for application 19090.
Code requirements adjust as needed to match with the amended preliminary plat and supporting
materials. Some edited text in modified condition 3 is shown in red to make it easier for the
reader to identify what is being changed. The color does not alter meaning.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 8 of 23
Conditions of Approval:
1.Conditions not specifically modified with this application remain as approved in
the findings of fact for application 19090.
2.The approved Master Site Plan is still in effect and all standards for future
development, e.g. additional street installation apply with future development.
3.A 1 foot no access strip must be placed along all lots fronting on South 19th Street.
4.A 1 foot no access strip must be placed along all lots fronting on West Kagy
Boulevard.
5.The final plat must contain the following notation on the Conditions of Approval
sheet in the final plat:
a. All downstream irrigation water user facilities must be protected.
b. Lot access must be constructed to the standard set forth by the City of
Bozeman Design Standards and Specifications Policy, and the City of
Bozeman Modifications to the State Public Works Standard Specifications per
Bozeman Municipal Code requirements.
6.Several signature blocks on the first page of the plat note "Irrigation
Improvements", but the listed improvements are something else. The signature
blocks of the plat sheet must have proper notations for respective improvements.
7.The applicant must dedicate all required public easements, and the easements
must be provided on the City’s standard template easement documents separate
from the plat prior to final plat approval. The recorded document number must be
listed on the final plat.
8.If the City Commission approves the variance to 38.270 BMC the following
conditions are included with the approval; if the variance is NOT approved
they are removed from the subdivision and will not be included in the
findings of fact:
a. The applicant must provide a financial guarantee in a form suitable to the City
Attorney and in an amount equal to 150% of the estimated improvements cost
prior to final plat approval for the Common Improvements as shown on the
phasing plan. The estimated improvements cost must be based on City bid
unit price construction costs and reviewed and approved by the City
Engineering Division prior to submitting the financial guarantee.
b. The final plat must be subject to an improvements agreement acceptable to the
City Attorney addressing the phasing and timing of infrastructure installation,
restricting construction unless adequate security has been provided, and
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 9 of 23
providing for transfer of infrastructure obligations and revised security to
subsequent landowners.
c. The bullet lists of infrastructure improvements must be consistent throughout
the document titled, “South University District Phase 3 Major Subdivision
Phasing Plan to Facilitate Written Concomitant Construction Approval”. The
applicant must be clear about what improvements are included in each major
infrastructure element. Under the Block 3 and Block 4 “Miscellaneous”
headings in the document titled, “South University District Phase 3 Major
Subdivision Phasing Plan to Facilitate Written Concomitant Construction
Approval” the word “likely” must be removed.
d. The Certificate of Completion of Improvements, as written, notes the Public
Works Department is accepting infrastructure improvements, but the
infrastructure will only have been financially guaranteed. The note on the
final plat must reflect infrastructure financially guaranteed and elements of
infrastructure not in place at the time of final plat. Public infrastructure must
be installed per the phasing plan or guaranteed prior to final plat approval.
The phasing plan must be referenced on the plat or included in a separate
document filed with the County Clerk and Recorder to be filed simultaneously
with the final plat.
e. Condition 3 of application 19090 (notice of restrictions due to uninstalled
infrastructure) is revised to read “In accordance with Section 38.270.030
BMC, all lots without all required infrastructure installed must be subject to
the following note to be placed on the Conditions of Approval sheet of the
final plat – ‘NOTICE IS HEREBY GIVEN to all potential purchasers of Lot
1 Block 1; Lot 1, Block 2; Lot 1 Block 3 and Lot 1 Block 4 of the South
University District Phase 3 Major Subdivision, City of Bozeman, Gallatin
County, Montana, that the final plat of the subdivision was approved by the
Bozeman City Commission without completion of certain on and off site
improvements required under the Bozeman Municipal Code, as is allowed in
Chapter 38.39 38.270 of the Bozeman Municipal code. As such, this
Restriction is filed with the final plat that stipulates that any use of these lots
is subject to further subdivision or plan review, and no certificate of
occupancy development of this these lots shall occur be granted until all on
and off site improvements are completed as required under the Bozeman
Municipal Code. THEREFORE, BE ADVISED, that Building Permits
Certificates of Occupancy will not be issued for Lot 1 Block 1, Lot 1 Block
2, Lot1 Bock 3, and Lot 1 Block 4 of the South University District Phase 3
Major Subdivision, City of Bozeman, Gallatin County, Montana until all
required on and off site improvements for SUD Phase 3 Major Subdivision
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 10 of 23
are completed and accepted by the City of Bozeman in accordance with the
accepted Phasing Improvements Plan for SUD Phase 3 Major Subdivision.
No building structure requiring water or sewer facilities shall be utilized
granted a certificate of occupancy on this these lots until the restriction is
lifted. This restriction runs with the land and is revocable only by further
subdivision, plan review, or the written consent of the City of Bozeman.’”
f. Condition 8 of application 19090 (installation of subdivision improvements)
is revised to read: “The subdivision improvements shown on the subdivision
improvements plan, sheets, C1.0, C1.1, C4.1, and C42 must be installed prior
to final plat approval or guaranteed and installed within 1 year of final plat
approval per BMC 38.270.030.B. or as allowed by the subdivision variance.”
SECTION 3 – REQUIRED CODE PROVISIONS
1. Code provisions remain as identified in the findings of fact for application 19090 except
as needed to address revised conditions and the subdivision variance.
2. Code correction 13 of application 19090 (phasing) is modified to correspond to the
revised phasing plan and updated plan sheets C1.0 and C1.1.
SECTION 4 - RECOMMENDATIONS AND ACTIONS
The DRC determined that the application was adequate for continued review on March 17, 2021.
The Planning Board conducted a public hearing to review the preliminary plat and make a
recommendation to the City Commission on April 19, 2021 at 6:00pm via WebEx. The Planning
Board recommended approval. The video recording of the Planning Board meeting is available at
https://bozeman.granicus.com/player/clip/78?view_id=1&redirect=true.
The public hearing date for the City Commission was on April 20, 2021 at 6:00pm via WebEx.
As noted in Section 6, the City Commission approved the application.
SECTION 5 - STAFF ANALYSIS AND FINDINGS
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, and plans, public comment, and all other materials available during
the review period. Collectively this information is the record of the review. The analysis is a
summary of the completed review.
Applicable Subdivision Review Criteria, Section 38.240.130, BMC.
In considering applications for subdivision approval under this title, the advisory boards and City
Commission shall consider the following:
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 11 of 23
1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and
Platting Act
The preliminary plat has been prepared in accordance with the survey requirements of the Montana
Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. As
noted in condition of approval number 2 of the original findings of fact for 19090, the final plat
must comply with State statute, Administrative Rules of Montana, and the Bozeman Municipal
Code.
2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana
Subdivision and Platting Act
The final plat must comply with the standards identified and referenced in the Bozeman Municipal
Code (BMC). The applicant is advised that unmet code provisions, or code provisions that are not
specifically listed as a condition of approval, does not, in any way, create a waiver or other
relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Sections 2 and
3 of this report and the findings of fact for application 19090 identify conditions and code
requirements necessary to meet all regulatory standards for the subdivision. Therefore, upon
satisfaction of all conditions and code corrections the subdivision will comply with the local
subdivision regulations.
3) Compliance with the local subdivision review procedures provided for in Part 6 of the
Montana Subdivision and Platting Act
The City of Bozeman Department of Community Development received a preliminary plat
application on February 16, 2021, requesting a modification to the major subdivision as it was
approved by City Commission on December 12, 2019. The application was deemed adequate for
review on March 17, 2021 and review continued. The final decision for a Major Subdivision must
be made within 60 working days of the date it was deemed adequate, or in this case, by June 9,
2021. The City Commission is scheduled to review the preliminary plat and make a decision at
their April 20, 2021 public hearing.
The hearings before the Planning Board and City Commission have been properly noticed as
required by the Bozeman Municipal Code. Based on the recommendation of the DRC and other
applicable review agencies, as well as any public testimony received on the matter, the Planning
Board shall forward a recommendation to the City Commission, whichwill make the final decision
on the applicant’s request.
Public notice for this application was given as described in Appendix B.
On April 7th, the major subdivision staff report was completed and forwarded with a
recommendation of conditional approval for consideration by the Planning Board. The Planning
Board conducted their public hearing and recommended approval. Their recommendation was
transmitted in writing to the City Commission prior to the City Commission public hearing.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 12 of 23
4) Compliance with Chapter 38, BMC and other relevant regulations
Based on review of the DRC and the Department of Community Development all applicable
regulations appear to be met if all code requirements and conditions are satisfied. Pertinent code
provisions and site specific requirements are included in Sections 2 and 3 of the findings of fact
for application 19090 and this report. Analysis for compliance with the required subdivision
variance standards is below in this section.
5) The provision of easements to and within the subdivision for the location and installation
of any necessary utilities
All easements, existing and proposed, must be accurately depicted and addressed on the final plat
and in the final plat application. Therefore, all utilities and necessary utility easements will be
provided and depicted accordingly on the final plat. All city utilities will be located within
dedicated street rights of way or are required by condition to be located within easements. See
Condition 7.
6) The provision of legal and physical access to each parcel within the subdivision and the
notation of that access on the applicable plat and any instrument transferring the parcel
All of the proposed lots have frontage to proposed public streets required to be constructed to City
standards per BMC 38.400 and associated design standards. In addition, pursuant to BMC
38.400.090.A, plats must contain a statement requiring lot accesses to be built to the standard
contained in this section, the city design standards and specifications policy, and the City
modifications to state public works standard specifications. See Condition 5.
The larger blocks are of a size suitable for further subdivision. Should that occur, further analysis
for location of additional local streets will be conducted to ensure legal and physical access are
provided. The City controls access to collectors and arterial streets to limit vehicle conflicts, and
improve traffic efficiency. Conditions are included to require a no access strip along Kagy Blvd
and S. 19th Avenue to accomplish these purposes.
Primary Subdivision Review Criteria, Section 76-3-608
1) The effect on agriculture
This amended subdivision will not impact agriculture on the site. The subject property is
designated as residential mixed use according to the City of Bozeman Community Plan. The
area is zoned for residential and commercial uses, has been annexed and previously subdivided
for urban uses, but is presently undeveloped. The amendment does not change the allowed
intensity or nature of the approved uses. The requested variance addresses coordination between
infrastructure installation and timing for construction of buildings. No viable farm units exist on
the property. The subdivision will not have adverse effects on agriculture.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 13 of 23
2) The effect on Agricultural water user facilities
This subdivision will not impact agricultural water user facilities. There are no known active
agricultural water use facilities located within the subdivision. The area is zoned for residential
emphasis mixed use and has been under the process of development for many years. Mandeville
Creek, which crosses the property north to south is located within the previously approved park
and should be minimally impacted. The subdivision variance does not alter the scope of impacts.
Condition 5 requires that downstream irrigators be protected should an impacted party be
identified.
3) The effect on Local services
Water/Sewer – Municipal water and sewer mains exist in the adjacent street rights of way to
serve the development. Capacity for further development per the approved master site plan for
the project is available. Installation of water and sewer will be phased in conjunction with the
street improvements. No changes to conditions of approval relating uniquely to water and sewer
are proposed. The subdivision variance will alter when the improvements are installed. However,
coordination between phases can be appropriately addressed with infrastructure design.
Installation of water and sewer will be coordinated with installation of overlying streets.
Streets – The Growth Policy and subdivision standards require adequate connectivity of the
street grid to ensure sufficient infrastructure to serve the needs of the public and alleviate
congestion. The preliminary plat layout provides the missing link in Stucky Road to connect S.
19th and S. 11th Avenues. This will provide an essential connection in support both of this
development and the future rebuild of Kagy Blvd.
Phasing of street construction is an essential element of this amended preliminary plat. The
applicant proposes to divide street construction into Common Infrastructure – S. 19
th Avenue and
Stucky Road improvements, and then the local street frontage to individual blocks. The current
standard in the municipal code is for all streets to be constructed or for building permits to be
restricted with the final plat. This code provision was created when the majority of subdivision
development was for individual residential lots not subject to further site plan or subdivision
review. It was necessary to have the streets constructed up front due to the difficulties in
coordinating many contractors finishing small segments of streets and the disconnected and
nonfunctional street that would result. If the variance is approved, the code and conditions of
approval assure and secure street completion through a combination of an improvements
agreement with suitable security and a restriction on the ability to construct or occupy on the
created lots until the street is complete.
In this application, the four blocks being created are very large and not suitable for development
without further subdivision or site plan review. The variance request seeks approval for the
building restriction to be applied to occupancy rather than initial construction. The City will have
the ability to review and ensure adequate construction through the improvement agreement and
security which will be in place. In addition, the City will have the opportunity to review any
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 14 of 23
further subdivision or site plan proposal and place further conditions at that time to manage
construction of the street. The City has the authority to limit the scope of what may be
constructed on an individual lot prior to completion of infrastructure during subsequent review of
development on individual blocks.
Police/Fire – The area of the subdivision is within the service area of both these departments. No
concerns on service availability have been identified. The necessary addresses will be provided
to enable 911 response in conjunction with future further subdivision and site plan review.
Stormwater - The subdivision will construct storm water control facilities to conform to
municipal code. Inspection of installed facilities prior to final plat will verify that standards have
been met. Maintenance of the storm water facilities is an obligation of the property owners’
association. Each phase is obligated to install the stormwater controls relevant to that phase.
Therefore, adequate stormwater treatment should be provided.
Parklands - The original subdivision proposal meets the required park dedication and
improvement standards. The Recreation and Parks Advisory Board recommended approval of
the park master plan with earlier review. A final park plan will be completed and approved with
the initial final plat. This issue was previously reviewed with application 19090 and the
necessary conditions or code requirements identified. Review for individual blocks will be
conducted as they develop.
The proposed phasing divides responsibility for installation of park improvements among the
individual blocks. The division lines appear proportionate and workable. Each portion is of a
sufficient size to meet anticipated needs for the assigned block.
4) The effect on the Natural environment
A watercourse, Mandeville Creek, crosses the site from south to north. The creek is located
within the previously approved park. Two crossings for Stucky Road and Arnold Street were
previously approved. This issue was previously reviewed with application 19090 and the
necessary conditions or code requirements identified. No differences have been identified with
this amendment and variance.
5) The effect on Wildlife and wildlife habitat
The subdivision will not significantly impact wildlife and wildlife habitat. The site has been
substantially impacted by small grain production and prior development activity which has
reduced wildlife habitat. There are no known endangered or threatened species on the property.
6) The effect on Public health and safety
The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the
public health, safety and general welfare. The subdivision has been reviewed by the DRC which
has determined that it is in general compliance with Chapter 38. Conditions deemed necessary to
ensure compliance are noted throughout this staff report. All subdivisions must be reviewed
against the criteria listed in 76-3-608.3.b-d, Mont Code Annotated. The provision of municipal
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 15 of 23
infrastructure and transportation is one of the key ways in which the public health and safety is
protected. See the discussion under criterion 3 above.
The Department of Community Development has reviewed this application against the listed
criteria and provides the following summary for submittal materials and requirements.
Preliminary Plat Supplements
A subdivision pre-application plan review for the initial preliminary plat, application 19090, was
completed by the DRC on October 31, 2017. With the pre-application plan review application,
waivers were requested from the materials required in Section 38.220.060 “Additional
Subdivision Preliminary Plat Supplements.” Some items were not waived and all required
material were addressed.
38.220.060.A.1 through 38.220.060.A.20
There are no differences for these supplements from the initial review conducted under
application 19090. Therefore, that analysis stands as documented in the findings of fact.
Subdivision Variance
Article 38.270 establishes standards and procedures for installation of infrastructure required
with subdivisions and other development. The purpose of the Article is to meet state law
requirements, protect the public safety by ensuring needed water, sewer, transportation, parks,
etc. are prepared to support new development, and protect future purchasers and site users. See
the purpose and applicability section of the Article for more information. The Article as it applies
to this application has not been materially revised since 2004.
The applicant requests a variance from the provision, included in several locations in the article,
which restricts issuance of a building permit on a platted lot until all required infrastructure is
installed. The applicant has provided a proposed phasing plan for how infrastructure will be
assigned to individual elements of the subdivision and coordinated timing of construction and
site development.
A common set of improvements which supports all blocks, including expansion of S. 19th
Avenue and the extension of Stucky Road, is proposed to be constructed immediately. The
applicant has approved infrastructure plans for these improvements and is assembling bids to
begin the construction this spring. Other elements, as shown in the phasing plan are assigned to
each block. The elements of infrastructure to be installed are not lessened but are changed in
timing. The construction of infrastructure assigned to each block will be installed in conjunction
with the later approved development on each block. Given the size of Blocks 1-4 any future
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 16 of 23
development will be subject to additional subdivision or site plan review. That additional review
process provides additional opportunities to be assured the infrastructure will be installed.
In order to ensure that the required infrastructure will be installed conditions of approval for this
amended preliminary plat have been developed. An improvements agreement addressing the
phasing, division by blocks of infrastructure elements, and transferring responsibilities as
ownerships shift will be required with the final plat. Staff finds the provisions of the
improvement agreement and conditions of approval adequate to protect the public health, safety
and welfare; protect future purchasers and site users; and avoid injury to the public interest.
State law, 76-3-506, MCA, authorizes variances when “…strict compliance will result in undue
hardship and when it is not essential to the public welfare.” Variances can be granted based on
specific variance criteria included in the subdivision regulations. The City may apply conditions
to “secure the objectives of this chapter” [Chapter 38]. The City has adopted the following
criteria as part of 38.250.080, BMC.
Variance Review Criteria
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;
Criteria is met. The application does not provide less infrastructure or of a lesser quality. It does
change timing. The installation of the infrastructure will be coordinated with site development
dependent on the infrastructure so concurrency is maintained and services can be provided to
those who most rely on it. The City has provisions included in 38.270 for similar circumstances
but of less expansiveness of work. The applicant proposes the variance to effectively extend the
scope. The initial installation of the Common Improvements will establish essential connections
that serve the general public and the individual blocks for future development.
The deferred installation of infrastructure does not jeopardize extensions to other properties
dependent on it. The Common Improvements as described in the phasing plan provides for the
needed infrastructure in support of the development overall and provides the greatest community
benefit by expanding S. 19th Avenue and creating the final link in Stucky Road to 11th Avenue
which will facilitate later expansion of Kagy Blvd, construction traffic for individual blocks, and
improved pedestrian access to MSU. Needed infrastructure adjacent to each proposed block will
be installed at time of development for that block. Therefore, the variance is not contrary to the
criteria.
2. Because of the particular physical surroundings, shape or topographical conditions of
the specific property involved, an undue hardship to the owner would result if strict
interpretation of this chapter is enforced;
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 17 of 23
Criteria is met. The shape of the subdivision is unusual due to the previous phases developed
from the initial tract of record. The subdivision is unusual in that it does not propose creation of
any parcels for immediate use. As described in the introduction to the variance criteria, this
subdivision is only creating parcels which will require additional subdivision or site review
before any construction can be approved. This is quite different from the circumstances for the
majority of subdivisions at the time the standard was initially adopted into the municipal code.
Unlike some subdivisions all of the proposed parcels already have legal and physical access from
existing streets (S. 19th and S. 11th Avenues). There are no unusual topographical conditions for
this property.
The elements of infrastructure to be installed are not lessened but are changed in timing. The
construction of infrastructure assigned to each block will be that expected to be in conjunction
with the later approved development on each block. Given the size of Blocks 1-4 any future
development will be subject to additional subdivision or site plan review. That additional review
process provides additional opportunities to be assured the infrastructure will be installed. The
municipal code allows for concurrent construction of adjacent infrastructure and on-site
improvements. The variance is essentially creating a situation where this approach can be applied
on newly platted lots. The applicant asserts that applying the code literally for this situation
produces a hardship when there are alternate means to address the public purposes of the code.
The applicant’s cited hardship is both financial due to the cost of a financial surety for the work
and the time restriction required due to the scope of improvements limiting work on lots when
there is an opportunity to coordinate onsite and infrastructure construction.
In order to ensure that the required infrastructure will be installed conditions of approval for this
amended preliminary plat have been developed. An improvements agreement addressing the
phasing, division by blocks of infrastructure elements, and transferring responsibilities as
ownerships shift will be required with the final plat. Staff finds the provisions of the
improvement agreement and conditions of approval adequate to protect the public health, safety
and welfare; protect future purchasers and site users; and avoid injury to the public interest. As
the public interests and future purchasers are protected through alternate means, a strict
application is unnecessarily burdensome.
3. The variance will not cause a substantial increase in public costs; and
Criteria is met. The proposed variance is related to procedural requirements of Article 38.270,
Improvements and guarantees. There are no changes in the infrastructure itself. The applicant
and subdivision is not relieved of the obligation to construct the required elements of
infrastructure. Condition 8.a requires that the valuation of the required financial guarantee for the
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 18 of 23
Common Improvements be equal to the costs the City is liable to incur should the applicant
default on the improvements agreement. The City will require a new improvements agreement
with appropriate surety for each block as it moves to future review and construction. This will
ensure there is always needed funding available to complete any outstanding infrastructure to
support proposed development on a specific site. Therefore, there should be no increase in public
costs.
4. The variance will not, in any manner, place the subdivision in nonconformance with any
other provisions of this chapter or with the city's growth policy.
Criteria is met. Article 38.270 is the portion of the chapter that address the installation of
improvements. Therefore, the variance should not create non-conformities with other parts of
Chapter 38. No conflicts with the growth policy have been identified.
SECTION 6 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS
A. PURSUANT to Chapter 38, Article 3, BMC, and other applicable sections of Chapter 38,
BMC, public notice was given, opportunity to submit comment was provided to affected
parties, and a review of the preliminary plat described in these findings of fact was
conducted.
B. The purposes of the preliminary plat review were to consider all relevant evidence
relating to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to
evaluate the proposal against the criteria and standards of Chapter 38 BMC, BMC; and to
determine whether the plat should be approved, conditionally approved, or denied.
C. The matter of the preliminary plat application was considered by the City Commission at
a public hearing on April 20, 2021 at which time the Department of Community
Development Staff reviewed the project, submitted and summarized changes to the
conditions of approval, and summarized the public comment submitted to the City prior to
the public hearing.
D. The applicant acknowledged understanding and agreement with the recommended
conditions of approval, code provisions including the changes to the conditions of approval.
E. The City Commission requested public comment at the public hearing on April 20, 2021
and one member of the public offered testimony in support of the subdivision as submitted.
F. It appeared to the City Commission that all parties and the public wishing to examine the
proposed preliminary plat and offer comment were given the opportunity to do so. After
receiving the recommendation of the relevant advisory bodies established by Article 38.210,
BMC, and considering all matters of record presented with the application and during the
public comment period defined by Chapter 38, BMC, the City Commission has found that
the proposed preliminary plat would comply with the requirements of the Bozeman
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 19 of 23
Municipal Code if certain conditions were imposed. Therefore, being fully advised of all
matters having come before her regarding this application, the City Commission makes the
following decision.
G. The preliminary plat has been found to meet the criteria of Chapter 38, BMC, and is
therefore approved, subject to the conditions listed in Section 2 of this report and the
correction of any elements not in conformance with the standards of the Chapter including
those identified in Section 3 of this report. The evidence contained in the submittal materials,
advisory body review, public testimony, and this report, justify the conditions imposed on
this development to ensure that the final site plan and subsequent construction complies with
all applicable regulations, and all applicable criteria of Chapter 38, BMC.
H. 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 the
City Commission, by following the procedures of Section 76-3-625, MCA. The preliminary
approval of this subdivision shall be effective for three (3) years from the date of the signed
Findings of Fact and Order approval. At the end of this period the City may, at the request of
the subdivider, grant an extension to its approval for a period of mutually agreed upon time.
DATED this ________ day of _____________________, 2021
BOZEMAN CITY COMMISSION
_________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
_______________________________
Mike Maas
City Clerk
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
May4th
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 20 of 23
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
APPENDIX A –PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses: The subject property is zoned REMU (Residential
Emphasis Mixed Use).
The intent of the Residential Emphasis Mixed Use district is:
Residential emphasis mixed-use zoning district (REMU).The intent and purpose of the
REMU district is to establish areas within Bozeman that are mixed-use in character and
to provide options for a variety of housing, employment, retail and neighborhood
service opportunities within a new or existing neighborhood. These purposes are
accomplished by:
1.Emphasizing residential as the primary use, including single household dwellings,
two to four household dwellings, townhouses, and apartments.
2.Providing for a diverse array of neighborhood-scaled commercial and civic uses
supporting residential.
3.Emphasizing a vertical and horizontal mix of uses in a compact and walkable
neighborhood setting.
4.Promoting neighborhoods that:
a.Create self-sustaining neighborhoods that will lay the foundation for healthy
lifestyles;
b.Support compact, walkable developments that promote balanced
transportation options;
c.Have residential as the majority use with a range of densities;
d.Provide for a diverse array of commercial and civic uses supporting
residential;
e.Have residential and commercial uses mixed vertically and/or horizontally;
f.Locate commercial uses within walking distance;
g.Incorporate a wider range of housing types; and
h.Encourage developments that exhibit the physical design characteristics of
vibrant, urban, and pedestrian-oriented complete streets.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 21 of 23
5.Providing standards and guidelines that emphasize a sense of place:
a.Support or add to an existing neighborhood context;
b.Enhance an existing neighborhood's sense of place and strive to make it more
self-sustainable;
c.Encourage a new neighborhood commercial center(s) with a unique identity
and strong sense of place;
d.Develop commercial and mixed-use areas that are safe, comfortable, and
attractive to pedestrians; and
e.Reinforce the principle of streets as public places that encourage pedestrian
and bicycle travel, transit, on-street parking and physical elements of
complete streets.
6.Providing standards and guidelines that emphasize natural amenities:
a.Preserve and integrate the natural amenities into the development; and
b.Appropriately balance a hierarchy of both parks and public spaces that are
within the neighborhood.
7.Providing standards and guidelines that emphasize the development of centers:
a.Group uses of property to create vibrant centers;
b.Where appropriate create a center within an existing neighborhood;
c.Facilitate proven, market driven projects to ensure both long and short-term
financial viability;
d.Allow an appropriate blend of complementary mixed land uses including, but
not limited to, retail, offices, commercial services, restaurants, bars, hotels,
recreation and civic uses, and housing, to create economic and social vitality;
e.Foster the master plan development into a mix of feasible, market driven
uses;
f.Emphasize the need to serve the adjacent, local neighborhood and as well as
the greater Bozeman area; and
g.Maximize land use efficiency by encouraging shared use parking.
8.Promoting the integration of action:
a.Support existing infrastructure that is within and adjacent to REMU zones;
b.Encourage thoughtfully developed master planned communities;
c.Provide flexibility in the placement and design of new developments and
redevelopment to anticipate changes in the marketplace;
d.Provide flexibility in phasing to help ensure both long and short term
financial viability for the project as a whole;
9.Providing standards and guidelines that promote sustainable design
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 22 of 23
Use of this zone is appropriate for sites at least five acres in size and areas located
adjacent to an existing or planned residential area to help sustain commercial uses
within walking distance and a wider range of housing types.
Adopted Growth Policy Designation: The Future Land Use Map of the Bozeman Community
Plan designates the subject property to develop as “Residential Mixed Use” which is described
as:
This category promotes neighborhoods substantially dominated by housing, yet integrated with
small-scale commercial and civic uses. The housing can include single-attached and small
single-detached dwellings, apartments, and live-work units. If buildings include ground floor
commercial uses, residences should be located on upper floor. Variation in building mass, height,
and other design characteristics should contribute to a complete and interesting streetscape.
Secondary supporting uses, such as retail, office, and civic uses, are permitted on the ground
floor. All uses should complement existing and planned residential uses. Non-residential uses are
expected to be pedestrian oriented and emphasize the human scale with modulation in larger
structures. Stand alone, large, non-residential uses are discouraged. Non-residential spaces
should provide an interesting pedestrian experience with quality urban design for buildings, sites,
and open spaces.
This category is appropriate near commercial centers. Larger areas should be well served by
multimodal transportation routes. Multi-unit, higher density, urban development is expected.
Any development within this category should have a well-integrated transportation and open
space network that encourages pedestrian activity and provides ready-access within and adjacent
development.
APPENDIX B – NOTICING AND PUBLIC COMMENT
Notice was provided at least 15 and not more than 45 days prior to the Planning Board and City
Commission public hearings. Per Article 38.220, Notice was provided by posting the site,
mailing by certified mail to adjacent property owners and by first class mail to all other owners
within 200 feet, and by legal advertisement publication in the Bozeman Daily Chronicle. Content
of the notice contained all elements required by Article 38.220, BMC. Due to a notice
distribution error by the applicant a new notice was published in the Bozeman Daily Chronicle
and necessary posting and mailing of notices was performed.
One public comment was received at the City Commission hearing in support of the application
as submitted.
APPENDIX C - OWNER INFORMATION
Owner/Applicant: RTR Holdings II, LLC 22 Turtle Rock Court, Tiburon CA 94920
Representative: Stahly Engineering & Associates, 851 Bridger Drive, Suite 1, Bozeman, MT
59715
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D
21066 City Commission Findings of Fact – South University District Amended Ph. 3
Subdivision Page 23 of 23
Report by:Chris Saunders, Community Development Manager
FISCAL EFFECTS
The development will generate the typical costs and revenues of development.
DocuSign Envelope ID: E8A178FE-5018-46F1-8DF5-CBF27B5B9B7D